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Overview of religious freedom in Canada

Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference. According to the 2021 census, Christianity is the largest religion in Canada, with 53.3% of the population (more than half of these are Roman Catholic); one third of Canadians stated that they were irreligious or had no religion. In 2023, the country was scored 3 out of 4 for religious freedom; it was noted that in 2019, a new law was put in place stating that some government employees in positions of authority were not allowed to wear religious symbols.

While religious freedoms are protected from state interference by the Charter, the actions of private individuals are largely governed by the provincial human rights codes. These codes prohibit discrimination in the marketplace, accommodation, and employment on the grounds of a variety of personal characteristics, including religion. There is also a federal statute, the Canadian Human Rights Act, which prohibits discrimination in workplaces and businesses under federal jurisdiction, such as banks and airlines. The Act prohibits religious discrimination.

In 1955, the Supreme Court of Canada ruled in Chaput v. Romain, regarding Jehovah's Witnesses, that all religions have equal rights, based upon tradition and the rule of law. At the time, no statutes formed the basis for this argument. In the Guibord case in 1874, the Judicial Committee of the Privy Council, at that time the court of last resort for Canada within the British Empire, ruled that the civil courts of Canada have the jurisdiction to resolve disputes between members of a church and the church organization. The basis for the ruling was that churches are required to comply with their own internal rules and laws, and members of the church have the right to be treated in accordance with those internal rules and laws. In the specific point in issue in the Guibord case, the Judicial Committee ruled that the Roman Catholic church in Montreal could not refuse the burial of a deceased member of the church because of his political views. In R. v. Big M Drug Mart, the first freedom of religion case decided by the Supreme Court of Canada following the enactment of the Charter, the Court struck down the Federal Lord's Day Act, which prohibited the conduct of commercial activities on the Sunday Sabbath. The Court held that s. 2(a) of the Charter prohibited the state from either compelling individuals to engage in a religious practice or prohibiting them from engaging in a religious practice. Religious freedom under the Charter, said the Court, protected the autonomy of the individual in religious matters. In Syndicat Northcrest v. Amselem, the Supreme Court of Canada provided a two pronged test to introduce a freedom of religion claim: first, a demonstration of practice or a belief having a nexus with religion. Second, the person has to be sincere in his/her belief. The court also stated that the practice in question does not have to be mandatory to the religion, or observed by all who practice the religion. What is important is that the practice has a nexus with religion (see para 44 of the judgment). In Mouvement laïque québécois v Saguenay (City), the Supreme Court of Canada ruled that municipal councils cannot open their meetings with a prayer, since it infringed on freedom of conscience and religion. The Court said that the state must remain neutral in matters of religion that it must not favour or support one religion over another, or religion over non religion and vice versa. The ruling ended a legal case that started with a complaint filed by atheist Alain Simoneau and the Mouvement laïque québécois against Saguenay, QC Mayor Jean Tremblay. In the 1994 case of M. A. B., W. A. T. and J. A. Y. T. versus Canada, the United Nations Human Rights Committee ruled that there are limits to what kind of belief can be understood as religion within the frames of human rights. The so called Assembly of the Church of the Universe did not succeed in claiming that the Canadian authorities had violated their freedom of religion because they had been arrested for selling marijuana, which for them was their holy sacrament. The committee found instead that the entire faith community appeared to be constructed solely to circumvent Canada’s then comprehensive prohibition against narcotics. The Committee concluded that “a belief consisting primarily or exclusively in the worship and distribution of a narcotic drug cannot conceivably be brought within the scope of article 18 of the Covenant,” and as such did not qualify as a religion.

The notion of reasonable accommodation is a judicial creation. It implies that "federal/provincial/territorial anti discrimination measures place a positive duty on employers, service providers and landlords [ ] to accommodate people's needs for reasons associated with recognized discriminatory grounds." According to Sandra Fredman, the duty of reasonable accommodation "represents and advance towards substantive equality" for three reasons. Firstly, "equality is explicitly asymmetric, aiming to redress disadvantage even if this entails different or more favourable treatment." Secondly, it is focused "on modifying the environment to facilitate the participation of those affected." Finally, "[it] goes beyond other conceptions of equality in that it expressly imposes a positive duty to make changes." The notion of reasonable accommodation is directly related to the freedom of religion. Indeed, in 2006, "the Multani decision [ ] moved reasonable accommodation from the realm of employment law into a broader legal discourse on religious freedom more generally." In claims concerning discrimination on religious grounds, the burden of proof shifts to the employer, landlord or service provider who has to prove the two elements: (1) that the rule is necessary and (2) he accommodates the individual to the point of undue hardship.

The duty of reasonable accommodation on religious grounds experiences some limits, because all rights are not absolutes. Indeed, reasonable accommodation requires a balance between the rights of the claimant and the holder of the duty to accommodate. The main limit to the duty to accommodate that is included in the CHRA is the notion of undue hardship. It signifies that the discriminatory practice can be justified if the duty holder demonstrates that the required accommodation weights too much on him. The undue hardship includes "health, safety and cost." Professor Christian Brunelle divides the evaluation criteria in three categories: the limits of financial and material resources of the company/institution, the breach of the victim's rights, and the proper functioning of the company/institution. The judge also takes into account the reasonable feature of the controversial policy, rule or norm, the effort of accommodation by the duty holder, and the excessive feature of the constraint. Courts generally agree that the complainant has to take steps towards accommodation or "must either sacrifice his religious principles or his employment".

The duty of reasonable accommodation has a major impact on the promotion of multiculturalism protected under Section Twenty seven of the Canadian Charter of Rights and Freedoms. Professor Errol P. Mendes suggests that reasonable accommodation is part of the "Canadian paradigm", in contradistinction with the French "laïcité." Besides the cases brought to courts, there are many examples of reasonable accommodation negotiated in a non judiciary context. One example is the decision of the Royal Canadian Mounted Police (RCMP) to allow Sikh adherents to wear religious signs when serving the RCMP (e. g. the turban, the beard and the dagger.) The federal court decided that this decision did not infringe the Charter. Other illustrations exist. It is the case of some municipalities that decided that the public swimming pool should be separated between men and women 3 hours a week (1h30 each) to accommodate observant Muslims. It was also brought up with the decision of the Quebec Soccer Federation to lift the prohibition on Sikh head coverings. The duty of reasonable accommodation presents particular issues in the province of Quebec. Some describe it as a "subject of high controversy" and as threatening "the collective values chosen by Quebecers to govern their collective existence". Surveys showed that 71.7% of Quebecers whose mother tongue is French found today's society "overly tolerant of accommodation", whereas only 35.2% of Quebecers having another mother tongue shared this opinion.

In a 1985 Supreme Court case involving the Lord's Day Act, R. v. Big M Drug Mart Ltd., Chief Justice Brian Dickson said that religious freedom in Canada includes freedom of religious speech, including "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination." Canada has laws prohibiting the promotion of hatred against sections of the public distinguished by colour, race, religion, ethnic origin, or sexual orientation. However, there are exemptions in the Bill which permit the expression of opinions on religious subjects and opinions based on religious texts which would otherwise be prohibited. In 1996, the Supreme Court of Canada held that the anti Semitic publications of a New Brunswick schoolteacher, challenged under provincial Human Rights Act, were protected by his right to freedom of religion, but that professional sanctions were a reasonable limit on that right, to maintain "a school system that is free from bias, prejudice and intolerance." In 1997, Hugh Owens, a Saskatchewan prison guard, published an advertisement in the Star Phoenix that referenced Bible verses related to homosexuality (without quoting them) and drew a line through an image representing a gay couple. A complaint was lodged with the Saskatchewan Human Rights Board of Inquiry. The Board ruled against Owens and that decision was also upheld by a lower court. On April 13, 2006 the Saskatchewan Court of Appeal overturned the previous decisions, ruling that while Owens's advertisement was "offensive and jarring to many", it was not illegal. The court also ruled that statements which are designed to provoke "extreme emotions and strong feelings of detestation, calumny and vilification" may be deemed as hate speech. In 2000, Rev. Ken Campbell successfully defended against an Ontario Human Rights Commission complaint filed after he placed an advertisement in The Globe and Mail newspaper where he protested a Supreme Court of Canada ruling calling for Alberta to amend the Human Rights Code regarding LGBT issues. The ad began with "Supreme Court has no business imposing 'bathhouse morality' on the churches and in the living rooms of the nation." Two years later he successfully defended against a complaint filed at the BC Human Rights Tribunal for the same advertisement, with the decision stating "The essence of Mr. Campbell's defence is that the publication is an expression of his Charter protected rights to express his religious beliefs; that is, a finding of discrimination would impair both his freedom of expression and his freedom of religion." Another high profile case involves Chris Kempling, a school teacher, who was suspended without pay in 2002 for writing letters to a local newspaper objecting to the introduction of LGBT related material into the public school system, arguing against same sex marriage, and advocating conversion therapy for gay and lesbian persons. Kempling appealed the suspension to the courts. The British Columbia Court of Appeal found that his right to freedom of expression had been breached, but that the disciplinary action was a reasonable limit on his rights, as it was done with the objective of maintaining a tolerant and non discriminatory school system.

In R. v. Big M Drug Mart, the Supreme Court of Canada held that the stated purpose of the federal Lord's Day Act, compelling observance of the Christian Sabbath, was incompatible with the protections of freedom of religion in the Charter. In 1986, in R v Edwards Books and Art Ltd, the Supreme Court found that legislation prohibiting Sunday shopping with the secular purpose of creating a day of rest was also a violation of freedom of religion because of the unequal effect of the law on retailers who observed a different sabbath. However, this violation was upheld as a justifiable limit on freedom of religion. The Supreme Court of Canada has ruled that there is a duty to accommodate religious observance under human rights legislation. The 1990 case Central Alberta Dairy Pool v. Alberta concerned an employee who was required by his religion to take Easter Monday as a holy day. As this is not a statutory holiday, his employer required that he work that day or lose his job. The Supreme Court of Canada found that the employer should have accommodated the employee's religious practices. In a series of ongoing legal cases (Beaudoin v. British Columbia, Trinity Bible Chapel v. Ontario, and Gateway Bible Baptist Church v. Manitoba), courts have consistently decided that the provincial public health orders that prohibited in person religious worship services in the face of the COVID 19 pandemic infringed on the freedom of religion. However, these courts ruled that this constitutional infringement was permissible in a "free and democratic society."

In a 1985 court case involving an employee of the Canadian National Railway, K. S. Bhinder, a Sikh whose religion required that he wear a turban, lost his challenge of the CNR policy that required him to wear a hard hat. In the 1990 case of Central Alberta Dairy Pool, the Supreme Court of Canada overturned the 1985 Bhinder decision, saying: "An employer that has not adopted a policy with respect to accommodation and cannot otherwise satisfy the trier of fact that individual accommodation would result in undue hardship will be required to justify his conduct with respect to the individual complainant. Even then the employer can invoke the BFOQ (bona fide occupational qualification) defence." In the 1991 case of Peel Board of Education v. Ontario Human Rights Commission, an Ontario school board's "zero tolerance" for weapons in its schools had an adverse impact on Khalsa Sikh men who are required by their religion to carry a kirpan, a ceremonial dagger. A Khalsa Sikh teacher brought a complaint under the Ontario Human Rights Code and was successful. The school board challenged this to the Ontario Divisional Court on the basis that there was a threat to public safety. The Divisional Court ruled that the threat to public safety from Sikhs was minimal and the discriminatory impact of the ruling on this religious group was significant. In 2006, the Supreme Court of Canada ruled in Multani v. Commission scolaire Marguerite‑Bourgeoys that Sikh children can wear a kirpan to school based on freedom of religion. In 1995, the Federal Court of Appeal upheld the exemption for Sikhs from wearing the "Mountie hat" as part of the RCMP dress requirements. In 2019, Quebec passed an Act respecting the laicity of the State that forbids public officials from wearing religious symbols or garb on the job and denies public services to those wearing religious dress. The Superior Court of Quebec has held parts of this statute are unconstitutional, but has upheld most of it because the Quebec government invoked the notwithstanding clause of the Charter, which temporarily allows some constitutional rights and freedoms to be overridden. The case is on appeal to the Quebec Court of Appeal.