QUEL(S) FONDEMENT(S) POUR LA NEUTRALITÉ RELIGIEUSE DE L’ÉTAT AU CANADA ? UNE ANALYSE CRITIQUE DE L’ARRÊT BIG M DRUG MART

Abstract

In post-Charter Canadian jurisprudence the religious neutrality of the state is, to this day, determined by the principles elaborated by the Supreme Court of Canada in the 1985 Big M Drug Mart decision. In this article, I will analyse the foundation of religious neutrality as they appear in said decision. Inmy opinion, this case presents an important conceptual confusionwhich still infects today’s jurisprudence. Indeed, in Big M Drug Mart, the state’s religious neutrality is said to stem solely from freedom of conscience and religion. As we shall see, this is certainly a necessary foundation to religious neutrality, but it is not sufficient grounds. The notion of equality must be added as a second concept to obtain a necessary and sufficient normative set. Furthermore,we shall see that the Supreme Court seems to agree with this assertion, but had to insert the notion of equality within the concept of liberty for contingent historical reasons.