Research Paper Number

35/2014

Subsequently published in the Osgoode Hall Law Journal.

Document Type

Article

Publication Date

2014

Keywords

Freedom of Religion; Cross-cultural communication; Multiculturalism; Accommodation; Litigation

Abstract

In three religious freedom cases pursued to the Supreme Court of Canada – Amselem, Multani, and Huterrian Brethren of Wilson Colony – religious freedom claimants engaged in litigation over a religious practice particular to their group. Some have argued that cases like these can be seen as cross-cultural encounters. How did the religious freedom claimants seek to make their practices – the succah, the kirpan, and the prohibition on being photographed – understood to the courts? And how did the courts respond to these claims? In this paper, I draw out two central values from the literature on cross-cultural communication: respect and self-awareness. I then use these values as lenses through which to view participant narratives collected in a qualitative study of litigants, lawyers, and an expert witness. I argue that courts are more likely to achieve a fuller understanding of minority religious practices when they are faithful to the values of respect and self-awareness. This, in turn, can strengthen their proportionality analyses. Of the three cases, the Supreme Court in Multani came the closest to realizing this ideal. The majority in Wilson Colony marked a low point in this regard, failing to fully appreciate the litigants’ commitment to their collectivist worldview. Amselem was something of a middle ground, where the Court deliberately preferred to engage with a thinner account of the religious practice.

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