Faithful Translations? Cross-Cultural Communications in Canadian Religious Freedom Litigation

Osgoode Hall Law Journal, 52.1 (2014) 141-189.

Osgoode Legal Studies Research Paper No. 35/2014

51 Pages Posted: 14 Jun 2014 Last revised: 12 May 2015

See all articles by Howard Kislowicz

Howard Kislowicz

University of Calgary - Faculty of Law

Date Written: 2014

Abstract

In three religious freedom cases pursued to the Supreme Court of Canada – Amselem, Multani, and Huterrian Brethren of Wilson Colony – religious freedom claimants engaged in litigation over a religious practice particular to their group. Some have argued that cases like these can be seen as cross-cultural encounters. How did the religious freedom claimants seek to make their practices – the succah, the kirpan, and the prohibition on being photographed – understood to the courts? And how did the courts respond to these claims? In this paper, I draw out two central values from the literature on cross-cultural communication: respect and self-awareness. I then use these values as lenses through which to view participant narratives collected in a qualitative study of litigants, lawyers, and an expert witness. I argue that courts are more likely to achieve a fuller understanding of minority religious practices when they are faithful to the values of respect and self-awareness. This, in turn, can strengthen their proportionality analyses. Of the three cases, the Supreme Court in Multani came the closest to realizing this ideal. The majority in Wilson Colony marked a low point in this regard, failing to fully appreciate the litigants’ commitment to their collectivist worldview. Amselem was something of a middle ground, where the Court deliberately preferred to engage with a thinner account of the religious practice.

Keywords: Freedom of Religion, Cross-cultural communication, Multiculturalism, Accommodation, Litigation

JEL Classification: K00, K100, Z180, Z13

Suggested Citation

Kislowicz, Howard, Faithful Translations? Cross-Cultural Communications in Canadian Religious Freedom Litigation (2014). Osgoode Hall Law Journal, 52.1 (2014) 141-189.; Osgoode Legal Studies Research Paper No. 35/2014. Available at SSRN: https://ssrn.com/abstract=2450077

Howard Kislowicz (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

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