UAlberta Law's Peter Carver on 'the just measure of pain': freedom of religion and its scope and limits

The latest installment of the Centre for Constitutional Studies' Downtown Charter Series tackles freedom of religion.

Lerina Koornhof - 12 December 2016

UAlberta Law's Professor Peter Carver addressed a large and diverse downtown audience on December 1 with his presentation on section 2(a) of the Charter of Rights and Freedoms - the freedom of religion. This lecture was the latest installment in the Downtown Charter Series jointly organized by the Centre for Constitutional Studies and the Faculty of Extension's Information Access and Protection of Privacy Program (IAPP).

Carver invited the audience to consider the subtitle of his talk - freedom of religion or "the just measure of pain". From the outset, he acknowledged that freedom of religion is often one of the more difficult sections to reconcile with other Charter rights and freedoms. He noted that section 2(a) is designed to protect minorities from state action that infringes on beliefs that make up the very core of their worldview. The difficulty with reconciling freedoms under s. 2(a) is the "incommensurability between beliefs of faith" that largely characterizes the legal system and the Constitution.

Whereas Canada's Constitution recognizes the freedom to enjoy one's religion, that right can only exist according to limits that are reasonable and justifiable in a free and democratic society. When a government decides to put a law or policy into place that infringes on the freedom of religion, Carver outlined the steps that courts use to balance whether that infringement is justifiable. First, is there an important social objective for the law? Second, does the infringing law contribute to achieving that objective? Third, does the law interfere with the freedom of religion more than necessary? And finally, do the beneficial effects of the law outweigh the negative effects of infringing on freedom of religion?

Carver reviewed the leading cases on religious freedom issues and how the Supreme Court of Canada has interpreted this fundamental freedom. In his discussion of the "dilemma" of accommodating religion, he noted that what defines many freedom of religion cases is that they deal with accommodating religious practice, and they protect individual or group practices that are often exceptional or inconsistent with secular social purposes.

Carver noted that striking a balance between the competing interests when adjudicating section 2(a) can result in secular absolutism and continue to infringe religious freedom when the law is deemed to be justified.

He pointed to recent examples of developments in the law on religious freedom, specifically the Trinity Western University law school cases. The legal question in these cases is whether the law societies are properly balancing the conflicting Charter rights engaged - the sexual orientation of prospective LGBTQ+ students and the religious freedoms of evangelical Christians - in making their decision to accredit the law school.

Carver stated that these series of TWU cases will definitely proceed to the Supreme Court of Canada and its decision will no doubt be either painful to TWU or to Canada's secular legal system.

The question-and-answer segment proved lively with many different views on this often polarizing subject. Both Carver and the audience could agree, however, that more discussion on the scope of freedom of religion in Canada and on the balancing of this freedom with other Charter rights such as the freedom of equality are needed, especially as new issues will inevitably emerge.

To view Carver's presentation, click here.

The Downtown Charter Series is a free public event in Enterprise Square that provides members of the public with a noon-hour lesson on sections of the Canadian Charter of Rights and Freedoms - how they are interpreted by the courts and their impact on the everyday lives of Canadians. For more information, visit the Centre for Constitutional Studies website.