Does the Charter Apply?
Rights Violated? – find out today.
Violation saved by Section 1?
1. Section 2(a)
2. Definitions – Charter says everyone has the right to conscience and religion. What is
everyone? That means that all persons claiming, if you are in the country regardless of
your citizenship status you can claim freedom of religion. What about corporations? They
actually cannot claim freedom of religion in a positive way. A corporation cannot possess
religious beliefs because they are fictitious people. Corporations cannot say that corporate
tax act violates religious beliefs. Corporations cannot claim that Anti-Sunday shopping
laws violate their religious beliefs because they cannot possess such beliefs. But they can
possess negative religious violations; corporations can say that the law violates the
religious beliefs of person. This isn’t claim a freedom of religion on behalf of
corporations, but a claim for freedom of religion; they say laws cannot violate anyone’s
religion. However, government can violate your freedom of religion rights under section
33, so we do not have absolute claim to our religious beliefs in this country. If they can
justify the violation in a democratic and free society, then we lose those rights. Freedom
of religion is one of the most important (the very first right) that the founders decided to
protect. We cannot discount the fact that religion has very much to do with our society;
our society is founded upon these belief structures. Almost all of our social functions and
relationships are premised on some sort of religious structure. Example: marriage is
religiously based. Our education system, in some parts are based on religious beliefs, we
get Christmas off, three days off for Easter. Our weekends are predicated upon Christian
day of rest. Canadian society is and has been premised on a belief structure. Even the
constitution mentions the religious beliefs; the Charter itself says supremacy of god.
Religious freedom along with section 15 tends to be rights that people can make group of
rights, that this offends a group of people.
a. Conscience – freedom of conscience and religion. What we mean by conscience and
religion. Courts read them as being separate things. It is an or, you have freedom of
conscience or religion. The thing about freedom of conscience is no one knows what it
means, the only case it has been commented upon is that of Morgentaler. This case struck
down our abortion laws. Madam Justice Wilson, wrote a concurrent decision (so not the
majority, not the decision that made the law, agreed in the end with majority). Her
decision is persuasive. In relation to section 2(a) she held that regulation of abortion is a
denial of freedom of conscience, which is a personal morality not founded in religion.
This is one of her arguments as to why that abortion laws violated rights then. Majority
decision was written with section 7. This is what we get from court as to what
consciousness means, they are not based on a deity but have characteristics of personal morality and a belief structure that are binding upon an individual.
R v. Morgentaler  1 SCR 30
“personal morality which is not founded in religion”…”conscientious beliefs which are
not religiously motivated
b. Religion – definition in the following case. it typically involves a particular and
comprehensive….pretty vague. What we get from the courts’ decision is that they do not
want to judge whether something is a religion or not. They do not want to say that is an
acceptable religion and that is not. They associate more with the practices, a practice that
fosters a connection with the divine.
Syndicat Northcrest v. Amselem  2 SCR
“particular and comprehensive system of faith and worship. It is about freely and deeply
held personal conviction or beliefs connected to an individual’s spiritual faith and
integrally linked to his or her self- definition and spiritual fulfillment, the practises of
which allow individuals to foster a connection with the divine or with the subject or
object of that spiritual faith.”
3. Scope of Freedom or Religion – Supreme Court set out a scope to determine what
religion means. It is in the context of Drug Mart case – close stores on Sundays for the
explicit purpose of observing Christian day of faith. In order to have freedom of religion
you have to do at least these three things. Where these three things have been infringed
upon then people do not have freedom of religion.
Big M Drug Mart