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LETTER: How religious freedom has changed since the 1980s

A statue in front of the Basilica of St. John the Baptist looks out over an empty parking lot as the church, and hundreds of others in the province, sits closed due to COVID-19 restrictions.

Keith Gosse/The Telegram
Telegram file photo

The Canadian Charter of Rights and Freedoms of 1982 was implemented in 1984 and it replaced the Bill of Rights of 1960.

By doing so, it entrenched citizens’ rights within the Constitution. One of the rights that was entrenched was the freedom of religion.

Under Sect. 2 of the Charter, everyone has freedom of conscience and religion. Sect. 2(a) states that everyone is free to hold their own religious beliefs. This means that 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?

Since the Charter of 1982 was implemented, there has been a 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, there is a common view today that human rights are individual rights.

The Charter addresses possible harm that may happen to an individual and protection of the individual’s rights.

If the Constitution is focused on the rights of the individual, then cases that consider freedom of religion will do so in light of the individual’s freedom, rather than a cultural understanding of freedom of religion.

This is seen very clearly in the Supreme Court of Canada case, Syndicat Northcrest versus Amselem 2004 in which religious beliefs were seen as "personal convictions."

Canada is a changed country due to the Charter of Rights. Religious groups are no longer recognized by the state in the same way: individual rights are seen as more important than religious freedoms by groups.

The cultural and community aspect of religion was challenged. A person of the Jewish faith and two other people who lived in a condo building wanted to build a Succah on their balcony.

Justice Frank lacobucci, in the majority decision, said, “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, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.” This proves the very real change in view by the court from the 1982 Charter.

According to Berger, religious experiences are not just based on an individual and his or her own beliefs. Many faith groups have set doctrines which serve as guides for members to follow. To judge a member of a faith community, separating from these guidelines would be incorrect and unfair to the individual and community. 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 to it, but it also has a cultural side as well. 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 a changed country due to the Charter of Rights. Religious groups are no longer recognized by the state 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. The “Lord's day of rest” is a prime example of this, but then individuals started challenging these traditions and were allowed to open their businesses on Sundays because with the Charter, religious-cultural beliefs were not seen to be 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,
St. John's


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