Beverley Marian McLachlin, CStJ is a Canadian jurist and author who served as the 17th Chief Justice of Canada from 2000 to 2017, the first woman to hold that position and the longest serving Chief Justice in Canadian history. In her role as Chief Justice, she simultaneously served as a Deputy of the Governor General of Canada. McLachlin retired December 15, 2017, nine months before reaching the mandatory retirement age of 75, her successor as Chief Justice of Canada is Richard Wagner, nominated by Prime Minister Justin Trudeau in 2017. Her successor as a Justice of the Court is Sheilah Martin, nominated by the Prime Minister through a new process for judicial appointments to the Supreme Court of Canada that permitted "any Canadian lawyer or judge who fits a specified criteria" to apply. In March 2018, McLachlin was nominated to become a non-permanent judge on the Hong Kong Court of Final Appeal, the first Canadian jurist nominated to the post; the appointment came into effect July 30, 2018, for a three-year term.
McLachlin was born Beverley Gietz in Pincher Creek, the eldest child of Eleanora Marian and Ernest Gietz. Her parents, who were of German descent, were "fundamentalist Christians" of the Pentecostal Church, she received a B. A. and an M. A. in philosophy and an LL. B. degree from the University of Alberta. She was called to the Bar of Alberta in 1969 and to the Bar of British Columbia in 1971, she practised law from 1969 until 1975. From 1974 to 1981, she was an Associate Professor and Professor with tenure at the University of British Columbia, she has one son, from her first marriage to Roderick McLachlin, who took care of much of Angus's upbringing. Her first husband died of cancer in 1988, a few days after she was appointed chief justice of the B. C. Supreme Court. In 1992 she married Frank McArdle, a lawyer and executive director of the Canadian Superior Courts Judges Association. In April 1981, McLachlin was appointed to the County Court of Vancouver. Just five months she was appointed to the Superior Court of British Columbia.
In 1985 she was appointed to the British Columbia Court of Appeal, three years in 1988 she was appointed Chief Justice of the Supreme Court of British Columbia. She was nominated by Brian Mulroney to be made a Puisne Justice to the Supreme Court of Canada on March 30, 1989. On the advice of Jean Chrétien, she was made Chief Justice of Canada on January 7, 2000. Upon being sworn into the Supreme Court of Canada, she became a Deputy of the Governor General of Canada together with the other justices of the Supreme Court; when Governor General Adrienne Clarkson was hospitalized for a cardiac pacemaker operation on July 8, 2005, McLachlin performed the duties of the Governor General as the Administrator of Canada. In her role as Administrator, she gave royal assent to the Civil Marriage Act which legalized same-sex marriage nationally in Canada, she relinquished that task. She is the Chairperson of the Canadian Judicial Council, on the Board of Governors of the National Judicial Institute, on the Advisory Council of the Order of Canada.
She is a Member of the Queen's Privy Council for Canada. She was made a Commander of the Legion of Honour by the Government of France in 2008. On December 15, 2006, she was appointed Commander of the Venerable Order of Saint John. McLachlin has defined her function as one that requires conscious objectivity, which she describes as follows: What you have to try to do as a judge, whether you're on charter issues or any other issue, is by an act of the imagination put yourself in the shoes of the different parties, think about how it looks from their perspective, think about it, not just give it lip service... As a judge, I've been a judge for a long time, I have always resolved to just try to judge the issues as as I can, not to think about things in too strategic a manner. My job is to listen to what the parties have to say, to do my best to understand the position, the ramifications of deciding one way or the other, to think about what’s best for Canadian society on this particular problem that’s before us, give it my best judgment after listening to my eight other colleagues.
So there's a consensual element there. McLachlin has stated, "I think the court belongs to the Canadian people and it should reflect the Canadian people." In the opinion of an interviewer, this is "not only to convey an impression of balance, but to bring in perspectives that were so long absent from the judicial imagination. To her, judgment is not a coldly neutral evaluation of competing positions, robotically free of passion or perspective, it is an engaged, human act of imagination."The Supreme Court, under McLachlin, ruled against the former Conservative government of Stephen Harper on several important issues, including prostitution, assisted suicide, mandatory minimum gun crime sentences, Senate reform, whether Taliban fighter Omar Khadr deserved an adult sentence, whether Federal Court judge Marc Nadon could be elevated to the Supreme Court. McLachlin surpassed Sir William Johnstone Ritchie as the longest-serving Chief Justice of Canada in history on September 22, 2013. McLachlin was nominated in March 2018 to become a non-permanent member of the Court of Final Appeal in Hong Kong.
The Court appoints foreign judges from common-law jurisdictions outside of Hong Kong, of which McLachlin is the first Canadian, to sit as non-permanent members of the court. Her appointment was approved by the Hong Kong Legislative Council, the Chief Executive gazetted the appointment effective July 30, 2018. McLachlin's
Freedom of speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The term "freedom of expression" is sometimes used synonymously but includes any act of seeking and imparting information or ideas, regardless of the medium used. Freedom of expression is recognized as a human right under article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights. Article 19 of the UDHR states that "everyone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression; the version of Article 19 in the ICCPR amends this by stating that the exercise of these rights carries "special duties and responsibilities" and may "therefore be subject to certain restrictions" when necessary "or respect of the rights or reputation of others" or "or the protection of national security or of public order, or of public health or morals".
Freedom of speech and expression, may not be recognized as being absolute, common limitations or boundaries to freedom of speech relate to libel, obscenity, sedition, fighting words, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, the right to be forgotten, public security, perjury. Justifications for such include the harm principle, proposed by John Stuart Mill in On Liberty, which suggests that: "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."The idea of the "offense principle" is used in the justification of speech limitations, describing the restriction on forms of expression deemed offensive to society, considering factors such as extent, motives of the speaker, ease with which it could be avoided. With the evolution of the digital age, application of the freedom of speech becomes more controversial as new means of communication and restrictions arise, for example the Golden Shield Project, an initiative by Chinese government's Ministry of Public Security that filters unfavorable data from foreign countries.
Freedom of speech and expression has a long history that predates modern international human rights instruments. It is thought that ancient Athenian democratic principle of free speech may have emerged in the late 6th or early 5th century BC; the values of the Roman Republic included freedom of freedom of religion. Concepts of freedom of speech can be found in early human rights documents; the Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution in 1789 affirmed freedom of speech as an inalienable right. The Declaration provides for freedom of expression in Article 11, which states that: The free communication of ideas and opinions is one of the most precious of the rights of man; every citizen may, speak and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law. Article 19 of the Universal Declaration of Human Rights, adopted in 1948, states that: Everyone has the right to freedom of opinion and expression.
Today, freedom of speech, or the freedom of expression, is recognized in international and regional human rights law. The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights. Based on John Milton's arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express, or disseminate and ideas, but three further distinct aspects: the right to seek information and ideas; this means that the protection of freedom of speech as a right includes not only the content, but the means of expression. The right to freedom of speech and expression is related to other rights, may be limited when conflicting with other rights; the right to freedom of expression is related to the right to a fair trial and court proceeding which may limit access to the search for information, or determine the opportunity and means in which freedom of expression is manifested within court proceedings.
As a general principle freedom of expression may not limit the right to privacy, as well as the honor and reputation of others. However greater latitude is given; the right to freedom of expression is important for media, which plays a special role as the bearer of the general right to freedom of expression for all. However, freedom of the press does not enable freedom of speech. Judith Lichtenberg has outlined conditions in which freedom of the press may constrain freedom of speech, for example where the med
Section 1 of the Canadian Charter of Rights and Freedoms
Section 1 of the Canadian Charter of Rights and Freedoms is the section that confirms that the rights listed in the Charter are guaranteed. The section is known as the reasonable limits clause or limitations clause, as it allows the government to limit an individual's Charter rights; this limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as hate speech and obscenity. When the government has limited an individual's right, there is an onus upon the Crown to show, on the balance of probabilities, that the limitation was prescribed by law namely, that the law is attuned to the values of accessibility and intelligibility. Under the heading of "Guarantee of Rights and Freedoms", the section states: 1; the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The inquiry into whether the limitation was "prescribed by law" concerns the situation where the limitation was the result of some conduct of a government or its agents and whether the conduct was authorized by accessible and intelligible law.
The Court articulated when the authorization would fail for being too vague as "where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances". Where there is no lawful basis for the conduct the limitation will fail. In Little Sisters Book and Art Emporium v Canada, the Supreme Court found that the conduct of a border official in singling out homosexual from heterosexual reading materials was not authorized by any law. Police conduct, not exercised under lawful authority will fail at this stage; the primary test to determine if the purpose is demonstrably justifiable in a free and democratic society is known as the Oakes test, which takes its name from the essential case R v Oakes 1 S. C. R. 103, written by Chief Justice Dickson. The test is applied once the claimant has proven that one of the provisions of the Charter has been violated; the onus is on the Crown to pass the Oakes test. In R v Big M Drug Mart Ltd, Dickson asserted that limitations on rights must be motivated by an objective of sufficient importance.
Moreover, the limit must be as small as possible. In Oakes, Dickson elaborated on the standard. Dickson for a unanimous Court found that David Oakes' rights had been violated because he had been presumed guilty; this violation was not justified under the second step of the two step process: There must be a pressing and substantial objective The means must be proportional The means must be rationally connected to the objective There must be minimal impairment of rights There must be proportionality between the infringement and objectiveThe test is founded in factual analysis so strict adherence is not always practiced. A degree of overlap is to be expected as there are some factors, such as vagueness, which are to be considered in multiple sections. If the legislation fails any of the above branches, it is unconstitutional. Otherwise the impugned law remains valid. Since Oakes, the test has been modified slightly; this step asks whether the Government’s objective in limiting the Charter protected right is a pressing and substantial objective according to the values of a free and democratic society.
In practice, judges have recognized many objectives as sufficient, with the exception, since Big M, of objectives which are in and of themselves discriminatory or antagonistic to fundamental freedoms, or objectives inconsistent with the proper division of powers. In Vriend v Alberta, it was found that a government action may be invalidated at this stage if there is no objective at all, but rather just an excuse; the Supreme Court found an Alberta law unconstitutional because it extended no protection to employees terminated due to sexual orientation, contradicting section 15. The government had chosen not to protect people in this predicament because the predicament was considered rare and obscure; the Court ruled this was an insufficient objective, because it was more of an explanation than an objective. This step asks whether the legislation’s limitation of the Charter right have a rational connection to Parliament’s objective; the means used must be designed to achieve the objective. They must not be unfair, or based on irrational considerations.
Professor Peter Hogg, who used to argue the rational connection test was redundant, continues to argue the criterion is of little use. An example of the rational connection test being failed can be found in R v Morgentaler, in which Dickson was of the opinion that laws against abortion should be struck down because of a breach of health rights under section 7 and an irrational connection between the objective, the process by which therapeutic abortions were granted; this process was considered unfair to pregnant women requiring therapeutic abortions, because committees meant to approve abortions were not formed or took too long.. This step had been considered the most important of the steps and is the test, failed the most. Outright bans will be difficult to prove as minimally impairing. However, the means does not have to be the absolute least intrusive
Joseph Antonio Charles Lamer, was a Canadian lawyer and the 16th Chief Justice of the Supreme Court of Canada. Lamer practised in partnership at the firm of Cutler, Lamer and Associates and was a full professor in the Faculty of Law, Université de Montréal, where he was a lecturer in criminology. On December 19, 1969, at the age of 36, he was appointed to the Quebec Superior Court and to the Queen's Bench of the province of Quebec. In 1978, he was elevated to the Quebec Court of Appeal and was appointed to the Supreme Court of Canada in 1980, he was named Chief Justice on July 1, 1990 and retired on January 7, 2000. He joined the law firm Stikeman Elliott in a senior advisory role and was appointed Associate Professor of Law at the Université de Montréal in 2000, he was appointed Communications Security Establishment Commissioner on June 19, 2003, a position he held until August 1, 2006. He served as Honorary Colonel of the Governor General's Foot Guards. In March 2003, the government of Newfoundland and Labrador chose Lamer to oversee an inquiry into how the criminal justice system dealt with three discredited murder convictions.
The hearings lasted about three years. Lamer was tasked to conduct an investigation into the death of Catherine Carroll and the circumstances surrounding the resulting criminal proceedings against Gregory Parsons, an investigation into the death of Brenda Young and the circumstances surrounding the resulting criminal proceedings against Randy Druken. Lamer was asked to inquire as to why Ronald Dalton's appeal of his murder conviction took eight years before it was brought on for a hearing in the Court of Appeal. Justice Bertha Wilson became the first woman appointed to the Ontario Court of Appeal in 1976 and to the Supreme Court of Canada in 1982. Justice Lamer refused to rise from his chair along with the rest of his colleagues when Justice Wilson entered the conference room for her first judicial conference. Born in Montreal, Lamer served in the Royal Canadian Artillery from 1950 to 1954 and in the Canadian Intelligence Corps from 1954 to 1960. In 1956, he graduated in law from the Université de Montréal and was called to the Bar of Quebec in 1957.
In 1987, he married Danièle Tremblay-Lamer, appointed a judge on the Federal Court. During his tenure he was well known among the bench to be a frequent consumer of alcohol wine, have various drug prescriptions to deal with his declining health. Various commentators and other judges have vocally critiqued these habits of his as reason for him to resign from the court, he died in Ottawa of a cardiac condition on November 24, 2007. He was a Companion of the Order of Canada, he received honorary degrees from the Université de Moncton, University of Ottawa, Université de Montréal, University of Toronto, University of New Brunswick, Dalhousie University, University of British Columbia, Saint Paul University. From 1992 to 1998, Chief Justice Lamer was Honorary Lieutenant Colonel of the 62nd Field Artillery Regiment, RCA. List of Supreme Court of Canada cases Reasons of the Supreme Court of Canada by Chief Justice Lamer Office of the Communications Security Establishment Commissioner at the Wayback Machine Supreme Court of Canada biography Order of Canada Citation at Archive.today
Case citation is a system used by legal professionals to identify past court case decisions, either in series of books called reporters or law reports, or in a neutral style that identifies a decision regardless of where it is reported. Case citations are formatted differently in different jurisdictions, but contain the same key information. A legal citation is a "reference to a legal precedent or authority, such as a case, statute, or treatise, that either substantiates or contradicts a given position." Where cases are published on paper, the citation contains the following information: Court that issued the decision Report title Volume number Page, section, or paragraph number Publication yearIn some report series, for example in England and some in Canada, volumes are not numbered independently of the year: thus the year and volume number are required to identify which book of the series has the case reported within its covers. In such citations, it is usual in these jurisdictions to apply square brackets "" to the year.
The Internet brought with it the opportunity for courts to publish their decisions on websites and most published court decisions now appear in that way. They can be found through many national and other websites, such as WorldLII, that are operated by members of the Free Access to Law Movement; the resulting flood of unpaginated information has led to numbering of paragraphs and the adoption of a medium-neutral citation system. This contains the following information: Year of decision Abbreviated title of the court Decision number Rather than utilizing page numbers for pinpoint references, which would depend upon particular printers and browsers, pinpoint quotations refer to paragraph numbers; the conjunction "versus" is abbreviated to "v" in Commonwealth countries and to "v." in the United States. In common law countries with an adversarial system of justice, the names of the opposing parties are separated in the case title by the abbreviation v—usually written as v in Commonwealth countries and always as v. in the US.
The abbreviation represents the Latin word versus. When case titles are read out loud, the v can be pronounced, depending on the context, as and, versus, or vee. Commonwealth countries follow English legal style: Civil cases are pronounced with and. For example, Smith v Jones would be pronounced "Smith and Jones". Criminal cases are pronounced with against. For example, R v Smith would be pronounced "the Crown against Smith"; the Latin words Rex and versus are all rendered into English. Versus and vee are incorrect. In the United States, there is no consensus on the pronunciation of the abbreviation v; this has led to much confusion about the pronunciation and spelling of court cases: Versus is most used, leading some newspapers to use the common abbreviation vs. in place of the legal abbreviation v. Vee is heard but is not as common. Against is a matter of personal style. For example, Warren E. Burger and John Paul Stevens preferred to announce cases at the Supreme Court with against, and is used by some law professors, but other law professors regard it as an affectation.
During oral arguments in Planned Parenthood v. Casey, the participants demonstrated the lack of consensus by using different pronunciations of v. Solicitor General Ken Starr managed to use all three of the most common American pronunciations interchangeably: Kenneth W. Starr: This is the process of analysis, quite familiar to the Court lengthily laid out by Justice Harlan in his dissent in Poe versus Ullman, adumbrated in his concurring opinion in Griswold against Connecticut.... Well, I think that, the necessary consequence of Roe vee Wade. Legal citation in Australia mirrors the methods of citation used in England. A used guide to Australian legal citation is the Australian Guide to Legal Citation, published jointly by the Melbourne University Law Review and the Melbourne Journal of International Law; the standard case citation format in Australia is: As in Canada, there has been divergence among citation styles. There exist commercial citation guides published by Butterworths and other legal publishing companies, academic citation styles and court citation styles.
Each court in Australia may cite the same case differently. There is presently a movement in convergence to the comprehensive academic citation style of the Australian Guide to Legal Citation published jointly by the Melbourne University Law Review and the Melbourne Journal of International Law. Australian courts and tribunals have now adopted a neutral citation standard for case law; the format provides a naming system that does not depend on the publication of the case in a law report. Most cases are now published on AustLII using neutral citations; the standard format looks like this: So the above-mentioned Mabo case would be cited like this: Mabo v Queensland HCA 23. There is a unique court identifier code for most courts; the court and tribunal identifiers include: Australian Guide to Legal Citation There are a number of citation standards in Canada. Many legal publishing companies and schools have their own standard for citation. Since the late 1990s, much of the legal community has converged to a single standard—formulated in The Canadian Guide to Uniform Legal Citation known as the "McGill Guide" after the McGill Law Journal, which first published it.
The following format reflects this standard: Hunter v Southam, 2 SCR 145. Broken into its component parts, the format is: The Style of Cause is i
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms, in Canada simply the Charter, is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982; the Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all areas and levels of the government. It is designed to unify Canadians around a set of principles; the Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982, along with the rest of the Act. The Charter was preceded by the Canadian Bill of Rights, enacted in 1960. However, the Bill of Rights is only a federal statute, rather than a constitutional document; as a federal statute, it can be amended through the ordinary legislative process and has no application to provincial laws. The Supreme Court of Canada narrowly interpreted the Bill of Rights and the Court was reluctant to declare laws inoperative; the relative ineffectiveness of the Canadian Bill of Rights motivated many to improve rights protections in Canada.
The movement for human rights and freedoms that emerged after World War II wanted to entrench the principles enunciated in the Universal Declaration of Human Rights. The British Parliament formally enacted the Charter as a part of the Canada Act 1982 at the request of the Parliament of Canada in 1982, the result of the efforts of the government of Prime Minister Pierre Trudeau. One of the most notable effects of the adoption of the Charter was to expand the scope of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Bill of Rights; the courts, when confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was concerned with resolving issues of federalism. The Charter, granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials.
These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada's parent country the United Kingdom, was based upon Parliamentary supremacy. As a result, the Charter has attracted both broad support from a majority of the Canadian electorate and criticisms by opponents of increased judicial power; the Charter only applies to government laws and actions, sometimes to the common law, not to private activity. Under the Charter, people physically present in Canada have numerous political rights. Most of the rights can be exercised by any legal person, but a few of the rights belong to natural persons, or only to citizens of Canada; the rights are enforceable by the courts through section 24 of the Charter, which allows courts discretion to award remedies to those whose rights have been denied. This section allows courts to exclude evidence in trials if the evidence was acquired in a way that conflicts with the Charter and might damage the reputation of the justice system.
Section 32 confirms that the Charter is binding on the federal government, the territories under its authority, the provincial governments. The rights and freedoms enshrined in 34 sections of the Charter include: Precluding all the freedoms and forming the basis of the Charter, the first section, known as limitations clause, allows governments to justify certain infringements of Charter rights; every case in which a court discovers a violation of the Charter would therefore require a section 1 analysis to determine if the law can still be upheld. Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, if the infringement can be "demonstrably justified." Section 1 has thus been used to uphold laws against objectionable conduct such as hate speech and obscenity. Section 1 confirms that the rights listed in the Charter are guaranteed. In addition, some of these rights are subjected to the notwithstanding clause.
The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, some have speculated that its use would be politically costly. In the past, the notwithstanding clause was invoked by the province of Quebec; the provinces of Saskatchewan and Alberta have invoked the notwithstanding clause, to end a strike and to protect an heterosexual definition of marriage, respectively. The territory of Yukon passed legislation once that invoked the notwithstanding clause, but the legislation was never proclaimed in force. Section 2: which lists what the Charter calls "fundamental freedoms" namely freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, freedom of association; the right to participate in political activities and the right to a democratic form of government are protect
Section 2 of the Canadian Charter of Rights and Freedoms
Section 2 of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts; the fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association. Section 1 of the Charter permits Parliament or the provincial legislatures to enact laws that place certain kinds of limited restrictions on the freedoms listed under section 2. Additionally, these freedoms can be temporarily invalidated by section 33, the "notwithstanding clause", of the Charter; as a part of the Charter and of the larger Constitution Act, 1982, section 2 took legal effect on April 17, 1982. However, many of its rights have roots in Canada in the 1960 Canadian Bill of Rights, in traditions under a theorized Implied Bill of Rights.
Many of these exemptions, such as freedom of expression, have been at the centre of federalistic disputes. Under the heading of "Fundamental Freedoms" the section states: 2. Everyone has the following fundamental freedoms: freedom of religion. According to Beverley McLachlin, freedom of religion in Canada may have originated as early as 1759, when French Canadian Roman Catholics were allowed rights of worship by their British conquerors; the Constitution Act, 1867 provided for denominational school rights. Discussions of church-state relations took place in the Guibord case of 1874. In 1955, the Supreme Court ruled in Chaput v Romain, regarding Jehovah's Witnesses, that different religions have rights, based upon tradition and the rule of law. Religious freedom was included in the Canadian Bill of Rights. However, its effectiveness was limited; when Sunday closing laws compelling respect for the Christian Sabbath were challenged in R v Robertson and Rosetanni, Justice Ritchie of the Supreme Court found that non-Christians lost money when denied rights to work on Sunday and were otherwise free to believe in and observe their own religions.
Freedom of religion under section 2 of the Charter was first considered by the Supreme Court in R v Big M Drug Mart Ltd. In that case, Chief Justice Brian Dickson wrote that this freedom at least includes freedom of religious speech, including "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs and without fear of hindrance or reprisal, the right to manifest religious belief by worship and practice or by teaching and dissemination." Freedom of religion would prohibit imposing religious requirements. The immediate consequence of section 2, in this case, was the abolishment of federal Sunday closing laws. In Syndicat Northcrest v Amselem, the Supreme Court drew up a definition of freedom of religion under the Quebec Charter of Human Rights and Freedoms, mindful of the overlap with section 2; the majority found freedom of religion encompasses a right to religious practices if the individual has a sincere belief that the practice is connected to religion.
It would not matter. If courts can believe an individual is telling the truth in saying a practice is connected to religion, the courts ask whether the infringement of freedom of religion is severe enough to trigger section 2; the Court said religious beliefs are vacillating, so courts trying to determine an individual belief should be mindful that beliefs may change. Following this test in Multani v Commission scolaire Marguerite‑Bourgeoys, the Court found freedom of religion should protect a non-violent Sikh student's right to wear a kirpan in school. In R v NS, the Supreme Court sought to find a middle ground on the issue of whether a witness can wear a face-covering niqāb while testifying in a criminal trial; the court found that the right to religious freedom must be balanced against the right of the accused to a fair trial. In addition to freedom of religion, section 2 guarantees freedom of conscience. Professor Peter Hogg speculated this would include a right to atheism, despite the preamble to the Canadian Charter of Rights and Freedoms, which recognizes the "supremacy of God".
The right has not spawned a great deal of case law, although Justice Bertha Wilson did rely on it in her opinion in R v Morgentaler. Finding laws against abortion to be a breach of the rights to liberty and security of the person under section 7 of the Charter, Wilson argued this infringement could not be justified as being consistent with fundamental justice; the legal protections found under fundamental justice could be defined as including other rights under the Charter, in particular abortion laws breached freedom of conscience. As she wrote, the "decision whether or not to terminate a pregnancy is a moral decision, a matter of conscience", she said, "onscientious beliefs which are not religiously motivated are protected by freedom of conscience in s. 2." No other judges joined Wilson's opinion. Jean Chrétien, the attorney general during negotiations of the Charter recalled in his memoirs that freedom of conscience was nearly exclude