Freedom of Religion: Introduction

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