The Impact of Alternative Constitutional Regimes on Religious Freedom in Canada and England

Abstract

This Article examines whether the global trend of codifying rights in entrenched bills accompanied by judicial review to broaden rights protection is justified. By comparing the religious freedom regimes in Canada and England, this Article finds that although the Canadian constitutional transformation in the late Twentieth Century contributed to strengthening religious freedom, its overall effect has not been broader than the protection afforded by its primordial English statutory model. As such, the Article challenges the ongoing legal debate over judicially enforced constitutional systems of rights. Proponents of such systems praise their extensive contribution to rights protection, while opponents warn against their obstructive impact on the separation of powers. This Article concludes that both sides of the de-bate overstate their arguments by incorrectly presupposing the actual effects of a judicially enforced constitutional system of rights.