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Freedom of conscience and religion in Canada

In Canada, the rights of religious minorities (people like me) are constitutionally protected by the Canadian Charter of Rights and Freedoms 1982. The reason is because respect for and tolerance of the rights and practices of religious minorities is a fundamental distinguishing characteristic of a truly civilised, cultured and enlightened society. A modern, progressive and tolerant democracy is judged by the way it treats its minorities, especially religious minorities. This is well recognised by the Universal Declaration of Human Rights which provide for everyone’s ‘right to freedom of thought, conscience and religion’, including ‘freedom to manifest his/her religion or belief in teaching, practice, worship and observance’.
Islam’s recognition of religious tolerance and mutual respect for each other’s religion predate modern concepts of religious accommodation. It emphasises peaceful co-existence without any discrimination on the basis of race, religion or creed. As Quaid-e-Azam reiterated, ‘Islam demands tolerance of other creeds.’ (Rizwan Ahmad (ed) Sayings of Quaid-e-Azam (1986). The Ulema and Mashaikh Conference 2011 re-stressed that Islam does not differentiate between people of any caste, colour or creed.
It may be useful for Pakistani readers to assess the Canadian legal developments in order to learn some lessons.
The Canadian Charter of Rights and Freedom, part of the Canadian Constitution, stipulates that ‘everyone has the fundamental freedom of conscience and religion’ (Section 2(a)). Thus, all religions have equal rights under the rule of law (Sharpe 2001).This is in line with the Canadian philosophy that freedom of religion and conscience is an essential and imperative part of the respect for every individual’s dignity, autonomy and self-development. This, of course, also reflects the theological principle, laid down in and accepted by all religions, that in religion there is no compulsion, although conveniently ignored by some. History illustrates that in a tolerance-deficit society, it does not take long for peace, equilibrium and tranquillity to be disrupted.
Canada is not a theocratic state. It is a secular state, but a secular state with freedom of religion. So much so that freedom of conscience and religion is entrenched in the Canadian Constitution. In a secular state, people are free to establish and adhere to their own belief in any religion or no religion. The law does not compel anyone to be a member of any religion or to any belief. Obviously, freedom of conscience is broader than freedom of religion. The former is aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organised religious principles. The latter relates more to religious views derived from established religious institutions.
In a theocracy, there is an established religion. As one Canadian judge has analysed, in a theocratic state;
“The church, temple or mosque is the state, such that one is punished upon the judgment of judicial clergy, who are certifiably expert in state theology, for disbelief or expression of opinion contrary to official dogma. The sentence is damnation and the execution of the sentence not infrequently dispatches the hapless convict irrevocably and purportedly thither, whether truly so, or not, no one ever knows for sure.”
Like all Canadian fundamental rights and freedoms, freedom of religion is not absolute, because one has to ‘live and let live’ by taking into account and respecting other individuals’ rights and freedoms. The Canadian Charter provides and guarantees rights and liberties ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. The Supreme Court of Canada has observed that ‘every individual is free to hold and manifest whatever belief and opinions his or her conscience dictates provided that such manifestations do not injure his her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.’ (Big M Drug Mart, 1985). Another limitation is that a particular aspect of freedom of religion may be inconsistent with another Charter freedom, and it is the duty of the courts to reconcile these differences (further discussed below).
In a 2006 case, the Canadian Supreme Court reconfirmed and articulated the essence of the concept of freedom of religion as the right to entertain such religious beliefs as an individual chooses. This includes the right to declare religious beliefs openly and without fear of hindrance or reprisal. Further, the freedom means that a person has the right to manifest religious belief by worship and practice or by teaching and dissemination. The Court went further and added that this fundamental freedom means more than all that:
“Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience. With the Charter, it has become the right of every Canadian to work out for himself or herself what his or her religious obligations, if any, should be and it is not for the state to dictate otherwise.” (Multani 2006).
Previously the Supreme Court had elaborated the purpose of the freedom of conscience and religion as to ensure that society does not interfere with the profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices (Edwards Books & Arts, 1986). Further, freedom of religion includes the practice of religious rites which is a fundamental aspect of religious practice (Reference Re Same-Sex Marriage, 2004).
This raises the question whether a religious belief or practice to be protected is acceptable to the established or official religion (objective approach), or whether it can be protected even though it is only based on an individual’s personal interpretation or subjective belief (subjective approach). The subjective conception of or approach to freedom of religion would mean that the emphasis is on the sincerity of a person’s subjective and personal claim of belief, which does not necessarily fit into an official religion or dogma. Under this principle, the underpinning elements of the belief to be protected are integrally linked with an individual’s self-definition and fulfilment, and personal autonomy and choice. The Canadian Supreme Court has repeatedly accepted the subjective approach. The Court explained this approach in the following way:
“Freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates that he or she sincerely believes or in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.” (Syndicat Northwest, 2004).
However, a person claiming a practice or belief based on his or her personal interpretation of his or her religion to be protected has to prove that, first, that person sincerely believes in a practice or belief that has a nexus or a close connection with his or her religion, and, second, the challenged conduct of the third party interferes, in a manner that is non-trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief (Multani, 2006).
The question then arises what if different people practice the same religion in different ways. The answer has been provided by the Supreme Court in Multani. The Court explained that the validity of a person’s sincerely held religious belief cannot be doubted simply because different people practice the same religion in ways different to the person complaining of his or her infringement of his or her freedom of religion. The Court elaborated:
“What an individual must do is show that he or she sincerely believes that a certain belief or practice is required by his or her religion. The religious belief must be asserted in good faith and must not be fictitious, capricious or an artifice. In assessing the sincerity of the belief, a court must take into account [among other things] the credibility of the testimony of the person asserting the particular belief and the consistency of the belief with his or her other current religious practices.”
In one of the first appeals to reach the Canadian Supreme Court, the disputed matter related to the question of freedom of religion – in relation to Sunday closing laws. A federal statute, the Lord’s Day Act, prohibited opening shops or shopping on Sundays. A drug/chemist store was prosecuted for the breach of this legislation in that it opened its premises and traded on Sundays. The plaintiff’s contention was that the legislation was based on Christian principles, Sunday being the Sabbath day in Christianity, which curtailed and interfered with the freedom of religion of non-Christians, so that they could not open their shops or go shopping on Sundays – not a Sabbath day for non-Christians. The Supreme Court, in accepting this contention, struck down the legislation, and in a bold judgment, declared it unconstitutional, because it violated the Charter provision of freedom of religion. Chief Justice Dickson observed that under the legislation:
“Non-Christians are prohibited for religious reasons from carrying out activities which are otherwise lawful, moral and normal. The protection of one religion and the concomitant non-protection of others imports disparate impact destructive of the religious freedom of the collectivity.”
In my opinion, the precedents and principles established in this decision breathed a new life into an old principle, and henceforth any preferred position of the majority religion, Christianity, that undermined the respect for the religions of other groups in Canadian society – which is multi-cultural, multi-ethnic and multi-religions – would have no leg to stand on.
One aspect of the Canadian Charter is that it allowed the courts to establish new principles of interpretation for civil liberties. This challenge was willingly accepted by the Supreme Court, which soon decided that the interpretation and application of the constitutional rights and freedoms, including freedom of conscience and religion, need ‘purposive approach’. This approach requires that the underlying purpose of a right or freedom should be ascertained by reference to the larger objects of the Canadian Charter as a whole, to the language chosen to articulate the specific rights or freedoms, and to the historical origins of the concepts enshrined. Therefore, this purposive method must be generous rather than legalistic. Thus, the aim of interpretation of freedom of religion is to secure for individuals the full benefit of the Charter protection.
Canada being a secular society, the freedom of conscience and religion has impacted upon many practices previously unchallengeable, for example, religious assembly and school prayer in public (state-run) schools. The Ontario Court of Appeal in two cases struck down school regulations requiring school prayers, which in practice resulted in a strong evangelical Christian emphasis, in public schools. Although parents who objected to school prayers could withdraw their children from such activities, the Court held that the requirement of prayers and scripture reading violated non-Christians’ freedom of religion, because of the presence of an element of compulsion, notwithstanding the withdrawal provision (Zylberger, 1988; Canadian Civil Liberties, 1990).
It should be pointed out here that Canadian public (government) schools are secular. The aim of the public schools is to educate and not to indoctrinate. Therefore, no religion is favoured. As a judge said, “Fundamental to the education system is teaching without religious indoctrination.” (Bal, 1994). However, religious education is different from indoctrination. It should also be noted that in Canada schooling until a certain age, normally of 16, is compulsory and, therefore, it is the duty of the governments to provide adequate, comprehensive and high-standard schools. Parents have the right to force school authorities to provide local schools, complying with strict regulations relating to teaching, safety and other standards, with public funds. The right to education is taken very seriously by the public, the parents and the press. So much so that truancy, school absenteeism, is a criminal offence, so that the parents of a truant pupil can be, and regularly are, prosecuted and punished.
As indicated above, freedom of religion has to be balanced against other Charter freedoms, because one freedom may clash or be inconsistent with another freedom, for example freedom of expression or equality rights versus freedom of religion. Thus, one freedom may over-ride or trump another freedom, although this strong language is not used by the courts.

The courts have to reconcile freedom of religion with other applicable freedoms. In a 1996 case, freedom of religion was given preference over freedom of expression (Ross 1996). The facts were that a school teacher used to express strong, denigrating and debilitating views against non-Christians. A provincial human rights tribunal decided that the teacher should be dismissed. On his appeal, on the basis that his freedom of expression had been violated, the Supreme Court of Canada, upholding the tribunal’s decision, declared that any expression that denigrates and defames the religious beliefs of others erodes the very basis of the guarantee of freedom of conscience and religion. This freedom ‘guarantees that every individual is free to hold and manifest the beliefs dictated by one’s conscience’. The teacher’s freedom of expression had to take a second place to the pupils’ freedom of religion. School should teach tolerance and impartiality, not poison the young minds.

Chief Justice Dickson, in a previous case (Keegstra, 1990) had stated that, despite an educator’s freedom to express views, a teacher’s anti-religion speech contributes little to the fundamental values in a liberal democracy which are ‘the quest for truth, the promotion of individual self-development and the protection and fostering of a vibrant democracy’.
Of course, the freedom to hold certain religious beliefs is broader than the freedom to act on those beliefs (Trinity Western University, 2001). On the other hand, a reasonable accommodation has to be made for someone’s religious practice, although such a belief may be contrary to the beliefs of majority of the population, or may seem to them strange (Multani, 2006, see below). But there is a limit to this accommodation, for example in a recent case, the Supreme Court, by majority, decided that the statutory requirement of a photograph for a driving licence was not unreasonable. The facts were that some Hutterian Christians objected on religious grounds to the photograph because they claimed that the Second Commandment of prohibited them from having their photograph willingly taken.

The Court decided that the requirement of photograph maintains the integrity of the driver’s licensing system that minimises the risk of identity theft. The requirement of photograph is rationally connected to a pressing and substantial goal – minimally impairing the right, and is proportionate in its effects. The limit on freedom of religion in this case was justifiable in order to minimise the risk of fraud, which is clearly a goal of pressing and substantial importance (Alberta v Hutterrian Bretheren 2009). Similarly, the Supreme Court upheld a statutory provision that allows the state to apprehend a child whose parents, on religious grounds, do not allow doctors to give a certain treatment to the child, so that the child can be medically treated (Manitoba 2009).
The most recent important case of freedom of conscience and religion is Multani (above). The facts of this case were that an orthodox Sikh’s son, who was a pupil in a public (government) school, used to wear a kirpan (a metal dagger), because his parents believed that their religion requires them to wear a kirpan at all times. The school governing board decided that this practice violated the school regulations against carrying weapons and dangerous objects. But a lower court, over-ruling this policy, decided that reasonable religious accommodation had to be made; and it allowed the pupil to wear the kirpan in school but only if it was sealed and sewn up inside his clothing, so that it was invisible.

On appeal by the school board, the Quebec Court of Appeal reversed the decision and prohibited wearing of the kirpan, visible or invisible, in schools. On a further appeal, however, the Supreme Court of Canada reversed the appeal court and restored the judgment of the trial court, because the permitted wearing of the hidden and invisible kirpan was a reasonable religious accommodation. The Court commented that a total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends the message that some religious practices do not merit the same protection as others. Thus, it was ruled that allowing the kirpan with conditions attached demonstrates the importance that the Canadian society attaches to protection of freedom of religion and to showing respect for minorities.
This is not the only case on wearing of religious clothing or symbols having been given protection. In many lower courts or tribunals, a woman’s right to wear hijab has been protected (Ahmed 2008; Saada 2011). The Canadian Supreme Court recently granted leave to appeal, and its decision is awaited with interest on the question whether a woman-complainant should be allowed to wear her niqab for religious reasons while testifying in a preliminary inquiry into an allegation against her uncle of sexual assault (NS v R, 2011).
It should be emphasised that the Canadian constitutional freedom of religion is different from and broader than the US First Amendment to the Constitution. First, the US freedom guarantees the free exercise of religion and prohibits the state establishment of religion; but the Canadian freedom does not prohibit state support for religion. Second, the Canadian freedom includes and encompasses ‘conscience’ in the freedom. Thus, two freedoms are included: freedom of conscience and freedom of religion.
It should be observed that the Canadian Charter, which contains many freedoms and rights, supplements the federal and provincial human rights legislation, giving wide protections to citizens against discrimination for example on grounds of race, ethnicity, colour, sex, marital status or disability. The combined effect is that, in postmodern Canada, civil liberties and human rights have been given a prominent place, and fundamental rights and freedoms have been triumphing over majoritarianism, ignorance, bigotry, duplicity and hypocrisy. Constitutional rights and freedoms have become a hallmark of Canadian polity. The aim is that equality and tolerance should become fundamental bedrock of liberal democracy.

Canadian society has been striving to be a place where multiculturism and holding of different religious beliefs are recognised, encouraged and protected. This has attracted people to its shores, from numerous and assorted countries, of different religions and diverse ethnicity; and coherent attempts have been, and or being, made to provide them with meaningful protections and safeguards.
In conclusion, it can be summarised that one of the significant freedoms enshrined in the Canadian Constitution is freedom of conscience and religion, because in an enlightened democracy, tolerance of the beliefs and practices of religious minorities is one of the significant hallmarks and characteristics of a progressive, tolerant and liberal population. Its significance cannot be over-emphasised in view of the universal historical oppression of religious minorities, resulting in the tyranny of majoritarianism, coercion and cruelty inflicted in the name of religion – and this continues unabated in some countries that leads nothing but to strife, violence and destabilisation. History is replete with horrific examples of ‘cruelty of man to man in the name of religion’.

The Canadian Constitution appears to confirm the fundamental principle that each citizen should be content with his or her own beliefs and not impose their beliefs on others. All religionists should be content with the sublime claims and marvellous assurances of their religion; and be happy with its precepts, principles and practices, without inflicting or compelling it on others.
Two important pillars of the Canadian constitutional freedom are, first, tolerance of and respect for others’ beliefs must be recognised and, therefore, reasonable accommodation has to be made for followers of other religion’s reasonable practices and beliefs, and, second, it should be understood that freedom of religion also includes freedom from religion. A civilised and enlightened society recognises and accepts that there is no compulsion in religion and, thus, the sacred and spiritual needs and aspirations are within the personal discretion and conscience of an individual; and if a person chooses to have no religion that is his or her private moral and ethical decision, and there can be no recrimination against or coercion upon him or her.

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