Freedom of Conscience and Religion

Section 2 of the Charter: “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion”

Freedom of Conscience

Freedom of conscience is not as straightforward as freedom of religion. Few cases have explored the contours of this freedom and future litigation is needed to further develop this area of the law. What is clear is that non-believers are included in the freedoms under s. 2(a). To what extent and in what capacity, however, has yet to be defined in most situations.

Maurice v. Canada (Attorney General) Federal Court of Canada – Trial Division, 2002
Maurice believed on moral grounds that he was not to eat meat, amongst other things. He had been a member of the Hare Krishna faith, but later renounced this. He asked for vegetarian meals while incarcerated, but the Warden refused because the prison only gave vegetarian meals for religious or medical reasons. The Federal Court of Canada found that vegetarianism can be a matter of conscience, not tied with religious beliefs, and that it was therefore a violation of Maurice’s freedom of conscience to deny him vegetarian meals.

Freedom of Religion Freedom of religion consists of both negative and positive rights. A negative right is a right to be left alone. This means, for example, the right to do things without being subjected to certain conditions, or the right not to be coerced into doing something. A positive right, on the other hand, is permission to do something or the right to a benefit. As a negative right, the freedom of religion provides freedom from coercion, either coercion to act against one’s religious beliefs or coercion to follow a set of religious beliefs. As a positive right, it allows an individual to hold and declare religious beliefs, and to manifest these beliefs in worship, practice, teaching, and dissemination. In order to establish a violation of freedom of religion, one must use the test created in Syndicat Northcrest v. Amselem:

1) The individual must sincerely believe in a belief or practice that is tied with religion. This belief or practice does not have to be mandatory to the religion as long as the individual her/himself sincerely believes s/he must follow it.

2) The legislation must interfere with the individual’s ability to follow this religious belief or practice in a way that is more than simply trivial. Even if the legislation substantially interferes with the belief, however, the court will also look at whether the belief or practice harms others or interferes with someone else’s rights.

R. v. Big M Drug Mart Ltd. Supreme Court of Canada, 1988
Big M Drug Mart Ltd. (“Big M”) was criminally charged for selling goods on a Sunday which went against the Lord’s Day Act. Big M challenged the legislation. The Supreme Court of Canada (the “SCC”) found that the Lord’s Day Act violated freedom of conscience and religion because it coerced religious observance by forcing everyone, including those who had no religious attachment to Sunday, to observe a Christian day of rest.

B. (R.) v. Children’s Aid Society of Metropolitan Toronto Supreme Court of Canada, 1995
S.B. was born premature. She needed a blood transfusion, but her parents were Jehovah’s Witnesses and refused to consent to the treatment based on their religious views. The Provincial Court granted Children’s Aid Society wardship of S.B. for 72 hours, later extended to 21 days, under the Ontario Child Welfare Act (the “Act”) to allow her to receive the blood transfusion. Her parents appealed these orders, arguing, among other things, that it violated their freedom of religion. The SCC held that the Act violated the parents’ freedom of religion but was justified under section 1 because of the state interest in protecting children.

Grant v. Canada (Attorney General) Federal Court of Canada – Trial Division, 1995
The RCMP Regulations were amended to allow Sikhs to wear turbans and other religious symbols while in uniform. The plaintiffs argued that this change was unconstitutional on several grounds. The Federal Court of Canada (the “FCC”), however, upheld the amendment. Under the freedom of religion argument, the FCC found that a law with a religious purpose was constitutional as long as it did not constrain or compel religious observance. In this situation, allowing a Sikh RCMP officer to wear a turban did not force the public to participate in or adopt his religious beliefs.

Trinity Western University v. British Columbia College of Teachers – Supreme Court of Canada, 2001
Trinity Western University (“TWU”), a private Christian school, applied to the British Columbia College of Teachers (the “BCCT”) to assume full responsibility of its teaching program. The BCCT refused to approve the application because it believed that teachers graduating from TWU’s program would discriminate against students in the classroom. This belief arose from TWU’s lifestyle statement which included a clause about refraining from homosexual behavior. The SCC found that in order to restrict the freedom of religion of teachers graduating from TWU, there had to be evidence that their religious beliefs led to discrimination in the classroom. There was no such evidence in this case. Subsequently, the SCC ruled that the BCCT was wrong to deny TWU’s application simply based on the fact that TWU students held a particular religious view.

Syndicat Northcrest v. Amselem – Supreme Court of Canada, 2004
The appellants were Orthodox Jews who set up succahs (temporary huts) on the balconies of their apartments for the Jewish festival of Succot. They were asked to remove the succahs because of by-laws prohibiting constructions on balconies. The appellants argued that this was a violation of their freedom of religion. The SCC agreed; it found that two elements must exist for legislation to violate freedom of religion and that both were met in this case (test outlined above).

Owens v. Saskatchewan (Human Rights Commission) – Saskatchewan Court of Appeal, 2006
Owens published an ad in a newspaper of two stickmen holding hands with the not-permitted symbol over top, along with bible verses condemning homosexual behavior. A complaint was filed with the Board of Inquiry at the Saskatchewan Human Rights Commission. One of Owens’ arguments at court was that the ad was an exercise of his freedom of religion. The Saskatchewan Court of Appeal (the “SKCA”) found for Owens. The SKCA ruled that Owens was engaging in the public policy debate about homosexuality and was not promoting hatred.

Multani v. Commission scolaire Marguerite-Bourgeoys – Supreme Court of Canada, 2006
Gurbaj Singh was an orthodox Sikh who carried a kirpan (a religious object made of metal that looks like a dagger) under his clothes. It fell out by accident at school, and he was told he could no longer carry a kirpan unless it was made of something harmless. The SCC found that prohibiting a real kirpan was an infringement of Singh’s freedom of religion because he sincerely believed he had to wear a metal kirpan, not just a wooden or plastic one. The Court, in the section 1 analysis, found that there was no evidence of kirpans ever being used as weapons in school and that prohibiting the kirpan would demonstrate a lack of freedom of religion and respect for minorities in Canada. The SCC ruled that Singh could wear his kirpan under certain conditions.

A.C. v. Manitoba (Director of Child and Family Services) – Supreme Court of Canada, 2009
C was a 14-year-old Jehovah’s Witness who refused a blood transfusion because of her religious views. The Manitoba Child and Family Services Act (the “Act”) presumed that an adolescent’s views were determinative if over 16. Because C was under 16, however, the court authorized the blood transfusion because it was seen to be in her best interest. C, along with her parents, challenged the court order and the Act. The SCC found that the “best interests” standard was a sliding scale, allowing for the views (including the religious views) of an adolescent under 16 to be more and more determinative based on his/her maturity. The SCC held that this was an appropriate balance between the rights of young persons and the state’s interest in protecting vulnerable children. It therefore did not violate, among other things, C’s freedom of religion.

Alberta v. Hutterian Brethren of Wilson Colony – Supreme Court of Canada, 2009
Alberta passed a universal photo requirement for driver’s licenses. The Hutterian Brethren of Wilson Colony (the “Hutterites”) argued that this was a violation of their freedom of religion because they believed having their picture taken went against the Ten Commandments. The SCC ruled that while the universal photo requirement was a violation of the Hutterites’ freedom of religion, it was justified under section 1 because it helped prevent identity theft.

Ontario (Human Rights Commission) v. Christian Horizons – Ontario Superior Court of Justice, 2010
Christian Horizons was Christian organization that ministered to individuals with developmental disabilities. It required its employees to sign a lifestyle statement which included a clause about abstaining from homosexual relations. Heintz, a support worker, signed this statement, but later became involved with a member of the same sex. She filed a complaint with the Human Rights Commission. Under s. 24(1)(a) of the Human Rights Code, certain organizations are allowed to discriminate in hiring employees if the occupational qualification is reasonable and bona fide (in good faith) based on the nature of the employment. The Ontario Superior Court of Justice (the “Court”) held that while Christian Horizons fell under this section, refraining from homosexual behavior was not a bona fide qualification for a support worker. In other words, being homosexual had no bearing on the labour that a support worker performed. The Court ruled that Christian Horizons could keep their lifestyle statement but had to remove the clause referring to same sex relationships.

Marriage Commissioners Appointed Under the Marriage Act (Re) – Saskatchewan Court of Appeal, 2011
Certain marriage commissioners in Saskatchewan were opposed to solemnizing same sex marriages because it went against their religious beliefs. The Saskatchewan Court of Appeal (the “SKCA”) was asked to determine whether two amendments to The Marriage Act would be constitutional. The first would allow marriage commissioners appointed before November 5, 2004 to refuse to solemnize same-sex marriages for religious reasons. The second amendment would allow any marriage commissioner to do the same. The SKCA found that both amendments would be unconstitutional. Even though requiring a marriage commissioner to marry a couple against his/her religious beliefs was a violation of freedom of religion, these amendments would violate the section 15(1) equality rights of homosexuals.

Reference re: Criminal Code of Canada (B.C.) – British Columbia Supreme Court, 2011
Bountiful, a closed religious community in BC, was investigated for polygamy. Subsequently, the BC Supreme Court (the “BCSC”) was asked to determine: a) whether the Criminal Code provision prohibiting polygamy was constitutional, and b) whether polygamy was a crime only if there was a minor or abuse involved. The BCSC ruled that the provision against polygamy infringed the freedom of religion of certain groups. This infringement was justified, however, under section 1 because of the harm polygamy brought to women, children, and society. Nonetheless, the BCSC found that the provision was unconstitutional where it criminalized children between the age of 12 and 17 who were married into polygamy. The Court also held that the offence of polygamy did not require a minor or abuse to be involved, but was a crime in and of itself.

S.L. v. Commission scolaire des Chênes – Supreme Court of Canada, 2012
Quebec passed a mandatory Ethics and Religious Culture Program for its schools. The appellants requested an exemption from this course for their children, but were denied. The appellants argued that forcing their children to take this course infringed their freedom of conscience and religion. The SCC held, however, that because the appellants did not show how this course would interfere with teaching their own religious beliefs to their children, there was no violation of freedom of religion. The SCC wrote that diversity and multiculturalism was a part of Canadian society and exposing children to this early on was simply a part of life.

Saskatchewan Human Rights Commission v. William Whatcott – Supreme Court of Canada, 2013
The case dealt with the “hate-speech” provision of the Saskatchewan Human Rights Code. Whatcott had distributed four flyers criticizing the inclusion of LGBT-related materials in public education and criticizing the advertising standards of a LGBT magazine. The magazine ran classified ads allegedly designed to facilitate same-sex casual encounters between men and under-aged boys. Four individuals who received the flyers filed complaints with the Saskatchewan Human Rights Commission alleging a violation of the “hate speech” provision of the Code.

In its decision, the Supreme Court upheld and reinforced its earlier precedent set out in Taylor by upholding the constitutionality of “hate speech” provisions in human rights codes. It attempted to provide further guidance to Canadians in determining what does and does not constitute “hate” under human rights legislation and reinforced the notion that Holy Scriptures ought not to be considered hate speech and that any limits placed on religious expression must be justified and appropriate and that the threshold for doing so is a high one.