The Limits of Canada’s Commitment to State Neutrality in Religious Matters

Abstract

The Canadian courts initially described section 2(a) of the Canadian Charter of Rights and Freedoms [Charter], freedom of conscience and religion, as the liberty to hold, and live in accordance with, spiritual or other fundamental beliefs without state interference [Big M 1985].¹ Freedom of religion, understood as a liberty, precludes the state from compelling an individual to engage in a religious practice and from restricting his/her religious practice without a legitimate public reason. In later judgments, however, there has been a shift in the courts’ description of the interest protected by the freedom, from liberty to equality. According to the courts, the freedom does not simply prohibit state coercion in matters of religion or conscience; it requires also that the state treat religious belief-systems or communities in an equal or even-handed manner. The state must not support or prefer the religious practices of one religious group over those of another (religion or religious contest should be excluded from politics), and it must not restrict the practices of a religious group, unless this is necessary to protect a compelling public interest (religion should be insulated from politics). The requirement of state neutrality was most recently and clearly affirmed in the unanimous judgment of the Supreme Court of Canada in Mouvement laïque v. Saguenay: “[A] duty of religious neutrality on the state… results from an evolving interpretation of freedom of conscience and religion” [Mouvement laïque 2015: para. 71].

The ideas in this chapter are developed more extensively in Moon (2012), ‘Freedom of Religion in the Canadian Court: The Limits of State Neutrality’, University of British Columbia Law Review 45: 497–549.