Business Corporations as Religious Freedom Claimants in Canada

Abstract

On a few occasions, members of the Supreme Court of Canada have suggested a business corporation could not initiate a claim based on the right to religious and conscientious freedom. The Victorian Court of Appeal in Australia has come to this conclusion more directly. On the other hand, the US Supreme Court has held that, in at least some circumstances, a business corporation can be an appropriate religious freedom claimant. The argument for categorically denying a corporation’s religious freedom claims usually rests on a conception of what the corporation is: as an artificial person, a corporation simply cannot hold the requisite religious or conscientious belief to ground such a claim. The purpose of this article is to provide two bases upon which the business corporations’ incapacity to assert religious freedom claims in Canada might be rethought. First, this article argues that attributing a religious belief to a corporation is consistent with the way that Canadian law attributes other sorts of intentional states to corporations. Though Canadian law does, in general, hold to a theory that the corporation is a legal fiction, it is a fiction that includes the capacity to intend the consequences of its actions for legal purposes. Second, it argues that the courts might approach religious freedom in a manner analogous to how the Supreme Court has approached other constitutional rights, such as expressive freedom. When faced with claims by corporations, this approach focuses not on the nature of a corporation but on how to best serve the purposes underlying the right. Such an approach could support allowing business corporations to make religious freedom claims, while leaving open the possibility that any infringement proven could be justified under s 1 of the Charter.