Le poids de l’histoire
The thesis defended here is that during the McLachlin years, the Supreme Court has conceptualized freedom of religion very much as its predecessors did—that is, an idea shaped by its history. In the first part of the paper, the author describes our complex history: its measure of aspirations for religious toleration confronted by the reality of religious discrimination; its stated hope for the neutrality of the state marked by a certain hypocrisy; and its general support and acceptance of religious life, spirituality, and religious communities destabilized by the recognition of abuse of power and inequality within religion itself. In the second part of the paper, the author argues that, like its predecessors, the McLachlin Court has articulated the concept of freedom of religion with strong anti-discrimination concerns. The Court is concerned with monitoring majority/minority conflicts, views suspiciously (although recently less so) the majority rationales, and attempts to empower the minority, while becoming more and more cognizant of the reality of inequality and the potential for abuse of power within religious communities.
Nathalie Des Rosiers
Nathalie Des Rosiers is general counsel of the Canadian Civil Liberties Association and executive director of the Canadian Civil Liberties Education Trust.