Freedom of religion before and after Charter

Introduction
Freedom of religion was recognized by Canadian courts long before the
enactment of the Charter of Rights and freedoms. In 1955 in Chaput the SC stated, that
all religions have equal rights, based upon tradition and the rule of law. According to
S&R, freedom of religion was recognized by the courts as an important value of
Canadian society long before the enactment of the Charter, but it could only be protected
indirectly through the interpretation of statutes and the enforcement of the division of
powers. This was apparent in Saumer, where a municipal by-law was challenged that
prohibited the distribution of literature in the street without the proper authorization of
the Chief of Police on the basis that it was outside of the municipality's jurisdiction and
that it had the effect of religious and political censorship. At the SC in a 5 to 4 decision,
the Court held that the subject matter of the law was in relation to "speech" or "religion"
which were both in the exclusive legislative jurisdiction of the Federal Government and
thus the municipal by-law was ultra vires.
Before the Charter
In Hamilton the PC held Sunday observance of the Lords Day legislation was to
be within criminal law. Thus, it was held to be, beyond the competence of the province
and upheld. Similarly, in Roncarelli the SC held that Maurice Duplessis the premier of

Quebec, had overstepped his authority by revoking the liquor license of one of Jehovahs
witnesses. In Rosetanni the challenge to the Lords Day Act was fought under the Bill of
Rights. In this case it was determined that the Lords Day Act was valid federal legislation
under the division of part of the constitution, and also that it did not violate Canadians
freedom of religion as expressed in the Bill of Rights. Ritchie J upheld the Lords Day
Acts constitutionality for the majority, stating that the sanctity of Sunday had long been
part of the criminal law in its widest sense. In Switzman the padlock law was
challenged as being ultra vires the power of the Provincial Government and a violation of
freedom of speech. The courts found in favor of Switzman in an 8 to 1 decision on both
issues, striking down the legislation. Switzman, was therefore able to use federalism to
protect his beliefs.
Case law before the Charter shows how Federalism has provided some protection
for freedom of religion and belief. This protection has been valuable in Roncarelli,
Saumer, and Switzman in that it has protected minority and religious rights. On the
contrary, the protection afforded by federalism before the Charter looks to have
entrenched Christian beliefs upon the public, as seen in Rosetanni and Hamilton, by
protecting the Lords Day Act. Cartwright the dissenting judge in Rosetanni originally
suggested the purpose and effect of the Lords Day Act was to compel the observance of
Sunday as a religious holy day by all the inhabitants of Canada, which in itself would
infringe religious freedom.
After the Charter
In Big M the SC struck down the Federal Lords Day Act prohibition of Sunday
shopping as it was deemed to be a violation of freedom of conscience and religion.

Dickson J suggested that the purpose of the act was to promote the observance of the
Christian Sabbath. This amounted to an infringement of the freedom of religion for nonChristians. This decision looks to follow the dissenting judgment of Cartwright in
Rossentati. Similar to Dickson in Big M, Cartwright saw the Lords Day Acts purpose as
to compel the observance of Sunday as a religious holy day by all the inhabitants of
Canada. According to S&R if there is a secular purpose behind Sunday closing laws, they
do impose burden on those who observe another day of rest for religious reasons.

In Edwards, Dickson for the majority held the Ontario Sunday closing law put
Saturday observers at a disadvantage compared to Sunday observers who enjoyed
statutory protection for their holy day. However, a majority of the judges still determined
that the Act violated section 2(a) of the Charter, but should be saved under section 1. It
was decided the secular purpose of providing common pause day was sufficiently
important to justify a limit on freedom of religion. The Ontario Legislature amended the
Act, allowing retail stores that the owner chose to close for religious reasons on any day
other than Sunday to open on Sunday. According to Ginn, Blaikie, and Goldstein the
disproportionate impact on those whose religion observed a day of rest other than Sunday
was an effect of the legislation, but not its purpose. Therefore, a S. 1 analysis could be
conducted and the legislation upheld. Although this decision seems to favor those
religions whose day rest falls on a Sunday the Court recognized the law had a valid
secular objective, which was to secure a common weekly day of rest for all workers, and
Sunday looked to be the most logical day. (JUKIER and WOEHRLING )
The Accommodation of Religion

The judgment in Amselem produced an expanded definition of the religious

practices that are protected under the Charter. The court found that the limitation of
freedom of religion in order to protect the property interest of other residents in the
balconies was not justified, given that the Succahs were only constructed for nine days
each year. The court held that the religious practices do not need to be part of an
established belief system, or even a belief system shared by others. (Amselem)

In Childrens Aid Society parents who were Jovah witnesses refused to allow their
child to undergo a blood transfusion thought by doctors to be required to save the childs
life. (S&R) When the Childrens Aid Society brought an application to take the child into
care to ensure that she could be given necessary treatment, the parents argued that this
application violated their freedom of religion (s. 2). (S&R) The SC upheld the order
placing the child under the protection of the Society. Five of the judges asserted that the
parents rights to freedom of religion were violated, concluding that the guarantee
protected religious beliefs even if those beliefs could harm another. (S&R) However, the
limitation on the parents rights was justified under Section 1 in order to protect the child.
In contrast, four judges argued that the guarantee of freedom of religion should not
extend to conduct endangering the life or seriously endangering the health of the child
(S&R).

Conclusion

Freedom of religion was protected before the Charter through indirect means,
primarily through upholding the division of powers. However, this protection seems to
have favoured Christianity over other religious beliefs. After the Charter came into force
the courts were able to provide an expanded definition of religion to be protected.
However, as seen from the application of s.1 in Childrens Aid Society and Edwards
courts are now more easily able to justify restrictions on freedom of religion. It is difficult
to say if religious freedoms are better protected now or if it is just that restrictions on
freedom of religion are more easily justified.