Freedom of conscience: what it means for Canadians.

• Author: McKay-Panos, Linda
• Position: Special Report: Freedom of Conscience

While the Canadian Charter of Rights and Freedoms ("Charter") s. 2(a) provides that "everyone has the right of freedom of conscience and religion", the Supreme Court of Canada ("SCC") has only ever heard cases that primarily engage freedom of religion. It has not yet heard a freedom of conscience case that does not also involve freedom of religion. The Court has made limited comments about freedom of conscience in minority decisions or in obiter (a remark said in passing that does not form a necessary part of the court's decision). Since freedom of religion and freedom of conscience are two different (albeit related) rights, it would be helpful if the Supreme Court of Canada would be asked to provide guidance on freedom of conscience.

In the meantime, we have some guidance in international law, academic literature and other case law. Freedom of conscience in a democratic society is said to be the "freedom to have, hold and act upon (or not) one's conscientiously-held beliefs" (Greg Peters, Nurturing the Spirit of Democracy: Freedom of Conscience, University of New Brunswick, 2001 Online: www.unb.ca/democracy/English/Ideas/ Freedoms/Conscience/conscience%20paper.pdf)

International law provides the following guidance in the United Nations' Universal Declaration of Human Rights:

Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.

Article 18: Everyone has the right to freedom of thought, conscience and religion; this includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The latter article is echoed in the International Covenant on Civil and Political Rights, which provides:

Article 18: Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

The SCC has provided guidance in the case of R v Big M Drug Mart Ltd., [1985] 1 SCR 295. This case deals with a challenge to the Lord's Day Act. Chief Justice Dickson states (para 123):

The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions...