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Pierre Trudeau’s deep personal commitment to Catholicism was largely unknown to Canadians during his tenure as Prime Minister. Indeed, his religious commitment did not play an obvious role in his political life. Trudeau’s version of Catholicism, ‘personalism’, emphasized the personal – interior – spiritual commitment of the individual and the necessity of the separation of religion and politics. He stressed the importance of individual liberty in matters of faith but also the personal responsibility of the individual to serve others and work towards a more just society. Trudeau was opposed to the recognition of an official religion, and indeed to any form of state promotion of a particular religious belief system. He rejected the assumption that political community or social solidarity required a shared (and public) commitment to a particular faith or culture. His promotion of multiculturalism stemmed from his belief that national identity or political membership should not be based on a shared ethnicity that would necessarily include some and exclude others. His championing of the Charter of Rights rested on the view that citizenship should be grounded instead on a shared commitment to the protection of individual and democratic rights. Trudeau was a committed believer and a secular politician, who sought to separate his public action and private conscience. In a sense then he embodied the separation of religion and politics – of church and state – that is central to the contemporary conception of religious freedom. In this chapter, I want to explore the challenge of separating personal or communal spiritual life from civic life which Trudeau had to navigate, throughout his political career.

Religious beliefs/practices are excluded and insulated from political contest not because they are intrinsically valuable but instead because they are aspects of a collective or cultural identity and markers of membership in the collective. If the state’s duty to accommodate religious practices is about the status of religious groups rather than the liberty of individuals (a matter of equality rather than liberty) then it may not extend to practices that are idiosyncratic and have no link to a religious or cultural group/tradition. The requirement that the state should accommodate religious beliefs or practices (and sometimes compromise its policies) is most often justified as necessary to ensure that the individual’s deepest values and commitments and more generally his/her autonomy in decision- making are respected. I argue, however, that reasonable accommodation is better understood as a form of equality right that is based on the importance of community or group membership to the individual. Understood in this way, the accommodation requirement may not extend to an individual’s deeply held non-religious practices, if they are not part of a shared belief system. The willingness of the courts to protect certain non- religious practices (to require their accommodation by the state) may rest simply on their formal similarity to familiar religious practices such as pacifism or vegetarianism – that are specific in content, peremptory in force and that diverge from mainstream practices. Yet, as a practical matter, practices of this kind are seldom sustained outside a religious or cultural community. It is not an accident then that the very few instances of non-religious, ‘conscientious’, practices that have been accommodated are similar in content and structure to familiar religious practices, and indeed may have arisen from these religious practices.

The most frequently made criticism of the Supreme Court of Canada’s decision in Ktuxana v. BC echoes a familiar and more general criticism of the Anglo-American understanding of religious freedom. The Court’s narrow or ‘protestant’ conception of religious freedom, which is focused on the individual – on his/her belief or commitment and his/her personal relationship with a transcendent God – is said to have the effect of denying meaningful protection to Indigenous and other spiritual systems that emphasize ritual and community life, and that recognize a spiritual presence in the natural world. I will argue that in a religiously/culturally diverse society such as Canada, the protection granted by s. 2(a) (the Charter’s religious freedom right) must be limited to those practices that can be viewed, at least substantially, as personal to the individual or internal to the religious group. The failure of the courts to give religious freedom protection to important Indigenous practices may stem not from a narrow conception of religion but rather from a recognition of the limits of religious freedom in a democratic political community. However, I will argue that the majority of the Court in Ktunaxa went further than this and introduced a limit on the scope of religious freedom that unnecessarily and artificially limits the freedom’s protection based on a Christian understanding of religion, as concerned centrally with the worship of a divine power. In earlier cases, the Court has limited the protection of s.2(a) by defining the concept of religion narrowly or interpreting the practices of a particular religion narrowly so that they did not include communal connections and practices.

A commitment to free speech means protecting speech for reasons that are independent of the truth or merit of its content. This commitment, though, depends on certain assumptions or conditions – most notably that individuals are capable of making reasoned and independent judgments and have access to different opinions and reliable factual information. These conditions, of course, never hold perfectly, but they now seem to be eroding at a rapid pace.The character of public speech has changed in the internet era: how we speak to one another and how we experience that speech. Audiences have become more fragmented. Disinformation and conspiracy theories seem to spread easily and widely, so that distortion and deceit rather than direct censorship may now be the most significant threat to public discourse. There is little common ground in the community on factual matters or the reliability of different sources of information, which has made it difficult, even impossible, to discuss issues and to agree or compromise on public policy. Those who hold competing positions seem rarely to engage with one another and, when they do, their engagement is often combative. A growing number of people feel they should not be expected to hear speech with which they disagree, or which is critical of their views. The spaces or platforms in which public speech occurs have become increasingly privatized and therefore outside the scope of the constitutional right to freedom of expression. What future does the right to free speech have in this changing communication environment?

This paper examines the recent Supreme Court of Canada judgment in LSBC v. TWU, in which the court upheld the decision of the BC law society not to accredit a law program proposed by an Evangelical Christian university. The paper argues that the task for the courts in this and other religious freedom cases is not to balance competing civic and religious interests but is instead to mark the boundary between the spheres of civic and spiritual life. More particularly, in this case, the issue was whether TWU (in applying to operate an accredited law program) should be viewed as a private religious institution that is free to govern itself according to its own norms, or whether, because its actions directly impact outsiders to the religious group, it should be viewed as performing a public role and therefore subject to non-discrimination and other civic norms. The different judgments in the case begin with different assumptions about the public/private character of TWU (or at least its proposed law program) and so never really address the key issue and never really engage with each other. The paper argues that because admission to law school continues to be a significant barrier to entry into the legal profession in Canada, TWU’s admission decisions will have an impact on non-members. The law society, therefore, was justified in requiring TWU to conform to non-discrimination norms as a condition of accreditation.

Québec is pushing to ban public servants from wearing religious garb even as the crucifix hangs in its legislature. It’s ironic and hypocritical for a province that prides itself on secularism.

Free speech may protect offensive speech, but we degrade this central right when we see it as simply the right to offend, regardless of the impact on others.

In most religious accommodation cases, an individual or group seeks to be exempted from a law that restricts their religious practice. The accommodation claim, though, has a slightly different form in conscientious objection cases. In these cases, an individual asks to be exempted not from a law that restricts his/her religious practice, but instead from a law that requires him/her to perform an act that he/she regards as immoral. In many of these cases the claimant asks to be excused from performing an act that is not itself “immoral” but that supports or facilitates (what she/he sees as) the immoral action of others, and so makes him/her complicit in this immorality.

Explores the interplay between law and religion in the area of hate speech, whether religion is the target or source

Canada is often cited as one of the principal sources of proportionality analysis --- an approach to the determination of limits on constitutional rights that has been adopted in many jurisdictions. The two-step structure of constitutional rights adjudication is built on the idea that these rights are the basic conditions of individual autonomy or liberty that must be protected from the demands of collective welfare. At the first stage of the adjudication the court determines whether the restricted activity falls within the scope of the right. At the second stage, the court balances the right against the competing interest advanced by the restrictive law, to determine whether the restriction is justified. Yet few of these rights fit this individual liberty model and are better understood as social or relational in character – protecting different aspects of the individual’s interaction or connection with others in the community. If we recognize that most constitutional rights do not simply protect individual autonomy but instead protect different aspects of human flourishing or dignity within community then two things may follow. First there can be no single generic test for limits on rights. The form or character of “limitations” on these rights may differ in significant ways. Second, the two-steps of adjudication may often be difficult to separate or the separation may seem quite artificial. Many of the issues addressed by the courts will not fit easily into the two-step structure of analysis, because the “competing” interests are really different dimensions of a social relationship.

Many recent hate speech cases in Canada, Europe, and elsewhere involve religion either as the source of views that are alleged to be hateful or as the target of such views and sometimes, of course, as both the source and target of these views. This chapter explores the difference religion makes to the application of hate speech laws – when it is the target of this speech. The ‘religious’ hate speech cases are difficult for the same reason that all hate speech cases are difficult. There is significant disagreement in the community about whether, or to what extent, the restriction of hate speech can be reconciled with the public commitment to freedom of expression. There is, however, another reason why hate speech cases involving religion are so difficult, which stems from our complex conception of religious adherence or membership – as both a personal commitment and a cultural identity. The chapter focuses on anti-Muslim speech in Canada.

In the burgeoning literature on law and religion, scholarly attention has tended to focus on broad questions concerning the scope of religious freedom, the nature of toleration and the meaning of secularism. An under-examined issue is how religion figures in the decisions, actions and experiences of those charged with performing public duties. This point of contact between religion and public authority has generated a range of legal and political controversies around issues such as the wearing of religious symbols by public officials, prayer at municipal government meetings, religious education and conscientious objection by public servants. Authored by scholars from a variety of disciplines, the chapters in this volume provide insight into these and other issues. Yet the volume also provides an entry point into a deeper examination of the concepts that are often used to organise and manage religious diversity, notably state neutrality. By examining the exercise of public authority by individuals who are religiously committed - or who, in the discharge of their public responsibilities, must account for those who are - this volume exposes the assumptions about legal and political life that underlie the concept of state neutrality and reveals its limits as a governing ideal.

The question of whether a province can require civil marriage commissioners to perform same sex marriages, over their religious objections, has been addressed by the Canadian courts in a series of cases. In each of these cases the issue is framed by the courts as a contest between religious freedom and sexual orientation equality that must be resolved through the balancing of these competing interests. And in each of these cases the court strikes the balance in favour of sexual orientation equality, determining that the equality rights of same-sex couples outweighs the religious freedom of marriage commissioners. Despite what they say, the courts in these cases do not balance or trade-off religious freedom and sexual orientation equality, but instead give complete priority to the latter. A refusal by a marriage commissioner to perform a same-sex civil marriage ceremony is viewed by the courts as the cause of harm or injury to the couple (an act of discrimination) and not simply as a competing claim. I will argue that there is no balancing in these cases because there is no freedom of religion interest to be balanced against the right to sexual orientation equality. The marriage commissioner’s freedom of religion lacks substance not, or not simply, because the commissioner is a public official, or because the interference with his/her religious beliefs is indirect or partial. Rather the religious objection of the marriage commissioner falls outside the scope of freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms [the Charter], because it involves a belief about how others in the community should behave and be treated. A marriage commissioner has no claim to be exempted from the duties of his or her position on the basis of such a belief.

There is a debate at the moment about whether the law societies (which regulate the legal profession in the various provinces) must accredit a law program to be offered by Trinity Western University [TWU], a private Evangelical Christian college. The Law Society of Upper Canada [LSUC], along with the law societies of British Columbia and Nova Scotia, refused to the accredit the proposed program because of the school’s discriminatory admissions policy and in particular the covenant that all students are required to sign, in which they agree, among other things, not to engage in sex outside of marriage and sex with a same-sex partner. The issue in the TWU accreditation case is whether the covenant is simply an internal matter (a rule that applies simply to the internal operations of a voluntary religious association) or whether it impacts outsiders to the religious community or the public interest, more generally. As I understand it, the law societies are not claiming that the members of a religious community need to be protected from oppressive or discriminatory internal rules. There are two ways in which it may be argued that the TWU program (and the covenant in particular) will have an impact on the public interest. The first argument is that a school that teaches its students that homosexuality is wrongful or immoral will not properly prepare lawyers for practice in the general community. Lawyers have duties to their clients, to the law, and to the institutions of justice. An accredited school must be willing to affirm basic equality rights. Second, admission to Canadian law schools is competitive. If its program is accredited, TWU will select students from a large number of applicants. Following graduation (as well as articling, and bar exams), TWU students will be eligible to practice law in a particular province. The accredited law schools are a gateway to the legal profession. The concern then is that TWU’s admissions policy will have a discriminatory impact on gays and lesbians who wish to enter the legal profession.