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Conceptions of Harm in the Canadian Constitutional Adjudication of Religious Freedom

Keall, Ashleigh; (2020) Conceptions of Harm in the Canadian Constitutional Adjudication of Religious Freedom. Doctoral thesis (Ph.D), UCL (University College London). Green open access

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Abstract

My research examines the constitutional protection of religious freedom in Canada under section 2(a) of the Canadian Charter of Rights and Freedoms. In particular, it considers how courts understand and apply the concept of harm in negotiating the boundaries of the right and in settling conflicts with other rights and social goals. The concept of harm is frequently invoked but rarely acknowledged by courts deciding constitutional religion cases, and is under-theorized in the academic work on religious freedom in Canada. I maintain that harm performs a crucial role at each stage of the constitutional analysis, both explicitly and implicitly, and that judges’ recourse to harm is often unthinking and reflexive. My research explores both this functional role that harm plays in the judgments, which I break down into its legitimating, jurisdictional and normative functions, and the particular conceptions of harm that are adopted by courts deciding on the reach of the section 2(a) rights provision. I consider harm’s function and meaning through the lens of critical approaches to the concept of harm developed in critical and feminist legal theory. I argue that despite the many challenges that can and should be levied against the use of harm as a legal construct, harm is so deeply embedded in the culture, doctrine and structure of Canadian constitutional law’s protection of religious freedom that it can be neither disregarded nor dismissed. It falls to courts to adopt a more critical and reflective approach to harm that works with rather than against the powerful pull to harm in religious freedom cases.

Type: Thesis (Doctoral)
Qualification: Ph.D
Title: Conceptions of Harm in the Canadian Constitutional Adjudication of Religious Freedom
Event: UCL (University College London)
Open access status: An open access version is available from UCL Discovery
Language: English
Additional information: Copyright © The Author 2020. Original content in this thesis is licensed under the terms of the Creative Commons Attribution 4.0 International (CC BY 4.0) Licence (https://creativecommons.org/licenses/by/4.0/). Any third-party copyright material present remains the property of its respective owner(s) and is licensed under its existing terms. Access may initially be restricted at the author’s request.
UCL classification: UCL
UCL > Provost and Vice Provost Offices
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/10100514
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