Charlottetown Accord,Privy Council
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Freedom of Religion The freedom of religion is one of the fundamental freedoms protected by section 2 of the Canadian Charter of Rights and Freedoms.[1] What is the legal impact of having this freedom? In other words, what does it allow me to do and what government action does it protect me from? According to the Supreme Court, the Charter protected freedom means that no one in Canada can be forced by the government to act in a way that is contrary to his or her religious views.[2] For example, the Supreme Court has determined that religious officials cannot be forced to perform same-sex marriages if doing so violates their religious beliefs.[3] In practice, having the freedom of religion means a person is allowed to entertain whatever religious beliefs he or she chooses.[4] Freedom of religion also allows a person to declare his or her religious beliefs “without fear of hindrance or reprisal,” and to worship, practice, and disseminate those beliefs.[5] The freedom of religion protects only “beliefs, convictions, and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held.”[6] What does the term “religion” mean in this legal context? “Religion,” according to the Supreme Court, “is about freely and deeply held personal convictions … connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment.”[7] It often “involves a particular and comprehensive system of faith and worship” and “the belief in a divine, superhuman or controlling power.”[8] What religious conduct is legally protected from government interference? A ‘trivial or insubstantial’ effect on a person’s ability to practice his or her religion will not constitute a breech of this freedom.[9] The freedom extends to protect against only non-trivial interference. Additionally, only practices that do not injure others are protected.[10] Beyond these thresholds, religious beliefs that are ‘sincerely held’ are protected from government infringement.[11] Sincerity can be assessed many ways, for example, by examining the claimant’s demeanour, his or her prior religious experience, and the relationship between prior religious experience and the belief currently held.[12] There is no objective inquiry into whether a belief conforms with established religious practice.[13] The freedom of religion is not contingent on whether a religion is being practiced ‘correctly’.[14] Are their any limitations on the freedom of religion? While freedom of religion is a fundamental freedom, it is not absolute: this freedom is subject to “reasonable limits” by the government as outlined in section 1of the Charter.[15] For example, the Alberta Government was allowed to impose a universal photo requirement for drivers licences even though this violated the religious freedom of Albertan Hutterites, whose religious beliefs prohibit them from having their photograph taken.[16] [1] Canadian Charter of Rights and Freedoms, s 2, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [2] R v Big M Drug Mart, [1985] 1 SCR 295 at 337, 18 DLR (4th) 321 [Big M Drug Mart]. [3] Reference Re Same-Sex Marriage, 2004 SCC 79 at para 60, [2004] 3 SCR 698. [4] Big M Drug Mart, supra note 2 at 336. [5] Ibid. [6] Syndicat Northcrest v Amselem, 2004 SCC 47 at para 39, 2004 2 SCR 551 [Amselem]. [7] Ibid. [8] Ibid. [9] Ibid at para 58. See R v Jones, [1986] 2 SCR 284 at 313–14, 31 DLR (4th) 569. [10] Ibid. [11] Ibid at 42; See also Jose Woehrling, “L’obligation d’Accommodement Raisonnabe et L’adaptation de la Societe a la Diversite Religieuse” (1998) 43:2 McGill LJ 325. [12] See Re Civil Service Association of Ontario and Anderson et al, 60 DLR (3d) 397 at 399, 9 OR (2d) 341 (HC). [13] Amselem, supra note 6 at para 43. [14] Ibid at para 50: “In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining … the content of a subjective understanding of religious requirement, “obligation,” precept, “commandment,” custom or ritual”. [15] Canadian Charter of Rights and Freedoms, supra note 1, s 1. [16] Hutterian Brethren of Wilson Colony v Alberta, 2009 SCC 37 at para 104, 310 DLR (4th) 193. Charter Statements Charter Statements are documents prepared by the Minister of Justice upon the introduction of a new bill. They are a tool designed to reassure the public that the government has considered potential constitutional problems that may arise as a result of its proposed law. A Charter Statement notes the potential constitutional issues that the legislation may present, and how these issues could be justified. However, a Charter Statement itself will not explicitly say if a Charterright would be violated by a provision in the bill that is proposed. Under section 4.1.1 the Department of Justice Act, it is the responsibility of the Minister of Justice to ensure that bills introduced into Parliament comply with the Charter.[1]Charter Statements are one way of doing this. Therefore, to ensure that the public is aware that the government has taken its responsibility seriously, it has tabled Bill C-51 – An Act to Amend the Criminal Code and Department of Justice Act. This Bill states that Charter Statements will become mandatory for every piece of legislation introduced once it is passed. As stated by the current government, “[r]equiring the introduction of a Charter Statement for every new Government bill represents a new, more open and more transparent way of demonstrating respect for the Charter.”[2] The practice of identifying a bill’s constitutionality has manifested in different ways before the introduction of Bill C-51. Before the use of Charter Statements, Ministers presenting new bills gave their implicit approval of a new bill’s constitutionality. Academic James Kelly points out that “Charter vetting” has always been a mandatory practice, as “[a] department cannot submit a memorandum to cabinet unless the DOJ [Department of Justice] has assessed the risk of judicial invalidation and must certify its constitutionality.”[3] An Example of a Charter Statement: Bill C-45 Charter Statements are a separate document that accompanies a bill upon its introduction to the House of Commons. Every Charter Statement begins with an explanatory note, stating the purpose of a Charter Statement, which is the same for each bill. This note makes clear that the statement is not a comprehensive overview of Charter considerations, as bills see a number of amendments from their first reading in the House of Commons to their Royal Assent. It also identifies section 1 of the Charteras a balancing mechanism, noting that even though there may be a violation of the Charter in the proposed legislation, it may be one that can be justified by the government. Further, each CharterStatement makes a point of including that a Statement “isnot a legal opinion on the constitutionality of the Bill.”[4] Following this explanatory note is a brief explanation of the bill’s purpose, along with an overview of the Charter“engagements” the bill presents. For example, in Bill C-45, the Cannabis Act,potential engagements with the Charterare categorized by different topics the legislation addresses. Some of these include criminal offences created through the Bill, restrictions on promotion/packaging/labeling, and “ticketable offences and administrative monetary penalties”. Regarding criminal offences, the Statement identifies that these provisions could engage section 7 of the Charter, which deals with life, liberty, and security of person. The statement explains what section 7 of theCharter is, and that “[a]ny criminal prohibition that gives rise to the possibility of imprisonment engages the section 7 right[.]”[5]It also provides considerations that support the consistency of the provisions with the Charterthat potentially engage section 7, citing case law and explanation. Therefore, the Charter Statement points out that the criminal offences provisions in Bill C-45 may engage section 7 of the Charter, letting the public know that this is a possibility, not a certainty. In short the government has, as a matter of its accountability to the public, considered this possibility and nonetheless feels confident in tabling the Bill. [1]James B. Kelly, “Parliament and the Charter of Rights: An Unfinished Constitutional Revolution” Policy Options1 February 2007, online http://policyoptions.irpp.org/magazines/the-charter-25/ parliament-and-the-charter-of-rights-an-unfinished- constitutional-revolution/[Parliament and the Charter of Rights] [2]Department of Justice Canada, “Cleaning up theCriminal Code, Clarifying and Strengthening Sexual Assault Law, and Respecting the Charter” Government of Canada 07 June 2017, online <https://www.canada.ca/en/department-justice/news/2017/06/clea ning_up_the_criminalcodeclarifyingandstrengtheningsexualassa.h tml> [3]Ibid. [4]Department of Justice, “Bill C-45: An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and Other Acts” Government of Canada29 May 2017, online <http://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c45.ht ml> [5]Ibid. Property Rights Section 1(a) of the 1960 Canadian Bill of Rights (S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III) provides federal statutory recognition of “the right of the individual to … enjoyment of property”, and the right “not to be deprived thereof except by due process of law.” The right to property is also included under the fifth and fourteenth Amendments of the American Bill of Rights. However, the Canadian Charter of Rights and Freedoms does not provide constitutional protection for individual ‘property rights’. At the meetings of the Special Joint Committee on the Constitution and during Parliamentary debate on Bill C-60, Progressive Conservative MPs proposed that a right to “the enjoyment of property” be included under section 7 of the Charter.