Social Processes in Canadian Religious Freedom Litigation: Plural Laws, Multicultural Communications, and Civic Belonging

Though there is significant academic interest in the law of religious freedom in Canada, there has been little research into the experiences of participants in religious freedom litigation. Based on a qualitative analysis of participant interviews and legal documents in three decisions of the Supreme Court of Canada, this dissertation explores the social processes at play in that litigation. At issue in the three cases were, respectively, (1) the right of Jewish condominium co-owners to install ritual huts (succoth) on their balconies; (2) the right of a Sikh student to wear a ceremonial dagger (kirpan) in a public high school; and (3) the right of a Hutterite group to be exempted from the photo requirement on driver’s licences for religious reasons. This dissertation adds to the existing academic commentary by looking beyond the judicial decisions and incorporating firsthand accounts of lawyers, litigants, and expert witnesses in these cases. The substantive analysis is divided in three sections. First, the dissertation examines themes of overlapping legal systems in participant narratives. Litigants understood themselves to be subjects of both state and religious laws, and the particular interactions between these legal systems help refine theories of legal pluralism. Second, the work analyzes religious freedom litigation as cross-cultural communication. Specifically, the dissertation employs the normative criteria of respect and self-awareness found in the literature on cross-cultural communication to approach participant narratives and judicial decisions, finding both successes and failures in this regard. Third, the dissertation engages issues of belonging to the Canadian civic community inherent in participant narratives. All litigants told the stories of their litigation as part of their larger immigration and integration narratives, and successful litigants were quick to give positive accounts in this regard. The unsuccessful litigants told more complex stories of integration, complicating the analysis of the impact of a judicial decision on their narratives of civic belonging. Nevertheless, the dissertation argues that the notion of civic belonging ought to be explicitly taken into account by Canadian judgments when dealing with issues of religious freedom.SJ