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- Title
Justice for (W)all: Judicial Review and Religion.
- Authors
Hart, Patrick
- Abstract
Canadian jurisprudence dealing with judicial intervention in the affairs of religious associations has often been very inconsistent. As a result, interactions between the courts and religious parties have often proven to be unsatisfactory from both a legal and a religious perspective. Based on an examination of this jurisprudence, the author of this article argues that the law on the justiciability of disputes in such contexts, that is, whether the subject-matter is appropriate for judicial determination, has been both confused and unsound. In response, the author proposes reconsidering the current law and substituting a more robust analytical framework in the place of existing tests of justiciability. Focusing on the Alberta Court of Appeal's recent decision in Wall v Judicial Committee of the Highwood Congregation of Jehovah's Witnesses and the Supreme Court of Canada's decision in Lakeside Colony of Hutterian Brethren v Hofer, the author reviews the development of the law on the justiciability of religious disputes. Examining the latter case's subsequent judicial treatment, the author argues that repeated misinterpretations of the test of justiciability have led to the application of different and lower thresholds for judicial intervention in such disputes. Ultimately, the author argues that a change in the law is warranted and proposes a broader analytical model that, the author argues, better aligns with the values of the Canadian Charter of Rights and Freedoms and appropriately considers a greater variety of factors compared with previous tests of justiciability. Such factors include statutory authority for judicial review, the exhaustion of internal appeals, the essential character of the dispute, the court's analytical capacity regarding the subject-matter, and the potential effect of intervention on the dispute.
- Subjects
JUDICIAL review; JUSTICIABILITY; RELIGION &; law; CANADA. Canadian Charter of Rights &; Freedoms; CANADA. Supreme Court
- Publication
Queen's Law Journal, 2018, Vol 43, Issue 2, p1
- ISSN
0316-778X
- Publication type
Article