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Social Processes in Canadian Religious Freedom Litigation: Plural Laws, Multicultural Communications, and Civic Belonging

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Social Processes in Canadian Religious Freedom Litigation: Plural Laws, Multicultural Communications, and Civic Belonging Social Processes in Canadian Religious Freedom Litigation: Plural Laws, Multicultural Communications, and Civic Belonging by Howard Kislowicz A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Howard Kislowicz 2013 Social Processes in Canadian Religious Freedom Litigation: Plural Laws, Multicultural Communications, and Civic Belonging: Howard Kislowicz Doctor of Juridical Science Faculty of Law University of Toronto 2013 Abstract Though there is significant academic interest in the law of religious freedom in Canada, there has been little research into the experiences of participants in religious freedom litigation. Based on a qualitative analysis of participant interviews and legal documents in three decisions of the Supreme Court of Canada, this dissertation explores the social processes at play in that litigation. At issue in the three cases were, respectively, (1) the right of Jewish condominium co-owners to install ritual huts (succoth) on their balconies; (2) the right of a Sikh student to wear a ceremonial dagger (kirpan) in a public high school; and (3) the right of a Hutterite group to be exempted from the photo requirement on driver’s licences for religious reasons. This dissertation adds to the existing academic commentary by looking beyond the judicial decisions and incorporating firsthand accounts of lawyers, litigants, and expert witnesses in these cases. The substantive analysis is divided in three sections. First, the dissertation examines themes of overlapping legal systems in participant narratives. Litigants understood themselves to be subjects of both state and religious laws, and the particular interactions between these legal systems help refine theories of legal pluralism. Second, the work analyzes religious freedom litigation as cross-cultural communication. Specifically, the dissertation employs the normative criteria of respect and self- awareness found in the literature on cross-cultural communication to approach participant ii narratives and judicial decisions, finding both successes and failures in this regard. Third, the dissertation engages issues of belonging to the Canadian civic community inherent in participant narratives. All litigants told the stories of their litigation as part of their larger immigration and integration narratives, and successful litigants were quick to give positive accounts in this regard. The unsuccessful litigants told more complex stories of integration, complicating the analysis of the impact of a judicial decision on their narratives of civic belonging. Nevertheless, the dissertation argues that the notion of civic belonging ought to be explicitly taken into account by Canadian judgments when dealing with issues of religious freedom. iii Acknowledgments I am deeply indebted to my supervisor, Prof. Ayelet Shachar, for her wisdom and guidance throughout the preparation of this dissertation. I hope that some reflection of her brilliance and generosity can be found in these pages. I also owe much to Prof. Ping-Chun Hsiung, who graciously instructed me in a methodology with which I was mostly unfamiliar, and took time and great care in this endeavour. I am also grateful to Prof. Jean-François Gaudreault-Desbiens for his thoughtful comments that, on many occasions, deepened and sharpened the analysis presented in this work. Thanks also to Prof. Shauna Van Praagh, whose mentorship and support throughout my legal education has been invaluable. I owe enormous thanks to my partner, Dr. Naomi Lear, without whom I would not have had the drive or the patience to complete this work and stay true to our goals as a family. The birth of our son, Gabriel, in the midst of this project gave me another reason to redouble my efforts and strive to create a work of which he could be proud. I also thank my parents, Joe and Linda Kislowicz, and my other parents, Judith and Paul Lear, whose support has been ever-present. Thanks to Rabbi Barry Kislowicz and Jonathan Lear for their insights over the years. Of course, a work of this kind depends crucially on the generosity of interview participants. Each of these individuals taught me an enormous amount with no hope of personal gain, and for this I am deeply thankful. I have also been fortunate to be part of a dedicated and vibrant community of scholars, and I thank my colleagues in the doctoral program at the University of Toronto’s Faculty of Law, and other trusted friends made throughout the years, for our ongoing conversations. Thanks go to Nicole Baerg, Senwung Luk, Richard Haigh, Gail Henderson, Zoë Sinel, Ubaka Ogbogu, Patrícia Galvão Ferreira, Stuart Hargreaves, Mike Nesbitt, Mike Pal, David Sandomierski, Derek McKee, Sagi Peari, Eddie Clark, Jacob Shelley, Saad Abuelghanam, Mai Taha, Amar Bhatia, Hélène Mayrand, Nick Sage, and Megha Jandhyala. iv Table of Contents Chapter 1 Overview and Methods .................................................................................................. 1 1 Introduction .......................................................................................................................... 1 1.1 Background ................................................................................................................ 1 1.2 Research Problem ...................................................................................................... 2 2 Theoretical Perspectives: Legal Pluralism & Cross-Cultural Communication .................... 3 3 Research Questions .............................................................................................................. 6 4 Methods ................................................................................................................................ 7 4.1 Case selection ............................................................................................................. 7 4.2 Why Qualitative Analysis? ........................................................................................ 8 4.3 In-depth Interviews .................................................................................................... 9 4.3.1 Interview Procedures ................................................................................. 12 4.4 Textual Analysis ...................................................................................................... 24 4.5 Data Analysis ........................................................................................................... 24 5 Dissertation Structure ......................................................................................................... 27 Chapter 2 Literature Review: Legal Pluralism, Cross-Cultural Communication, and Religious Freedom .................................................................................................................................... 30 1 Introduction ........................................................................................................................ 30 2 Dimensions of Legal Pluralism .......................................................................................... 30 2.1 Basic Notion and Development ............................................................................... 30 2.2 Identifying Situations of Legal Pluralism ................................................................ 36 2.3 Distinctions between State and Non-State Law ....................................................... 40 2.4 The Interaction of Normative Orders ....................................................................... 44 2.5 What do I mean by Law? ......................................................................................... 49 2.6 Conclusion on Legal Pluralism ................................................................................ 56 3 What is Cross-Cultural Communication? .......................................................................... 58 3.1 Terminology and Approach ..................................................................................... 59 3.1.1 “Culture” ................................................................................................... 60 3.1.2 Communication ......................................................................................... 62 3.2 Building Shared Understandings ............................................................................. 63 3.3 What is Good Cross-Cultural Communication? ...................................................... 66 3.3.1 Dallmayr’s Typology ................................................................................ 66 3.3.2 Respect ...................................................................................................... 69 3.3.3 Self-Awareness ......................................................................................... 71 3.4 Conclusion on Cross-Cultural Communication ....................................................... 74 4 Conclusion .......................................................................................................................... 74 Chapter 3 Case Backgrounds ........................................................................................................ 76 1 Introduction ........................................................................................................................ 76 2 Amselem ............................................................................................................................
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