Diminishing Disadvantage and Curtailing Power: A Reimagining of ‘Freedom of Conscience and Religion’ in Canada

This dissertation is a contribution to the growing scholarship that challenges the claim that the legal protection of religious freedom in liberal democratic orders is fair, neutral and universal. Using Canada as my case, I ask whether the historical domination of Protestant Christianity has left its mark on contemporary secular regimes. The answer is clearly yes. In the dissertation I focus particularly on the issue of exemptions. I question whether the current dominant understanding of freedom of religion and conscience (shaped as it is by a Protestant dominated past) can deal fairly with marginalized, minority, and non-Christian perspectives, beliefs, and ways of life. In developing this argument, I make three major claims. The first is that the dominant interpretation of section 2(a) turns “freedom of conscience and religion” into “freedom of conscience in religion.” The collapsing of conscience into religion, alongside the understanding of religion as private, belief-driven and chosen, restricts and narrows what and who receive exemptions. In contrast to this view, my second claim challenges the priority given to beliefs over values. I argue that the state has a special and equal interest in justifications based on beliefs and justifications based on values when these reflect a person’s ‘sense of being.’ My conception of a ‘sense of being’ introduces a moral argument for why we should be protecting “religion” and “conscience” that is not tied to narrow Christian dominated views. Finally, I propose an alternative understanding of the basis for exemptions that looks at these questions through the lens of advantage/dominance and disadvantage/marginalization. I argue that exemptions should amplify and protect those who are disadvantaged and at risk but be granted on a more limited basis to dominant/powerful majority groups. My approach mitigates the impact of differences in power, status and opportunities on the substance of the s. 2(a) right of 1) minority religious communities (including non-mainstream Christians) that may not prioritize conscience in the same way as the mainstream, 2) Indigenous peoples, and 3) individuals acting on their consciences without connection to religion.Ph.D