Charter s. 2(a) Freedom of Religion and Conscience LAW 3002 Professor Tamara Brooks 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion. Freedom of religion has been defined as “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practise or by teaching and dissemination” The term “religion” has not been specifically defined, although the Supreme Court has stated that beliefs or practices rooted in secularism are not protected by the guarantee of freedom of religion and, further, that “religion” typically involves: a particular and comprehensive system of faith and worship; a belief in a divine, superhuman or controlling power; and/or a personal conviction or belief that fosters a connection with the divine or with the subject or object of that spiritual faith R v Big M Drug Mart Ltd., [1985] 1 SCR 295 • Big M Drug Mart had been accused of selling merchandise on Sunday, contrary to the Lord's Day Act. On 24 April 1985, the Supreme Court of Canada found that this federal statute was contrary to the freedom of religion guaranteed in s. 2(a) of the Charter. • The Court held that the purpose of the Lord's Day Act was compulsory religious observance. • It held the population to an ideal of the Christian religion. In the area of freedom of religion, the Lord's Day Act did not constitute a reasonable limit demonstrably justifiable in a free and democratic society and, therefore, it could not be saved pursuant to s. 1 of the Charter. • This statute furthermore was not in accordance with the maintenance and encouragement of the multicultural heritage of Canadians recognized in s. 27 of the Charter. S.C.C. on s. 2(a) • “The purpose of freedom of conscience and religion becomes clear. The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.” • After the Lord’s Day Act was struck down, Ontario created the Retail Business Holidays Act, which provided for a number of secular and religious holidays (Christmas, New Years Day, Good Friday, Canada Day, Labour Day, etc.) R. v. Edwards Books and Art Ltd. • Provided exemptions: If a store had fewer than 500 sqft., less than 7 employees, and was closed the preceding Saturday, it could be open on Sunday. • Also, exemptions based on the type of store (corner store, pharmacies, gas stations). • 4 Ontario retailers charged for violating the law. • Action brought by larger Jewish and 7th Day Adventist retailers. • Held: Retail Business Act upheld. There is a violation of 2(a), but saved under s. 1 • Reasons: The purpose of the Act was secular, not religious R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 • “The majority judgment of the Court in Big M Drug Mart Ltd. was careful, in defining the freedom from conformity to religious dogma, to restrict its applicability to circumstances when the impugned legislation was motivated by a religious purpose” (paragraph 100): • What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. (p. 337) • If I am a Jew or a Sabbatarian or a Muslim, the practice of my religion at least implies my right to work on a Sunday if I wish. It seems to me that any law purely religious in purpose, which denies me that right, must surely infringe my religious freedom. (p. 338) • For the present case it is sufficient in my opinion to say that whatever else freedom of conscience and religion may mean, it must at the very least mean this: government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose. (p. 347) • The Retail Business Holidays Act was enacted with the intent of providing uniform holidays to retail workers. • Not a surreptitious attempt to encourage religious worship. • The Act includes Victoria Day, Canada Day and Labour Day as "holidays". These are secular holidays and I am not prepared to infer that they have been included to disguise a religious purpose. • The variety of other exemptions, such as those pertaining to small businesses and tourism, also suggests that secular and not religious values prompted the legislation. Administrative Law • Different framework from criminal law • Administrative Agencies: Exercise power delegated to them by the provincial and federal governments to make and administer laws (eg. oversee building permits; provincial licensing; Canada trade) • Only have the powers that are given to them under the governing statute • Courts judicially review administrative decisions that engage Charter rights • Judicial Review by Courts: Tests the lawfulness of decisions by public bodies • Supervisory jurisdiction – concerned with the manner in which the decision maker body applied the relevant law – Did the administrative decision maker make a decision that was within its powers. Judicial Review of Administrative Decisions SCC hears appeal from Court of Appeal decision Court of Appeal hears appeal from Superior court decision Superior Court hears judicial review of Administrative Decision SCC on Appeal from Court of Appeal for BC and Court of Appeal for Ontario • Law Societies in B.C. and Ontario are Administrative bodies and made administrative law decisions. • Freedom of religion protects the rights of religious adherents to hold and express beliefs through both individual and communal practices. Where a religious practice impacts others, however, this can be taken into account at the balancing stage. • In this case, the effect of the mandatory Covenant is to restrict the conduct of others. The LSBC's decision prevents the risk of significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law school. These individuals would have to deny who they are for three years to receive a legal education. • Being required by someone else's religious beliefs to behave contrary to one's sexual identity is degrading and disrespectful. Law Society of British Columbia v Trinity Western University, [2018] 2 SCR 293 “It is clear that the LSUC was entitled to consider TWU's admissions policy to determine whether to accredit the proposed law school. The LSUC's enabling statute requires the Benchers to consider the overarching objective of protecting the public interest in determining whether a particular law school should be accredited. The LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest. The LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.” Trinity Western University v Law Society of Upper Canada, [2018] 2 SCR 453 Protecting Spiritual Places • State's duty under s. 2(a) is not to protect the object of beliefs • State's duty is to protect everyone's freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination. • Charter protects the freedom to worship but does not protect the spiritual focal point of worship. • s. 2(a) protects the right to freely hold the religious beliefs that motivate such practices and not the places from where they derive subjective spiritual meaning. Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), [2017] 2 SCR 386 Overview • The Ktunaxa are a First Nation whose traditional territories include an area in British Columbia that they call Qat’muk. Qat’muk is a place of spiritual significance for them because it is home to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs and cosmology. • Glacier Resorts sought government approval to build a year-round ski resort in Qat’muk. The Ktunaxa were consulted and raised concerns about the impact of the project, and as a result, the resort plan was changed to add new protections for Ktunaxa interests. • The Ktunaxa remained unsatisfied, but committed themselves to further consultation. Late in the process, the Ktunaxa adopted the position that accommodation was impossible because the project would drive Grizzly Bear Spirit from Qat’muk and therefore irrevocably impair their religious beliefs and practices. • After efforts to continue consultation failed, the Minister responsible declared that reasonable consultation had occurred and approved the project. The Ktunaxa brought a petition for judicial review of the approval decision on the grounds that the project would violate their constitutional right to freedom of religion. • The chambers judge dismissed the petition, and the Court of Appeal affirmed that decision. • To establish an infringement of the right to freedom of religion, the claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) that the impugned state conduct interferes, in a manner that is non-trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief. • In this case, the Ktunaxa sincerely believe in the existence and importance of Grizzly Bear Spirit. They also believe that permanent development in Qat'muk will drive this spirit from that place. • The second part of the test, however, is not met. The Ktunaxa must show that the Minister's decision to approve the development interferes either with their freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief. Yet the Ktunaxa are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. • The state's duty under s. 2(a) is not to protect the object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit. Rather, the state's duty is to protect everyone's freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination.
