Freedom of religion in Canada is a constitutionally protected right under section 2 of the Canadian Charter of Rights and Freedoms. It ensures that all individuals are free to hold and practice the beliefs of their choice without government interference.
According to the 2021 census, Christianity is the largest religion in Canada, with 53.3% of the population (more than half of these are Roman Catholic] with one third of Canadians stated that they were irreligious or had no religion. The Jewish, Islamic, Jain, Sikh, Hindu, and Buddhist communities—although small—are as old as the nation itself.
In 2023, the country was scored 3 out of 4 for religious freedom;Freedom House website, retrieved 2023-08-08 it was noted that in 2019, a new law was put in place in Quebec, stating that some government employees in positions of authority were not allowed to wear religious symbols.
Legal framework
Constitutional rights The "Fundamental Freedoms" section of the Canadian Charter of Rights and Freedoms states:
2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.
Canadians are therefore free to have their own beliefs and opinions, are free to practise religion or refrain, and are free to establish media organizations with or without religious content. Canadian religious institutions generally benefit from charitable organization status, which allows supporters to benefit from tax credits or deductions for their financial contributions.
According to the Charter's preamble, Canada is founded upon principles that recognize the supremacy of God.Quoted from the Preamble to the Canadian Charter of Rights and Freedoms This portion of the preamble has not been accorded legal effect in Charter jurisprudence.R. v. Sharpe, 1999 BCCA 416 at 79.R. v. Sharpe SCC 2001 The constitutional recognition of God has been criticized as conflicting in principle with the fundamental freedom of conscience and religion guaranteed in section 2, as it would disadvantage those who hold nontheistic or polytheistic beliefs, including atheism and Buddhism.Hogg, Peter W. Canada Act 1982 Annotated. Toronto, Canada: The Carswell Company Limited, 1982.Paul Russell, "The supremacy of God" does not belong in the Constitution": The Globe & Mail, June 11, 1999
As well, the Charter's preamble recognizes the rule of law, a principle that law should govern a nation, as opposed to being governed by decisions of individual government officials.
Human rights codes While religious freedoms are protected from state interference by the Charter, the actions of private individuals are largely governed by the provincial human rights codes. These codes prohibit discrimination in the marketplace, accommodation, and employment on the grounds of a variety of personal characteristics, including religion. There is also a federal statute, the Canadian Human Rights Act, which prohibits discrimination in workplaces and businesses under federal jurisdiction, such as banks and airlines. The act prohibits religious discrimination.
Case law
In 1955, the Supreme Court of Canada ruled in Chaput v Romain, regarding Jehovah's Witnesses, that all religions have equal rights, based upon tradition and the rule of law. At the time, no statutes formed the basis for this argument.McLachlin, "Freedom of Religion and the Rule of Law: A Canadian Perspective", pages 19-20.
In the Guibord case in 1874, the Judicial Committee of the Privy Council, at that time the court of last resort for Canada within the British Empire, ruled that the civil courts of Canada have the jurisdiction to resolve disputes between members of a church and the church organization.Brown v. Les Curé et Marguilliers de l'Œuvre et de la Fabrique de la Paroisse de Montréal (1874), L.R. 6 P.C. 157, UKPC 70 (P.C.). The basis for the ruling was that churches are required to comply with their own internal rules and laws, and members of the church have the right to be treated in accordance with those internal rules and laws. In the specific point in issue in the Guibord case, the Judicial Committee ruled that the Roman Catholic church in Montreal could not refuse the burial of a deceased member of the church because of his political views.
In R. v. Big M Drug Mart, the first freedom of religion case decided by the Supreme Court of Canada following the enactment of the charter, the court struck down the federal Lord's Day Act, which prohibited the conduct of commercial activities on the Sunday Sabbath. The court held that s. 2(a) of the charter prohibited the state from either compelling individuals to engage in a religious practice or prohibiting them from engaging in a religious practice. Religious freedom under the charter, said the court, protected the autonomy of the individual in religious matters.
In Syndicat Northcrest v. Amselem,Syndicat Northcrest v Amselem, 2004 SCC 47, 2 SCR 551. the Supreme Court of Canada provided a two-pronged test to introduce a freedom of religion claim: first, a demonstration of practice or a belief having a nexus with religion. Second, the person has to be sincere in his/her belief. The court also stated that the practice in question does not have to be mandatory to the religion, or observed by all who practice the religion. What is important is that the practice has a nexus with religion (see para 44 of the judgment).
In Mouvement laïque québécois v Saguenay (City), the Supreme Court of Canada ruled that municipal councils cannot open their meetings with a prayer, since it infringed on freedom of conscience and religion. The court said that the state must remain neutral in matters of religion - that it must not favour or support one religion over another, or religion over non-religion and vice-versa. The ruling ended a legal case that started with a complaint filed by atheist Alain Simoneau and the Mouvement laïque québécois against Saguenay, QC Mayor Jean Tremblay.
In the 1994 case of M.A.B., W.A.T. and J.-A.Y.T. versus Canada, the United Nations Human Rights Committee ruled that there are limits to what kind of belief can be understood as religion within the frames of human rights. The so-called Assembly of the Church of the Universe did not succeed in claiming that the Canadian authorities had violated their freedom of religion because they had been arrested for selling marijuana, which for them was their holy sacrament. The committee found instead that the entire faith community appeared to be constructed solely to circumvent Canada’s then comprehensive prohibition against narcotics. The committee concluded that “a belief consisting primarily or exclusively in the worship and distribution of a narcotic drug cannot conceivably be brought within the scope of article 18 of the Covenant,” and as such did not qualify as a religion.M.A.B., W.A.T. and J.-A.Y.T. v. Canada (CCPR/C/50/D/570/1993), UN Human Rights Committee 25.4.1994, § 4.2.
Reasonable accommodation on religious grounds
Legal basis
Equality of all individuals is guaranteed by Section Fifteen of the Canadian Charter of Rights and Freedoms.Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11. This section promotes the pursuance of equality and the refusal of discrimination under enumerated or analogous grounds. However, the charter only protects individuals from actions, policies and norms of public entities, not from private persons and organizations.Library of Parliament, Legal and Legislative Affairs Division, Parliamentary Information and Research Service, An Examination of the Duty to Accommodate in the Canadian Human Rights Context (January 2012) at 1.
Section 15 of the Charter states: 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
To enlarge the scope of protection, the Canadian Human Rights Act (CHRA)Canadian Human Rights Act, RSC 1985, c. H-6 in section 3(1) forbids discrimination on prohibited grounds by actors that fall under federal jurisdiction, such as television, and federally regulated industries.Library of Parliament, footnote 4
Canadian provinces have their own human rights legislations that can be explicit as to the notion of reasonable accommodation. In Manitoba, section 9(1)(d) of the Human Rights Code defines discrimination as a "failure to make reasonable accommodation for the special needs of any individual or group if those special needs are based upon"Manitoba, Human Rights Code, CCSM, cH175 prohibited grounds. These provincial legislations oblige actors under their jurisdiction (employers, service providers and landlords) to respect the duty to accommodate, to preserve a multicultural society.
The particularity of the duty to accommodate on religious grounds is that cases fall both under the jurisdiction of the Charter and other federal and provincial human rights acts and that they challenge the notions of social values, secularism and gender equality.Library of Parliament, at 7.
Definition
The notion of reasonable accommodation is a judicial creation.Stéphane Bernatchez, "Accommodements raisonnables et gouvernance : le rôle du juge, au-delà de l'interprétation et de la création du droit de l'égalité" in Reasonable Accommodation and the Role of the State: A Democratic Challenge, eds Christian Brunelle & Patrick A Molinari (Montreal: Canadian Institute for the Administration of Justice, 2008) 371 at 379. It implies that "federal/provincial/territorial anti-discrimination measures place a positive duty on employers, service providers and landlords [...] to accommodate people's needs for reasons associated with recognized discriminatory grounds."Library of Parliament, at 2. According to Sandra Fredman, the duty of reasonable accommodation "represents and advance towards substantive equality" for three reasons. Firstly, "equality is explicitly asymmetric, aiming to redress disadvantage even if this entails different or more favourable treatment." Secondly, it is focused "on modifying the environment to facilitate the participation of those affected." Finally, "[it] goes beyond other conceptions of equality in that it expressly imposes a positive duty to make changes."Sandra Fredman, at 215-217.
The notion of reasonable accommodation is directly related to the freedom of religion. Indeed, in 2006, "the Multani decision [...] moved reasonable accommodation from the realm of employment law into a broader legal discourse on religious freedom more generally."Lori G. Beaman, "Conclusion: Alternatives to Reasonable Accommodation" in Lori G. Beaman ed, Reasonable Accommodation: Managing Religious Diversity (Vancouver: UBC Press, 2012) 208 at 209.
In claims concerning discrimination on religious grounds, the burden of proof shifts to the employer, landlord or service provider who has to prove the two elements: (1) that the rule is necessary and (2) he accommodates the individual to the point of undue hardship.Ont. Human Rights Comm. v Simpsons-Sears, 2 SCR 536.
Limits