Canadian atheists are often confronted by misinformation about their right to freedom from religion. Usually, the perpetrators are religious people who claim that the Charter of Rights and Freedoms does not guarantee this. The most recent person of note to say this is the Honourable John Baird, Minister of Foreign Affairs, who happens to be responsible for the Office of Religious Freedoms.
The clauses at the centre of this misinformation are those dealing with Fundamental Freedoms:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Most central are 2a, including freedom of conscience and religion and 2b, including freedom of thought, belief, opinion and expression. Even a layperson's understanding of those terms would indicate that freedom of thought would include the right to think that there is no god. Freedom of opinion, and expression would logically reinforce that.
Some theists argue that the preamble to the Charter recognizes the "supremacy of God" and this precludes the right to freedom from religion. However, the courts have never used the preamble as a basis of constitutional decisions and have debated its legitimacy as a basis for legal arguments. In short, there is no legal precedent for its use to promote a theist interpretation of the Charter.
Indeed, the Supreme Court of Canada (SCC) has said that the Charter does guarantee the right to freedom from religion, and it has said it repeatedly.
The first and definitive case in which the Supreme Court said this was Regina v. Big M Drug Mart Ltd, in 1985. This case has been cited in many similar cases since then, so it serves as the real basis for the Canadian atheist claims to the right to freedom from religion.
The case involved Big M Drug Mart Ltd., a retail drugstore chain, charged by the Crown Attorney of New Brunswick with a breach of the Lord's Day Act in that province. The crown lost its case and appealed, eventually, to the Supreme Court of Canada.
First, the SCC dealt with the constitutionality of the Lord's Day Act. Essentially it said that to limit the protection of clause 2a -- the right to freedom of conscience and religion -- to those who hold religious beliefs had no basis. "An accused atheist would be equally entitled to resist a charge under the Act. The only way this question might be relevant would be if clause 2(a) were interpreted as limited to protecting only those persons who could prove a genuinely held religious belief. I can see no basis to so limit the breadth of s. 2(a) in this case" (section 40 of the decision). In other words, the NB Lord's Day was unconstitutional.
Then the court dealt with the issue of freedom of religion, saying, "freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person."(94) It further stated, "Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free"(94) and "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 his conscience."(95)
More directly, the court pointed out that "what may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view."(96) The court also pointed out that "Equally protected, and for the same reasons, are expressions and manifestations of religious non‑belief and refusals to participate in religious practice. (105)
This kind of legal response to an appeal to the SCC is typical of the court when it is confronted with an appeal of this sort. Indeed, the Big M Drug Mart case has become the precedent for decisions in many similar cases.
In the light of this clear decision on the part of the SCC, the notion that freedom from religion is not guaranteed by the Charter is completely wrong. What leads people to this error is that they think that legal documents like the Charter are to be interpreted directly, literally, and simplistically. However, the meaning of Canadian laws also rests with decisions made by the courts and the courts of other similar jurisdictions. In other words, precedent, or in lawyer language, case law.
This process, while it sometime frustrates people like John Baird, because it does not lend itself to the kind of simplistic bombast they like, injects an important ingredient into our legal system --justice. Our courts, in dealing directly with people accused of breaking the law, get to hear the specific circumstances of the case and are able to apply the law, passed by parliament to cover general circumstances, to specific circumstances.
In the Big M Drug Mart case, the SCC looked at the very nature of freedom and realized that to coerce someone to follow a religion is to deny that person freedom of religion. If that person is a non-believer, freedom of religion then means the right to not believe-freedom from religion.
This is a very important principle for us non-believers in a democracy like Canada. As a result of this decision, and its reinforcement through many other cases that use the Big M Drug Mart case as a precedent, we have the right to freedom from religion.
If Mr. Baird, through the Office of Religious Freedom, claims to defend freedom of religion in the Canadian sense of the phrase, in other countries, he must then defend freedom from religion as well.
We non-believers, through Secular Connexion Séculaire (SCS), have been trying to hold the Office of Religious Freedoms' Ambassador, Dr. Andrew Bennett's feet to the fire on this issue especially in light of the International Humanist and Ethical Union's 2013 report that identifies 13 countries that execute atheists for being non-believers. We know he has access to the report-SCS sent him a copy. So far, he hasn't flinched.
Since most Canadians do not spend their time between hockey periods reading case, law people with vested interests, such as the Minister of Foreign Affairs can rally their religious base easily. However, the Office of Religious Freedom is a taxpayer-funded institution that should represent Canadian values in international arena of social justice in a fair way, including in the fight for freedom from religion.
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