Religious Proselytization in Canadian Law: The Residue in the Periphery (original) (raw)
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Religious Freedom in Canada: A Crucible for Constitutionalism
Modelli atlantici di libertà religiosa, 2018
This article examines three axes around which contemporary Canadian debates on freedom of religion are turning: the status and protection of group and collective religious interests; the emergence – and instability – of state neutrality as the governing ideal in the management of religious difference; and the treatment of Indigenous religion. Each is discussed as a key thematic and doctrinal development emerging from recent activity in the freedom of religion jurisprudence in Canada. Each is also an instance, the article suggests, of religion doing its particularly effective work of exposing the fundamental tensions and dynamics in Canadian constitutionalism more generally.
2013
Though there is significant academic interest in the law of religious freedom in Canada, there has been little research into the experiences of participants in religious freedom litigation. Based on a qualitative analysis of participant interviews and legal documents in three decisions of the Supreme Court of Canada, this dissertation explores the social processes at play in that litigation. At issue in the three cases were, respectively, (1) the right of Jewish condominium co-owners to install ritual huts (succoth) on their balconies; (2) the right of a Sikh student to wear a ceremonial dagger (kirpan) in a public high school; and (3) the right of a Hutterite group to be exempted from the photo requirement on driver’s licences for religious reasons. This dissertation adds to the existing academic commentary by looking beyond the judicial decisions and incorporating firsthand accounts of lawyers, litigants, and expert witnesses in these cases. The substantive analysis is divided in ...
Choice or Identity? Dilemmas of Protecting Religious Freedom in Canada
Recode Working Paper Series, 24, 2014
"Until recently, freedom of religion was interpreted by Canadian courts primarily as an individual right to choose to follow or practice one’s religious beliefs as long as doing so does not cause harm to others. The central value of religious freedom was often expressed as a right to choose one’s religious beliefs, and the central risks were understood to be social coercion and legal prohibitions on religious practices. Here, I’ll refer to this as the ‘choice approach’ and I distinguish the ‘choice approach from the ‘identity approach’. According to the choice approach, the sovereign value that the right to religious freedom protects is the value of following the dictates of one’s deepest and most personal religious commitments and thereby deciding for oneself what ought to guide one’s conscience. In the mid 1980s, the grounds for religious freedom began to shift and arguments were introduced in law and politics that treated religion as an identity. According to these arguments, religion is considered part of a person’s identity, similar to their ethnic background. As an identity, religious difference obligated states to ensure that individuals from different faiths have equal access to the benefits of citizenship even if ensuring this access goes beyond protecting their right to choose freely how to practice their faith. This paper examines this shift from religious freedom as choice to identity within Canada and also within the broader global context. It points to three implications this shift has for the treatment of religious minorities and the dilemmas for policy makers that follow from this shift."
Osgoode Hall Law Journal, 2013
A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejected the section 2(a) claims, and the Supreme Court of Canada overturned its decision. Second, the Supreme Court has often divided on national lines with one or more francophone judges from Quebec writing a concurrence or a sharp dissent. Moreover, francophone judges from outside Quebec have also broken ranks with their colleagues. The cleavages on the Supreme Court have sometimes tracked a large and arguably growing divide between Quebec and the rest of Canada on these questions. I link this line of cases to earlier disputes about the constitutionality of Quebec’s policies to promote the French language that were ultimately resolved by the Court. The fact that the Court spoke in a single voice in those earlier cases can be explained, in part, by the need to preserve its institutional legitimacy. This time, the point of dispute is not language, but religion. The Supreme Court is groping incrementally toward a kind of consensus position on the character of the “neutral” state to close this divide within the Court against the backdrop of an intense political debate on these issues in Quebec.
2021
Constitutional litigation has become a central arena for debate about human rights. Groups from all points on the political spectrum have turned to legal advocacy, "intervening" in judicial proceedings in an effort to advance their preferred interpretations of particular rights. Judges and scholars remain divided on whether and how interveners are valuable. This paper evaluates a main rationale for intervention: interveners improve adjudication by enriching courts' understandings of the issues before them. We use qualitative analysis to examine the extent to which interveners in Canada have succeeded in contributing to judicial pronouncements on the scope and meaning of religious freedom.
Canada's Office of Religious Freedom: Notes for a Genealogy
The Canadian Foreign Policy Journal, 2015
Canada’s Office of Religious Freedom, established in February 2013 by the Harper government, elicited a mixed reception across the country as its objectives remained unclear. According to Mr. John Baird, Canadian Minister of Foreign Affairs, the Office of Religious Freedom aims to “protect and promote religious freedom,” and consequently to oppose “hatred and intolerance.” These are lofty aims that raise numerous questions. For instance, what forms of intolerance does the Canadian Office of Religious Freedom seek to denounce? What kind of freedom does it want to promote? To answer these questions, I suggest we ask a different, much simpler one: where does the new Office seek to intervene?
Oxford Handbook of the Canadian Constitution, 2017
This chapter examines freedom of religion in the Canadian constitution. After locating the modern protection of freedom of religion within Canadian constitutional history, the chapter explores the Supreme Court of Canada's interpretation of that right, drawing particular attention to how constitutional law defines and understands religion itself. The chapter then turns to three themes that have emerged as central in the freedom of religion jurisprudence, but that also reflect broader issues within Canadian constitutionalism: the instability of the public/private divide as a means of analysing constitutional problems; the tension between individual rights and regard for collective and community interests; and the paradoxes involved in the aspiration for state neutrality. Ultimately, the chapter argues that freedom of religion offers a unique avenue into understanding the deeper themes, tensions, ideologies, and politics at work in the Canadian state, and the history and logic of its constitutional order.
All the Voices of Religious Freedom
Supreme Court Law Review, 2022
What difference does section 27 of the Canadian Charter of Rights and Freedoms make to the way that we understand the guarantee in section 2(a) of the freedom of religion? What I suggest, and seek to demonstrate throughout this paper, is that section 27 is meant to trigger what I call a virtue of multicultural self-consciousness in the judicial mind. This notion of multiculturalism is not cast in the abstract -- section 27 does not codify "multiculturalism" but requires that "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians." This bridges the particular Canadian experience of multiculturalism with the interpretation and application of the otherwise abstract rights and freedoms embedded in the Charter. The history leading up to the creation of the Charter helps us better understand the sense of multiculturalism embedded in section 27. In particular, I propose that the reference to "multicultural heritage" in section 27 is meant to draw attention to the cultural voices that lie at the margins of the dominant discourses of cultural diversity at work in the law. When this sense of section 27 is brought to the interpretation of section 2(a), judicial attention should be given to the "voices" of religious freedom that lie at the margins of the current section 2(a) jurisprudence. When section 2(a) is interpreted and applied, there is a dominant speaker and a dominant form of speech. Section 27 requires the courts to press beyond the dominant discourse, to hear those voices that otherwise fall silent. By bringing these marginal voices to our attention, section 27 instructs the courts to interpret the Charter in a way that is socially and politically self-conscious of the collective experience of our multicultural heritage.