4 - The General Right to Conscientious Exemption in Canadian Law

Summary

The chapter identifies three rules of law which ground the general right to conscientious exemption in Canadian law. The primary source of this right is to be found in anti-discrimination statutes and the duty of reasonable accommodation that case law has read into them. This rule of law is the most extensive. It arises in each Canadian jurisdiction; it binds public and private persons; and it arises in a variety of contexts, including employment and provision of goods and services. The right to freedom of conscience and religion under the Canadian and Quebec Charters also gives rise to a general right to conscientious exemption which applies to public bodies but not to private persons. Depending on which exercise of public power is concerned (administrative action or law of general application) the legal analysis will differ. Administrative bodies’ refusal to grant an exemption cannot be unreasonable. Legislative measures cannot infringe that right disproportionately.