Introduction to
Freedom of Religion (p. 837-842)
Important Questions
How are the pre-Charter
Constitution and the Charter related?
How is the purpose and
effect of legislation determined in Charter analysis? Does legislative purpose
stay the same or change as society changes over time?
What is the scope and
nature of the s 2(a) right to freedom of religion?
To what
extent does the Charter allow religiously-derived values of society to be encapsulated
in legislation?
Relevant Charter provisions
Section
2(a) text states that “everyone has the following fundamental freedoms –
freedom of conscience and religion”. In s. 15, the Charter’s equality
provision, it is provided that the state cannot discriminate on the basis of
religion. However, s. 15(2) provides that it is not contrary to the guarantees
set out in s 15(1) for the government to improve conditions of disadvantaged
individuals or groups, and 15(2) includes mention of those disadvantaged due to
religion.
Relevant
interpretative provisions to s 2(a) include the preamble to the Constitution, “Whereas
Canada is founded upon principles that recognize supremacy of God and rule of
law”, and s. 27, which requires that Charter interpretation be “consistent with
the multicultural heritage of Canadians”.
Contrasting Approaches to Freedom of Religion
Religious freedom consists
of 2 basic ideas:
(1)
Establishment
of religion
a.
The
state cannot exercise its power to impose the state’s preferred religion on
individuals or on groups in the general population. This establishment could be
done in a concrete or symbolic way.
(2)
Protection
of “free exercise” of religion
a.
Emphasis
is given to individual/group religious practices and stipulates that it is
inappropriate for state to interfere with religious belief or practice. This
idea usually involves adherents of minority religions, and it is common for the
interference to arise as the result of laws that had no such purpose but which
nonetheless have the effect of impeding on free exercise of religion.
By its
guarantee of freedom of conscience and religion, section 2(a) appears to offer
protection not only to the free exercise of theocentric beliefs and practices,
subject to justifiable limitations, but also to non-theistic system of belief
and morality. This is in keeping with provisions in other human rights
documents which recognize and affirm freedom of thought and conscience together
with a guarantee of religious freedom. These ideas are captures in s 2(b) which
protects freedom of “thought, belief and opinion” as well as freedom of
expression.
The
early cases on religious freedom produced a dramatic reduction in the religious
framing of life in Canada that coincided with general societal trends. The SCC
was also more confident in its role as guardian of the constitutional order,
including “large and liberal” rights protection, and more strict in its
analysis of justifiable limits on rights under s 1 in the early cases.
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