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Religion, rights and conflict in Canada:
The internationally protected freedom of religion or belief
Research by
Catherine Morris and Rebekah Smith
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In 2018, Peacemakers Trust director Catherine Morris began a project of research and writing on religion, rights and conflict in Canada. She is examining Canadian law and selected cases in light of Canada's international human rights obligations. While the focus will be on Canadian cases involving the right of religious communities and indigenous peoples to manifest their religion or belief, the international law discussed applies to situations affecting peoples and communities around the world. Planned results are a bibliography and a paper. Research Associate Rebekah Smith is collaborating on the research and writing for this project in 2022-2023.
Religion, rights and conflict in Canada: The internationally protected freedom of religion or belief
The manifestation of religion or [1] has created flash-points of controversy in two disputes considered by the Supreme Court of Canada in 2017. One is a conflict involving Canada's right to equality and the prohibition of discrimination on the basis of sexual orientation, and the right to freedom of conscience and religion.[2] Another case involves the unsuccessful attempt of the Ktunaxa Nation to persuade the Supreme Court of Canada of the First Nation's right to freedom to manifest the Nation's religion or belief in particular territories sought by developers for a ski resort.[3] These and other Canadian cases and associated scholarship concerning freedom of conscience and religion have been centred on the Canadian Charter of Rights and Freedoms(Charter)[4] with some references to international human rights law. This study aims to expand on this work by comparing Canadian case law and scholarship with Canada's international human rights law obligations.
In Canada, most scholarship on religion and human rights has centred primarily on the Charter. Recent leading works in Canada are by Benjamin L. Berger,[5] Richard Moon,[6] and Mary Anne Waldron.[7] This study aims to expand on the work of Berger, Moon, Waldron, and others by comparing Canadian constitutional case law and scholarship with Canada's obligations under international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR).[8] The study also examines relevant literature[9] and jurisprudence on other international law instruments relevant to Canada, including the Universal Declaration on Human Rights (UDHR),[10] the International Covenant on Economic, Social and Cultural Rights,[11] the American Declaration of the Rights and Duties of Man (Bogota Declaration),[12] the United Nations (UN) Declaration on the Elimination of all Forms of Religious Intolerance and of discrimination based on religion or belief (Declaration on Religion or Belief),[13] and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).[14] Also canvassed is literature and international jurisprudence on sexual orientation and gender identity (SOGI),[15] and on freedom of religion or belief of Indigenous Peoples.[16] Customary international law is also canvassed.
The internationally protected right to freedom of religion or belief, is non-derogable.[17] This includes the right to manifest religion or belief, which may be subjected "only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others."[18] This study examines the limitations on the manifestation of religion or belief as discussed in selected Canadian jurisprudence and literature.
The study also considers the "balancing" approach prevalent in some Canadian jurisprudence and literature when rights seem to be in conflict. The balance-scale metaphor is compared with the integrative approach to the fulfillment of rights promoted by Heiner Bielefeldt, the former Special Rapporteur on Religion and Belief of the UN Human Rights Council.[19] Bielefeldt's approach is based on the international law principle that all human rights are "universal, indivisible and interdependent and interrelated."[20] The research will reflect on the extent to which Beilefeldt's approach resonates with other concepts in the field of international human rights and the field of conflict transformation, including Pearce and Littlejohn's concept of "moral conflict."[21]
[1] In international human rights law, the right is referred to "freedom of religion or belief." In Canadian law, it is referred to as "freedom of conscience and religion."
[2] Trinity Western University, et al. v. Law Society of Upper Canada (2017); Law Society of British Columbia v. Trinity Western University, et al., (2017).
[3] Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54.
[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, at s 15: Appendix A, No 10.
[5] Benjamin L. Berger, Law's Religion: Religious Difference and the Claims of Constitutionalism (Toronto: University of Toronto Press, 2015).
[6] Richard Moon, Freedom of Conscience and Religion (Toronto: Irwin Law, 2014).
[7] Mary Anne Waldron, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada (Toronto: University of Toronto Press, 2013).
[8] International Covenant on Civil and Political Rights, 16 December 1966, UN Treaty Series, vol. 999, p. 171.
[9] Some examples are, e.g. Heiner Bielefeldt, "Protecting and Implementing the Right to Freedom of Religion or Belief: Interview with Heiner Bielefeldt," Journal of Human Rights Practice 3, no. 3 (2011); "Freedom of Religion or Belief—A Human Right under Pressure," Oxford Journal of Law and Religion 1, no. 1 (2012); "Misperceptions of Freedom of Religion or Belief," Human Rights Quarterly 35, no. 1 (2013); Heiner Bielefeldt, Nazila Ghanea, and Michael Wiener, Freedom of Religion or Belief: An International Law Commentary (Oxford: Oxford University Press, 2016); Barry W. Bussey," Trinity Western University v The Law Society of British Columbia, 2016 BCCA 423: Court of Appeal for British Columbia, Canada: Bauman CJ, Newbury, Groberman, Willcock, Fenlon JJ: 1 November 2016," Oxford Journal of Law and Religion 6, no. 1 (2017); Derek H. Davis, "The Evolution of Religious Freedom as a Universal Human Right: Examining the Role of the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief," BYU Law Review (2002); S.I. Strong, Transforming Religious Liberties: A New Theory of Religious Rights for National and International Legal Systems (Cambridge, UK: Cambridge University Press, 2017); Donna J. Sullivan, "Advancing the Freedom of Religion or Belief Through the Un Declaration on the Elimination of Religious Intolerance and Discrimination " American Journal of International Law 82 (1988); Bahiyyih G. Tahzib, Freedom of Religion Or Belief: Ensuring Effective International Legal Protection (The Hague: Martinus Nijhoff Publishers, 1996); Natan Lerner, Religion, Secular Beliefs and Human Rights, 2nd Revised Edition ed. (Netherlands: Martinus Nijhoff, 2006); Mark Weston Janis, "Religion and International Law," ASIL Insights (2002) http://www.asil.org/insigh93.cfm; Peter G. Danchin, "Of Prophets and Proselytes: Freedom of Religion and the Conflict of Rights in International Law," Harvard International Law Journal 49, no. 2 (2008).
[10] Universal Declaration of Human Rights, 10 December 1948, 217 A (III).
[11] International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3.
[12] American Declaration of the Rights and Duties of Man, 2 May 1948, (Inter-American Commission on Human Rights (IACHR)).
[13] Elimination of all forms of religious intolerance : resolution / adopted by the UN General Assembly, 7 December 1987, A/RES/42/97.
[14] United Nations Declaration on the Rights of Indigenous Peoples: resolution/adopted by the General Assembly, 2 October 2007, A/RES/61/295.
[15] For example, International Commission of Jurists, "Sexual orientation and gender identity in international human rights law: The ICJ UN compilation," (Geneva: ICJ, 2013); International Panel of Experts in International Human Rights Law and on Sexual Orientation and Gender Identity, "The Yogyakarta Principles: The Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity," (Yogyakarta, Indonesia: yogyakartaprinciples.org, 2007); Office of the High Commissioner for Human Rights, "Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law," (Geneva: OHCHR, 2012).
[16] The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-American Court of Human Rights (Ser. C) No. 79 (2001); Bielefeldt, Ghanea, and Wiener; Claudio Grossman and James Anaya, "The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples," Arizona Journal of International and Comparative Law 19, no. 1 (2001); James Hickling, "Religious Freedom in the New World? Indigenous Sacred Sites and Religious Beliefs in the Courts in British Columbia," Oxford Journal of Law and Religion 6, no. 3 (2017).
[17] ICCPR Art 4; Theodor Meron, "On a Hierarchy of International Human Rights," American Journal of international Law 80, no. 1 (1986); Teraya Koji, "Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights," European Journal of International Law 12 (2001).
[18] ICCPR Art 18.3; UN Economic and Social Council, "Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985)"; UN Human Rights Committee, "General Comment 22, Article 18 (Forty-eighth session, 1993). Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994)." Also see a summary in Catherine Morris, Right to freedom of religion or belief, December 2018 (pdf), available at https://www.peacemakers.ca/research/Religion/MorrisIHRDRReligion2018.pdf
[19] See, e.g. Heiner Bielefeldt, "Statement by Heiner Bielefeldt,Special Rapporteur on Freedom of Religion or Belief, GA Resolution 67/179, paragraph 20, 68th session of the General Assembly Third Committee Item 69 (c), 29 October 2013 " (New York: 3rd Committee, UN General Assembly 2013).
[20] Vienna Declaration and Programme of Action, 12 July 1993, A/CONF.157/23, (UN General Assembly).
[21] W. Barnett Pearce and Stephen W. Littlejohn, Moral Conflict: When Social Worlds Collide (Thousand Oaks, CA: Sage Publications, 1997).
About Catherine Morris
Catherine Morris, BA, JD, LLM, is an Adjunct Professor in the Faculty of Law and the School of Public Administration at the University of Victoria, Canada. Professor Morris teaches negotiation, dispute resolution, peacebuilding and international human rights in academic, governmental and non-governmental settings. She is also the managing director of Peacemakers Trust, a non-profit organization for research and education on peacebuilding and conflict transformation. Her international work has also included assignments in Thailand (since 1994), Cambodia (since 1995), Honduras, Myanmar, Bolivia, Rwanda and Europe. Her publications and papers include works on dispute resolution, international human rights, religion and peacebuilding and reconciliation.
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