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Yes sometimes I wish s. 7 had a little more “oooompf” to it, and we had a greater free standing right to ‘freedom’ in Canada. Creating classes of freedom was–in my opinion at least–a mistake.
Its always struck me as odd that in our legal-political system if one wants to do something because it is mandated by ones religion, or relates to association with others you only have to pass the Oakes test hurdle. If you want to do something because you bloody well feel like it, and it only hurts yourself you don’t even get there. If we had greater constitutional protections for freedom generally we wouldn’t need these compartmentalized rights like freedom of religion, freedom of speech, freedom of association.
Take the marijuana and polygamy example. A religious fundamentalist patriarch who keeps his many wives barefoot and pregnant and keeps them cut off from the outside world has a strong legal argument against our polygamy law. But 3+ secular consenting adults who live what most of us see as a strange and alternative lifestyle has none (after Malmo Levine at least). Similarily a person could go to the court with the genuine religious belief that his religion mandates opium use (I’m being hypothetical here) and he at least gets a hearing at the Oakes stage. A functioning, productive adult like Malmo-Levine makes the conscious lifestyle choice to smoke a plant that only hurts himself but can’t cite some historic religious text has no remedy.
Not that the classes of freedom set out in the Charter (i.e. religion, association) aren’t important. I just think freedom should be a broader concept.
Yes sometimes I wish s. 7 had a little more “oooompf” to it, and we had a greater free standing right to ‘freedom’ in Canada. Creating classes of freedom was–in my opinion at least–a mistake.
Its always struck me as odd that in our legal-political system if one wants to do something because it is mandated by ones religion, or relates to association with others you only have to pass the Oakes test hurdle. If you want to do something because you bloody well feel like it, and it only hurts yourself you don’t even get there. If we had greater constitutional protections for freedom generally we wouldn’t need these compartmentalized rights like freedom of religion, freedom of speech, freedom of association.
Take the marijuana and polygamy example. A religious fundamentalist patriarch who keeps his many wives barefoot and pregnant and keeps them cut off from the outside world has a strong legal argument against our polygamy law. But 3+ secular consenting adults who live what most of us see as a strange and alternative lifestyle has none (after Malmo Levine at least). Similarily a person could go to the court with the genuine religious belief that his religion mandates opium use (I’m being hypothetical here) and he at least gets a hearing at the Oakes stage. A functioning, productive adult like Malmo-Levine makes the conscious lifestyle choice to smoke a plant that only hurts himself but can’t cite some historic religious text has no remedy.
Not that the classes of freedom set out in the Charter (i.e. religion, association) aren’t important. I just think freedom should be a broader concept.