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General overview

Freedom of religion in 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 (...)

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 June 2017    ABertrand Lavoie

Reasonable accommodation

Reasonable Accommodation in Canada Reasonable accommodation is a legal solution aimed at correcting discrimination arising from a practice or standard within a public or private enterprise. It is (...)

Reasonable Accommodation in Canada
Reasonable accommodation is a legal solution aimed at correcting discrimination arising from a practice or standard within a public or private enterprise. It is based on the principle of equality among citizens, with the goal of respecting differences. It requires institutions, organizations and individuals to change standards, practices or policies (Moeirin decision [1999], para. 68).

The Legal Duty of Reasonable Accommodation
Reasonable accommodation became a legal obligation following a jurisprudential interpretation proposed by the Supreme Court of Canada in the Simpsons-Sears decision in 1985. In this case, an employee challenged her employer’s decision to require her to work on Saturdays, under threat of dismissal, when her religion prescribed a day of rest on Saturdays. The Court concluded that the employer had a duty to try to reasonably accommodate her, that is, to ensure that the employee’s religious needs were respected, in particular by proposing a rearrangement of the work schedule.

Foundations and Limitations of Reasonable Accommodation
The right to equality is the primary legal basis for reasonable accommodation under section 15 of the Canadian Charter of Rights and Freedoms. It prohibits discrimination, that is, a disadvantageous distinction, exclusion or preference for certain persons, based on one or more of the grounds set out in section 15 of the Canadian Charter (e.g. religion). The onus is then on the incumbent decision-maker to accommodate the person(s) for whom the adverse effects of the practice or standard have been demonstrated. It should be noted that this legal solution is limited by the concept of undue hardship (Renaud [1992] 984), which may refer, among other things, to the excessive cost of accommodation, interference with the proper functioning of the organization, or harm to the safety or rights of others. These criteria, which are not exhaustive, must be applied "flexibly and in a manner consistent with common sense" (Bergevin [1994], p. 546) and may thus be used to deny a request for accommodation.

Quebec Context and Public Debate
In 2006, in the Multani decision, the Supreme Court of Canada recognized that a public school in the Montreal area, in the province of Quebec, had a duty to reasonably accommodate a young Sikh student’s right to wear his kirpan to school under certain conditions, not without raising important questions in the Quebec population. Following the controversy generated by this decision, the Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles was created (also called the Bouchard-Taylor Commission). More recently, in 2012, the Commission des droits de la personne et des droits de la jeunesse du Québec developed a virtual guide, which details the procedures to follow, for a public or private manager, in order to respond to a request for accommodation.

Sources :
- Bosset, P. (2007) « Les fondements juridiques et l’évolution de l’obligation d’accommodement raisonnable », in Jézéquel, M. (ed.) Les accommodements raisonnables: quoi, comment, jusqu’où? Des outils pour tous. Yvon Blais. Cowansville, pp. 3–28 ;
- Bosset, P. (2009) « Accommodement raisonnable et égalité des sexes: tensions, contradictions et interdépendance », in Eid, P. et al. (eds) Appartenances religieuses, appartenance citoyenne. Un équilibre en tension. Québec: Presses de l’Université Laval, pp. 181–206 ;
- Imbeault, J.-S. et al. (2012) Guide virtuel. Traitement d’une demande d’accommodement. Montréal: Commission des droits de la personne et des droits de la jeunesse du Québec ;
- Lefebvre, S. (2008) « Les dimensions socioreligieuses des débats sur les accommodements raisonnables », in McAndrew, M. et al. (eds) L’accommodement raisonnable et la diversité religieuse à l’école publique. Normes et pratiques. Montréal: Fides, pp. 113–133 ;
- Maclure, J. (2009) « Convictions de conscience, responsabilité individuelle et équité: l’obligation d’accommodement est-elle équitable?», in Eid, P. et al. (eds) Appartenances religieuses, appartenance citoyenne. Un équilibre en tension. Québec: Presses de l’Université Laval, pp. 327–350 ;
- Woehrling, J. (1997) « L’obligation d’accommodement raisonnable et l’adaptation de la société à la diversité religieuse », Revue de droit McGill, 43, pp. 326–401.

D 5 June 2018    ABertrand Lavoie

Act Respecting the Laicity of the State

The Act
On June 16, 2019, the National Assembly of Quebec adopted the Act Respecting the Laicity of the State, which proclaims that the State of Quebec is a lay State (s. 1). According to the (...)

The Act

On June 16, 2019, the National Assembly of Quebec adopted the Act Respecting the Laicity of the State, which proclaims that the State of Quebec is a lay State (s. 1). According to the Act, the laicity of the State is based on four (4) principles: (1) the separation of the State and religions; (2) the religious neutrality of the State; (3) the equality of all citizens; and (4) freedom of conscience and freedom of religion (s. 2). The Act provides for a prohibition on wearing a religious symbols for certain categories of public officials, including teachers and directors of public primary and secondary schools, police officers and several public officials exercising a legal profession (see Schedule II of the Act), except for those who were employed in the relevant functions on or before 27 March 2019. According to the Act, a religious symbol is "any object, including clothing, symbol, jewellery, an adornment, an accessory or headwear, that is (1) worn in connection with a religious conviction or belief, or (2) reasonably considered to refer to a religious affiliation" (s. 6). Also, the Act specifies in s. 8, that government employees must exercise their functions with their face uncovered, as must a person who presents themselves to receive a public service, except for reasons of health, disability, or the requirements tied to their function. Also, the Act makes two (2) changes of a constitutional nature to the Quebec Charter of Human Rights and Freedoms, by inserting in the preamble, the following sentence: "Whereas the Québec nation considers State laicity to be of fundamental importance," and by inserting laicity as a condition for the exercise of fundamental freedoms and rights (s. 9 of the Charter).

See also: Current debate: "June 2019 - Secularism Act".

D 29 May 2020    ABertrand Lavoie

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