Freedom Of Religion In Canada's Constitution

Every country has a dominant culture—a culture that is usually rooted in religion. In Europe, prior to the 19th and 20th century, politics, law, society, economics, and cultural norms were all primarily shaped by Christianity. Despite the rise of historical developments that opposed the teachings and traditions of Christianity such as Humanism and the Enlightenment, the power of the clergy remained untouched. Moreover, until the gradual uprising of Western civilization against the domination of the Church which reflected the desire of a democratic society that embodies secularism, along with the emergence of capitalism, modern science, Protestantism, and religious Reformation movements alike, religion had always been present throughout the
course of history. By some historians the influence of religion is believed to have never vanished regardless of the rise of secularization, and since then, the clash between secularism and religion has accelerated wherever the two opposing beliefs intersect. The endless battle between religious beliefs and secularism, however, has no boundaries in neither time nor space. It extends beyond the Western world of the 19th century, and is present all over the world.
Over the last decades, countries, specifically in the Western world, have been confronted with new challenges concerning the accommodation of religious beliefs as religious minorities are becoming more visible due to the mass immigration from the East to the West as a result of the growing political turmoil and regional hostilities in certain areas of the world. Regardless of the increasing attempts and ongoing efforts to expand integration opportunities, Europe’s crusade to set religious doctrines completely aside, its extreme movement towards feckless secularization, and the West’s overall growing detachment from religion in all sectors make grave contributions to the immigrants’ struggle for adaption. In addition, the incompatibility of secular beliefs and religious dogma makes it inconceivable for these two set of laws to coexist in harmony as it will consequentially undermine the value and importance of law as well as its effectiveness in society. The Canadian society has not been spared from the troubles induced by this issue either, and the struggle to seek a balance between religion and secularism has manifested itself in Canada’s judicial system. The difficulties arisen from this topic are mainly due to Canada’s complex history. Being a composition of “its founding peoples, the French Roman Catholics who settled New France, the English Protestants who settled Upper Canada, and the Aboriginals [who have been inhabiting its lands for millennia], as well as a product of robust immigration,” Canada is best described as a “bilingual, multicultural federation operating within a pluralistic society.” Although religion is indisputably of paramount importance in Canadian society, there has been a growing trend towards secularization over the last decade—a trend more acutely felt in Quebec in the aftermath of the Quiet Revolution. In consequence of a growing secular society, “there has been a steady stream of cases coming before Canadian courts asserting religious freedom and religious accommodation in both the public and private legal spheres.” Even though freedom of religion became a constitutionally protected right in 1982 with the adoption of the Charter of Rights and Freedom, the same Charter accelerated Canada’s movement towards secularization. As a result of this acceleration, religious adherence is no longer valued in Canadian society which hampers the justification of religious accommodation.
Freedom of conscience and religion has not always been recognized as a fundamental human right in Canada’s constitution.
In spite of the courts’ obligation to adopt freedom of religion principles on the grounds of prohibition against religious discrimination as a result of Great Britain’s conquest of New France in 1759, before the Confederation of 1867, Canada’s constitution made no reference to state neutrality in matters of religion, nor did it affirm the separation of church and state. In pursuance of ensuring loyalty and preventing allegiance to the American colonists, Great Britain refrained from establishing the Anglican Church in Lower Canada. Consequently, policies that guaranteed freedom of religion were further advanced by the Quebec Act, 1774, which abolished the “Test Oath” and authorized the collection of tithes by the Catholic Church. Moreover, statutes passed in Lower Canada as well as in the British Parliament which protected the rights and privileges of the Jews were critical to the advancement of state neutrality. Following the enactment of the Freedom of Worship Act, 1851, the separation of church and state was ultimately established. Accordingly, the British North America Act—the constitution of the Canadian Confederation—confirmed the separation in 1867. Nevertheless, the provisions of the Constitution did not clarify the state’s relationship with religion, and with the exception of assuring the protection of Catholics and Protestants in matters of
school administration when in the minority, the Constitution did not contain any provisions which guaranteed freedom of religion.
Although the courts applied the principles of religious neutrality and acknowledged the separation of politics and religion when making their decisions, it was not until 1982 that religious freedom and equality received constitutional recognition. As Rosalie Jukier has pointed out in “Religion and the Secular State in Canada,” “the adoption of the Canadian Charter of Rights and Freedoms in 1982 added to the Constitution an instrument of protection of rights and freedoms, which it was previously lacking, and guaranteed Canadians, inter alia, ‘freedom of conscience and religion.’” There is, however, a lot of controversy surrounding the preamble of the Charter, arguing that its reference to a Supreme Being is contrary to the protection of freedom of religion entrenched in section two. The courts, on the other hand, have insisted that the preamble does not impact their interpretation of the Charter. In addition, the Supreme Court of Canada contends that the Charter’s provision regarding freedom of religion can be construed in both a positive and negative light. In a positive light, the freedom to hold religious beliefs, which are manifested through worship, teachings, and traditions, is underlined, and in a negative light, the Court stresses the importance of preventing the imposition of religious beliefs on people. Furthermore, the Canadian courts regard freedom of conscience and religion as state neutrality in religious matters; nevertheless, religious neutrality could be understood as religious equality and the prevention of discriminatory preferences on religious grounds, but it could also have the intention of prohibiting religious promotion by the state. The latter suggests that religious accommodations and exemptions are unconstitutional, yet the courts deem it a duty to assist religious institutions within the legal framework which is, in essence, inconsistent with state neutrality.
In order to fully comprehend the interaction between religion and law in a secular state, it is crucial that one grasp the precise definition of ‘secular’ that legal theorists apply when making judgements, for it may vary from one Western Liberal country to another because ‘secularism’ is not a universal but rather subjective term. In “Law and Religious Pluralism in Canada,” Richard Moon provides a very general definition for this term by describing it as “the ordering of public life exclusively on the basis of non-religious practices and values,” adding that “[secularism] is viewed by many as a neutral ground that stands outside religious controversy.” While Moon’s description of ‘secularism’ contains all its basic attributes, Rosalie Jukier ascribes two different meanings to the term ‘secularism,’ namely “rigid secularism” and “open secularism.” Jukier asserts that the former emphasizes the principle of state neutrality rather than guaranteeing freedom of conscience and religion by confining religious matters to the private sphere, whereas the latter views state neutrality as a means to achieve the objective of religious equality rather than wanting religion to completely vanish in the public sphere. By stating that “[a] truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct” in R. v. Big M Drug Mart, Chief Justice Dickson implied that open secularism is the model applied by Canadian courts in their interpretation of the Charter. The state grants religious communities the autonomy to govern themselves, but it also imposes limitations on them. According to the law, where it is deemed necessary, the state may intervene in the life of religious organizations. In principle, the state should not intervene in religious organizations, nor is the state supposed to interfere in their autonomous governance since it is expected from religious communities and the state to operate in two separate spheres. However, the courts’ decisions in precedent cases suggest otherwise. A relatively recent Supreme Court case, Bruker v. Marcovitz, deals with a “corollary relief settlement” implemented consequent to the divorce of a married couple of the Jewish faith. The settlement consisted of a “get clause,” which is a promise on the husband’s part to appear before a rabbinical tribunal to obtain a get, or in other words, Jewish divorce by releasing his wife from the marriage. The husband’s refusal to comply with the provisions of the settlement for over fifteen years resulted in the wife taking legal action, where she demanded monetary damages as a compensation for this so-called breach of contract. Due to the religious nature of the contract, the Quebec Court of Appeal as well as two dissenting judges of the Supreme Court did not consider the enforcement of the contract as a duty of the secular courts, and believed it is best for the courts to refrain from entering the private sphere of religious disputes. Nonetheless, the majority of the Supreme Court disagreed. While the contract is entirely based on religion, the Court argued that religious disputes in a form of a civil contract automatically enter the juridical zone, making it their obligation to intervene. In addition, regardless of the husband’s claim that the decision would trump his rights based on freedom of religion, the Court did not find it contrary to his rights due to the gender discriminatory nature of the get, which primarily depends on the husband’s decision. It can be argued, however, that it was not within the Court’s jurisdiction to interfere in religious disputes solely for the purpose of promoting gender equality. Also, viewed from the dissent’s perspective, when tested, the Court failed to prove its neutral stance in religious matters. Moreover, when it comes down to Canada’s position on religious autonomy there is no unanimity amongst the courts across the country. In Kaddoura v. Hammoud, the Court of Appeal for Ontario did not find it necessary to enforce the payment of the mahr—in Islam, a sum of money payed by the husband to the wife upon divorce—since it did not meet the requirements of the Matrimonial Property Act despite being a provision of a formal contract. In addition to guaranteeing equality before the law for every Canadian affiliated with religion, section two of the Charter of Rights and Freedoms may allow individuals to be exempt from laws or contractual clauses that are contrary to their religious or conscientious beliefs.
Even though the application of the Charter is limited to state action, thereby not making private agreements subject to freedom of religion, provisions equivalent to section two can be found in provincial human rights codes or the Quebec Charter of Human Rights and Freedoms. The Syndicat Northcrest v. Amselem case clarifies to what extent individuals are entitled to contractual exemption on the basis of freedom of religion in the private context of law. The case involved a private contract regarding the terms and conditions of owning an apartment unit in a condominium—a contract whereby the signers, or co-owners of the condominium, agreed not to erect any sort of constructions on their balconies to maintain the building’s uniform appearance. However, one of the owners erected a Sukkah—a temporary construction, or hut, to be more precise—in order to celebrate the Jewish High Holiday of Sukkot which ultimately led to a legal proceeding. With a narrow majority, the Supreme Court ruled in favor of Amselem by allowing him to be exempt from that specific contractual clause on the grounds of freedom of religion. The dissenting judges underlined that the agreement was reached by mutual consent; therefore, its
applicability is justifiable regardless of its potentiality to infringe the owner’s right to freedom of religion. Justice Iacobucci, who wrote for the majority, stated that waiving a fundamental right is not possible unless the contract is “voluntary, freely expressed, and with a clear understanding of the true consequences and effects” which, he implied, was not the case.