25 years of the Charter of freedom of religion.

• Author: Fugeman-Millar, Andrea
• Position: Case overview

Historically, the relationship between freedom of religion and government power has been volatile. Government-imposed cruelties of gross proportion and unspeakable tragedy have been imposed upon individuals for their religious beliefs, let alone actions, for millennia. However, the international understanding of government-sanctioned persecution of the members of the Jewish faith in the Holocaust in World War II created an outcry to have freedom of religion protected. In Canada, "fundamental freedom of religion" is enshrined in the Charter of Rights as part of the Constitution of Canada.

Protection of Freedom of Religion Prior to the Charter.

Cases of the pre-Charter era show the struggle for protection for freedom of religion. In Saumer v. The City of Quebec, a member of the Jehovah's Witness questioned the validity of a Quebec City by-law that made it illegal to distribute pamphlets and literature on the streets of the city without a permit or permission from the city police chief. The Superior Court of Quebec struck down the bylaw. The majority stated that the Jehovah's Witnesses had the right to express their religion freely and in any way they chose. Even if the bylaw was constitutional, it would violate the right of the Jehovah's Witnesses to practice their religion. Justice Locke went so far as to say that the law was not about maintaining order and cleanliness on the streets, but about directly stopping the Jehovah's Witnesses from handing out their literature on the streets of the city. The appeal was allowed with costs.

In Roncarelli v. Duplessis [1959] SCC, the plaintiff had his liquor licence for his establishment cancelled prior to the expiry date. The plaintiff contended that the defendant, the Premier of Quebec, told the Liquor Commission to cancel his licence because he, as a Jehovah's Witness, had acted as a bailsman for many members of his sect arrested for distributing religious material on the streets of Quebec. The trial judge awarded damages to the plaintiff, but the defendant appealed. The majority of Supreme Court of Canada upheld the trial judge's decision. The Court ruled that there was no authority in the Attorney-general's Department Act, the Executive Power Act, or the Alcoholic LiquorAct enabling the defendant to direct the cancellation of a permit under the Alcoholic LiquorAct. Mr. Roncarelli was awarded over $33,000 in damages plus interest payable by the Premier, Mr. Duplessis.

There are three very notable cases that take further steps toward the freedom of religion prior to 1982: Chaput v. Romain,[1955] S.C.R. 834; Brown v. Les Cure et Marguilliers do l'oeuvre et de la Fabrique de les Paroisse de Montreal (the Guibord case; and R. v. Robertson and Rosetanni [1963] S.C.R. 651.

In Chaput v. Romain, the Supreme Court held that all religions have equal rights based upon tradition and the rule of law. It is important to note that at the time, no statutes formed the basis for this argument.

Arguments over religious freedom have also had an important role in the formation of Canadian institutions--including the Supreme Court itself. In Brown v. Les Cure et Marguilliers de l'oeuvre et de la Fabrique de les Paroisse de Montreal, also know as the Guibord case(1874-75), 31 L.T.R. 555, the Judicial Committee of the Privy Council (J.C.P.C.) in England ruled that the Catholic Church in Quebec had to perform a holy burial for an individual who had tried to limit the Church's influence in his lifetime. It found that if the individual was not afforded a...