A Burl on the Living Tree: Freedom of Conscience in Section 2(a) of the Canadian Charter of Rights and Freedoms

The Charter grants to everyone, in s.2(a), the “fundamental …freedom of conscience and religion.” Yet the interaction between the two operative terms, “religion” and “conscience” remains largely unexplored. What, for example, is meant by “conscience”? By conscience in contradistinction to religion? Does s. 2(a) make a distinction between the state’s respect for religion and that of conscience? Can freedom of conscience be elevated to a freestanding right? Can conduct motivated by conscience be exempted from general laws in the way that some religious conduct has? Should the state take action to ensure conscience is protected? After more than 25 years of Charter commentary and jurisprudence, these remain deep questions, only partially answered. This project considers the possibility of building a case for an independent and robust “conscience” branch of s. 2(a), which will protect a broader range of freedoms, at the same time as allowing other disputes to be cast in more neutral tones (by taking them out of religious-based language, where possible) and allowing still others more room to develop in a more analytical and principled basis (as purely “religious” disputes more commonly associated with religious norms). In my view, there is, despite some opposition, sufficient justification in history, theory and doctrine to establish a separate and independent concept of freedom of conscience. At the same time, freedom of religion will always remain relevant as an acknowledgement of the distinct communal aspects of religion. Thus, a broad approach to freedom of conscience could include individual religious claims where the religious belief is based on a matter of conscience, and those conscience-based claims that lack a communal dimension, such as the prisoner who cannot eat meat or the whistleblower who feels compelled to report a supervisor. By exploring the origins of conscience and religious freedom, the basis behind the inclusion of conscience in many human rights documents, and the need for a theory that encompasses both as equal and complementary aspects of liberty, the dissertation sets out some possible ways in which freedom of conscience could be invoked and present a potential framework for assessing constitutional freedom of conscience claims.

Department dc:contributor.department

Law

Year dc:date.issued

2012

Author dc:creator

• Haigh, Richard Arthur

Advisor dc:contributor.advisor

• Sossin, Lorne

• constitutional law
• freedom of conscience

Language dc:language.iso

en_ca

Handle dc:identifier.uri

http://hdl.handle.net/1807/32727

OAI identifier oai:identifier

oai:utoronto.scholaris.ca:1807/32727