David Brown discusses the papers of Moon and Ryder on the guarantee of freedom of conscience and religion in section 2(a) of the Charter. He concurs with many of Ryder’s arguments in particular his point that a conflict between the faith of the Charter and other faiths may be avoided by if one give greater consideration to the rule of law’s “twin foundational principle” enshrined in the preamble of the Charter, the supremacy of God which Ryder sees a missed interpretive opportunity a representing that there are other truths that are a source of meaning in people’s lives that “ought to be nurtured as counter-balances to state authority.” in discussing Moon’s article, Brown points out that Moon seems to advance a paradigm that suggests if religious practice is protected under section 2(a) it may be subject to limitation, but if protected under section 15 (an immutable/unchangeable trait) it may not. He questions the utility and textual soundness of this paradigm, for two reasons. First, as a matter of the text of the Charter, religion finds express protection under both section 2(a) and section 15; to set up some kind of dichotomy simply runs counter to the constitutional text. Second, the freedoms protected by section 2 and the equality rights guaranteed by section 15 are both subject to limitation under section 1 of the Charter — grounding a claim in section 15 does not free a claimant from the ability of the community, through the government, to seek to place a reasonable limit on the equality claim. The challenge, as Moon sees it, is to develop a jurisprudence of limitation under section 1 that is sensitive to the centrality to human existence and dignity of conscientious conviction, and practice based on such conviction.
Brown, David M..
"Neutrality or Privilege?: A Comment on Religious Freedom."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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