View cases - Stewart McKelvey

- 74 -137 In light of the foregoing, a method must be established for determining thescope of the protection that freedom of religion affords a claimant. If the authoritiesrefer here to [TRANSLATION] “conscientious objection” or “the possibility of exemptingoneself from the application of a law or a rule of internal management on religiousgrounds” (see H. Brun and G. Tremblay, Droit constitutionnel (4th ed. 2002), atp. 1033), it is because there are in fact two elements to consider in analysing freedom ofreligion. First, there is the freedom to believe and to profess one’s beliefs; second, there2004 SCC 47 (CanLII)is the right to manifest one’s beliefs, primarily by observing rites, and by sharing one’sfaith by establishing places of worship and frequenting them. Thus, although privatebeliefs have a purely personal aspect, the other dimension of the right has genuine socialsignificance and involves a relationship with others. It would be an error to reducefreedom of religion to a single dimension, especially in conducting a contextual analysislike the one that must be conducted under s. 9.1 of the Quebec Charter. Even an authorwho says he is favourable to a secular justification for freedom of religion, i.e., ajustification free of moral considerations, has said:Notwithstanding the wide variety of religious experience, no religion isor can be purely individual in its outlook, as ultimate concern is said to be.On the contrary, religions are necessarily collective endeavours. By thesame token, no religion is or can be defined purely by an act of personalcommitment, as the ultimate concerns of an individual are said to be.Instead, all religions demand a personal act of faith in relation to a set ofbeliefs that is historically derived and shared by the religious community.It follows that any genuine freedom of religion must protect, not onlyindividual belief, but the institutions and practices that permit the collectivedevelopment and expression of that belief.More fundamentally, while it is possible to understand religion in sucha way as to include practices that would conventionally be regarded assecular, it is simply not possible to understand religion in such a way thatthe distinction between the religious and the secular collapses, for thereligious and the secular exist in contradistinction to one another. Yet sucha collapse is implicit in the view that the secular becomes religious as andwhen it becomes a matter of ultimate concern to any individual, for whethera practice is secular or religious would then be a purely subjective question.Any objective distinction between the two would disappear.