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And Then There Was One: Freedom of Religion in Canada – the Incredible Shrinking Concept

  • Margaret H Ogilvie (a1)

Defining religion for the purposes of constitutional or human rights protection is a challenge shared by UK and Canadian courts in this era after the enactment of the Human Rights Act 1988 and the Canadian Charter of Rights and Freedoms 1985, respectively: neither defines what is to be protected. Canadian courts have been impressed with this task since 1982 and, unsurprisingly, the Supreme Court of Canada (SCC) has considered the content and scope of section 2(a), the fundamental right to freedom of conscience and religion, on a number of occasions, most recently in Syndicat Northcrest v Amselem. The outcome in Amselem is a salutary reminder that, for post-modern courts, religion can be whatever they want it to be, and, indeed, be nothing in particular, which merits protection or not at the whim of these courts. In Amselem, a 5–4 majority of the SCC reduced religion for Charter purposes to any beliefs which the complainant calls religion and persuades a court to be sincerely held. A court then has the discretion to decide whether to extend legal protection to those beliefs (and their allegedly offensive practice) without giving credible reasons beyond the complainant's sincere belief in them. Amselem may, therefore, be of considerable interest to British lawyers regarding the potential lurking within ostensibly generous constitutional protections for religion ultimately to reduce religion to nonsense undeserving of legal protection.

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1 Human Rights Act 1998, Sch 1, incorporating European Convention on Human Rights, Article 9.

2 RSC 1985, App II, no 44.

3 R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 (SCC); R v Edwards Books & Art Ltd (1986) 35 DLR (4th) 1 (SCC); R v Jones (1986) 31 DLR (4th) 569 (SCC); Ross v New Brunswick School District No 15 (1996) 133 DLR (4th) 1 (SCC); Trinity Western University v BCCT (2001) 199 DLR (4th) 1 (SCC).

4 (2005) 241 DLR (4th) 1 (SCC).

5 With apologies to Lewis Carroll, Through the Looking Glass, ch 6.

6 Nehemiah 8:2–3, 13–15.

7 RSQC C-12: ‘1. Every human being has a right … to personal security … 2. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion … . 6. Every person has the right to the peaceful enjoyment … of his property … 9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Quebec. In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law’.

8 (2005) 241 DLR (4th) 1 (SCC) at 22.

9 Ibid.

10 Ibid, at 23–26.

11 Ibid, at 26.

12 Ibid, at 27.

13 Ibid.

14 Ibid, at 28.

15 Ibid, at 29–30; JS Mill, On Liberty and Considerations on Representative Government (ed RB McCallum, Oxford, 1949), p 11.

16 (2005) 241 DLR (4th) 1 (SCC) at 39–42.

17 Ibid, at 72–82.

18 Ibid, at 52–53.

19 Ibid, at 53–58.

20 Ibid, at 62–71.

21 R v Big M Drug Mart Ltd; R v Edwards Books & Art Ltd.

22 (2002) 59 OR (3d) 423 (SCJ).

23 Many editions. See, for example, Toronto, 1995.

24 For an extended study of ‘sincerity’ prior to Amselem, see: MH Ogilvie, ‘Who do you say that you are? Courts, creeds and Christian identity’, (2000) 3 Journal of the Church Law Association 146.

25 RSQC, ss 6, 9.1.

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
  • URL: /core/journals/ecclesiastical-law-journal
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