Legal framework and actual application
The constitution and laws of Canada guarantee freedom of conscience and religion, as well as thought, belief, opinion, and expression, subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Canadians have the right to “equal protection and equal benefit of the law without discrimination” based on religion.
Federal and provincial laws prohibit discrimination on the grounds of religion, permit individuals to sue for violations of religious freedom, and provide remedies for complaints.
Religious groups are not required to register with the government; however, to receive tax-exempt status they must register as non-profit organisations with the Canada Revenue Agency (CRA). Charitable status grants the clergy access to several federal benefits, such as tax deductions for resident clergy and faster immigration procedures.
The Constitution Act of 1867 guaranteed the right of Protestant and Catholics to publicly funded denominational schools (Section 93, 2-3). However, constitutional amendments repealed this guarantee in Quebec and Newfoundland and Labrador, and replaced them with a secular public education system.
Constitutionally protected public funding for Catholic schools remains in place in Ontario, Alberta, and Saskatchewan. Federal law protects publicly funded Catholic and Protestant education in the Northwest Territories, Yukon, and Nunavut. Six of the 10 provinces provide at least partial funding to some faith-based schools. Home-schooling is legal across Canada and financial support is provided to parents in Saskatchewan, Alberta, and British Columbia.
In Canada, freedom of religion has been defined as “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practise or by teaching and dissemination.”
The term “religion” has not been expressly defined, but the Supreme Court has noted that secular beliefs or practices are not protected by the guarantee of freedom of religion, noting that a religion is typically understood as a particular and comprehensive system of dogmas and practices that generally includes a belief in the existence of divine, superhuman or dominant power, and personal beliefs or convictions that promote communication with the divine being or with the subject or object of that spiritual faith. Of note, the Court stated that the rights of atheists, agnostics, sceptics and indifferent persons were also guaranteed by Section 2(a) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of conscience and religion.
Canada’s Supreme Court has interpreted Section 2(a) liberally, stating that it is preferable to balance competing state interests, including competing rights, based on a Section 1 analysis, or on the proportionality analysis in the case of judicial review of administrative decisions, rather than placing internal limits on the scope of freedom of religion. Section 1 of the Charter of Rights and Freedoms is seen as a more flexible tool for weighing competing rights (very often equality rights). Still, despite the broad scope of the guaranteed right, the Court also drew certain limits by affirming that “freedom to hold beliefs is broader than the freedom to act on them.”
The Supreme Court has also repeatedly stated that the scope of freedom of religion may be restricted when it infringes upon the fundamental rights of others. When the rights of two individuals are in conflict, the conflict should be resolved by properly delineating the rights and values involved.
In Law Society of British Columbia v. Trinity Western University, and in the related case of Trinity Western University v. Law Society of Upper Canada, the Supreme Court chose to reconcile the opposing religious freedom rights of the Evangelical members of the Trinity Western University (TWU) community with the equality rights of LGBTQ people through a proportionality analysis.
A majority of judges found that the impact on the freedom of religion of members of the TWU community had “limited importance” and that the decisions made by the law societies represented a proportionate balancing of the important objectives under the law of ensuring equality for members of the LGBTQ community and public trust in the legal profession. The result is that to this day, there remain no distinctively Christian law schools in Canada. The TWU judgment could be of concern to any Canadian business which seeks to remain true to its religious ethos, but which is subject to oversight by a professional body focused on equality rather than pluralism.
It is noteworthy that Section 2(a) of the Canadian Charter of Rights and Freedoms does not protect all manifestations of religious belief. In the Ktunaxa case, by a majority decision, the Supreme Court held that an Indigenous claim to protection of a sacred place from a proposed ski development based on freedom of spiritual belief did not come under Section 2(a). For the Court, the latter “does not protect the object of beliefs, nor the focus of worship and the subjective spiritual meaning attached to it.”
In May 2021, the Supreme Court ruled that five members of a Church in the Toronto area did not have the legal basis to ask the courts to restore their membership in their Church. The five former members of the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, a Toronto-area church, filed a lawsuit against the Church because it excluded them from the congregation. The exclusion followed their appointment by the Church to a committee set up to investigate a movement within the congregation that was seen by some as going against the beliefs of the Church.
After its investigation, the committee presented its recommendations to the Church's senior leadership; however, the archbishop and other senior Church leaders did not follow the committee's recommendations. The five members then expressed their dissatisfaction with this decision and, thereafter the Church decided to exclude them. The affected people went to court to challenge that decision and ask for their reinstatement.
The Ontario Superior Court dismissed their action, finding that their exclusion did not raise any question of legality requiring a trial. The Court based its conclusion on a 2018 ruling by the Supreme Court of Canada in Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall case. On this occasion, the justices held that decisions of a religious association concerning its membership cannot be reviewed by the courts if they do not involve a right protected by law. In order for a court to review the internal procedures of a voluntary association, such as a Church, there must be a genuine right protected by law at stake, such as a contractual disagreement between the parties that must be resolved. The ruling is consistent with the principle of Church autonomy enshrined in Europe as well as the United States.
Published on 16 December 2020, the British Columbia Supreme Court issued Practice Direction 59. The Practice Direction “advises parties and their lawyers, when introducing themselves in court, to provide their ‘correct pronouns’”. Critics of the decision have argued that the British Columbia courts have now embraced compelled speech. With the adoption of the Practice Direction, the provincial courts in B.C. have, in essence, mandated gender identity belief without regard to religious and conscientious objection.
COVID-19
Covid continued to be a very divisive issue in Canada, culminating in the internationally reported ‘Freedom Convoy’. Credible reporting of the controversial truckers protest suggested that a number of Christians had attended the rally, and that the protests had been infused with a palpable faith element. Evidencing just how divided Canadian opinion can be on issues of religion, some pundits identified the Christian presence at the protest with ‘white Christian nationalism’. The ‘Freedom Convoy’ was eventually brought to an end when Prime Minister Trudeau, for the first time in Canadian history, invoked the Emergencies Act, which provided law enforcement with significant new powers and curtailed numerous fundamental civil rights.
Alberta pastor Artur Pawlowski was fined, arrested, and imprisoned for numerous Covid violations involving keeping his church open despite lockdowns and his participation in the ‘Freedom Convoy’. His third and final trial took place in January 2023. As of the writing of this report, the judgment remains pending. In February 2023, courts in New Brunswick and Ontario dismissed criminal charges against pastors for alleged Covid violations in their Churches during the lockdowns.
Incidents and developments
A recent study found that over the past three decades, Canada’s religious landscape has undergone significant transformation, with collective and personal religious activities and religious and spiritual beliefs playing a diminished role in people’s lives.
Christians of all traditions remain the majority with more than 60 percent (half being Catholic), followed by Islam (3.6 percent), Hinduism (1.4 percent) and Sikhism (1.4 percent). The membership of the last three religions has more than doubled in the past 20 years. More than one third of the Canadian population reported no religious affiliation or a secular perspective (atheist, agnostic, humanistic or other). The share of this group also has more than doubled in 20 years. This trend is consistent with others that indicate a decline in the importance given to religious and spiritual beliefs in people’s lives, from 71.0 percent in 2003 to 54.1 percent in 2019. This decline perhaps speaks to why there has not been greater resistance to the erosion of religious freedom in general through Canada’s laws and judicial decisions.
According to population projections, the proportion of Canadians from a visible minority and those affiliated with a non-Christian religion is expected to rise. By 2036, visible minorities should constitute more than one third of working-age Canadians (15 to 64 years). At the same time, projections indicate that the number of Canadians affiliated with a non-Christian religion will go from 9 percent in 2011 to 13-16 percent of the population in 2036.
In a 2021 census, approximately 81,000 people, or 0.2 percent of the total population, reported traditional Indigenous spirituality, most of them (90.2 percent) are First Nations people. Of the 1.8 million people with an Indigenous identity in Canada, almost half (47.0 percent) reported no religious affiliation while more than one quarter (26.9 percent) reported being Catholic.
The pandemic further exposed and exacerbated security and discrimination issues in Canada, notably including hate crimes. Hate crimes target key and visible parts of people’s identity and can have a disproportionate impact on whole communities. They can be perpetrated against a person or property based on race, colour, national or ethnic origin, religion, sexual orientation, gender identity or expression, language, sex, age, mental or physical disability, or other similar factors.
During the pandemic, there were reports of discrimination against Jewish and Muslim communities based on disinformation and conspiracy theories related to the health crisis, usually linked to broader anti-Jewish and anti-Muslim attitudes.
The number of hate crimes reported to police in Canada jumped by 27 percent, from 2,646 incidents in 2020 to 3,360 incidents in 2021. This follows a 36 percent rise in 2020. Overall, the number of police-reported hate crimes increased by 72 percent from 2019 to 2021. The increase was mainly due to increases in hate crimes against people based on their religion (+67 percent, 884 incidents), sexual orientation (+64 percent, 423 incidents), and race or ethnicity (+6 percent, 1,723 incidents). The number of hate crimes increased in every province and territory in 2021, except the Yukon, where it remained the same.
Police hate crime data only reflects what is brought to their attention and can be classified as a hate crime. Thus, fluctuations in the number of incidents reported may reflect a real quantitative change but may also indicate changes in the rate of public reporting of such crimes. It may also indicate a greater liberality in how those reporting crimes define ‘hate’.
According to police-reported data, hate crimes in the period under review increased: targeting Jews (+47 percent), Muslims (+71 percent) and Catholics (+260 percent). The increase in hate crimes targeting the Muslim population followed a commensurate drop in 2020. While it is not possible to link police-reported hate crimes to specific events, media coverage and public discourse can raise awareness and elicit negative reactions among people with hateful attitudes or who may otherwise feel disenfranchised. That was the case when unmarked graves were discovered at former residential schools in 2021.
As a result of the findings, hate crimes targeting Indigenous people as well as churches and other religious institutions were reported. Any criminal case that the police deem motivated by hate is included in the statistics. A detailed analysis by Juristat on police-reported hate crime in Canada for the year 2021 is expected in early 2023.
Between mid-June and the end of July 2021, many churches were set on fire in Canada, including British Columbia, Alberta, and Saskatchewan. Elsewhere in the country, parish buildings were vandalised. Attacks were reported at 68 places of worship.
While there is only anecdotal evidence linking arson attacks to the discovery of unmarked graves near former residential schools run by religious congregations, nevertheless First Nations people called for an end to the vandalism, “which only adds to the pain of Indigenous people”.
In April 2021, the Quebec Superior Court ruled in the case of the province’s secularism law, also known as Bill 21. The decision left almost no one satisfied. After several hearings, the presiding judge largely upheld the law. While noting that the latter violated fundamental freedoms such as the freedom of religion, Judge Marc-André Blanchard concluded that he could not strike down the legislation because it came under Section 33 of the Charter of Rights and Freedoms, commonly known as the notwithstanding clause, which gives the federal parliament and provincial and territorial legislatures the right to temporarily override Section 2 of the Charter for five years. The judge did, however, declare unconstitutional only those provisions that touched English-language school boards and elected members of Quebec’s National Assembly.
The controversial legislation, adopted in June 2019 by the Coalition Avenir Québec government, bans the wearing of religious symbols by certain government employees in the performance of their duties, including elementary and secondary teachers in public schools, police officers, judges, and Crown attorneys (public prosecutors).
Judge Blanchard's decision illustrated the delicate balance between the rights of various groups in society. In particular, he heard arguments that the law causes serious prejudice to religious minorities and would negatively impact the rights of Muslim women.
In fact, a study published in August 2022 by the Association for Canadian Studies (ACS) highlights the devastating effects of the “Act Respecting the Laicity of the State”, the formal name of the secularism law. Hate incidents against religious minorities in Quebec have reportedly risen sharply since its adoption. According to a survey for ACS by the Léger market research and analytics company, two out of three Muslim women have been victims of or witnesses to a hate incident since the adoption of this law.
In June 2021, almost an entire Muslim family was killed in London, Ontario, when they were hit by a crazed driver in a truck that allegedly ran over the five victims deliberately, four of them fatally. According to the police chief, everything suggests that the victims were targeted because of their faith.
In April 2022, five Muslim worshippers were wounded by “indiscriminate” gun shots outside a mosque in Scarborough, Ontario, near the city of Toronto, after they had finished praying.
Pope Francis visited Canada in July 2022 in a self-described penitential pilgrimage formally apologising to “First Nations, Metis and Inuit peoples who suffered oppression” […] “by religious and government authorities”.
In view of this, Mathieu Lavigne, head of Mission Chez Nous (an organisation working with Indigenous people), penned an article, “Laissez les mots se deposer” (Let the words settle down), in which he says: “Pope Francis’s penitential pilgrimage has generated various reactions among the First Nations, ranging from a sense of reassurance to renewed suffering, from gratitude to disappointment, from tears of healing to tears of anger. Would it not be wiser to let time do its work?”
Set up as part of Canada's Anti-Racism Strategy, the federal Anti-Racism Secretariat hosted two national summits in 2021: the National Summit on Islamophobia and the National Summit on Antisemitism. Both meetings were meant to raise awareness about biases and anti-discrimination strategies against religion and religiosity.
Prospects for freedom of religion
The cultural divide in Canada continues to grow, which has led to some negative stereotyping of faith-based views and of religious believers. The socio-religious landscape also continues to shift due to changing demographics and the decline of those who identify as Christian. Canada continues to be a place where rule of law is respected, but generally there has been a palpable reduction in respect for religious freedom in recent years, particularly where it has come into conflict with entrenched views relating to equality, diversity, and public health.
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