Canadian Charter of Rights and Dietary Choices: Providing Freedom of Conscience and Freedom of Religion On An Unequal Basis?

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The famous American chef James Beard once expressed the unique role food plays in our lives as “our common ground, a universal experience”. Despite the appeal of this unifying message, it nevertheless requires nuance, especially in today’s pluralistic society. Freedom of conscience and religion, which are the basis for the protection of those dietary choices, are among the most important rights in Canada. However, while the scope of religious freedoms has been widely debated and analyzed by our courts and within legal scholarship, freedom of conscience has received less attention. Indeed, when it comes to an individual's food-related choices, courts have not hesitated to include religious diet – such as vegan, vegetarian, kosher, or halal – as part of religious freedom protected under the Charter, insofar as it is a practice that has a nexus with religion[1]. On the other hand, when it comes to conscientiously held beliefs about what foods an individual will or will not eat, constitutional protections are less readily recognized.

Section 2a) of the Charter protects a variety of religious beliefs and practices. As long as the accommodation sought is reasonable and there is sufficient evidence of a true and sincere belief, they are protected from interference by government action or administrative practice[2]. For food lawyers, this could mean the recognition and protection of clients’ religious dietary practices. For instance, courts have recognized the right of inmates to receive food according to their religious practices if they can demonstrate the sincerity of their beliefs that have a nexus with religion[3]. But what if dietary choices are not based on religious grounds, but on philosophical ones instead? Would they still be entitled to some sort of protection to cover their deeply held moral ideas? This is where freedom of conscience comes in.

Freedom of conscience refers to protections based on strong moral beliefs about what is right or wrong, irrespective of religion[4]. Despite our limited case law on freedom of conscience, the Federal Court’s decision in Maurice v. Canada[5] stands out for considering an inmate’s right to a vegetarian diet that is not based on religious beliefs. The court recognized that vegetarianism:

 “[…] is founded in a belief that consumption of animal products is morally wrong. Motivation for practising vegetarianism may vary, but (…) its underlying belief system may fall under an expression of "conscience". Therefore, (…) just as the entitlement for a religious diet may be found in s. 2(a) of the Charter, a similar entitlement for a vegetarian diet exists based on the right to freedom of conscience.”[6]

This recognition, which dates back to 2002, constituted a great step towards equality in the handling of the protection for non-religious beliefs, such as dietary choices. However, almost twenty years after the Maurice case, not much has changed regarding the uncertainty toward the scope of freedom of conscience[7] and the Supreme Court has not yet addressed the issue[8].

For many individuals, the reasons supporting a vegan or vegetarian diet go beyond following a trend or following a diet to lose weight. It can be a practice upheld by moral concerns about animal welfare and environmental concerns[9]. Some go as far as to say that ethical veganism and vegetarianism, which consist in refraining from using or consuming animal products beyond food choices, represent a set of practices that are religious in nature[10]. Whether it is or not, dietary choices do represent true and sincere beliefs to be protected on the grounds of freedom of conscience.

With over 6.4 million Canadians “following a diet that restricts meat partially or completely”[11] in 2018, more and more people will be confronted with the lack of recognition for their secular dietary preferences compared to those who do not eat animal products for religious reasons. In light of this constitutional ambiguity, there is a need for provinces to step in to provide clear legislative protection for vegan and vegetarian individuals. Ontario should be congratulated in this regard for updating its Human Rights Code to include the protection of “creeds” within employer/employees’ relations, in the same way that religious beliefs are already protected. The Ontario Human Rights Commission stated that ethical veganism – and thus vegetarianism – “could potentially fall within the ambit of the Code where it is found to constitute a "creed" ”[12]. In 2019, an Ontario firefighter filed a complaint with the Human Rights Tribunal of Ontario alleging he was not served enough vegan food while fighting fires in British Columbia[13]. Although a ruling has not yet been rendered, this case could set a new precedent in Ontario toward protecting dietary choices that are unrelated to religious practices.

An individual’s choice about food is critical not only for health-related matters but also for expressing conscientiously held beliefs, religious practices, and political ideals. It reflects part of one’s true self. Food being our body’s fuel, for some of us, the choice of what is consumed is crucial. Our legislative standards should reflect Canadian’s preoccupations and protect an individual’s dietary choice equally, regardless of the true and sincere belief’s origin which constitutes the foundation of his choice.

[1] R c Big M Drug Mart, 1985 RCS 1.

[2] See R v Edwards Books, 1986 RCS 2 at p 735 and Syndicat Northrest v Amselem, [2004] 2 SCR 551 at para 65.

[3] R c Chan, 2005 ABQB 615.

[4] Roach v. Canada (Min. of State for Multiculturalism & Citizenship), [1994] 2 FC 406 (C.A.).

[5] Maurice v. Canada (Attorney General), 2002 FCT 69.

[6] Ibid at para 9 and 11.

[7] https://www.canlii.org/en/commentary/doc/2021CanLIIDocs630?zoupio-debug#!fragment/zoupio-_TocPage17/(hash:(chunk:(anchorText:zoupio-_TocPage17),notesQuery:'',scrollChunk:!n,searchQuery:'',searchSortBy:RELEVANCE,tab:search)) p.638

[8] https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2a.html

[9] https://vegetarian.lovetoknow.com/Why_Do_People_Become_Vegetarians

[10] Lisa Johnson, « The Religion of Ethical Veganism » (2015) 5 :1 Journal of Animal Ethics 31-68.

[11]https://www.dal.ca/faculty/management/news-events/news/2018/10/30/release__new_dalhousie_study_finds_that_6_4_million_canadians_limit_the_amount_of_meat_they_eat__and_number_will_likely_grow.html

[12] https://www.vwlawyers.ca/blog/food-for-thought-do-employers-need-to-accommodate-ethical-veganism-in-the-workplace

[13] https://globalnews.ca/news/5299333/vegan-firefighter-human-rights-complaint/