Canada’s “institutional turn” in religious freedom litigation

By Yves Faguy May 14, 201814 May 2018

Canada’s “institutional turn” in religious freedom litigation

<p> &nbsp;</p> <p> <a href="https://cbr.cba.org/index.php/cbr/article/view/4435/4416">Kathryn Chan writes in an article published in the Canadian Bar Review</a> that the &ldquo;institutional turn&rdquo; in religious freedom litigation we have seen in Europe and the United States is now apparent in Canada.</p> <p> The Supreme Court of Canada is scheduled to render judgment in three religious freedom cases in the fall, in <em>Wall v Highwood Congregation of Jehovah&rsquo;s Witnesses</em> and two Trinity Western University appeals. But until now, the top court&rsquo;s approach to institutional religious freedom claims, &ldquo;is deeply ambiguous,&rdquo; Chan explains:</p> <p style="margin-left: 40px;"> The big unanswered question is the &ldquo;constitutional personhood&rdquo; question: are corporations included in the &ldquo;everyone&rdquo; that is entitled to the protections of freedom of conscience and religion under section 2(a) of the <em>Charter</em>? In <em>Loyola High School</em>, the majority of the Court declined to decide whether corporations &ldquo;enjoy religious freedom in their own right under ... the <em>Charter</em>&rdquo;, &ldquo;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.&rdquo; However, the remaining three justices declared their willingness to recognize the religious freedom of a &ldquo;non-profit religious corporation&rdquo;, 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 &ldquo;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.&rdquo;</p>

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