Canada’s “institutional turn” in religious freedom litigation

By Yves Faguy May 14, 201814 May 2018

Canada’s “institutional turn” in religious freedom litigation

 

Kathryn Chan writes in an article published in the Canadian Bar Review that the “institutional turn” in religious freedom litigation we have seen in Europe and the United States is now apparent in Canada.

The Supreme Court of Canada is scheduled hear three religious freedom cases in the fall, in Wall v Highwood Congregation of Jehovah’s Witnesses and two Trinity Western University appeals. But until now, the top court’s approach to institutional religious freedom claims, “is deeply ambiguous,” Chan explains:

The big unanswered question is the “constitutional personhood” question: are corporations included in the “everyone” that is entitled to the protections of freedom of conscience and religion under section 2(a) of the Charter? In Loyola High School, the majority of the Court declined to decide whether corporations “enjoy religious freedom in their own right under ... the Charter”, “since the Minister was bound ... to exercise her discretion in a way that respect[ed] ... [the] religious freedom of the members of the Loyola community who [wished to offer or] receive a Catholic education.” However, the remaining three justices declared their willingness to recognize the religious freedom of a “non-profit religious corporation”, constituted for the purpose of offering a Jesuit education to Catholic children in Quebec. The minority justices also proposed a general test for an institutional religious freedom claim, stating “that an organization [should meet] the requirements for s. 2(a) protection if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.”

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