Section 2(a)

s. 2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

Section 2(a) of the Charter protects your freedom to hold and practice your religious beliefs. You will not be forced to act contrary to your beliefs or conscience, so long as they do not harm others or interfere with public health or safety concerns.

Protected religious beliefs are individual, subjective, and are focused on the sincerity of your belief. Therefore, a religious practice does not have to be practiced by the entire religion, or be uniform dogma, to be protected. You only have to demonstrate that it is your sincere, religious belief for it to be protected.

The Test

Two questions are asked to determine if your rights have been violated (see: Syndicat Northcrest v Amselem, 2004 SCC 47 at 56):

1. Do you have a sincerely held belief or practice that connects you to the divine, or to your spiritual faith?
2. If yes, has government action interfered with your ability to act in accordance with your beliefs in a way that is more than trivial?

Section 2(a) does not completely restrict the government from passing legislation that impacts freedom of religion. Legislation that only has a trivial or insubstantial impact will not violate the Charter (see: Jones v R, [1986] 2 SCR 284 at 67). As with all Charter rights, there are reasonable and justifiable limits on this freedom.

Section 2(a) and the Family

Many important section 2(a) cases deal with freedom of religion in a family context. Courts can restrict the religious rights of parents in order to protect the rights of the child (B(R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 at 383). For example, courts will authorize medical treatment for children if that treatment is in the best interests of the child, even if doing so goes against the religious beliefs of the parents (AC v Manitoba (Director of Child and Family Services), 2009 SCC 30 at 87). This decision is influenced by the age (usually under sixteen) and maturity level of the child. (Alberta (Director of Child Welfare) v BH, 2002 ABPC 39).

Section 2(a) and the Right to be Non-Religious

Section 2(a) protects your right to be non-religious. While this issue has not been litigated, it is likely that freedom of conscience protects your right to be an atheist.

If you think your Charter right or freedom has been breached, click here to review the s. 1 proportionality test.

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