December 3, 2013
Protections of Minority Rights under the Charter of Rights and Freedoms
Auberon Herbert, a great English philosopher once asked, “How should it happen that the individual be without rights, but the combination of individuals should possess unlimited rights?” A defect of democracy is that the majority always rules over the minority. For example, the interests of a population of Caucasian males possess the ability to dominate over a Muslim person, a homosexual couple, or a woman. The Canadian Charter of Rights and Freedoms removes the inherent flaw of democracy by protecting the rights of minorities such as religious minorities, women, and gay rights. Using s. 1 of the Charter, the reasonable limits clause, it can be determined what infringements on rights are justified in a free and democratic society.
The Charter protects religious minorities under s. 2 a) by allowing them to acknowledge their religion and beliefs. The right to freedom of religion was tested in the Zylberberg case. Children of minority faiths were being forced to listen to Christian reflections during school or make a religious statement for an exception, both of which constitute violations of Charter rights. The children were being denied an opportunity to be in school and gain an education, to which the Ontario High Court of Justice said,
“The trouble with all of that, I say with respect, is that it grants to the minority less freedom than the majority enjoy. If every parent, or child, had to suffer adversity for the sake of its beneficial effect on character, none could complain. But it is not all of us who have to put up with it, or teach our children to. It is only the objectors. The willing conformists will not suffer, nor see their children suffer. To divide us into two groups; those who have to put up with restriction of their religious freedom and those who do not, is to deny the freedom of religion that the Charter guarantees.” (RE Zylberberg et al. v. Sudbury Board of Education et al.)
It is clear that the religious rights of these children have been violated. The respondent claimed the infringements are justified in the teaching of morality to children. Since there are less intrusive, faith-neutral options that still teach children about moral issues, the violations are not justified under s. 1 and the rights of families that practice different religions were protected by the Ontario Court of Justice. In addition, laws in violation of s. 2 a) of the Charter can be struck down by the Supreme Court if the limits to rights are not reasonable under s. 1. For example, the Lord’s Day Act prohibited the operation of businesses on Sundays with the goal to preserve the Christian Sunday Sabbath. Big M Drug Ltd was charged with selling goods on a Sunday. It is obvious that forcing all religions to observe a faith in which they may not believe is a violation of rights. By forcing all Canadians to conform to a rule based on Christian teachings, you are preventing certain groups from carrying out actions that they would have otherwise carried out. The Supreme Court also ruled that the presence of coercion denies freedom. The assenting opinion stated that,
“Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free.” (R. v. Big M Drug Ltd.)
Furthermore, the infringements cannot be justified in a free and democratic society. The rights of minority religions cannot be infringed for the sole purpose of protecting Christian traditions; therefore, the violations are not justified under s. 1. While the Supreme Court protects the rights of minority religions under s. 2 a) of the Charter, it also limits the religious rights of an individual: an individual’s rights must not harm