Moral Judgment, Criminal Law and the Constitutional Protection of Religion

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Supreme Court Law Review, Vol. 41, No. 2, 2008


What, if any, is the conceptual relationship between the constitutional protection of religious conscience and the criminal law in a modern liberal democracy? This article examines this issue in the context of contemporary Canadian criminal law and the protection of religious freedom and equality in the Canadian Charter of Rights and Freedoms. The author argues that there is a deep, though heretofore unexamined, conceptual tension between these two fields of law: the constitutional protection of religious freedom and substantive criminal law are both centrally concerned with the role of the state in making and enforcing moral judgments, but are contesting this boundary from different directions. This article first traces a variety of modes of interaction between the constitutional protection of religion and substantive criminal law since the introduction of the Charter in 1982. The author then examines certain turns in the Supreme Court's approach to both religious freedom and the criminal law, offering critical reflections on the current conception of religion, the role of Charter values in contemporary constitutional adjudication, and modern debates about harm in the criminal law. Concluding that all of these developments suggest that the deep moral tension between these two areas is bound to grow in years to come, the article examines examples drawn from contemporary issues in Canadian criminal law - the role of religion in the defence of provocation and the constitutionality of the criminal offence of polygamy.