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)].

Part VI Constitutional Theory, F The Canadian Constitution in a Comparative Law Perspective, Ch.50 The Canadian Constitution and the World

2017 ◽  
Author(s):  
Choudhry Sujit
Keyword(s):  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Complex Interplay ◽  
Constitutional Politics ◽  
Judicial Supremacy ◽  
The Supreme Court ◽  
Dialogue Theory ◽  
The Relationship

This chapter examines the influence of elements of Canada’s constitutional model abroad, in three areas: (1) the Canadian Charter of Rights and Freedoms as an innovative way to institutionalize the relationship among legislatures, executives, and courts with respect to the enforcement of a constitutional bill of rights, as justified by “dialogue theory”, that contrasts starkly with its leading alternatives, the American and German systems of judicial supremacy; (2) Canada’s plurinational federalism as a strategy to accommodate minority nationalism and dampen the demand for secession and independence within the context of a single state, by divorcing the equation of state and nation; and (3) the complex interplay between a constitutional bill of rights and minority nation-building, as reflected in the constitutional politics surrounding the recognition of Quebec’s distinctiveness, and the role of the Supreme Court of Canada in adjudicating constitutional conflicts over official language policy arising out of Quebec.

Guilt by Association: Ezokola’s Unfinished Business in Canadian Refugee Law

2020 ◽  
Vol 39 (1) ◽  
pp. 1-25
Author(s):  
Jennifer Bond ◽  
Nathan Benson ◽  
Jared Porter
Keyword(s):  
Supreme Court Of Canada ◽  
Unfinished Business ◽  
Refugee Convention ◽  
International Crimes ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Supreme Court ◽  
Guilt By Association ◽  
Refugee Claimant ◽  
The Relationship

Abstract Guilt by association is an insufficient ground on which to deny international refugee protection. This was the finding in Ezokola v. Canada, a landmark case holding that Article 1F(a) of the Refugee Convention requires a “voluntary, knowing and significant contribution” to a crime or criminal purpose before a refugee claimant can be excluded from protection on the basis of alleged involvement in international crimes. However, the same kinds of underlying acts that were before the Supreme Court of Canada in Ezokola – and are routinely considered under the Article 1F(a) exclusion framework – are also assessed under a second, distinct part of Canada's refugee system called the inadmissibility framework. This article explores the relationship between exclusion and inadmissibility, and demonstrates critical differences in the scope of each framework. We ultimately conclude that Canada's inadmissibility provisions bar asylum seekers from refugee protection on grounds broader than those permitted under Article 1F(a). This renders Canada's refugee claims system fundamentally inconsistent with the Refugee Convention and means that the business started in Ezokola urgently needs to be finished.

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