The protection accorded to religious and conscientious freedom by the newly proclaimed Charter of Rights and Freedoms elevates this issue into the spheres of constitutional law and fundamental rights. As such, legal resolution of the tension between state power and religious or conscientious duty takes a form novel to Canadian jurisprudence. At the same time, however, that tension is not unfamiliar to the Canadian judiciary; it has surfaced in other forms at various stages of Canadian legal history. The purpose of this article is thus twofold. The first is to canvass Canadian jurisprudence in order to determine the level of protection that has been and is accorded to religious freedom. Four areas of the law are focussed on: The British North America Act, the Canadian Bill of Rights, Canadian human rights legislation, and the Canadian Charter of Rights and Freedoms. With respect to the Charter, it is submitted that the first three sources of law are of assistance in determining the scope of its provisions and offer legal techniques useful to its application. Following a discussion of these four areas of law, the author addresses more theoretical problems that flow from the concept of fundamental rights or freedoms within a constitutional democracy and advances a theoretical framework to this end.
Leia na íntegra: Freedom of Conscience and Religion in Canada (Patrick Macklem)
Leia na íntegra: Freedom of Conscience and Religion in Canada (Patrick Macklem)
Canada prides itself on welcoming diversity and being tolerant, multicultural, and pluralistic. In recent years, however, Canadians have had to become increasingly aware of the difficulties of balancing new claims and settled expectations against what were formerly established claims. In particular, the courts have struggled with the balancing of religious freedom and other Charter rights. This paper examines the foundations of religious liberty in Canada, education and religion, sexual orientation law, and the current role of secularism in public discourse. It argues that Canadian society needs a paradigm shift in its understanding of religion and religion’s interaction with the state to create an environment that is open, tolerant, and inclusive of religious practice. It also argues that religion is an equality right itself and should not be pitted against equality the way some commentators structure their arguments.
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