View cases - Stewart McKelvey

- 73 -objectively whether the fundamental right in issue has been violated. By identifyingwith a religion, an individual makes it known that he or she shares a number of preceptswith other followers of the religion. The approach I have adopted here requires not onlya personal belief or the adoption of a religious practice that is supported by a personalbelief, but also a genuine connection between the belief and the person’s religion. In myview, the only way the trial judge can establish that a person has a sincere belief, or hassincerely adopted a religious practice that is genuinely connected with the religion he or2004 SCC 47 (CanLII)she claims to follow, is by applying an objective test. It is one thing to assert that apractice is protected even though certain followers of the religion do not think that thepractice is included among the religion’s precepts and quite another to assert that apractice must be protected when none of the followers think it is included among thoseprecepts. If, pursuant to s. 3, a practice must be connected with the religion, theconnection must be objectively identifiable.136 This Court has also noted on a number of occasions that freedom of religion,like any other freedom, is not absolute: Trinity Western University v. British ColumbiaCollege of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 29; B. (R.) v. Children’sAid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 226; P. (D.) v. S. (C.),[1993] 4 S.C.R. 141, at p. 182. It is inherently limited by the rights and freedoms ofothers. La Forest J. explained this as follows in Ross v. New Brunswick School DistrictNo. 15, [1996] 1 S.C.R. 825, at para. 72:Indeed, this Court has affirmed that freedom of religion ensures that everyindividual must be free to hold and to manifest without State interferencethose beliefs and opinions dictated by one’s conscience. This freedom is notunlimited, however, and is restricted by the right of others to hold and tomanifest beliefs and opinions of their own, and to be free from injury fromthe exercise of the freedom of religion of others. Freedom of religion issubject to such limitations as are necessary to protect public safety, order,health or morals and the fundamental rights and freedoms of others.