From Saumur to L. (S.): Tracing the the ory and Concept of Religious Freedom under Canadian Law

This paper takes as its starting point a the oretical gap in the jurisprudence of the Supreme Court of Canada in relation to freedom of religion claims. The author argues that, under the Amselem analysis, the Court restricts itself to making decisions involving contested values while avoiding substantive consideration of normative questions. As a result, judicial reasoning in recent cases dealing with religious freedom has been characterized by formalistic doctrinal applications coupled with covert substantive review. The paper argues that the Court should be more explicit in justifying its protection of relational interests within freedom of religion jurisprudence. Neo-republican political the ory offers a justificatory framework for the move away from an individual rights approach to adjudicating social nuances of contemporary religious freedom claims, in a way which recognizes the interdependency of interests, and mediates tensions in social relations. Such a conception of religious freedom balances the impulse to individualism against the interest in co-reliance, and suggests that responsibility and social commitments ought to be understood as a constituent part of freedom, rather than as a threat or toll. The author surveys Supreme Court case law from the 1950s, the pre-Charter or human rights era, to show how the Court grounded its protection of religion and religious freedom in historical and contextual considerations, philosophical values, cultural norms and unwritten constitutional principles. The Court engaged in conceptual analyses about freedom and the role of religion in public life, and decided constitutional rights without reference to positive law. Freedom was understood the n as a moral and political concept, if not yet a legal right. The author the n jumps forward to the recent judgment in L. (S.), in which the Supreme Court found itself again engaging with conceptual issues related to religious freedom, but within the doctrinal framework of section 2(a) and the Charter right to freedom of religion. The author finds that the conceptual questions in L. (S.) focused the Court on defining freedom in alignment with shared public values. The paper closes by examining these shared values, gleaned from a number of recent cases, in an effort to describe the Court’s emerging framework for a relational conception of freedom — one in which permissions and restrictions flow in all directions between the state, the individual and the collective