Freedom of Religion: Introduction
(Pages 837 – 842)
Religion is an important element in understanding and
applying the Canadian Constitution, as evidenced by sections 2(a) and 15, which
both make direct references to rights related to religion.
2. Everyone
has the following fundamental freedoms:
(a) freedom of conscience and religion;
15. (1) Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
(2) Subsection (1) does not preclude any law,
program or activity that has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are disadvantaged
because of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
These sections were written in a spirit of compromise
between groups wanting a broader drafting, and others, such as the federal
Conservative Party, who proposed a more spiritually proscriptive s.1, which
would only validate freedoms that were “founded on a respect for moral and
spiritual values and the rule of law.”
Furthermore, there are two interpretive provisions that are relevant
to the subject of religion under the Charter. These are the preamble, which
states “Whereas Canada is founded upon principles that recognize the supremacy
of God and the rule of law”, and s. 27, which mandates Charter interpretation
be “consistent with the multicultural heritage of Canadians.”
Religious freedom consists of two basic ideas. The first is
that the State cannot exercise its power to impose its preferred religion on
individuals or groups or the “establishment” of religion. The second is that it
is inappropriate for the State to interfere with religious beliefs or
practices. This is referred to as the protection of “free exercise” of
religion.
The general question raised by the issue of freedom of
religion is the relationship that exists between religion and the law in Canada
and how the Constitution affects this relationship.
Often, when Charter issues arise, the problem is finding a
balance between the impermissible establishment of religion and the
interference with the free exercise of religion. This often forces courts to define the place
of religion in Canadian society, which is a difficult, if not impossible, task.
The guarantee of “freedom of conscious and religion” appears
to give protection for not only theocentric beliefs and practices, but also to
non-theistic systems of belief and morality. This leads to certain questions:
Can the state privilege religion over non-religion? And do claims to the free
exercise of religion have a higher constitutional status than claims to be free
of religion altogether?
In asking these questions, a number of claims related to
freedom of religion can be identified. Some include:
- Accommodation claims of religious minorities
when general rules make it difficult for them to live according to their
sincerely held religious obligations
- Claims by secular individuals who seek to be
free from state-imposed religious practices
- Religious communities who seek protection by way
of exemption or accommodation to facilitate their particular way of life
- Individuals whose commitment to a religious
community may not include the community’s full range of beliefs or practices
A final issue to be addressed is whether individuals can use
Canadian law to secure protection of interests that have purely religious
significance. This debate gives rise to the concern that Canadian law should
not become a tool of religious oppression.
Canadian
Constitutional Law, 4th ed., pg. 837-842
