What is freedom of religion and conscience? Why does this fundamental freedom cap those freedoms listed in Section 2 of the Canadian Charter of Rights and Freedoms? Beyond the Charter, what is it within our history and in the European institutional tradition we inherited that places religious freedom in such a privileged position? These are questions that frame the Cardus Religious Freedom Institute’s efforts to better comprehend, reflect on, and affirm the role of freedom, faith, and belief in the public square. It is our assertion that the future of freedom of religion and conscience needs to be better understood within our institutions, our faith and belief communities, and in society writ large so as to enable the flourishing of our common life and a deep pluralism. This paper aims to provide a historical context for why freedom of religion and conscience is foundational to Canadian democracy, diversity, pluralism, and to our common life as human beings living in this place, this Canada.
Canada’s diversity reveals itself to us as citizens in our daily lives as we meet each other in the workplace, the school and university, our public institutions, and even in our own families. Our country’s largest city, Toronto, is considered to be the world’s most diverse city, home to a plethora of different nationalities, ethnicities, and religious affiliations. Canadians, like humanity the world over, confront questions on a daily basis that call us to reflect on who we are and who we are called to be, in our inner selves, in relationship with others, and in our metaphysical need to make sense of the world around us.
However, in the increasingly dominant discussion on diversity, religion, and the public expression of religion, is too often sidelined, largely in part due to the assertions of some proponents of closed secularism who argue that religion in 2018 (and because it is 2018) should solely be a private matter. 1 Others have demonstrated a targeted antagonism toward religion, embracing the secularization thesis that religion, subject to the whims of history, will inevitably be erased. For example, in the mid-1700s, Voltaire assigned religion a lifespan of, at most, fifty years. He was followed by a significant number of social scientists like Durkheim, Marx, Comte, and Freud who claimed that religions and their institutions would eventually be eradicated by the coalescing forces of modernity and secularization.
Recent statistics presented by the Angus Reid Institute suggest that this is not the experience for most Canadians. Indeed, a majority of Canadians say that their personal faith and religious belief is “important to them in terms of defining their personal identity, overcoming challenges in life, and affecting how they view problems in their society.”
For Canadians, religion remains a fundamental framework through which they interact with their immediate realities and global surroundings. As former prime minister Pierre Elliott Trudeau said, “The golden thread of faith is woven throughout the history of Canada from its earliest beginnings up to the present time.” 2To provide further and necessary context for meaningful public engagement, we must know how religious freedom in Canada has developed.
The Institutional Development of Religious Freedom
The history of religious freedom extends back more than eight hundred years, to the Magna Carta (1215), firmly situating religious freedom within the Judeo-Christian tradition. Understanding the heritage of religious freedom in Canada, and its religious roots, is key to a fuller knowledge of how religious communities have historically been on the frontlines of defining and ultimately defending freedom. In making public stands for maintaining, changing, and expressing their faith, they have, in turn, helped to guarantee fundamental freedoms for many other communities.
Let us now trace Trudeau’s “golden thread” through Canada’s institutional history to better understand why we need to reaffirm the foundational nature of freedom of religion and conscience to our common life, our pluralism, and our democracy. While this is not meant to be an exhaustive survey of religious freedom in Canada, it seeks to provide a historical framework of milestone events and periods throughout Canadian history.
A Timeline of Religious Freedom in Canada
1774: The Advent of Accommodation The Quebec Act
Following the unrest in the American colonies and grasping for stability in the wake of the failure to assimilate French Canadians, the British government enacted the Quebec Act in 1774. Article 5 guaranteed the French Canadians the maintenance of their language, religion, and civil law. This act gave the Crown’s new French Canadian subjects civil rights as Catholics that their co-religionists in the United Kingdom would not enjoy until the Catholic Emancipation Act, some fifty-five years later. Rather than seeking to eradicate the pre-existing structures and institutions founded, maintained, and operated by the Catholic Church—the Quebec Act preserved these religious and civil institutions, and in doing so established religious freedom as a prominent force of pluralism and stability in Canada.
1867: Two Nations, One State The British North America Act
The British North America Act of 1867 (subsequently the Constitution Act) brought British Protestants and French Canadian Catholics in Quebec, Ontario, Nova Scotia, and New Brunswick together into the Dominion of Canada, conscious of the ongoing challenges of accommodating Lord Durham’s “two nations warring in the bosom of a single state.” The British North America Act addressed the question of various denominational schools, as the first schools established in what would become Canada were founded by various religious communities, both Protestant and Catholic. Section 93 made provision for separate schools for Catholic minorities outside of Quebec and the Protestant minority within Quebec and affirmed provincial governments’ jurisdiction over key areas like education—guaranteeing the rights of denominational schools. The issue of separate religious schools is regarded as one of the most continually debated subjects throughout Canadian history, continuing into the present moment. Canada was not based on the removal of religion from public life, but on a constitutional recognition of religious difference and distinctiveness. This informs the modern discourse around pluralism—that religious devotion, expression, and practice indeed have a role to play in informing the public good.
1885–1888: Prohibiting Practice The Indian Act and the Establishment of Residential Schools
In 1885, the Indian Act was amended to criminalize the potlatch (a gift-giving feast common to most Northwest Coast First Nations) and ritual dancing, both considered sacred practices by First Nations. By the time the ban was repealed in 1951, due largely to the pressures asserted by criminalization and enforcement that led to changes in attitudes, familiarity with traditional practices was eroded and social relations were disrupted. Commencing in 1888, the federal government provided support to church-run residential schools, some of which used the banning of traditional Indigenous practices and rituals as a method of assimilation. The history of religious freedom in Canada is complex. It is a path that has taken many twists and turns—some leading to dark moments of failure and tragedy, others as milestones of fundamental freedoms secured and honoured. Affirming a robust religious freedom in Canada is necessary as part of contemporary efforts to address the effects of the residential school system, and to contribute to efforts at reconciliation.
1890: Religion in Education? The Manitoba Schools Crisis
The Manitoba Schools Crisis, spanning over a decade, is considered one of the most controversial moments in Canadian educational history and at its heart involved the contestation of religious freedom. Until 1890, Manitoba had a common school system (Protestant) and a Roman Catholic school system. The Public School Act of 1890 required that all school fees collected be given to the common system (whereas previously taxes had been distributed as per the taxpayers’ choices). The Catholic Church contested the discriminatory provisions of the act, leading to a national crisis involving the federal government, various provincial actors, and religious activists. In 1896, under pressure from his cabinet, Prime Minister Mackenzie Bowell resigned over his mishandling of federal legislation to intervene in Manitoba to restore Catholic schools. Prime Minister Wilfrid Laurier arranged the Laurier-Greenway Compromise (to allow Catholic education after classes)—and obtained the support of Pope Leo XIII, demonstrating the weight of religious association, its impact in Canadian politics, and the need and popular support for separate religious schools in Canada.
1936–1959: Beyond Dualities The Protection of Religious Minorities
Historical perspectives focusing solely on two nations, English Protestant and French Catholic, have the tendency to eclipse religious minorities. Indeed, it was not until after the Second World War that strong lobbies from various religious minorities from outside this dualism resulted in protections from religious discrimination. Unbeknownst to many Canadians, Jehovah’s Witnesses were banned across Canada during the Second World War. They experienced significant persecution in Quebec—with one commentator claiming that the Inquisition had arrived in French Canada. Former Quebec premier Maurice Duplessis actively used his influence to oppose Jehovah’s Witnesses publicly, ordering police to arrest them for distributing literature, and once revoking a liquor license from one of their members’ businesses. This action led to one of the seminal religious freedom cases heard by the Supreme Court of Canada, which had only recently become Canada’s final court of appeal. In Roncarelli v. Duplessis, the Supreme Court ordered the premier to pay damages to the businessman based simply on the basis of the religious discrimination to which Mr. Roncarelli had been subjected, thereby setting a particular precedent for the protection of religious freedom in Canada. This also contributed fundamentally to moving beyond a “two-nations” lens, to capture the full range of religious diversity that has existed over time in Canada, and to ensure justice and religious freedom for those of all religious and belief backgrounds. Pierre Elliott Trudeau asserted that the negative treatment of Jehovah’s Witnesses in Quebec in the 1950s inspired his passion for protecting human rights, which drove his commitment to patriating the Constitution from Westminster and incorporating a Canadian Charter of Rights and Freedoms in the Constitution Act of 1982.
1960: Religion and Freedom The Canadian Bill of Rights
John G. Diefenbaker called consistently for a Canadian Bill of Rights as early as 1943—partly due to the focus of the United Nations to establish global human rights standards. Religious communities across Canada launched nationwide campaigns in favour of passing a Bill of Rights. Following the persecution of the Jehovah’s Witnesses in Quebec and intense lobbying of Parliament, the Bill of Rights was passed in 1960 under Prime Minister Diefenbaker. Section 1 includes the protection for fundamental freedoms—with S. 1(c) providing for “freedom of religion.” Most remarkably, the preamble to the Bill of Rights reinforces the role of religion in the Canadian public square; it seeks to “acknowledge the supremacy of God” and affirms that “institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law.”
1982: Enshrining Our Rights and Freedoms
The Canadian Charter of Rights and Freedoms
Perhaps the most publicly engaged part of the Constitution is the Charter of Rights and Freedoms. It was included in the repatriated Constitution, forming, with the amending formula, the Constitution Act of 1982. Section 2 of the Charter affirms fundamental freedoms, the first of which is “freedom of conscience and religion.” These fundamental freedoms are not the grant of government; rather, they inhere within us as human beings. Additionally, Section 15 protects individuals from discrimination on the basis of religion. Unlike the Bill of Rights, which was a federal statute, the Charter applies to all government legislation and action at every level. Many religious groups were active in the public debate on the Constitution, which led to the inclusion of a preamble that recognized “the supremacy of God.” The presence of freedom of religion and conscience in the charter affirms in an unequivocal way its relationship to other fundamental freedoms, and the state’s obligation to protect this.
1985: Defining Religious Freedom
R v. Big M Drug Mart Ltd.
This is considered the landmark religious freedom case in Canada following the enshrinement of the Charter in the Constitution. In this case, Big M Drug Mart was a retail chain in Alberta charged with violating the Lord’s Day Act by offering services on Sunday. In its defence, the corporation challenged the act because it infringed on religious freedom. The Supreme Court established a broad definition of religious freedom that set a precedent: “Freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination.”
2004: Accommodating Difference Syndicat Northcrest v. Amselem
In this case, an issue arose between Hasidic Jews and a high-rise condominium building over the observance of the Jewish festival of Sukkot. Some members of this community sought to set up sukkahs, temporary huts, on their balconies to observe the festival. The condominium corporation agreed to allow a communal sukkah beside the parking lot, but not individual sukkahs on balconies. The Supreme Court ruled in favour of observance of religious practices—emphasizing the individual over his or her religious institution as the source for religious doctrine, based on the value of individual autonomy. It was reaffirmed that there should be respect for religious diversity and no coercion to do something in violation of one’s religion, cementing the principle that people holding religious beliefs need to be accommodated to the point of undue hardship.
2006: Protecting Religious Minorities
Multani v. Commission scolaire
This case was also foundational to the protection of religious freedom and accommodation for religious minorities in Canada, particularly for members of the Sikh community. The case involved a Sikh boy who was banned from carrying his kirpan—which was perceived as a weapon by the Commission scolaire Marguerite‑Bourgeoys. (The kirpan is a religious symbol and one of the five Sikh articles of faith.) The decision followed the precedent that, for religious freedom to succeed, an individual must show that they believe a practice is connected to religious belief. In this case, it was reaffirmed by the Supreme Court that schools should teach values and promote civic virtue. Allowing the kirpan would thus be beneficial in that it would teach students the importance of freedom of religion.
2013–2016: A Principled Foreign Policy
Creation of the Office of Religious Freedom
Established in 2013 within the Government of Canada’s Department of Foreign Affairs, Trade, and Development (now known as Global Affairs Canada), the Office of Religious Freedom was mandated to “protect, and advocate on behalf of, religious minorities under threat; oppose religious hatred and intolerance; and promote Canadian values of pluralism and tolerance abroad.” The idea for an Office of Religious Freedom was first proposed in 1998 by Lloyd Axworthy, then Minister of Foreign Affairs and International Trade in Jean Chretien’s Liberal government. It was not until 2013, under former Prime Minister Stephen Harper, that the Office was created, with then-Ambassador for Religious Freedom Dr. Andrew Bennett at its head. Understanding that freedom of religion is a cornerstone of Canada’s history and has played a key role navigating convergences of difference, the creation of the Office was a practical application of domestic experience in foreign policy. It institutionally legitimized Canada’s leading role in international relations—responding to the critical issue of religious persecution worldwide.
2013: Contested Secularism
the Quebec Charter of Values
This controversial Charter was unveiled on 10 September 2013, by Bernard Drainville, a member of Pauline Marois’s Parti Québécois government and minister of democratic institutions and active citizenship. It purported to create a “secular society”—one in which religion and the state were completely separate and unassociated. Following the attitudes toward religion cultivated during the Quiet Revolution and societal debates regarding reasonable accommodation, the charter included five “proposals.” The most controversial was a ban on the wearing of any visible symbol indicating a religious affiliation, including turbans, large crucifixes, hijabs, or kippot, by public servants, employees of day cares, public schools, general and vocational colleges (cégeps), universities, and health and social-service networks, as well as persons performing judicial and adjudicative functions. Multiple demonstrations took place in Quebec, both for and against the charter. All of the federal political parties (excepting the Bloc Québécois) publicly opposed the charter, culminating in a 2014 electoral defeat for the Parti Québécois.
2015: Secular Neutrality or Negativity?
Loyola v. Quebec
This case concerned Loyola High School, a private, English-language Jesuit high school for boys located in Montreal, and the Quebec Ministry of Education’s decision to introduce mandatory curriculum on religion, culture, and ethics. Given that the school was already teaching a course in world religions and ethics informed by Catholic belief, Loyola sought an exemption in accordance with the Ministry of Education guidelines. However, the Quebec minister of education refused to grant the exemption and informed Loyola that the competencies, content, and goals of the program could not be taught according to ministerial expectations in a confessional context. This was purportedly done to uphold the values and neutrality of the secular state; however, in the Supreme Court ruling (in favour of Loyola), it was stated that “the context before us—state regulation of religious schools—poses the question of how to balance robust protection for the values underlying religious freedom with the values of a secular state. Part of secularism, however, is respect for religious differences. A secular state does not—and cannot—interfere with the beliefs or practices of a religious group unless they conflict with or harm overriding public interests.”
2014–2018: Religious Freedom and Equality
Trinity Western University v. Law Society of Upper Canada; Law Society of British Columbia v. Trinity Western University
This landmark pair of cases dealt with the attempt of Trinity Western University to establish a law school. The private Christian university, founded in 1962, applied to the Province of British Columbia and the Law Society of British Columbia as the accrediting body in 2012 to open a law school. Opposition soon emerged from among those who believed that the university’s Community Covenant, which was compulsory for all Trinity Western students and staff and which prohibited sexual activity outside the scope of heterosexual marriage, was discriminatory towards LGBTQ students. In 2014, in light of this opposition, the Law Society of British Columbia reversed an earlier decision to accredit the school. Also, in 2014 Ontario’s Law Society of Upper Canada denied accreditation to the law school. In 2015, the BC Supreme Court ruled in favour of the university, restoring accreditation. The two related cases (Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada) reached the Supreme Court of Canada.
On June 15, 2018, the Supreme Court ruled in a 7-2 decision that the law societies could refuse accreditation on the basis “that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm.” The Court recognized that this was a “profound interference” in the university community’s religious freedom, but that given the “unequal access” caused by the Community Covenant, it was justifiable. Based on its concern for the equality of access for LGBTQ law students, the law society was entitled to withhold accreditation.
This decision walked back the law on religious freedom in a number of areas, including religious freedom for institutions and sincerely held beliefs. Actions outside places of worship that manifest the beliefs of individuals or the community, such as in institutions they elect to establish, can be subject to limits if they do not conform with supposed Charter values. Yet, we must be careful not to view these rulings as an established position within Canadian law nor assume that they justify certain broader policy direction by other professional bodies or by government. Strong and coherent arguments still remain for the robust protection of religious freedom, as reflected in the dissenting opinions of Justices Côté and Brown.
2019: Open vs. Closed Secularism in Quebec Bill 21
Bill 21, An Act Respecting the Laicity of the State, or La Loi sur la Laïcité de l’État, was tabled on March 28, 2019 by the government of Quebec. Despite opposition from religious groups in Quebec, from the City of Montreal, and from voices in the rest of Canada, the bill passed on June 17 in the Quebec National Assembly by a 73–35 vote. This represented the culmination of a long history of Quebec governments seeking to pass similar legislation to limit the place of religion in the public square. According to numerous polls, the law enjoys majority support among Quebeckers.
The law establishes four principles related to the laicity of the State: the separation of State and religion, the religious neutrality of the State, the equality of all citizens, and freedom of conscience and freedom of religion. The law invokes Section 32, the so-called notwithstanding clause, of the Constitution Act, 1982 in an attempt to shield it from judicial review. It thereby recognizes that it violates the right to freedom of religion guaranteed by the Charter of Rights and Freedoms. With the expressed desire of enforcing a closed secularism in which the State has officially eliminated religious expressions from the halls of government and related bodies, the law prohibits the wearing of religious symbols by government and government-affiliated employees, including teachers, police officers, and Crown prosecutors. Banning the wearing of religious symbols such as the hijab, the turban, the kippah, and the cross unjustly limits the ability of public servants to live their religious lives both publicly and privately. Religious freedom is fundamentally about the freedom to live a public faith, since we are always free in our interior lives of faith. To force people to privatize their faith in order to advance secularism, which is also a system of belief, undermines a genuine pluralism.
2019: Conscience Rights of Doctors & Equality of Access
Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons in Ontario
The Ontario College of Physicians and Surgeons of Ontario mandated in 2015 that doctors in the province must provide medical services, or effective referrals for these services, even if doing so violates their religious belief or conscience. This is particularly a problem for doctors with religious beliefs or conscience with respect to abortion, artificial contraception, or euthanasia. Christian doctors challenged this mandate in court, but on May 15, 2019, the Ontario Court of appeal ruled in favour of the College of Physicians and Surgeons.
Effective referral means that if an individual physician is unwilling to provide a particular procedure or service, he or she must provide a referral to another physician who can provide it. Those in favour of mandating effective referrals argued that the provision ensures equality of access to healthcare. Those against cited the Charter right to freedom of conscience and religion. For example, Dr. Sohail Gandhi, the Ontario Medical Association president, wrote strongly against the recent court ruling, saying, “Make no mistake about this, rights and freedoms of certain individuals are being violated by this ruling.”
Physicians, like all human persons, are moral agents who should not be forced to act in violation of their conscience or religious beliefs. Advocates for freedom of conscience and religion continue to call for reasonable accommodation that will permit such conscientious objection on reasonable grounds. The Ontario government is considering legislation to protect conscience rights for doctors.
WHY RELIGIOUS FREEDOM?
Considering the history of religious freedom in Canada, and its roots in the Judeo-Christian tradition, allows us to see the need for upholding this fundamental freedom as a cornerstone of Canadian liberal democracy. As Nicholas Wolterstorff notes in his essay “The Story About Religious Freedom You Haven’t Heard,” “the idea that there is a natural human right to freedom of religion was not devised by the secular thinkers of the eighteenth-century Enlightenment. It was introduced to the world by the early Christian apologist Tertullian.” We know of no earlier individual, of any other persuasion, who spoke of the “human or natural right” to freely worship as one chooses—understanding the importance of the freedom that flows from this concept. As was stated earlier in this paper, religious communities have often been a bulwark to protect and defend freedom.
Upholding of this fundamental freedom is essential to ensuring that all citizens are able to participate fully in the public life of our country and that they are able to do so informed and guided by their deeply held beliefs. As such, freedom of religion acts as a key element within and a guarantee of a genuine and deep pluralism in which difference is respected and engaged.
Although Christians represent 67.3 percent of the country’s population, in recent years there has been a substantial rise in the number of adherents of non-Christian religions in Canada. From 1991 to 2011, Islam grew by 316 percent, Hinduism 217 percent, Sikhism 209 percent, and Buddhism by 124 percent. To navigate the future of pluralism and engagement in the public square, we have to recognize the fundamental contributions of religious freedom to the common good. For how can we continue to debate with, recognize, accommodate, and respect the plethora of religious traditions in Canada and those who seek to faithfully live them both publicly and privately without a robust understanding of religious freedom? Understanding the history of religious freedom in Canada as foundational to our democracy and to our common life as citizens is key if we want to address these questions.
Believers, unbelievers, and all those in between should be concerned with the protection of the space to investigate, seek, contemplate, and act on the truth. Encouraging freedom of religion and conscience protects the ability of individuals to act according to their deepest held theological, ethical, and moral beliefs—informing public speech, association, and assembly.
ADDRESSING AMNESIA AND ANTAGONISM
Unfortunately, as some scholars have pointed out, despite the belief and commitment to freedom of religion in Canada through our institutional history, there is currently a poor articulation of the fundamental nature of this freedom across our public institutions (certain Supreme Court rulings notwithstanding). 3 Canadian society is profoundly multicultural and multi-religious. We must constantly strive to find ways in which we might genuinely engage with one another in accordance with our deepest held beliefs. Continuing an approach without consistency is taking a toll on civic space.
As a result, public confusion and amnesia have taken root regarding the history and nature of religious freedom. Some secular advocates continue to call for a separate right to “freedom from religion”—failing to recognize the inherent contradiction in simultaneously arguing for “freedom from religion” and freedom of expression, and that freedom of religion and conscience includes the right not to have any particular belief.
At the same time as the Standing Committee on Canadian Heritage was studying M-103 with an intent to “develop a whole-of-government approach to reducing or eliminating systemic racism and religious discrimination,” changes to the Canada Summer Jobs Program require all applicants to sign an “attestation” that includes respect for “sexual and reproductive rights—and the right to access safe and legal abortions”—despite opposition from representatives of nearly ninety Christian, Muslim, and Jewish organizations.
While prominent politicians critically weighed in on Quebec’s Bill 62, which bans people from wearing face coverings while giving or receiving public services (widely perceived as discrimination against Muslim women), Bill C-51, in its original form, sought to remove Section 176 from the Criminal Code, which makes it an offence to obstruct or prevent religious services, in addition to assaulting or committing violence against religious officiants due to its being deemed either unconstitutional, redundant, or obsolete.
Engaging Religious Freedom in the Public Square
These remarkable instances, all occurring simultaneously, point to the need for a robust defence and proper understanding of religious freedom. Evidence in headlines, academic papers, and public-opinion polling points to a need to understand religious freedom and its practical application. However, many continue to demonstrate ignorance or intolerance toward discussing both religion and, by association, religious freedom.
As the Bouchard-Taylor Consultation Commission on Accommodation Practices Related to Cultural Differences noted, the process of secular privatization of religion has restricted discussions about faith publicly. Some would hold that if one’s moral and ethical views are derived from a particular faith tradition, they should not be reflected and lived out in the public square. Conversely, if a person’s views are from a secular perspective it is permissible to hold and express them publicly. As former Supreme Court Justice Charles Gonthier wrote, “The problem with this approach is that everyone has ‘belief’ or ‘faith’ in something, be it atheistic, agnostic, or religious. To construe the ‘secular’ as the realm of the ‘unbelief’ is therefore erroneous.” 4