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According to the Canadian courts s. 2(a) of the Charter requires that the state remain neutral in religious matters. The state must not support the religious practices of one religious group over those of another and it must not restrict the practices of a religious group, unless this is necessary to protect a compelling public interest. Yet the neutrality requirement has not been consistently enforced by the courts. The fundamental difficulty with the neutrality requirement is that religious beliefs often have public implications. Despite the courts’ formal commitment to “neutrality” they have required the state to remain neutral only towards the “private” or spiritual dimensions of religious practice. The “public” elements of belief, which address civic concerns, remain subject to the give and take of ordinary politics. This distinction, although not expressly made by the courts, underlies the different treatment the courts have given to religious “practices”, which the state is precluded from favouring, and religious “values”, which the courts have said may play a role in political decision-making. This distinction between public and private religion, may also play a role in the courts’ accommodation decisions and account for its weak or selective protection of religious practices from state interference. Where the line is drawn between civic and spiritual spheres will reflect the courts’ assumptions about ordinary religious practice and appropriate state action. Because the line is not drawn explicitly but is instead framed as a distinction between practice and value in state support cases and is buried within the formal s. 1 balancing of interests in religious accommodation cases, the courts’ assumptions about the nature of religious practice and state action are concealed from scrutiny.

The Lautsi decision reflects the deep ambivalence in Western liberal democracies about religion and its relationship to politics. Like the Canadian courts, the European Court of Human Rights (ECtHR) seems to recognize that religion and politics should be separated but that this separation can never be total. While the ECtHR and the Supreme Court of Canada rely at least formally on a similar test for determining a breach of religious freedom (a test that emphasizes the state’s obligation to remain neutral in spiritual matters) their application of the test is guided by different understandings of the public/political significance of religion and more particularly the relationship between religion, civic values, and national identity. The Court in Lautsi seems to accept, or at least acquiesce in, two claims made by the Italian government about the meaning of the crucifix: that it symbolizes the Italian national identity, which is tied to its history as a Christian or Roman Catholic nation, and that it symbolizes the Christian foundation of the civic/secular values of the Italian political community – the values of democracy and tolerance. Behind the claim that the crucifix is not simply a religious symbol but also a symbol of the Italian identity and political culture, is the draw of a thicker or richer form of national identity than that offered by civic nationalism. The assumption is that Italians are held together in a political community not simply by their shared commitment to liberal values or democratic institutions but by a common culture rooted in a religious tradition. Religion and politics are joined at the core of national identity and the root of political obligation. This link between religion and politics, though, rests on the problematic claim that the values of democracy and tolerance emerged directly from Christianity (and are the logical, even necessary, outcome of Christian doctrine) and the disturbing claim that Christianity is uniquely tied to these values. While religion does sometimes intersect with politics in Canada, it no longer plays a role in the definition of the country’s national identity. Canada, sometime ago, embraced multiculturalism as the defining feature of its national identity and liberal-democratic values as its political bond. There is no doubt that Canada’s moral/social culture has been shaped in different ways by the Christian faith of earlier generations, nevertheless any attempt to formally link Canadian national identity to a particular religious tradition would run against the country’s self-conception as a multicultural (multi-faith) society.

In recent years, the Canadian courts have been confronted with a number of cases in which freedom of religion and sexual orientation equality appeared to clash. Specifically, the courts have had to decide whether religiously motivated anti-gay expression violated a provincial human rights code restriction on hateful expression (Owens v. Saskatchewan 2006). They have also had to rule on whether a human rights code ban on discrimination in the provision of services to the public was breached when a business owner refused to provide services to a gay advocacy group (Ontario v. Brillinger 2002). And, in two judgements, Trinity Western University v. British Columbia College of Teachers (2001) and Chamberlain v. Surrey School district No. 36 (2002), the Supreme Court of Canada dealt with the competing claims of sexual orientation equality and religious freedom in the public schools.

Hate mongers have found it strategically useful to present themselves as defenders of free speech. The shift from advocate of hate to defender of free speech fits well with the hate monger's self-understanding as a victim of state oppression and a defender of Western values against multiculturalism. More often, though, the opposition to hate speech regulation has a principled basis. There are many committed civil libertarians who regard hate speech as odious but are nevertheless prepared to defend the right of others to engage in it. Their opposition to the restriction of hate speech rests on a commitment to individual liberty sand a concern about the reach of state power. While I think the "civil libertarian" position is mistaken, it is not without merit. What is perplexing though is the extraordinary energy that these advocates of free speech put into the fight against hate speech regulation. They seem convinced that the integrity of the free speech edifice depends on holding the line here. Yet they seem indifferent to the more significant ways in which freedom of expression is being eroded in Western democracies. Whether by design or not, the obsessive opposition to hate speech regulation diverts our attention away from more fundamental free speech issues concerning the character and structure of public disclosure, and more particularly the domination of public disclosure by commercial messages and the advertising form. But, of course, these are not issues that can be addressed by the courts, except in indirect ways, and that may partly explain the lack of attention they receive.

The regulations in Alberta dealing with driver’s licenses were amended in 2003 to require that all license holders be photographed. The license holder’s photo would appear on his or her license and be included in a facial recognition data bank maintained by the province. Prior to this change, the regulations had permitted the Registrar of Motor Vehicles to grant an exemption to an individual who, for religious reasons, objected to having her or his photo taken. Members of the Hutterian Brethren of Wilson Colony, who believe that the Second Commandment prohibits the making of photographic images, had been exempted from the photo requirement under old regulations, but were required under the new law to be photographed before a license would be issued.

In June 2008, I was asked by the Canadian Human Rights Commission (CHRC) to write a report about the regulation of hate speech on the internet, focusing specifically on s. 13 of the Canadian Human Rights Act (CHRA). Section 13 prohibits the repeated communication on the phone system or the internet of any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination such as race, gender, or religion.

During the last few years there has been a disinformation campaign against human rights commissions. While it is not surprising that Internet blogs post things about HRCs that are false and malicious, these claims have seeped into mainstream discourse. This paper sets out some of the claims made about the CHRC and describes how they are misleading or just plain false and it considers how these deceptive and invented claims have entered mainstream discourse. This will involve some general observations about the state of public discourse in Canada.

This paper summarizes the recommendations made in the report I prepared for the Canadian Human Rights Commission concerning s.13 of the CHRA. In the report I recommended the repeal of the section so that the CHRC and the Canadian Human Rights Tribunal would no longer deal with hate speech, and in particular hate speech on the Internet. I took the position that state censorship of hate speech should be confined to narrow category of extreme expression – that which explicitly or implicitly threatens, advocates or justifies violence against the members of an identifiable group, even if the violence advocated in not imminent – and that the restriction of this narrow category of expression should be dealt with under the Criminal Code rather than the CHRA.

Law and Religious Pluralism in Canada seeks to elucidate the complex and often uneasy relationship between law and religion in democracies committed both to equal citizenship and religious pluralism. Leading socio-legal scholars consider the role of religious values in public decision making, government support for religious practices, and the restriction and accommodation by government of minority religious practices. They examine such current issues as the legal recognition of sharia arbitration, the re-definition of civil marriage, and the accommodation of religious practice in the public sphere.

Freedom of expression protects the individual's freedom to communicate with others. The right of the individual is to participate in an activity that is deeply social in character. The value of freedom of expression rests on the social nature of individuals and the constitutive character of public discourse. This understanding of the freedom, however, has been inhibited by the individualism that dominates contemporary thinking about rights its assumptions about the pre-social individual and the instrumental value of community life. While the social character of human agency is seldom mentioned in the different accounts of the freedom value, it is the unstated premise of each. Once we recognize that individual agency and identity emerge in the social relationship of communication, the traditional split between intrinsic and instrumental accounts (and between speaker and listener -based accounts) of the value of freedom of expression dissolves.

In June of this year I was asked by the Canadian Human Rights Commission (CHRC) to consider, and to make recommendations concerning, “the most appropriate mechanisms to address hate messages and more particularly those on the Internet, with specific emphasis on the role of section 13 of the CHRA [Canadian Human Rights Act] and the role of the Commission.”I was asked to “take into consideration: existing statutory/regulatory mechanisms; whether they are appropriate and/or in any manner, require further precision; the mandates of human rights commissions and tribunals, as well as other government institutions presently engaged in addressing hate messages on the Internet; whether other governmental or non-governmental organizations might have a role to play and if so, what that role might be; Canadian human rights principles, including but not limited to, those contained in the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms; Canada’s international human rights obligations; and comparable international mechanisms.” I was asked to provide a final report to the Commission on or before October 17, 2008.

At the time of their civil divorce, Mr. Marcovitz and Ms. Bruker entered into an agreement concerning custody, access, division of property and support. Their agreement also included an undertaking by each to appear before the Beth Din (rabbinical court) for the purpose of obtaining a get, or divorce, under Jewish law. For their marriage to be dissolved under Jewish law, it was necessary for Mr. Marcovitz to provide, and Ms. Bruker to accept, a “bill of divorce”, or get. Without a get neither party could remarry in the faith, and any subsequent intimate relationship entered into by either of them would be considered adulterous and any children born of that relationship would be viewed a illegitimate.

Freedom of conscience or religion is no longer protected as the most effective way for the individual to discover spiritual truth, or as necessary to his meaningful commitment to that truth, or because human conscience, the capacity to recognize truth and right, is a divine endowment. The public justification for religious freedom is now framed in more secular terms. In the contemporary context of spiritually diverse community, the protection of religious belief or commitment is most often said to be based on the value of individual judgment or autonomy. What the individual chooses, what she judges to be right or true, is deserving of respect because it has been chosen, because it is an expression of her autonomy or the outcome of her independent judgment.

The connections between law and religion are many. State laws support some religious values and practices and interfere with others. And, from the other side, religious beliefs often inform or shape state laws. Even if Canadian law does not directly compel citizens to engage in religious practices, to attend church or pray, for example, it sometimes favors or advances the religious practices or values of some members of the community over those of others. And even if it does not directly restrict religious practices on the ground that they are erroneous, Canadian law, when advancing otherwise legitimate public purposes, sometimes impedes minority religious practices.