Howard Kislowicz (Faculty of Law, University of New Brunswick) has posted Faithful Translations? Cross-Cultural Communications in Canadian Religious Freedom Litigation (Osgoode Hall Law Journal, 52(1), 2014 Forthcoming) on SSRN. Here is the 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.
