The Canadian Charter of Rights and Freedoms of 1982 was implemented in 1984, replacing the Bill of Rights of 1960. The Charter entrenched citizens’ rights within the Constitution. It has more power than a regular law due to its application to both federal and provincial laws and actions. Freedom of religion is one of the entrenched rights. Under Section 2 of the Charter, everyone has freedom of conscience and religion. Section 2(a) states that everyone is free to hold their own religious beliefs, meaning an individual has a right to practice one’s own religion. The question that is challenging is how does the Charter view freedom of religion? Is it viewed within a cultural view, which involves groups with individual members who live within the group, or is it viewed as an individual experience and an individual choice?
The Charter of 1982 caused the change from a cultural view of freedom of religion to a more individualistic view of religion. Some may argue that the Constitution does recognize the cultural aspect of freedom of religion, but in fact, religion is viewed as only an individual choice. Therefore, the court makes judgements based on an individual view of religion. According to the Charter, religion is an individual choice and a private matter of an individual, and not a community and cultural view.
According to law professor Benjamin Berger, today’s common view is that human rights are individual rights. The Charter addresses possible harms that may happen to an individual, such as unreasonable laws leading to imprisonment or affecting physical safety. It also protects individual rights. Therefore, since the Charter is focused on the rights of the individual, then cases that consider freedom of religion are decided based on individual freedom rather than a cultural understanding of freedom of religion.
In the Supreme Court case Syndicat Northcrest v. Amselem 2004, religious beliefs are seen as “personal convictions.” It challenged the cultural and community aspects of religion. People of the Jewish faith who lived in a condo building in Montreal wanted to construct Sukkahs on their balconies. These are small dwellings where Jewish people live during the Jewish holiday Sukkot. Justice Lacobucci, in his ruling, wrote, “religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment.” This signals the court’s real change in view from the 1982 Charter.
According to Berger, religious experiences do not just have a basis on an individual and their own beliefs. Many faith groups have set doctrines that serve as guides for their members to follow. To judge a member of a faith community, separating him from these guidelines would be incorrect and unfair to the individual and community due to how crucial being a part of the group is to those involved. Hence, if the court only sees religion from an individual view, then it is flawed.
According to University of Windsor law professor Richard Moon, religion does have an individual side, but it also has a cultural side. Further, religious freedom has cultural and member-based factors. Religion is not a choice like any other. The Charter does not always see the important meaning that religion has played in the culture of Canada. As such, the Charter often overlooks the cultural importance of religion in favour of individual rights. In reducing religion to personal choice, the courts often fail to see that members of a faith community act out of a belief in that faith community.
Canada is changing as a country due to the Charter of Rights. The state no longer recognizes religious groups in the same way: individual rights are seen as more important than religious freedoms by groups. As time goes on, this Charter is affecting religious groups more and more. At first, although the law was changed, many things stayed the same due to tradition. For example, the “Lord’s Day of Rest” continued to be practiced until individuals started challenging this tradition and were allowed to open their businesses on Sundays because, in accordance with the Charter, religious-cultural beliefs are not as important as individual rights. Religious groups have done, and are doing, a lot of good for Canadians. However, since the 1982 Charter, religious groups are only important in light of the individual’s right to belong to that group.
Matt Barter is a fourth-year student in the Humanities and Social Sciences Faculty at Memorial University of Newfoundland, majoring in Political Science with a minor in Sociology. He enjoys reading thought-provoking articles, walks in nature, and volunteering in the community.