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

See all articles by Faisal Bhabha

Faisal Bhabha

York University - Osgoode Hall Law School

Date Written: 2012

Abstract

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

Bhabha, Faisal, From Saumur to L. (S.): Tracing the Theory and Concept of Religious Freedom under Canadian Law (2012). 58 Supreme Court Law Review (2d), 2012, Available at SSRN: https://ssrn.com/abstract=2261763

Faisal Bhabha (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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