Equal, but only Conceptually: Explaining the Phenomenon of Religious Losses in Contemporary Canadian Constitutional Cases Involving Conflicting Rights

Abstract

If there is no hierarchy of fundamental rights in Canada, then how is it acceptable that freedom of religion so often seems to lose in cases of conflicts with other rights? This article discusses five recent Canadian cases (involving same-sex marriages, controversial medical practices, the wearing of a niqab, and a Christian university’s sexual conduct policy) in order to expose how the Courts regularly characterize freedom of religion as being conceptually equal to other rights, before ruling against freedom of religion on the facts of the particular cases. This phenomenon within Canadian rights jurisprudence is then justified within the article by reference to a new combination of insights drawn from legal and liberal political theory.

The article begins by describing utilitarian proportionality frameworks that, notwithstanding their flaws, are almost universally accepted as the best tools for resolving contested rights claims. Then, after addressing how the five contemporary Canadian cases use these proportionality tools to subordinate religious rights, the article suggests how it is justifiable for freedom of religion to yield in such cases when this right conflicts with other rights, particularly because of considerations relating to: (1) Rawlsian public reason; (2) third-party harms and dignitary harms; and, (3) the special significance of emerging and emancipation rights. The article concludes that freedom of religion is only equal to other rights at a high level of abstraction; at a more pragmatic and concrete level, religious freedom is regularly subordinated to other rights in ways that can be defended where one or a combination of the three enumerated considerations is present.

Keywords: religious freedom, proportionality, conflicting rights, public reason, dignitary harm, emancipation rights, same sex marriage, niqab, abortion, medical assistance in dying, Trinity Western, hierarchy of rights