Is There Room for Religion in Canadian Law?
A look at Canadian case law after the Charter of Rights and Freedoms.
Canadian history is rife with examples of religion's public influence in civil institutions, culture, politics, and even directly on legislation. While Canada's constitution, with the passage of the Charter of Rights and Freedoms in 1982, now guarantees "freedom of conscience and religion" and enumerates religion as a prohibited ground of discrimination, post-Charter case law suggests that such religious influence has become increasingly more difficult to exercise.
As the academy would have us believe, 1982 is the year Canadians received their rights and truly became free. Yet from the point of view of religious adherents, particularly Christians, the effects on religious freedom from Charter jurisprudence have been mixed. The courts have been given—or have taken, depending on one's perspective—primary responsibility for resolving issues surrounding religious freedom; and today our courts continue to struggle to balance religious liberty with the rights of the state. The rhetoric the courts have used in several key cases indicates an incomplete and inaccurate understanding of both religion and secularism. Consequently, our courts have often unfairly relegated religion to the private sphere and precluded religious principles, values, and ideas from the realm of legal disputes and public policy.
A) The Lord's Day Act
A landmark Supreme Court of Canada (SCC) case, R. v. Big M Drug Mart (1985), marked a decided transformation of our nation's Christian identity. Notably, the SCC did not consider it necessary to examine the effects of the impugned legislation, the Lord's Day Act, which prohibited business transactions on Sundays; instead, the Court was satisfied with ruling the purpose of the legislation unconstitutional.
The Attorney General for Alberta argued that only the effects and not the purpose of the legislation were relevant in determining its constitutionality. However, the SCC dismissed this argument. Justice Dickson asserted, "As I read the Charter, it mandates that the legislative preservation of a Sunday day of rest should be secular." Yet if the Lord's Day Act was not shown to be discriminatory in effect, it is curious that invalidation was necessary. In its ruling, the Court took a look back through history to establish the religious roots of various laws requiring Sabbath observance before the Lord's Day Act. While this lesson in history certainly proved the religious origins and purpose of the Sabbath observance law, it also demonstrated its long-established and accepted place in our society. In fact, the Lord's Day Act came about as a result of a labour movement campaign that brought Protestants and Catholics together against powerful commercial interests.
Big M also set an important precedent because section 27 of the Charter—known as the multiculturalism provision—was interpreted and applied for the first time by the SCC. Berger maintained that it was cited to strengthen the argument that freedom of religion precludes laws that enforce the principles of one religion. Importantly, the Court decided that preferring one religion over and against others is contrary to the enhancement of the multicultural heritage of Canadians. Berger pointed out, however, that it would be a shallow brand of multiculturalism if the state encouraged the maintenance of religious values but excluded them from public debate.
While the Lord's Day Act may indeed have had an adverse impact on those of minority religious faiths, the courts would have done well in Big M to recognize that religious beliefs affect the way people vote and the way legislators legislate, and do so legitimately. In Edward Books and Art Ltd. (1986), the Ontario Sabbath closing law was found to violate freedom of religion in effect rather than purpose, and thus underwent a proportionality test under s. 1 of the Charter, which it passed. The Lord's Day Act never got that far because the Court saw the legislation as rooted in a particular religion and therefore a priori unconstitutional.
This raises intriguing questions. Might the Lord's Day Act have survived judicial review if it had been differently named? Is a secular purpose always acceptable, but never a religious one? Could the Act, despite its name and history, actually have a secular purpose? Of course, this depends on just how we define secular and religious. Chief Justice Dickson wrote, "The state shall not use criminal sanctions [. . .] to achieve [. . .] the uniform observance of the day chosen by the Christian religion as its day of rest." As a publicly mandated day of rest, of course, Sunday was chosen by Canada's elected Parliamentarians, not by the "Christian religion." Nevertheless, it is easy to understand the sentiments against having explicitly Christian traditions named and preserved in law in a pluralistic society. The SCC emphasized that its intent in striking down the Act was to expand religious freedom as a whole by not favouring one religion over others, rather than, as some might suspect, to limit the influence of Christianity in public life. Interestingly, in Edward Books, the Court accepted the stated secular purpose of Ontario's Sunday closing law at face value. The Court recognized that the tradition of Sunday Sabbath observance originates from Christianity, but concluded that this did not preclude a secular day of rest from being adopted as public policy, with some exceptions.
B) The B.C. School Act
In Chamberlain v. Surrey School District No. 36 (2002), the Chambers judge, Justice Mary Saunders, ruled that the Surrey School Board's decision to prohibit the use of books portraying families with same-sex parents violated the B.C. School Act's requirement that public schooling be conducted on "strictly secular" principles. She reasoned that "[i]n the education setting, the term secular excludes religion or religious belief" and concluded that "the words 'conducted on strictly secular principles' precludes a decision significantly influenced by religious considerations." Yet this judgement demonstrates a lack of understanding in regards to what religion means for its adherents and, by barring religious considerations from involvement in public decision-making, endorses secularism, though it never employs the term.When a court precludes religious considerations from decisions affecting public matters, it effectively denies people the right to be themselves. A genuine religious adherent cannot leave her beliefs at home.
However, the B.C. Court of Appeal unanimously overturned Justice Saunders' decision. The difference in the rulings of Justice Saunders and the Court of Appeal can be accounted for in the differing interpretations of the word secular. Unlike Justice Saunders, the Court of Appeal ruled that the phrase "strictly secular" in the School Act allowed for moral positions to be accorded standing in the public square irrespective of whether those positions flowed from a religiously informed conscience or not. What the Act proscribes, the Court observed, is the establishment of or indoctrination in any particular religion through public schools. Writing for a unanimous Court, Justice Mackenzie asked: "Must those whose moral positions arise from a conscience influenced by religion be required to leave those convictions behind, while those who espouse similar positions emanating from a conscience not informed by religious considerations be free to participate without restriction?" His answer: "Moral positions must be accorded equal access to the public square without regard to religious influence."
Surprisingly, the Supreme Court of Canada overturned the unanimous Court of Appeal's ruling. The majority of the SCC Justices endorsed, but effectively circumvented, Justice Mackenzie's assertion that religious influence on moral positions is no justification for excluding those positions from the public square. Writing for the majority, Chief Justice McLachlin acknowledged that the School Act's "insistence on secularism"—her language—does not mean that religious concerns have no place in the deliberations and decisions of the Board. In fact, she said that Board members have an obligation to consider religious concerns. However, she also wrote:
In summary, the Act's requirement of strict secularism means that the Board must conduct its deliberations on all matters, including the approval of supplementary resources, in a manner that respects the views of all members of the school community. It cannot prefer the religious views of some people in its district to the views of other segments of the community.
Such reasoning is specious. While it purports to take a balanced approach to competing views, it actually chooses one over the other and, consequently, devalues the religious perspectives with which the Court disagrees. Approving or disapproving supplementary classroom resources in a manner that respects everyone's views is impossible when people hold diametrically opposed viewpoints. Some people believe, as a majority of the Surrey School Board members believed, that it is morally objectionable—even harmful—to include certain material in children's learning. Yet the SCC quashed the Board's resolution and remanded the matter to them to be re-determined "based on the broad principles of tolerance and non-sectarianism".
Chief Justice McLachlin stated that the Board's first error was to "violate the principles of secularism and tolerance" in the School Act, noting that behind the Board's reasons "hovered the moral and religious concerns of some parents and the Board with the morality of homosexual relationships." The majority recognized that the Act "does not preclude decisions motivated in whole or in part by religious considerations", but declared that decisions must be made in a way that respect the multiplicity of moral views in the community. By mandating that the Board not base its decisions on an "exclusionary philosophy", the majority appears to avoid the error of Justice Saunders that the Court of Appeal had corrected: the explicit exclusion of religious views from the public domain. But the effect of the SCC's ruling, which is what matters, is the same.
C) Quebec's Ethics and Religious Culture Program
With the Charter, our courts have ousted prayers, Bible readings, and Christian moral instruction from public schools. In accordance with the SCC's thinking in Big M, it mattered not to the courts that exemptions from these educational components were readily available, lessening if not erasing the impact on the religious freedom of non-Christian pupils. Rather, "religious purpose" required their abolition.
In 2008, faced with the Quebec government's new Ethics and Religious Culture (ERC) course, many students sought, but were denied, exemptions. Certain parents took the matter to court, ultimately losing at the SCC. Despite allegations of the program's intent to indoctrinate children in moral relativism, the purpose of the ERC program was a non-issue for the SCC in S.L. The program claimed to have the secular goals of promoting mutual understanding and the common good, which the Court accepted.
What about the program's effect? Despite language in other decisions indicating the Court appreciates that religion impacts all of life, in S.L. the Court stated: "Although the sincerity of a person's belief that a religious practice must be observed is relevant to whether the person's right to freedom of religion is at issue, an infringement of this right cannot be established without objective proof of an interference with the observance of that practice" (emphasis added).
In 2005, in Amselem, the SCC set an important new precedent by ruling that freedom of religion protects any sincerely held, subjective practice or belief having a "nexus with religion", whether voluntary or obligatory, held by others or not, from substantial state interference. This has generally been considered a generous, claimant-sensitive, approach. But a few years later, it failed the parents in S.L. They could not demonstrate state interference with an "observance of a religious practice." But to them, their religious responsibility entailed so much more: an all-inclusive obligation to put God at the centre of their children's upbringing and education. Understood in this way, how could a mandatory state curriculum in "ethics and religious culture" not interfere?
D) Religious and Secular: The Importance of Language
Such cases help raise awareness of the inherent problem with the adoption of philosophical pluralism and how it plays out in our courts. In order to properly understand this, we need to examine how the courts answer the question of what religion is. According to Beaman, "As the courts wade more fully into the swirling abyss that is religion they find themselves struggling with the issues that preoccupy scholars of religion (and for which they have found no conclusive answer): what is 'religion' and how can it be defined in a manner that is inclusive and meaningful?" Berger contends that religion deserves to have its own voice in the discussion; he quotes Abraham Heschel: "To the modern mind, religion is a state of the soul, inwardness; feeling rather than obedience, faith rather than action, spiritual rather than concrete. [However, religion] is in its very origin a consciousness of total commitment; a realization that all of life is not only man's but also God's sphere of interest."
The Supreme Court has recognized religious freedom as important for self-fulfillment, participation in social and political decision-making, and the free exchange of ideas. The Court has not, however, understood religion in the comprehensive sense that it demands. If religion were understood and legally defined more along the lines of Heschel's thinking, democracy would be enhanced rather than harmed and people of faith in Canada would feel legitimated in expressing their opinions, whether influenced by religious beliefs or not. By denying religious input into the political process, Shachar argues, we risk stimulating a demand among religious groups that the secular state adopt a hands-off approach, "placing family or civil disputes with a religious or cultural aspect outside the official realm of equal citizenship." To the extent that this has occurred already, it is an unhealthy change in our nation's culture and social architecture.
The crux of the matter is that secularism is its own belief system. In "Considering Secularism," Iain Benson explains secularism's ideological roots. In fact, as a worldview it was intended to be a substitute for religion. Holyoake, the founder of the National Secular Society in 1866, called secularism "a code of duty pertaining to this life, founded on considerations purely human." Viewed as such, it cannot transcend (other) religions, nor should it be given a privileged position in public policy making. No wonder then that the perception that secular ideas and values dominate public education, to the detriment of religious values, has led some to contend that the state is promulgating a "faith" of its own through the secular curricula.
In effect, when we look at constitutional litigation over freedom of religion, we find the unfortunate reality that rather than protecting religion, it has actually been a force in catalyzing religion's privatization.