Richard Moon

University of Windsor · Faculty of Law

Very early in my academic career I wrote two pieces about section 15.1 The first was written in 1987, before the Supreme Court of Canada had heard any section 15 cases,2 and the second in 1989 was a comment on Andrews v Law Society of British Columbia, the first of the Court’s section 15 decisions.3 When I re-read these pieces recently it struck me...

In Andrews v. The Law Society of B.C., the Supreme Court of Canada makes its first significant statement concerning the right to equality in subsection 15(1) of the Canadian Charter of Rights. The Court holds, by a margin of 4 to 2, that the provision in the B.C. Barristers and Solicitors Act, which made citizenship a requirement for membership in...

In two recent cases, one in the USA and the other in the UK, courts have considered conscientious objection claims made by cake bakers who objected to providing a cake for the celebration/advocacy of same-sex marriage. I will argue that the issue in these cases is not the reasonable balance between the individual’s religious interests and the inter...

Religious beliefs/practices are excluded and insulated from political contest not because they are intrinsically valuable but instead because they are aspects of a collective or cultural identity and markers of membership in the collective. If the state’s duty to accommodate religious practices is about the status of religious groups rather than th...

The term “conscience” is used in two different ways in discussions about religious freedom. Sometimes, conscience is contrasted with religion. Freedom of conscience, in contrast to freedom of religion, is concerned with the protection of fundamental beliefs or commitments that are not part of a religious or spiritual system.1 Together, freedom of c...

Pierre Trudeau’s deep personal commitment to Catholicism was largely unknown to Canadians during his tenure as Prime Minister. Indeed, his religious commitment did not play an obvious role in his political life. Trudeau’s version of Catholicism, ‘personalism’, emphasized the personal – interior – spiritual commitment of the individual and the neces...

A commitment to free speech means protecting speech for reasons that are independent of the truth or merit of its content. This commitment, though, depends on certain assumptions or conditions – most notably that individuals are capable of making reasoned and independent judgments and have access to different opinions and reliable factual informati...

A commitment to freedom of expression means that an individual must be free to speak to others and to hear what others may say, without interference from the state. It is said that the answer to bad or erroneous speech is not censorship, but rather more and better speech. Importantly the listener, and not the speaker, is seen as responsible (as an...

As free speech on campus flares up in the media, it is important to understand the nuances of the debate. How do universities foster an inclusive campus that balances the expression rights of different members of the community?

In most religious accommodation cases, an individual or group seeks to be exempted from a law that restricts their religious practice. The accommodation claim, though, has a slightly different form in conscientious objection cases. In these cases, an individual asks to be exempted not from a law that restricts his/her religious practice, but instea...

To allow or restrict hate speech is a hotly debated issue in many societies. While the right to freedom of speech is fundamental to liberal democracies, most countries have accepted that hate speech causes significant harm and ought to be regulated. Richard Moon examines the application of hate speech laws when religion is either the source or targ...

Canada is often cited as one of the principal sources of proportionality analysis – an approach to the determination of limits on constitutional rights that has been adopted in many jurisdictions. The two-step structure of constitutional rights adjudication is built on the idea that these rights are the basic conditions of individual autonomy or li...

The Canadian courts initially described section 2(a) of the Canadian Charter of Rights and Freedoms [Charter], freedom of conscience and religion, as the liberty to hold, and live in accordance with, spiritual or other fundamental beliefs without state interference [Big M 1985].1 Freedom of religion, understood as a liberty, precludes the state fro...

There is a strong case to be made that racist, and other forms of bigoted, speech, even when it is not so extreme that it breaches general hate speech laws, should be prohibited on campus. A commitment to academic freedom supports the free and open exchange of ideas and information but also certain standards of communicative engagement – most notab...

The question of whether a province can require civil marriage commissioners to perform same sex marriages, over their religious objections, has been addressed by the Canadian courts in a series of cases. In each of these cases the issue is framed by the courts as a contest between religious freedom and sexual orientation equality that must be resol...

A recent request for religious accommodationat York University has generated controversynot just about the merits of the particular claimbut also about the general practice of religiousaccommodation under human rights codes andthe Canadian Charter of Rights and Freedoms. Iwill argue that the York case highlights the difficulty in treating religion...

An introduction to a general discussion of the Canadian courts' approach to religious freedom, which argues among other things that despite their formal commitment to state neutrality in religious matters, the courts have applied this requirement selectively - sometimes treating religion as a cultural identity towards which the state should remain...

According to the Canadian courts s. 2(a) of the Charter requires that the state remain neutral in religious matters. The state must not support the religious practices of one religious group over those of another and it must not restrict the practices of a religious group, unless this is necessary to protect a compelling public interest. Yet the ne...

The Lautsi decision reflects the deep ambivalence in Western liberal democracies about religion and its relationship to politics. Like the Canadian courts, the European Court of Human Rights (ECtHR) seems to recognize that religion and politics should be separated but that this separation can never be total. While the ECtHR and the Supreme Court of...

RJR-MACDONALD V. CANADA ON THE FREEDOM TO ADVERTISE

BEGGING AND FREEDOM OF EXPRESSION

Review of hate speech regulation in Canada.

In recent years, the Canadian courts have been confronted with a number of cases in which freedom of religion and sexual orientation equality appeared to clash. Specifically, the courts have had to decide whether religiously motivated anti-gay expression violated a provincial human rights code restriction on hateful expression (Owens v. Saskatchewa...

This paper summarizes the recommendations made in the report I prepared for the Canadian Human Rights Commission concerning s.13 of the CHRA. In the report I recommended the repeal of the section so that the CHRC and the Canadian Human Rights Tribunal would no longer deal with hate speech, and in particular hate speech on the Internet. I took the p...

Hate mongers have found it strategically useful to present themselves as defenders of free speech. The shift from advocate of hate to defender of free speech fits well with the hate monger's self-understanding as a victim of state oppression and a defender of Western values against multiculturalism. More often, though, the opposition to hate speech...

p class="MsoNormal" style="text-align: justify;"><span style="font-size: 13.0pt; font-family: ";Garamond";,";serif";;" lang="EN-US">Freedom of expression protects the individual’s freedom to communicate with others. The right of the individual is to participate in an activity that is deeply social in character. The value of freedom of expressio...

In June of this year I was asked by the Canadian Human Rights Commission (CHRC) to consider, and to make recommendations concerning, “the most appropriate mechanisms to address hate messages and more particularly those on the Internet, with specific emphasis on the role of section 13 of the CHRA [Canadian Human Rights Act] and the role of the Commi...

At the time of their civil divorce, Mr. Marcovitz and Ms. Bruker entered into an agreement concerning custody, access, division of property and support. Their agreement also included an undertaking by each to appear before the Beth Din (rabbinical court) for the purpose of obtaining a get, or divorce, under Jewish law. For their marriage to be diss...

The connections between law and religion are many. State laws support some religious values and practices and interfere with others. And, from the other side, religious beliefs often inform or shape state laws. Even if Canadian law does not directly compel citizens to engage in religious practices, to attend church or pray, for example, it sometime...

The Canadian Charter of Rights and Freedoms guarantees to all persons “freedom of conscience and religion.” The Charter, however, does not include any obvious equivalent to the Established Clause of the First amendment of the United States Bill of Rights. According to the Canadian courts, s. 2(a), the freedom of religion provision in the Charter, p...

In this book, Richard Moon puts forward an account of freedom of expression that emphasizes its social character. Such freedom does not simply protect individual liberty from state interference; it also protects the individual's freedom to communicate with others. It is the right of the individual to communicate: an activity that is deeply social i...

This short article considers the tension in the Canadian Charter cases between the demands of freedom of expression, which is significantly social or relational in character, and the structure of constitutional adjudication, which rests on a liberal and individualist conception of rights.

A discussion of the Supreme Court of Canada's freedom of expression decisions which move between a discourse of freedom and rationality when defining of the freedom to a causal or behavioural discourse when determining justified limits.

The article examines and appraises conventional methods of interpreting the section 15 equality rights including a comparison of equality rights under the American Constitution. It determines that the most suitable interpretation is one which prohibits "constructive discrimination." Further, the analysis of section 15 finds a built-in limitation-th...

The regulations in Alberta dealing with driver’s licenses were amended in 2003 to require that all license holders be photographed. The license holder’s photo would appear on his or her license and be included in a facial recognition data bank maintained by the province. Prior to this change, the regulations had permitted the Registrar of Motor Veh...

During the last few years there has been a disinformation campaign against human rights commissions. While it is not surprising that Internet blogs post things about HRCs that are false and malicious, these claims have seeped into mainstream discourse. This paper sets out some of the claims made about the CHRC and describes how they are misleading...

When poverty activist resort to the Canadian Charter of Rights and Freedoms, things cannot be going very well. The Charter of Rights will not eliminate poverty or gross disparities in wealth. It will not ensure that affordable housing is provided to those in need. All it may be able to do is to protect the individual’s right to ask others for help,...

In June 2008, I was asked by the Canadian Human Rights Commission (CHRC) to write a report about the regulation of hate speech on the internet, focusing specifically on s. 13 of the Canadian Human Rights Act (CHRA). Section 13 prohibits the repeated communication on the phone system or the internet of any matter that is likely to expose a person or...

In the recent case of Syndicat Northcrest v. Amselem, the Supreme Court of Canada held that a condominium association’s refusal to permit Orthodox Jewish unit-owners (the appellants) to construct succahs on their balconies, as part of the Jewish festival of Succot, breached their freedom of religion under the Quebec Charter of Human Rights and Free...

The Charter at 25: The Complaint of Judicial Activism.

The author argues that the apparent collapse or erosion of the Oakes test reflects the problem of fitting a right such as freedom of expression, which is social and relational in character, into a structure of constitutional adjudication, which is built on an individualist conception of rights. In the leading Canadian freedom of expression cases, t...

In this paper, I want to consider briefly some of the difficulties that arise with this shift in the scope and justification of freedom of religion. The requirement that the state treat different religions in an even-handed way is meant to remove or insulate religious belief and practice from public debate and decision-making.The Canadian Charter o...

Freedom of conscience or religion is no longer protected as the most effective way for the individual to discover spiritual truth, or as necessary to his meaningful commitment to that truth, or because human conscience, the capacity to recognize truth and right, is a divine endowment. The public justification for religious freedom is now framed in...