Content area
Com texto completo
ABSTRACT
This essay explores whether religious women's reliance on choice to ground their rights claims may undermine the success of those claims. Canadian courts have interpreted religious freedom under section 2(a) of the Charter to include a strong element of choice. However, some religious choices have not received protection under section 2(a), nor under the section 15 guarantee of equality, particularly those choices that are seen to be the cause of the claimant's harm or that cause harm to others. Our analysis centres on a case examining a Muslim woman's freedom to wear a niqab during citizenship ceremonies, situating this case in the broader context of decisions involving women, religious freedom, equality, and choice. These cases confirm insights from the feminist literature about the relationship between choice, agency and autonomy, individualization, and the public/private dichotomy. We conclude that a de-emphasis on choice may be strategic for religious women's rights claims.
KEYWORDS
freedom of religion, equality rights, R v NS, Bruker v Marcovitz, Ishaq v Canada, choice, niqab
Introduction
In this essay, we explore whether religious women's reliance on choice as the basis for their rights claims in Canada may undermine the success of those claims. Religious freedom under section 2(a) of the Canadian Charter of Rights and Freedoms has been interpreted to include a strong element of choice. People's choices about the religious beliefs they hold (or do not hold), and how they manifest those beliefs, are generally protected from state interference. In some cases, however, religious choices-particularly those perceived to be the cause of the claimant's harm and those identified as causing harm to others-have not been protected under either section 2(a) or under the section 15 guarantee of equality rights. Choice may also be seen as inconsistent with section 15, which focuses more on group- and identity-based harms.
The Canadian context is crucial for this paper. Canada is a liberal constitutional democracy and the Charter is a liberal constitutional document. Liberalism is committed to the primacy of the autonomous individual and the individual is the dominant unit in the Charter. As Berger (2008, 265) has argued, Canadian constitutional law has no choice but to "cast [...] religion in terms compatible with its own structural assumptions [...] which are themselves informed by [.]...