Freedom Of Religion In Canada's Constitution

Every country has a dominant culture—a culture that is usually rooted in religion. In Europe, prior to the 19th and 20th century, politics, law, society, economics, and cultural norms were all primarily shaped by Christianity. Despite the rise of historical developments that opposed the teachings and traditions of Christianity such as Humanism and the Enlightenment, the power of the clergy remained untouched. Moreover, until the gradual uprising of Western civilization against the domination of the Church which reflected the desire of a democratic society that embodies secularism, along with the emergence of capitalism, modern science, Protestantism, and religious Reformation movements alike, religion had always been present throughout the
In spite of the courts’ obligation to adopt freedom of religion principles on the grounds of prohibition against religious discrimination as a result of Great Britain’s conquest of New France in 1759, before the Confederation of 1867, Canada’s constitution made no reference to state neutrality in matters of religion, nor did it affirm the separation of church and state. In pursuance of ensuring loyalty and preventing allegiance to the American colonists, Great Britain refrained from establishing the Anglican Church in Lower Canada. Consequently, policies that guaranteed freedom of religion were further advanced by the Quebec Act, 1774, which abolished the “Test Oath” and authorized the collection of tithes by the Catholic Church. Moreover, statutes passed in Lower Canada as well as in the British Parliament which protected the rights and privileges of the Jews were critical to the advancement of state neutrality. Following the enactment of the Freedom of Worship Act, 1851, the separation of church and state was ultimately established. Accordingly, the British North America Act—the constitution of the Canadian Confederation—confirmed the separation in 1867. Nevertheless, the provisions of the Constitution did not clarify the state’s relationship with religion, and with the exception of assuring the protection of Catholics and Protestants in matters of
Even though the application of the Charter is limited to state action, thereby not making private agreements subject to freedom of religion, provisions equivalent to section two can be found in provincial human rights codes or the Quebec Charter of Human Rights and Freedoms. The Syndicat Northcrest v. Amselem case clarifies to what extent individuals are entitled to contractual exemption on the basis of freedom of religion in the private context of law. The case involved a private contract regarding the terms and conditions of owning an apartment unit in a condominium—a contract whereby the signers, or co-owners of the condominium, agreed not to erect any sort of constructions on their balconies to maintain the building’s uniform appearance. However, one of the owners erected a Sukkah—a temporary construction, or hut, to be more precise—in order to celebrate the Jewish High Holiday of Sukkot which ultimately led to a legal proceeding. With a narrow majority, the Supreme Court ruled in favor of Amselem by allowing him to be exempt from that specific contractual clause on the grounds of freedom of religion. The dissenting judges underlined that the agreement was reached by mutual consent; therefore, its