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In their early decisions under the Charter of Rights and Freedoms, the Canadian courts described religious freedom as a liberty that protects the individual from state coercion in religious matters. According to the courts, the individual has both the right to practice their religion without state interference and the right not to be compelled by the state to perform a particular religions practice. However, in later judgments the courts have also, or instead, described religious freedom as a form of equality right that requires the state to remain neutral in religious matters – to not favour the practices and beliefs of one religious community over those of another. Underlying the courts’ judgments is a complex conception of religious commitment in which religion is viewed as both a personal commitment to a set of beliefs about truth and right and as a cultural identity. The challenge for the courts has been to fit this complex conception of religious commitment into a constitutional framework that relies on a distinction between individual choices or commitments that should be protected as a matter of liberty, and individual or shared attributes that should be respected as a matter of equality. The constitutional framework imposes this distinction between judgment and identity on the rich and complex experience of religious commitment.

While much of Canada’s early commitment to religious freedom was simply a pragmatic compromise to ensure social peace and political stability, the Supreme Court of Canada in a series of judgments that pre-dated the Charter sought to articulate a principled account of religious freedom as an “original freedom” that is an important “mode[] of self-expression” and “the primary condition[] of the community life”. This understanding of religious freedom shaped the Supreme Court of Canada’s initial reading of freedom of conscience and religion protected by s. 2 (a) of the Canadian Charter of Rights and Freedoms. However, the story of religious freedom in Canada is not simply that of a linear progression from the pragmatic tolerance of religious minorities to the principled protection of the individual’s religious freedom. In its subsequent s 2 (a) decisions, the Court began to read freedom of religion as a form of equality right that requires the state to remain neutral in religious matters. The state must not prefer the practices of one religious group over those of another and it must not restrict the religious practices of a group unless it has a substantial public reason to do so. Underlying the Court’s commitment to religious freedom is a recognition of the deep connection between the individual and her/his spiritual commitments and religious community and a desire to avoid the marginalization of minority religious groups. Concerns about inclusion and social peace that lay behind the extension of religious tolerance in Canada’s early history continue to be important in the contemporary justification and interpretation of religious freedom. The Court’s commitment to state neutrality in religious matters requires it to distinguish between the private sphere of individual or group spiritual life and the sphere of public secular life. However, the line between these two spheres is contestable, moveable, and porous.

Québec is pushing to ban public servants from wearing religious garb even as the crucifix hangs in its legislature. It’s ironic and hypocritical for a province that prides itself on secularism.

Will recent acts of violence against Muslims in Canada lead us to see what we should have seen earlier — that anti-Muslim works are hate speech that encourage violence against Muslims?

Free speech may protect offensive speech, but we degrade this central right when we see it as simply the right to offend, regardless of the impact on others.

"In The Life and Death of Freedom of Expression, Richard Moon argues that freedom of expression is valuable because human agency and identity emerge in discourse--in the joint activity of creating meaning. Moon recognizes that the social character of individual agency and identity is crucial to understanding not only the value of expression but also its potential for harm. The book considers a range of issues, including the regulation of advertising, hate speech, pornography, blasphemy, and public protest. The book also considers the shift to social media as the principal platform for public engagement, which has added to the ways in which speech can be harmful, while undermining the effectiveness of traditional legal responses to harmful speech. The Life and Death of Freedom of Expression makes the case that the principal threat to public discourse may no longer be censorship, but rather the spread of disinformation, which undermines public trust in traditional sources of information and makes engagement between different positions and groups increasingly difficult."-- Provided by publisher

The regulations in Alberta dealing with driver’s licenses were amended in 2003 to require that all license holders be photographed. The license holder’s photo would appear on his or her license and be included in a facial recognition data bank maintained by the province. Prior to this change, the regulations had permitted the Registrar of Motor Vehicles to grant an exemption to an individual who, for religious reasons, objected to having her or his photo taken. Members of the Hutterian Brethren of Wilson Colony, who believe that the Second Commandment prohibits the making of photographic images, had been exempted from the photo requirement under old regulations, but were required under the new law to be photographed before a license would be issued.

The Canadian Charter of Rights and Freedoms guarantees to all persons “freedom of conscience and religion.” The Charter, however, does not include any obvious equivalent to the Established Clause of the First amendment of the United States Bill of Rights. According to the Canadian courts, s. 2(a), the freedom of religion provision in the Charter, protects the individual from “coercion in matters of conscience.” It prohibits the state from either restricting or compelling religious practise. But it does not necessarily preclude state support for religion. State support for the practises of institutions of a particular religion will breach s.2(a) only if it coerces some members of the community, and interferes with their ability to practise their faith or compels them to practice the favoured religion.

The author argues that the apparent collapse or erosion of the Oakes test reflects the problem of fitting a right such as freedom of expression, which is social and relational in character, into a structure of constitutional adjudication, which is built on an individualist conception of rights. In the leading Canadian freedom of expression cases, the task for the courts under section 1 is not simply to strike the proper balance between competing interests, but rather to resolve the single but complex question of whether the expression contributes to, or undermines, human agency or autonomous judgment. In these cases, the “value” of expression and the “harm” of expression are not distinct issues, but rather two sides of the same basic issue. Whether expression is more likely to contribute to insight and judgment or to manipulate and lead to an unreflective response is a relative judgment that will depend significantly on the social and economic circumstances in which it occurs. This issue fits awkwardly within an adjudicative structure that is based on an individual liberty model of rights. The author argues that this awkwardness accounts for the “erosion” of the Oakes test in freedom of expression cases and more specifically for the court's increasing, and inadequately justified, deference to legislative judgment under section 1.

This paper examines the recent Supreme Court of Canada judgment in LSBC v. TWU, in which the court upheld the decision of the BC law society not to accredit a law program proposed by an Evangelical Christian university. The paper argues that the task for the courts in this and other religious freedom cases is not to balance competing civic and religious interests but is instead to mark the boundary between the spheres of civic and spiritual life. More particularly, in this case, the issue was whether TWU (in applying to operate an accredited law program) should be viewed as a private religious institution that is free to govern itself according to its own norms, or whether, because its actions directly impact outsiders to the religious group, it should be viewed as performing a public role and therefore subject to non-discrimination and other civic norms. The different judgments in the case begin with different assumptions about the public/private character of TWU (or at least its proposed law program) and so never really address the key issue and never really engage with each other. The paper argues that because admission to law school continues to be a significant barrier to entry into the legal profession in Canada, TWU’s admission decisions will have an impact on non-members. The law society, therefore, was justified in requiring TWU to conform to non-discrimination norms as a condition of accreditation.

Pierre Trudeau’s deep personal commitment to Catholicism was largely unknown to Canadians during his tenure as Prime Minister. Indeed, his religious commitment did not play an obvious role in his political life. Trudeau’s version of Catholicism, ‘personalism’, emphasized the personal – interior – spiritual commitment of the individual and the necessity of the separation of religion and politics. He stressed the importance of individual liberty in matters of faith but also the personal responsibility of the individual to serve others and work towards a more just society. Trudeau was opposed to the recognition of an official religion, and indeed to any form of state promotion of a particular religious belief system. He rejected the assumption that political community or social solidarity required a shared (and public) commitment to a particular faith or culture. His promotion of multiculturalism stemmed from his belief that national identity or political membership should not be based on a shared ethnicity that would necessarily include some and exclude others. His championing of the Charter of Rights rested on the view that citizenship should be grounded instead on a shared commitment to the protection of individual and democratic rights. Trudeau was a committed believer and a secular politician, who sought to separate his public action and private conscience. In a sense then he embodied the separation of religion and politics – of church and state – that is central to the contemporary conception of religious freedom. In this chapter, I want to explore the challenge of separating personal or communal spiritual life from civic life which Trudeau had to navigate, throughout his political career.

There is a debate at the moment about whether the law societies (which regulate the legal profession in the various provinces) must accredit a law program to be offered by Trinity Western University [TWU], a private Evangelical Christian college. The Law Society of Upper Canada [LSUC], along with the law societies of British Columbia and Nova Scotia, refused to the accredit the proposed program because of the school’s discriminatory admissions policy and in particular the covenant that all students are required to sign, in which they agree, among other things, not to engage in sex outside of marriage and sex with a same-sex partner. The issue in the TWU accreditation case is whether the covenant is simply an internal matter (a rule that applies simply to the internal operations of a voluntary religious association) or whether it impacts outsiders to the religious community or the public interest, more generally. As I understand it, the law societies are not claiming that the members of a religious community need to be protected from oppressive or discriminatory internal rules. There are two ways in which it may be argued that the TWU program (and the covenant in particular) will have an impact on the public interest. The first argument is that a school that teaches its students that homosexuality is wrongful or immoral will not properly prepare lawyers for practice in the general community. Lawyers have duties to their clients, to the law, and to the institutions of justice. An accredited school must be willing to affirm basic equality rights. Second, admission to Canadian law schools is competitive. If its program is accredited, TWU will select students from a large number of applicants. Following graduation (as well as articling, and bar exams), TWU students will be eligible to practice law in a particular province. The accredited law schools are a gateway to the legal profession. The concern then is that TWU’s admissions policy will have a discriminatory impact on gays and lesbians who wish to enter the legal profession.

A discussion of the Supreme Court of Canada's freedom of expression decisions which move between a discourse of freedom and rationality when defining of the freedom to a causal or behavioural discourse when determining justified limits.

When poverty activist resort to the Canadian Charter of Rights and Freedoms, things cannot be going very well. The Charter of Rights will not eliminate poverty or gross disparities in wealth. It will not ensure that affordable housing is provided to those in need. All it may be able to do is to protect the individual’s right to ask others for help, to beg in the streets.

An introduction to a general discussion of the Canadian courts' approach to religious freedom, which argues among other things that despite their formal commitment to state neutrality in religious matters, the courts have applied this requirement selectively - sometimes treating religion as a cultural identity towards which the state should remain neutral and other times (when it touches upon or addresses civic matters) as a political or moral judgment by the individual that should be subject to the give-and-take of politics. Behind the courts' uneven application of the neutrality requirement lies a complex conception of religious commitment in which religion is viewed as both an aspect of the individual's identity and as a set of judgments made by the individual about truth and right. The challenge for the courts is to find a way to fit this complex conception of religious commitment into a constitutional framework that that relies on a distinction between individual choices or commitments that should be protected as a matter of individual liberty, and individual attributes or traits that that should be respected as a matter of equality.

In the recent case of Syndicat Northcrest v. Amselem, the Supreme Court of Canada held that a condominium association’s refusal to permit Orthodox Jewish unit-owners (the appellants) to construct succahs on their balconies, as part of the Jewish festival of Succot, breached their freedom of religion under the Quebec Charter of Human Rights and Freedoms. Because the restriction of religious practice was imposed by a non-state actor, the Canadian Charter of Rights was not applicable. However, the majority judgment of Iaccobucci J. was clear that “the principles … applicable in cases where an individual alleges that his or her freedom of religion is infringed under the Quebec Charter” are also applicable to a claim under section 2(a) of the Canadian Charter of Rights and Freedoms.

Religious beliefs/practices are excluded and insulated from political contest not because they are intrinsically valuable but instead because they are aspects of a collective or cultural identity and markers of membership in the collective. If the state’s duty to accommodate religious practices is about the status of religious groups rather than the liberty of individuals (a matter of equality rather than liberty) then it may not extend to practices that are idiosyncratic and have no link to a religious or cultural group/tradition. The requirement that the state should accommodate religious beliefs or practices (and sometimes compromise its policies) is most often justified as necessary to ensure that the individual’s deepest values and commitments and more generally his/her autonomy in decision- making are respected. I argue, however, that reasonable accommodation is better understood as a form of equality right that is based on the importance of community or group membership to the individual. Understood in this way, the accommodation requirement may not extend to an individual’s deeply held non-religious practices, if they are not part of a shared belief system. The willingness of the courts to protect certain non- religious practices (to require their accommodation by the state) may rest simply on their formal similarity to familiar religious practices such as pacifism or vegetarianism – that are specific in content, peremptory in force and that diverge from mainstream practices. Yet, as a practical matter, practices of this kind are seldom sustained outside a religious or cultural community. It is not an accident then that the very few instances of non-religious, ‘conscientious’, practices that have been accommodated are similar in content and structure to familiar religious practices, and indeed may have arisen from these religious practices.

In most religious accommodation cases, an individual or group seeks to be exempted from a law that restricts their religious practice. The accommodation claim, though, has a slightly different form in conscientious objection cases. In these cases, an individual asks to be exempted not from a law that restricts his/her religious practice, but instead from a law that requires him/her to perform an act that he/she regards as immoral. In many of these cases the claimant asks to be excused from performing an act that is not itself “immoral” but that supports or facilitates (what she/he sees as) the immoral action of others, and so makes him/her complicit in this immorality.

Many recent hate speech cases in Canada, Europe, and elsewhere involve religion either as the source of views that are alleged to be hateful or as the target of such views and sometimes, of course, as both the source and target of these views. This chapter explores the difference religion makes to the application of hate speech laws – when it is the target of this speech. The ‘religious’ hate speech cases are difficult for the same reason that all hate speech cases are difficult. There is significant disagreement in the community about whether, or to what extent, the restriction of hate speech can be reconciled with the public commitment to freedom of expression. There is, however, another reason why hate speech cases involving religion are so difficult, which stems from our complex conception of religious adherence or membership – as both a personal commitment and a cultural identity. The chapter focuses on anti-Muslim speech in Canada.