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Section 1, Constitutional Reasoning, and Cultural Difference: Assessing the Impacts of Alberta v. Hutterian Brethren of Wilson Colony

Supreme Court Law Review (2D), Vol. 51, pp. 25-46, 2010

22 Pages Posted: 18 Dec 2010 Last revised: 2 Jan 2011

Benjamin L. Berger

York University - Osgoode Hall Law School

Abstract

In recent years, freedom of religion jurisprudence has emerged as a key site for the illumination of assumptions and conceptual tensions at work but often unseen within Canadian constitutionalism. This article approaches the Supreme Court of Canada’s decision in Wilson Colony as an access point into the relationship between constitutional reasoning and the management of cultural difference. In this decision the Court both expresses what it finds so difficult about religious freedom cases and articulates a substantial shift in the justificatory analysis under s. 1 of the Charter. Drawing out and explaining both points, this article exposes a deep irony at the core of the Wilson Colony judgment, an irony that betrays the true complexity inherent in the management of religious difference by means of rights-based adjudication. The article concludes by adding the Court’s decision in A.C. to the mix, suggesting that the two cases lay bare the enormous ethical demands involved in the adjudication of constitutional claims rooted in deep cultural difference, demands that our courts may not yet be willing or able to meet.

Keywords: Religion, Constitutional Law, Canada, Hutterite, Justification, Freedom of Religion, Section 1

Suggested Citation

Berger, Benjamin L., Section 1, Constitutional Reasoning, and Cultural Difference: Assessing the Impacts of Alberta v. Hutterian Brethren of Wilson Colony. Supreme Court Law Review (2D), Vol. 51, pp. 25-46, 2010. Available at SSRN: https://ssrn.com/abstract=1724844

Benjamin L. Berger (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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