The paper begins by canvassing existing definitions of religion in Canadian case law and legal scholarship. This paper examines whether it is possible to have a coherent law of religious freedom that does not adopt an a priori definition of religion. This paper suggests that legal definitions of religion have been found wanting because the lived religious experiences of individuals and communities are so diverse that a single encompassing definition is impossible. Those who claim that the definition is too narrow argue that the highly individualistic definition can substantially impoverish understandings of religion (Berger, 2007), neglecting its collective, communal and cultural aspects. Those who claim the definition is too wide argue that it should have an objective aspect, or fear that the state will not be able to “reliably weed out persons with ‘fictitious’ or ‘capricious’ claims” (Charney, 2010, p. This definition has been criticized in two opposing directions, with judges and commentators arguing alternatively that it is too wide and too narrow. The Supreme Court of Canada has adopted a highly individualistic and subjective definition of religion. Indeed, decisions of the Human Rights Tribunal of Ontario have successfully employed this technique. Such a methodology is familiar to common law reasoning, and would lead to a more flexible and capacious understanding of religion. The author suggests that religion may not be susceptible to a comprehensive definition, and argues that an approach that draws on analogies would be more appropriate. Some argue that the definition is too wide and lacks an objective aspect others claim that the definition is too narrow and fails to capture religion’s cultural aspects. AbstractĬritiques of Canada’s legal definition of religion run in opposing directions. He is the recipient of numerous awards, including the Alan Marks Medal for best thesis in the University of Toronto’s graduate law program. He previously served as clerk to Justice Gilles Létourneau at the Federal Court of Appeal. He currently holds a SSHRC Joseph-Armand Bombardier Canada Graduate Scholarship. His work examines religious freedom and multiculturalism in Canada it has appeared in the UBC Law Review and the Alberta Law Review. Howard Kislowicz *, B.A., B.C.L./LL.B., LL.M., is a doctoral candidate at the University of Toronto’s Faculty of Law and a lecturer in constitutional law at Osgoode Hall’s NCA preparatory program.
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