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Public Law II - Jan. 30, 2014

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Political Science
POLS 3136
Jennifer Dalton

-section 2 a – freedom of conscience and religion -also freedom of thought, expression, peaceful assembly and association -freedom of religion and conscience go hand in hand -in constitutional context, SC has played important role in recognizing these rights and the importance of religious accommodation -has been hot button issue here on campus -as with other rights and components of charter, SCC played important role in defining freedom on religion, religious accommodation, religious instruction, religious education -one example is with catholic schools and constitutional history behind separate catholic school board -the issue here that makes it more difficult to sort of wade into in terms of debate is that there is this conflict that can occur between different types of rights -one of biggest is freedom of religion and equality (gender equality vs. freedom of religion, same sex marriage = equality rights of same sex couples to marriage vs. religious freedom not to perform those marriages for those opposed) -court weighed into political debate but struck pretty good balance at recognizing and respecting both religion and equality -big m drug mart case another example = restriction placed on Sunday shopping, infringement, SCC held violation of freedom of violation, key landmark ruling to expand and recognize religious freedoms of various religious faiths, not just those with Sunday as Sabbath -freedom of expression is considered one of single biggest issue that arises in context of civil rights jurisprudence -treated differently here than in us -in US, it’s supreme – very much a fundamental right that cannot be infringed upon -in Canada it’s more balance, SCC took approach weighing it with other rights and freedoms in a more equal footing depending on rights are that are in conflict -very often, if not always, there’ll be again this balancing of rights that the court is called upon to look at -on one hand, right to express yourself (i.e. opinions), other hand = concern that you might be infringing rights of another person -when court called upon to balance these rights, case by case basis, but at the same time, must consider right of individual or group to express themselves vs. protections that should be accorded to various groups whether they’re disadvantaged groups and so on -in US, freedom of expression considered to trump other rights -in Canada, our history has been more restrictive -ex. Where certain disadvantaged or vulnerable groups (such as holocaust survivors, LGBT immigrants), there’s been MIC to not protect freedom of expression in light of these groups -it’s subject to limits (i.e. section 1, Oakes test, undue harm – court called on to balance these rights) -SCC has interpreted freedom of expression in very broad terms -for the court it can include political speech (broad – almost anything you can think of can refer to something political), advertising issues, commercial issues (ford case, side law in Québec), democratic contributions (running for office, voting), individual autonomy (individual freedom of speech), has looked at
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