From Saumur to L. (S.): Tracing the Theory and Concept of Religious Freedom under Canadian Law
58 Supreme Court Law Review (2d), 2012
38 Pages Posted: 8 May 2013
Date Written: 2012
This paper’s discussion of the recent Supreme Court decision in L. (S.) v. Commission scolaire des Chênes illustrates how the government action at issue — a multi-faith and ethics educational program designed to promote secular-egalitarian values that were in tension with the values of the claimants in the case — would have been vulnerable under the scrutiny of established religious accommodation law. For this reason, this paper warns that the Amselem framework proves untenable, for it invites a potentially limitless range of individual accommodation claims without any workable and transparent mechanism for reviewing, and judging, the content of those claims. In some cases, a specific government objective might justify limiting a freedom. But the question for courts in such cases is not only how far religious freedom should go and where the limit of freedom lies (in terms of undue hardship or minimal impairment). It also asks what religious freedom should mean conceptually. By “conceptual”, I refer to the definitional qualities of religious freedom. What is its character? What value does it promote? What does it give and what does it demand?
Keywords: religious, freedom, Canadian, law, limit
JEL Classification: K40, K41, K42
Suggested Citation: Suggested Citation