Joanne McGarry Register file photo

Course to examine how the law deals with religion

  • February 21, 2013

Charter changed relationship between courts, religion

TORONTO - Whether it’s a veiled Muslim woman on a witness stand, a Catholic protester at the door of an abortion clinic or a Sikh school boy with a ceremonial dagger at school, just about every religion has found itself in a courtroom in recent Canadian history.

A couple of legal scholars are now reaching out to educate non-lawyers about how Canadian law deals with religion.

Osgoode Hall associate professor Benjamin Berger will teach a four-part course Sunday afternoons in March at Toronto’s Noor Cultural Centre. Under the title “Constitutional Faith: Charter Rights and Religion in Canada,” Berger intends to show people the long history of legal thinking about religious diversity in this country.

“It’s not just a religious freedom course,” Berger said. “It’s about the interaction of law and religion in the constitutional setting. People will have four Sundays of rich conversation about the promise and the limits of the law.”

People are mistaken when they imagine courtroom battles over religion are a recent phenomenon, he said.

“You do a little bit of digging and you realize these were deep legal concerns in all sorts of ways over the development of the Canadian state,” said Berger.

What’s changed is the conflict over rights as defined in the Charter of Rights and Freedoms.

University of Victoria Law School professor Mary Anne Waldron notes how the Charter changed the relationship between the courts and religion.

“There was a huge shift in the courts at that point. All of a sudden, where our courts had generally followed a pretty conservative track of English common law, now all of a sudden views of contested moral values were coming before them,” she said.

Waldron’s book, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada, will hit book stores in June.

Religion has become contested ground in Canada over the last two or three generations. The common ground has become harder to define.

“When we were growing up, and I grew up in the ’50s and ’60s, there was a fairly common set of shared values and beliefs that pretty much cut across Canadian society,” Waldron told The Catholic Register. “After the ’60s that started to diverge. We now have a range really — in fact quite a large range — of differing belief systems.”

It’s not surpirsing that these issues wind up in court, she said.

“Courts just naturally engage with topics that are very much contested in our society at the moment,” said Waldron.

Catholic Civil Rights League executive director Joanne McGarry isn’t surprised that legal scholars are being asked to explain the law and religion to the general public.

“There just seems to be a lot of interest in where religion fits in a generally secular society,” she said.

Just because the balance of rights is contested doesn’t mean that the Charter somehow got religion wrong, said McGarry.

“Issues are always going to come up that need to be resolved, but in the Charter of Rights and Freedoms the first freedoms they mention are conscience and religion,” she said.

The courts won’t solve every conflict in society, said Berger.

“There’s a seductiveness to imagining the courts will rescue us from having to wrestle with these things in day-to-day interactions, in political contexts, at the community level,” he said.

Berger’s course at the Noor Cultural Centre will run Sunday afternoons at 3 p.m. starting March 3. The course costs $100. Register at or (416) 444-7148 ext. 222.


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