Blair Major (TRU Faculty of Law) has posted All the Voices of Religious Freedom ((2022) 105 Supreme Court Law Review (2d) 285) on SSRN. Here is the abstract:
What difference does section 27 of the Canadian Charter of Rights and Freedoms make to the way that we understand the guarantee in section 2(a) of the freedom of religion? What I suggest, and seek to demonstrate throughout this paper, is that section 27 is meant to trigger what I call a virtue of multicultural self-consciousness in the judicial mind. This notion of multiculturalism is not cast in the abstract -- section 27 does not codify "multiculturalism" but requires that "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians." This bridges the particular Canadian experience of multiculturalism with the interpretation and application of the otherwise abstract rights and freedoms embedded in the Charter. The history leading up to the creation of the Charter helps us better understand the sense of multiculturalism embedded in section 27. In particular, I propose that the reference to "multicultural heritage" in section 27 is meant to draw attention to the cultural voices that lie at the margins of the dominant discourses of cultural diversity at work in the law. When this sense of section 27 is brought to the interpretation of section 2(a), judicial attention should be given to the "voices" of religious freedom that lie at the margins of the current section 2(a) jurisprudence. When section 2(a) is interpreted and applied, there is a dominant speaker and a dominant form of speech. Section 27 requires the courts to press beyond the dominant discourse, to hear those voices that otherwise fall silent. By bringing these marginal voices to our attention, section 27 instructs the courts to interpret the Charter in a way that is socially and politically self-conscious of the collective experience of our multicultural heritage.
