POLI 324 Lecture Notes - Lecture 8: Fundamental Justice, English Canada, Doukhobor
15 Jun 2018
School
Department
Course
Professor
POLI324
Freedom of Religion
Lecture Objectives
• To better understand the dimensions of judicial review – the right and the reasonable limitation.
• To understand that constitutionality is largely determined by the reasonableness of the
limitation:
demonstrably justified in the free and democratic society
• To consider legislative responses to judicial declarations of unconstitutionality:
• Does the legislature comply or defy a judicial ruling?
• What determines compliance or defiance of judicial decisions?
• Is the Charter a strong-form or weak-form document?
Lecture overview
1. Section 1 – Freedom of Religion
2. Case Study – Bill 60: The Charter of Quebec Values
3. Section 2 – Democratic rights.
4. Case Study – Prisoner voting and Charter dialogue
5. Conclusion
Q: Is the Charter simply what the SCC says it is?
1-Freedom of Religion
Fundamental freedoms
. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom
of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Features of Section 2(a)
• Freedom of Religion is presented as an unqualified right – not internally limited such as section 7
(principles of fundamental justice), and applicable to everyone (citizens, non-citizens).
Life, liberty and security of person
find more resources at oneclass.com
find more resources at oneclass.com
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof
except in accordance with the principles of fundamental justice.
Historical Context
• A fundamental freedom given the historical context of racial and religious discrimination in
Canada.
o Quee ad the peseutio of Jehoah’s Witess
Roncarelli v. Duplessis [1959] S.C.R. 121
o Chinese Immigration Act, 1885 – economic payment required of Asian immigrants to
enter Canada
o Disenfranchisement of Asian immigrants under Provincial Elections Acts
Cunningham v. Tomey Homma [1903]
o Disenfranchisement of conscientious objectors and pacifists during WWII
Ex. Hutterites, Doukhobors and Mennonites – passivist religious groups.
Mclauhen is saying that race and religion has historically been used as discrimination to refuse rights to
vote. Denying democratic rights based on race and religion
The Supreme Court of Canada
• The Supreme Court of Canada (SCC) has established two-part test to determine when state
action interferes with freedom of religion.
An infringement of section 2(a) occurs when:
1. The claimant sincerely believes in a belief or practice that has a nexus with religion; -- Does the
claimant sincerely believes that a practice or a belief has a nexus with their religion, is it central
to their faith. – sincerely of the practice
and
2. The impugned measure interferes ith the laiat’s ailit to act in accordance with his or her
religious beliefs in a manner that is more than trivial or insubstantial.-- is the limitation or the
infringement more than trivial or insubstantial.
Its ot aout hat the eligio euies. “ieit of the laiats’ elief.
Right wing says that everything comes down to section 1, which is frustrating to them.
Constitutionality
• An infringement of section 2(a) is determined to be unconstitutional only if it is determined to
be an unreasonable limitation under section 1 of the Charter of Rights and Freedoms.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
To better understand the dimensions of judicial review the right and the reasonable limitation. To understand that constitutionality is largely determined by the reasonableness of the limitation: demonstrably justified in the free and democratic society. Lecture overview: section 1 freedom of religion, case study bill 60: the charter of quebec. Values: section 2 democratic rights, case study prisoner voting and charter dialogue, conclusion. Freedom of religion is presented as an unqualified right not internally limited such as section 7 (principles of fundamental justice), and applicable to everyone (citizens, non-citizens). Life, liberty and security of person: everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Historical context: a fundamental freedom given the historical context of racial and religious discrimination in. Canada: que(cid:271)e(cid:272) a(cid:374)d the pe(cid:396)se(cid:272)utio(cid:374) of jeho(cid:448)ah"s wit(cid:374)ess.
