Criminal prosecutions, the defence of religious freedom and the Canadian charter
University of British Columbia
Master of Laws - LLM
This thesis examines the conditions under which a defense of religious freedom can be successfully argued before the courts. It is acknowledged that freedom of religion has long existed in Canada but the defense of religious freedom in criminal prosecutions has not often been accepted by the Canadian Courts. The author thinks that the Canadian Charter of Rights and Freedoms puts the defense of religious freedom in a more favourable position by making it possible for Canadian judges to proceed to a balancing test that up to now they have been reluctant to use. Besides the question of the balancing test, various problems revolve around the defense of religious freedom in criminal prosecutions. The first section examines the social and historical context of religious freedom in Canada. The second section is located in a more legal perspective. A survey of the Canadian cases is made in order to comprehend the answers that Canadian judges have given in the criminal prosecutions where the defense of religious freedom was raised. In looking at the Canadian decisions on that issue, four basic problems call for solutions. The following sections deal respectively with those questions. Section 3 raises the issue of the definition of religion and religious activities. Section 4 points out a new understanding of the concept of infringement. In Section 5, the notion of balancing test is examined in light of American decisions and its application to the defense of religious freedom is considered. Finally, the necessity of a theory justifying the defense of religious freedom is explored in Section 6. In conclusion, this study stresses the impact the Charter will have upon the acceptance of the defense of religious freedom by Canadian courts. To the problems that have been identified, the author proposes some solutions, bearing in mind that the future of the defense of religious freedom in Canada depends on whether or not Canadian judges will consider that the Charter has introduced a new era in the exercise of fundamental freedoms in Canada.
Prosecution - Canada; Defense (Criminal procedure) - Canada; Freedom of religion - Canada
Law, Peter A. Allard School of