WHAT IS THE SCC’S DEFINITION OF THE FREEDOM OF RELIGION? HOW DOES CHARTER’S
OUTLINE OF FREEDOM OF RELIGION DIFER FROM THE FREEDOM OF RELIGION IN AMERICAN
BILL OF RIGHTS? WHAT TYPES OF PRACTICES ARE PROTECTED BY THE FREEDOM OF RELIGION?
DISCUSS 3 RELEVANT COURT CASES.
Section 2(a) of the charter guarantees everyone the fundamental freedom of freedom of
conscience and religion. However, like any other rights in the charter, section 2(a) is subject to
section 1, a law that limits freedom of conscience and religion will be valid under section 1 if it
comes within the phrase reasonable limits prescribed by law as can be demonstrably justified in
a free and democratic society.
In comparison, American Bill of rights is the first amendment, which on the topic of religion
provides that congress should make no law respecting an establishment of religion, or
prohibiting the free exercise thereof. The provision in respect to religion contains two clauses,
an establishment clause and a free exercise clause. It makes no reference to freedom of
conscience. Section 2(a)’s reference to “conscience”, which is not found in the amendment,
protects systems of belief which are not centered on deity and which might not be
characterized as religions for that reason. The free exercise clause, also much like the charter,
protects religious practices as well as religious beliefs.
The SCC’s definition of freedom of religion states that it is the right to manifest religious belief
by worship and practice, as long as such manifestations do not injure his or her neighbors or
their parallel rights to hold and manifest beliefs and opinions of their own. In other words,
everyone has the right to manifest one’s religion as long it does not injure others. This provision
implies that freedom of religion would not protect minority religious groups in such practices as
human sacrifice, or refusals of schooling or medical treatment of children. However, there are
many other practices that have a religious compulsion for a minority religion, such as refusing
to salute to a flag etc.
In the case Young vs. Young, a judge granted custody to the mother of three young children,
and had granted access to the father, but with the restriction that the father does not discuss
the Jehovah’s Witness religion with the children. This was due to the fact that the mother did
not share the father’s strong religious beliefs. The father attacked this restriction on the ground
that it was a breach of freedom of religion to preclude a parent from sharing his religious
beliefs with his children. The SCC imposed that in the best interest of the children, would offend
freedom of religion, unless it could be shown that the restriction was needed to avoid a risk of
substantial harm, the restriction could be struck down. The right to freedom of religion did not
guarantee any religious activity that would not be in the best interests of the children. In
freedom of religion, communication of religion is allowed as long as it does not pose a threat.
The idea that freedom of religion authorizes religious practices only so far as they do not injure
others has been abandoned by the SCC in favor of an unqualified right to do anything that is
dictated by a religious belief. In the Children’s aid society case, the decision of parent to
prohibit doctors from giving a blood transfusion to their daughter was protected by freedom of religion, because it was dictated by their belief as Jehovah’s Witnesses. An application was
made under Ontario’s child welfare statue to make the child a temporary ward of the children’s
aid society, and a blood transfusion was given. The parents challenged this procedure as a
violation of their freedom of religion. The SCC ruled that there were intrinsic limits on freedom
of religion and a parents’ freedom of religion does not include the imposition on the child of
religious practices which threaten the safety, health or life of the child.
In Ross v. New Brunswick School District, the SCC held that damaging practice was protected by
freedom of religion. Ross was teacher who publicly disseminated the opinion that Christian
civilization was being destroyed by an international Jewish conspiracy. The SCC held that this
activity was protected by freedom of religion. Ross was removed from his teaching position,
and disciplined that he would be removed from his new position if this continued. The court
held that this infringed Ross’s freedom of religion (as well as freedom of speech). The school’s
boards removal of Ross can be approved under section 1, but it did not justify a party of the
order that required Ross be dismissed from a non-teaching position is he resumed his anti-
The definition of religious practices was expanded further in the Amselem case where the
condominium owners prohibited any construction on the balcony, disallowing a Jewish family
to build a succah. The SCC held that the claimants were entitled to erect their succahs in
defiance of the by-laws. The SCC defined religious practices that the practices does not need to
be part of an established belief system, or even a belief system shared by others; it can be
unique to the claimant. The practices do not need to be perceived as obligatory by the claimant
as voluntary expressions of faith were equally protected. All that is necessary to qualify a
practice for charter protection is that the claimant sincerely believes that the practice is of
religious significance. The same ruling can be found in Multani’s case, where a Sikh boy was
permitted to bring a kirpan to school, regardless of the regulations as the student sincerely
believed that his religion required him to wear a kirpan made of metal at all times.
The SCC held that waiver of religious practices can be invoked in cases of civil contract. For
example in Bruker case, the permission for divorce must be given by the husband and must be
accepted by the wife. Bruker signed a legal agreement that he would receive a get (Jewish
divorce), but instead made his wife become a chained wife for 15 years. The wife brought an
action for his breach of contract and he invoked it with freedom of religion. He has signed
signed the legal agreement but later on provoked his religious belief – Supreme Court said that
once he signed the agreement, he favored his religious rights AND it must be in respect to
CAN FREEDOM OF RELIGION BE INVOKED TO RESILE FROM CONTRACTUAL OBLIGATION?
Freedom of religion invoking to resile from contractual obligation differs time to time. In the
case Amselem, where the condominium owners prohibited any construction on the balcony,
disallowing a Jewish family to build a succah. The SCC held that the claimants were entitled to
erect their succahs in defiance of the by-laws. The SCC defined religious practices that the practices does not need to be part of an established belief system, or even a belief system
shared by others; it can be unique to the claimant. The practices do not need to be perceived as
obligatory by the claimant as voluntary expressions of faith were equally protected. All that is
necessary to qualify a practice for charter protection is that the claimant sincerely believes that
the practice is of religious significance. Freedom of religion was invoked to resile from a
contractual obligation, even though this agreement was made prior to purchasing their units.
The SCC claimed that the claimants had no choice but to sign the agreement to the by-laws in
order to live in that building.
It is quite difficult for a party to invoke a sincere religious belief as the basis for ignoring a
contractual promise that the promise freely made but no longer wishes to keep. In the Bruker
case, as part of the divorce settlement, they neg