Freedom of Religion and Canada's Commitments to Multiculturalism
31 National Journal of Constitutional Law 1, 2012
24 Pages Posted: 3 Aug 2013
Date Written: November 1, 2012
In this article, the author explores the Canadian law of religious freedom in light of Canada's commitments to multiculturalism. Though these commitments are aspirational and imprecise, the author argues that two stable notions emerge from Canada's Constitution and legislated multiculturalism policies: recognizing minority cultural communities and fostering inter-cultural dialogue. The author goes on to examine the Canadian case law on religious freedom, arguing that there are at least three recurring themes that run through the prevailing decisions. First, the courts' treatment of religion is individualistic, using the individual litigant's sincerity of religious belief as the touchstone of whether a particular practice will benefit from constitutional protection. Second, the courts are highly concerned with the prevention of coercion and subjecting members of minority groups to the “tyranny of the majority.” Third, in justifying their decisions, courts rely heavily on the discourse of tolerance. Using each of these themes as a springboard for critical analysis, the author argues that the legal doctrine of religious freedom is inconsistent with Canada's multicultural ideals. The individualism of the case law fails to take into account the collective and public dimensions of religious experience, and thus fails to recognize important aspects of the identities of minority groups. The strong incentive to adopt particular language in order to be successful may coerce litigants into adopting arguments that are inconsistent with their religious views. The language of tolerance may subtly reinforce social hierarchies by implying that minorities are tolerated rather than full members of Canadian society and impede cross-cultural dialogue by essentializing and marginalizing members of minority groups. The author concludes that these “side-effects” of well-intentioned judicial doctrines are worth taking seriously in order for Canada to make good on its multicultural promises.
Keywords: Freedom of Religion, Multiculturalism, Social Diversity
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