A court bound, unbinding and bonding: ruling diversity with proportionality
Date
2010-01-06T18:38:22Z
Authors
Polman, Miriam
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Abstract
Proportionality review has become a common and expected legal test to determine the limits of rights under Canadian Charter adjudication. Section 2(a) of the Charter, which provides for freedom of religion, is one tool for people of cultural diversity to challenge the social order with their own nomoi. In this thesis I look at the freedom of religion cases that have been decided under section 1, thus also through proportionality analysis for how the proportionality test engages the democratic voice of persons of religious diversity. I argue that while the proportionality test is intended to recognize the democratic voice of diversity the reasoning structure of the test as usually utilized does not facilitate the processes of communication necessary to respectfully engage the voice of religious diversity and results in societal fragmentation. There are however, two recent cases that exemplify a very different and significantly new form of reasoning under the language of the proportionality test. I argue that these forms of proportionality analysis represent a form of deliberative or practical reason in which the nomoi of religious persons is recognized as of equal value as legislative nomoi and where political conflicts might be resolved not solely on the basis of power, but through the construction of shared histories that facilitate creating shared nomoi.
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Keywords
Canadian Charter of Rights and Freedoms, Freedom of religion