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La liberté de religion au Canada

The History of Religious Freedom
Historically, freedom of religion was recognized for Catholics as early as the Treaty of Paris of February 10, 1763, and the Quebec Act of June 22, 1774, which also reaffirmed it. The oath to which Catholics must consent in order to hold public office (allegiance to British and Anglican power, known as the "oath of the Test") was abolished. The Constitutional Act of 1791 reaffirmed the freedom of religion of Catholics and truly began the process of institutional separation between religious and political powers in Canada. Political neutrality was enshrined in nineteenth-century Canada even though the Constitution Act, 1867 was silent on this aspect.

Constitutionalization of Freedom of Religion
Since 1982, freedom of religion has been protected under the Canadian Charter of Rights and Freedoms in section 2. Adopted on April 17, 1982, the Charter is Part 1 of the Constitution Act, 1982 and has normative priority within the Canadian legal system. This priority involves two important aspects. First, there is a complex and cumbersome procedure for amending the Canadian Charter of Rights and Freedoms, detailed in sections 38 to 49, which ensures the continuity and stability of the constitutional text. Second, the Charter, as part of the Constitution of Canada, is considered the supreme law of Canada and "renders inoperative any law that is inconsistent with any other law" (section 52). Thus, any regulation, code or law that violates freedom of religion as defined by the Supreme Court of Canada will be declared of no force and effect.

Jurisprudential recognition of freedom of religion
Canadian public law is administered according to the common law legal tradition, in which case law plays a predominant role. The Supreme Court of Canada first interpreted freedom of religion in 1985 in R v. Big M Drug Mart Ltd. In that case, Big M Drug Mart, a retail business in the city of Calgary in the province of Alberta, was charged with violating the Lord’s Day Act because it operated on Sundays contrary to the provisions of the Lord’s Day Act. The company challenged the validity of the Lord’s Day Act on the grounds that it infringed the freedom of religion guaranteed by the Charter. The Court agreed with the company and declared the entire Lord’s Day Act inoperative.

The Two Dimensions of Religious Freedom
In Big M, the Court interpreted freedom of religion as follows in paragraph 94 :

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

Thus, there are generally two dimensions to freedom of religion in Canadian law. A positive dimension is the protection against changing one’s religion and believing what one wants in religious matters, and a "negative" dimension is the protection against coercion or duress.

D 20 juin 2017    ABertrand Lavoie

CNRS Unistra Dres Gsrl

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