Identifying the Institutional Religious Freedom Claimant
(2017) 95 Cdn Bar Review (Forthcoming)
27 Pages Posted: 1 Jul 2017 Last revised: 24 Nov 2017
Date Written: June 29, 2017
The 'institutional turn' that religious freedom litigation has taken in Europe and the United States is now discernible in Canada. If this institutional turn continues, the Supreme Court of Canada will soon need to decide whether the "everyone" entitled to freedom of conscience and religion under the Canadian Charter of Rights and Freedoms includes corporations. This paper argues that before we begin extending constitutional rights to corporate vehicles in Canada, we should have a workable account of institutional religious freedom and some sense of the corporate and trust law mechanics through which it will operate.
Recent American scholarship outlines two different accounts of "institutional conscience" that courts have relied upon in extending free exercise rights to non-profit and for-profit institutions. This paper explores each of these accounts through the lens of a particular case study: the ongoing dispute over the accreditation of Trinity Western University's proposed law school. I conclude that the "moral-association theory" provides a stronger basis that the "mission-operation theory" for according constitutional protection to the University's defence of its discriminatory covenant. Whatever theory the courts adopt, however, they must be mindful of the type of evidence required to support an institutional religious freedom claim.
Keywords: Freedom of Religion; Corporate Theory; Constitutional Personhood; Trinity Western University
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