Conflict of Rights

Reference re Same-Sex Marriage, 2004 SCC 79 (CanLII), (2004) 3 SCR 698

50 This leaves the issue of whether the Proposed Act will create an impermissible collision of rights. The potential for a collision of rights does not necessarily imply unconstitutionality. The collision between rights must be approached on the contextual facts of actual conflicts. The first question is whether the rights alleged to conflict can be reconciled: Trinity Western University v. British Columbia College of Teachers, (2001) 1 S.C.R. 772, 2001 SCC 31, at para. 29. Where the rights cannot be reconciled, a true conflict of rights is made out. In such cases, the Court will find a limit on religious freedom and go on to balance the interests at stake under s. 1 of the Charter: Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), (1996) 1 S.C.R. 825, at paras. 73-74. In both steps, the Court must proceed on the basis that the Charter does not create a hierarchy of rights (Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), (1994) 3 S.C.R. 835, at p. 877) and that the right to religious freedom enshrined in s. 2(a) of the Charter is expansive.

57 The right to freedom of religion enshrined in s. 2(a) of the Charter encompasses the right to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice: Big M Drug Mart, supra, at pp. 336-37. The performance of religious rites is a fundamental aspect of religious practice.