scholarly journals Religious Diversity, Education, and the “Crisis” in State Neutrality

2013 ◽  
Vol 29 (01) ◽  
pp. 103-122 ◽  
Author(s):  
Benjamin L. Berger
Keyword(s):  
Public Education ◽  
Religious Diversity ◽  
Diversity Education ◽  
Supreme Court Of Canada ◽  
Religious Difference ◽  
State Neutrality ◽  
Politics And Religion ◽  
Religion And Law ◽  
The Supreme Court ◽  
The Relationship

Abstract Education—and particularly public education—has become a crucible for the relationship between state and religious diversity, a principal site for contemporary debates about the meaning of secularism and the management of religious difference. This is so across a variety of national traditions, and despite wide differences in the historical and “emotional inheritances” surrounding the configuration of law, politics, and religion. Through an exploration of Hannah Arendt’s thought about responsibility and freedom in education, this article works towards a better understanding of why education is such a crucial and fraught field in the modern encounter between religion and law. The article turns to the recent jurisprudence of the Supreme Court of Canada to draw out the implications of these ideas, arriving ultimately at a claim about the nature and limits of the concept of state neutrality.

Neutrality of the State and Regulation of Religious Symbols in Schools in Quebec and France

2009 ◽  
Vol 56 (2) ◽  
pp. 202-213 ◽  
Author(s):  
David Koussens
Keyword(s):  
Public Schools ◽  
Supreme Court ◽  
Religious Pluralism ◽  
Cultural Integration ◽  
Supreme Court Of Canada ◽  
Religious Symbols ◽  
Immigrant Populations ◽  
State Neutrality ◽  
The Supreme Court ◽  
The Difference

The difference in attitudes towards the wearing of religious symbols in schools in France and Canada is symptomatic of the respective legal and political definitions of the official neutrality of the school institution and thus of way in which laicism is used to regulate religious pluralism and the “socio-cultural” integration of immigrant populations. In what ways is state neutrality put into practice, in Quebec and in France, as regards the judicial and political treatment of the wearing of religious symbols in public schools? The author proposes to examine the implementation of the liberal principle of neutrality by the French law dated 15 March 2004 on the wearing of religious symbols in public schools and by the decision of the Supreme Court of Canada of 2 March 2006 to allow a young Sikh to wear his ritual kirpan at school.

scholarly journals The Freedom of Association Mess: How We Got into It and How We Can Get out of It

2009 ◽  
Vol 54 (1) ◽  
pp. 177-212 ◽  
Author(s):  
Brian Langille
Keyword(s):  
Constitutional Law ◽  
Supreme Court Of Canada ◽  
Freedom Of Association ◽  
Labour Law ◽  
Labour Relations ◽  
State Action ◽  
Starting Point ◽  
The Supreme Court ◽  
The Impact ◽  
The Relationship

Abstract Canadian constitutional law regarding freedom of association for workers is a mess. The jurisprudence to date has taken an approach to state action and positive obligations to legislate which is inconsistent with section 15, and has failed to articulate the relationship between the abstract statement of basic rights or freedoms and the detailed statutes and regulations that instantiate and enforce them. This paper focuses on the impact of the recent decision of the Supreme Court of Canada in BC Health. The author argues that this case misunderstood Canada’s labour law history, international labour law obligations, “Charter values”, and the distinction between “freedoms” and “rights”. This paper argues that by using labour relations statutes as a starting point and applying the constitutional idea of equality, courts can protect freedom of association for workers and find a way out of the mess we are in.

Part V Rights and Freedoms, B Rights and Freedoms under the Charter, Ch.39 Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15

2017 ◽  
Author(s):  
Lawrence Sonia
Keyword(s):  
Supreme Court ◽  
Complete Separation ◽  
Supreme Court Of Canada ◽  
Government Action ◽  
Canadian Charter ◽  
Doctrinal Development ◽  
Substantive Equality ◽  
The Supreme Court ◽  
The Relationship

This chapter considers the effect of section 1, the “justification” section of the Canadian Charter, on the doctrinal development of section 15, the equality section. It begins by describing the development of the section 15 substantive equality analysis, including the claim of a conceptually complete separation from the section 1 analysis of state justification. The chapter then identifies some features of section 15 which suggest that this separation is less than complete, including the existence of section 15(2), and anxieties over constraining government action. The chapter then turns to three post-2001 cases in which the Supreme Court of Canada found discrimination under the Charter but then held that discrimination was “justified” through section 1, and asks what these cases might reveal about the symbolic significance of a finding of discrimination and the Court’s struggle with institutional competence concerns in equality claims.

Deepening counter institutions: Property, lands, relations, and the economic future of the Tŝilhqot’in

2021 ◽  
pp. 026377582110634
Author(s):  
Anthony W Persaud
Keyword(s):  
First Nations ◽  
Private Property ◽  
Well Being ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Land Relations ◽  
Aboriginal Title ◽  
Cultural Ecological ◽  
Economic Future ◽  
The Relationship

The recognition of Aboriginal title by the Supreme Court of Canada in 2014 affirmed the existence and relevance of a Tŝilhqot’in legal order governing the relationship that Tŝilhqot’in people have with their lands, with each other, and with outsiders. The challenge now for the Tŝilhqot’in is to articulate and enact these laws in ways that respond to their modern socio-economic and cultural-ecological needs and goals without betraying their fundamental principles. Complicating this is a dominant narrative which rationalizes First Nations compliance with liberal institutions of British common law, property, and market-based economic growth as requirements for socio-economic improvements and well-being within First Nations communities. This article interrogates some of the logics and fundamental assumptions that underpin the arguments of liberal property rights enthusiasts, questioning their applicability to the values and aspirations of the Tŝilhqot’in people and First Nations broadly. The Tŝilhqot’in, empowered through title, at once resist liberal private property while at the same recognize the need for institutional developments in relation to lands, housing, and ‘ownership’. This indicates a need for new legal conceptualizations of property that are more comprehensively rooted in, and reflective of, Indigenous laws and land relations.

Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1999

2001 ◽  
Vol 34 (2) ◽  
pp. 321-355 ◽  
Author(s):  
James B. Kelly
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
Administration Of Justice ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Relationship ◽  
Provincial Autonomy

This article considers the relationship between rights and federalism in the Supreme Court of Canada's review of cases invoking the Canadian Charter of Rights and Freedoms. It considers whether the Supreme Court of Canada has compromised provincial autonomy by establishing Canada-wide standards in provincial areas of jurisdiction. It suggests that the centralization thesis associated with judicial review on Charter grounds is inconclusive, and combining several processes under the rubric of centralization, it misrepresents the Charter's effect on Canadian federalism and provincial autonomy. Further, the centralization thesis has lost much momentum during the course of Charter review, and, as a result, is a limited approach to understanding the relationship between rights and federalism in Canada. Specifically, the Supreme Court of Canada has demonstrated sensitivity to federalism in its Charter jurisprudence, most evident in a complex jurisprudence that has served to offset the centralization thesis and its implications for provincial autonomy. This threepart federalism jurisprudence is federalism as gatekeeper, an explicit federalism jurisprudence and an implicit federalism jurisprudence, which is most evident in the relationship between criminal rights and provincial responsibility for the administration of justice. This article demonstrates that the Court's approach to Charter review has seen a reconciliation between rights and federalism, most evident in the declining importance of the centralization thesis and the growing importance of the three-part federalism jurisprudence during Charter review. This sensitivity to federalism has existed since the beginning of the Court's Charter jurisprudence but has largely been overshadowed by the dominance of the centralization thesis in the Charter debate.

scholarly journals Freedom of Religion and the Accommodation of Religious Diversity: Multiculturalising Secularism

Religions ◽  
2021 ◽  
Vol 12 (10) ◽  
pp. 868
Author(s):  
Tariq Modood ◽  
Thomas Sealy
Keyword(s):  
Western Europe ◽  
Religious Diversity ◽  
Freedom Of Religion ◽  
Racial Identities ◽  
Classical Liberal ◽  
Christian Churches ◽  
State Neutrality ◽  
Long Time ◽  
The Relationship ◽  
Religion In Public Life

The classical liberal concern for freedom of religion today intersects with concerns of equality and respect for minorities, of what might be loosely termed ‘multiculturalism’. When these minorities were primarily understood in terms of ethno-racial identities, multiculturalism and freedom of religion were seen at that time as quite separate policy and legal fields. As ethno-religious identities have become central to multiculturalism (and to rejections of multiculturalism), specifically in Western Europe in relation to its growing Muslim settlements, not only have the two fields intersected, new approaches to religion and equality have emerged. We consider the relationship between freedom of religion and ethno-religious equality, or alternatively, religion as faith or conscience and religion as group identity. We argue that the normative challenges raised by multicultural equality and integration cannot be met by individualist understandings of religion and freedom, by the idea of state neutrality, nor by laicist understandings of citizenship and equality. Hence, a re-thinking of the place of religion in public life and of religion as a public good and a re-configuring of political secularism in the context of religious diversity is necessary. We explore a number of pro-diversity approaches that suggest what a respectful and inclusive egalitarian governance of religious diversity might look like, and consider what might be usefully learnt from other countries, as Europe struggles with a deeper diversity than it has known for a long time. The moderate secularism that has historically evolved in Western Europe is potentially accommodative of religious diversity, just as it came to be of Christian churches, but it has to be ‘multiculturalised’.

scholarly journals Case Comment: Canada (Attorney General) v PHS Community Services Society

2011 ◽  
Vol 20 (2) ◽  
pp. 2011 ◽  
Author(s):  
Rahool P Agarwal
Keyword(s):  
Health Program ◽  
Attorney General ◽  
Community Services ◽  
Supreme Court Of Canada ◽  
East Side ◽  
The Supreme Court ◽  
Supervised Injection ◽  
Constitutional Jurisprudence ◽  
The Relationship ◽  
Addiction Drug

In September of this year, the Supreme Court of Canada released its decision in Canada (Attorney General) v PHS Community Services Society (“PHS Community Services Society”).[1] PHS Community Services Society is undoubtedly a landmark decision. Most importantly, the Court ordered the continued operation of Insite, North America’s only supervised injection site, and a health program that has proven to be overwhelmingly effective in addressing addiction drug use in Vancouver’s Downtown East Side (the “DTES”). But the decision is also critically important as part of the Supreme Court’s body of constitutional jurisprudence. In this case comment, I review the Court’s decision, and discuss three important issues raised by the Court’s analysis: (a) the availability of ministerial discretion as an “antidote” for an otherwise unconstitutional law; (b) what insight the decision may provide with respect to the relationship between the Court and Parliament; and (c) PHS Community Services Society’s utility as a precedent for future supervised injection sites. [1] Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] SCJ no 44 (QL) [PHS (SCC)].

scholarly journals RELIGION AND LAW IN R V NS: FINDING SPACE TO RE-THINK THE BALANCING ANALYSIS

2015 ◽  
Vol 32 (1) ◽  
pp. 25
Author(s):  
Blair Major
Keyword(s):  
Supreme Court ◽  
Critical Reflection ◽  
Recent Case ◽  
Supreme Court Of Canada ◽  
Starting Point ◽  
Religion And Law ◽  
The Supreme Court ◽  
Meaningful Engagement

In this article, the author argues against the balancing approach used in the recent case of the Supreme Court of Canada R v NS (2012).  It is argued that this approach inhibits critical reflection on the complex philosophical issues that underlie the decision, and that it closes itself off to meaningful engagement with diverse perspectives.  These arguments are developed by reflecting on the idea of incommensurability and on Alasdair MacIntyre’s theory of tradition.  The author concludes that this analysis provides a starting point for developing an approach that has greater capacity for critical reflection and is more capable of embracing diversity. L'auteur critique l'approche utilisée dans la récente décision de la Cour Suprême du Canada R c NS (2012), laquelle se fondait sur la recherche d'un équilibre entre la liberté de religion et l'équité du procès. Sa critique – fondée sur l'idée d'incommensurabilité et la théorie de tradition d'Alisdair MacIntyre – démontre que l'approche retenue par la Cour Suprême limite l'analyse critique de questions philosophiques complexes que sous-tendent la décision, et refuse d'aborder sérieusement des perspectives diverses. L'analyse de l'auteur offre un point de départ pour développer une approche dotée d'une plus grande capacité pour la réflexion critique et promet de mieux incorporer la diversité.

scholarly journals Instrumental Rationality and General Deterrence

2019 ◽  
pp. 53
Author(s):  
Colton Fehr
Keyword(s):  
Supreme Court ◽  
Instrumental Rationality ◽  
Supreme Court Of Canada ◽  
General Deterrence ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Rationally Connected ◽  
The Relationship

The Supreme Court of Canada concluded in R. v. Nur that the use of general deterrence in sentencing is not “rationally connected”to its objective of lowering crime levels. Although this conclusion was drawn in the Charter section 1 context, its logic applies with equal force at the section 7 stage of analysis. As a law bearing no rational connection to its purpose is arbitrary, the author contends that judicial reliance on general deterrence in sentencing runs afoul of section 7 of the Canadian Charter of Rights and Freedoms. This conclusion is significant not only because it would forestall judicial use of general deterrence, but also for what it reveals about the relationship between the instrumental rationality principles. Commentators maintain that the Supreme Court’s “individualistic” approach to instrumental rationality resulted in the arbitrariness principle becoming subsumed by overbreadth. Yet, challenging the general deterrence provisions with overbreadth is not possible given the discretion given to judges to avoid its unnecessary application. The fact that a law can be arbitrary but not overbroad provides support for the Supreme Court’s insistence upon keeping the principles distinct. It also, however, requires that the Supreme Court adjust its position with respect to its method for proving arbitrariness.

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