Category: Freedom of Religion


Ktunaxa Nation v BC: Bringing Aboriginal Spirituality into Section 2(a) of the Charter

The British Columbia Court of Appeal (“BCCA”) case Ktunaxa Nation v BC, 2015 BCCA 352 [Ktunaxa], has some problematic implications for the scope of religious freedom under section 2(a) of the Charter. Aboriginal spirituality has never officially been recognized under 2(a). It is likely that Ktunaxa will go to the Supreme Court of Canada (“SCC”). If it does, the SCC should be mindful of some important questions about the scope of 2(a), and what that might mean for Aboriginal spirituality.


Separation of Church and State: Mouvement laïque québécois v Saguenay (City)

The separation of church and State has long plagued Canada. The Supreme Court of Canada (“SCC”) recently revisited the scope of the duty of religious neutrality in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. The SCC, in allowing the appeal, prevented the Mayor of Saguenay from reciting a prayer in council meetings. While the SCC’s decision on the substance of the case is laudable, the majority unnecessarily complicated the standard of review in administrative law.


Loyola v Quebec, Part I – the Majority: Water in Loyola’s Wine

This is the first part of a two-part comment on the Supreme Court of Canada (“SCC”) decision in Loyola High School v Quebec (Attorney General), 2015 SCC 12 [Loyola]. It will summarize the majority opinion of Justice Abella. Unlike the concurring opinion of Chief Justice McLachlin, which will be set out in Part II, Abella confines her analysis to the decision-making framework set out in Doré v Barreau du Québec, [2012] 1 SCR 395 [Doré], which applies when discretionary administrative decisions engage the Charter. Loyola involves a decision by Quebec’s Minister of Education, Recreation and Sport to deny Loyola High...


Veils, Oaths, and Canadian Citizenship: Ishaq v Canada

On February 6, 2015, in the well-publicized decision of Ishaq v Canada (Minister of Citizenship and Immigration), 2015 FC 156 [Ishaq], the Federal Court ruled that it was unlawful for the Canadian Government to ban new citizens from reciting the citizenship oath with a face-covering veil. Since the decision was released, the Harper Government has announced emphatically that it will appeal the judgment.


Individuality and Community: Expounding the Fundamental Freedoms’ Normative Antinomy

I It has been said that the Canadian Charter of Rights and Freedoms is a liberal document. On this view, the Charter presupposes an individualistic conception of the rights-bearer. It conceives of persons as having pre-politically discrete identities and as being free, autonomous, and independent of the community. Its function is to “police the boundary that separates the political and the collective from the pre-political and the individual” (Allan C Hutchinson & Andrew Petter, “Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988) 38:3 UTLJ 278 at 284). Although individualism permeates the Supreme Court of Canada’s section 2 jurisprudence, notions...


What R v Big M Drug Mart Can Teach the US Supreme Court about Corporate Religious Freedom

Late last year, the United States Supreme Court agreed to hear two cases challenging the constitutionality of the Patient Protection and Affordable Care Act’s (“Obamacare”) contraception mandate, with oral arguments to take place in March. At issue in Sebelius v Hobby Lobby Stores, Inc. [Hobby Lobby] and Conestoga Wood Specialties Corp. v Sebelius [Conestoga Wood], which will be consolidated at the Supreme Court, is whether provisions of Obamacare requiring companies with more than 50 employees to provide insurance that includes coverage for contraception violates those corporations’ right to religious freedom under the First Amendment and Religious Freedom Restoration Act (“RFRA”). The most interesting issue...