Freedom of Religion

Jack and Charlie v. the Queen

Facts of the case:

* Jack and Charlie shot a deer out of season

* the reason: to provide raw deer meat for a religious ceremony

* initial ruling was that the Wildlife Act did not infringe freedom of religion;

* verdict : guilty, but given absolute discharge

What is at issue?

*Freedom of religion is very important but:

*Freedom of religion should not be used as an excuse for ignoring the law

(the "shoplifting is part of my religion" worry)

*Even sincerely held religious beliefs will be susceptible to social regulation, if other values are at stake (at least sometimes)

"It is safe to say... that generally speaking a practice arising from a sincerely held religious belief may be restrained if it is a breach of the peace, or interferes with public or private rights or otherwise amounts to an an illegal act."

Whoa! Is this OK?

Consider the following:

Law makes it illegal to light Menorah candles (anything more than four candles constitutes a fire hazard). Is this OK?

Claim in J&C : Wildlife act does not actually touch on the religious ceremony. It touches on the way in which you GET the material for the religious ceremony.

There is no reason why Jack and Charlie could not have used frozen deer meat for the religious ceremony. (Liquor store analogy)

Question: is this a good decision?

What if the ritual had specified that a specially designated individual had to hunt and kill the deer, and then burn the meat?

All we have is the suggestion that the Wildlife Act has a legitimate public purpose, namely the protection of wildlife.

And since it does not TARGET the religious practices of the Salish Indians, it does not violate their freedom of religion.

Big M Drugmart

Big M Drugmart stayed open on a Sunday, contrary to the Lord's Day Act

Constitutional Questions

* Does the Lord's Day Act infringe upon freedom of conscience and religion guaranteed by the Charter?

Problem 1: Big M Drugmart is a drugmart (corporation) not a person, and so its freedom of religion cannot be infringed.

Answer: s.24 of Charter identifies individuals as bearers of Charter rights.

But s.52 of Constitution Act, 1982 clearly states that any LAW that violates the constitution is of no force or effect

Status of the LAW, not the accused, is at issue.

Problem 2: the Lord's Day Act can have a non-religious effect, even if it has a religious purpose: it could promote a uniform day of rest from labour for all.

But original purpose of the Act was clearly to promote Christianity: both purpose and effect have to be considered in order to test legislation's constitutionality.

Problem 3: what is freedom of religion?

Answer:

a) right to entertain religious beliefs of one's own choosing

b) right to declare belief's openly without fear of reprisal

c) right to manifest religious belief by worship, practice, teaching and dissemination.

And there's more:

Absence of coercion:

"Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or conscience."

Coercion in Lord's Day Act: everyone has to observe the Christian Sabbath, thus Muslims and Jews (e.g.) will be at a commercial/social disadvantage if they have to observe 2 non-working days.

Some notes on the "purposive reading of the Charter"

To ascertain what a particular right means, one has to understand the purpose of that right

What is freedom of religion for? what interests does it protect?

*Protects critical life decisions of the individual

*Protects core values

*Constitutes crucial part of the democratic tradition: ensures that people will be able to hold whatever beliefs they choose (within certain limits)

*Only way to have politics represent the REAL will of the people