A Legal and Political History of Religious Freedom in Canada: Dr. Janet Epp Buckingham

A Legal and Political History of Religious Freedom in Canada

Janet Epp Buckingham
May 26, 2014

Religious freedom has been highly contentious in Canada of late. I will let you in on a secret; it always has been. One of my motivations in writing “Fighting over God” was that many people in Canada have no idea of the history of religious conflicts, nor the hard-fought battle for religious freedom in this country.

In addressing religious conflict in Canada, I address three eras, although they are overlapping and related. The first is Roman Catholic/Protestant conflict. The second is exclusion of religious minorities; with the focus on competition between Roman Catholics and Protestants there was little room for Jews , Sikhs and Hindus. The third era of religious conflict is the current one and that is the relationship between secularism and religion.

In the early days of Canada, religious conflict was mainly between Roman Catholics (the French) and Protestants (the English). There was a deep suspicion, bordering on hatred, between the two. Roman Catholics had been guaranteed the right to maintain their religion after the Plains of Abraham. As French government leadership was forced to leave, clergy took their place in leading the Quebecois people and maintaining their culture.

This conflict played itself out in many ways, the best known of which was the Manitoba Schools Crisis. But the crisis in Manitoba spilled over to that new province from events in Quebec and Ontario. Quebec passed a bill settling the Jesuits Estates and engaged the Pope (!) to assist. This offended the rabidly anti-Catholic Orangemen in Ontario. When they failed in getting changes to Catholic education in Ontario, they turned their sights on Manitoba. The ensuing political and religious conflict took years to resolve and determined that Western Canada would be Anglophone and Protestant.

This was not the only conflict. The Orange Order’s major celebration, the Twelfth of July, was a public holiday in all but name and was often a source of rioting with the Roman Catholic Young Greens in Toronto. The Pope declared 1875 a Jubilee Year encouraging pilgrimages. When the archbishop of Toronto announced pilgrimages, they led to rioting as Orange Order members blocked the pilgrims.

These are two examples of how conflict played itself out between Protestants and Roman Catholics. The education system was what historian O.D. Skelton refers to as “the arena where religious gladiators displayed their powers, an occasion for stirring the religious convictions and religious prejudices of thousands and of demonstrating how little either their education or their religion had done to make them tolerant citizens.” The chapter on education is twice as long as any other chapter in the book!

Schools were also a place where children of minority religions were excluded. In Ontario and Quebec, the constitution guaranteed Protestant and Roman Catholic schools so where were Jewish children or Muslim children to be educated. At one time, Jewish children were excluded from both school boards in Montreal, where the largest population of Jews resided. Jewish parents generally sent their children to Protestant schools but they were treated as second class citizens. A legal challenge decided in 1903 spurred an informal agreement to accommodate Jewish children in the Protestant board. But this resulted in another legal challenge that went all the way to British Privy Council. This ultimately led to the formation of a Jewish school board in 1928, 25 years after the original legal challenge.

Mennonites like myself are only too well aware of the thousands of Mennonites that emigrated to Mexico and South America after being denied the right to educate their own children. While the federal government had promised this to entice Mennonites to immigrate to Canada, the provincial government of Manitoba required all children in the province to go to government schools. Other religious minorities like Hutterites and Doukhobors faced similar challenges. This was a serious enough issue for parents that some went to jail and others left the country over it.

The strongest restrictions on religious minorities, however, were experienced by Jehovah’s Witnesses. I need to pause here and note that Witnesses in the past were not as gentle and nice as they are now. It seems inconceivable that Witnesses would face what they did in the last century. But in their early days, the Jehovah’s Witnesses published pamphlets referring to the Pope as the anti-Christ. In 1928, their virulent, anti-Catholic radio broadcasts resulted in the banning of all single-faith radio stations. During the Second World War, Jehovah’s Witnesses became a banned organization. It was illegal to be a Jehovah’s Witness or to possess Watchtower literature. This was particularly challenging on school children who refused to participate in nationalistic exercises on the basis of their religion. They were expelled but their parents had to hide their religion.

In the 1950s, Premier Duplessis in Quebec commenced an all-out campaign against Jehovah’s Witnesses. Over 1500 were arrested. They initially faced charges for blasphemous libel but when the Supreme Court of Canada did not allow that interpretation, they switched to seditious libel. Ultimately, that charge was also disallowed by the Supreme Court. Then Witnesses were charged with violating by-laws that prohibited distribution of literature. Duplessis was ultimately stopped by Frank Roncarelli, whose restaurant Duplessis closed down when he personally ordered the liquor licence not be renewed. The seminal Supreme Court of Canada decision in Roncarelli v. Duplessis established the principle that government officials were subject to the law and could not act on the basis of personal bias in applying the law. Duplessis was personally fined for his involvement.

Even now, Jehovah’s Witnesses face challenges as they refuse blood transfusions. This is accepted for adults but children will be made wards of the state if their parents refuse to consent. While there is no age at which children are permitted to consent to their own medical treatment, generally, mature teenagers are permitted to make their own medical decisions. Girls as young as 13 are permitted to consent to abortion, for example. But girls as old as 16 have been made wards of the state and forced to receive blood transfusions against their will. Whatever you may think of this religious practice, there is something abhorrent about forcing medical treatment on an unwilling person.

I have now covered the first two eras – that of Roman Catholic/Protestant conflict and that of exclusion of minority religions. Jehovah’s Witnesses and Jews lobbied the government to enact protection from discrimination. Hundreds of thousands of people signed a petition started by the Jehovah’s Witnesses. The first Racial Discrimination Act was passed by the Ontario legislature in 1944 at the behest of a Jewish member of the legislature.

John Diefenbaker took up the cause for a national bill of rights in 1947, years before he became Prime Minister. When he was Prime Minister, this was his proudest accomplishment. The Bill of Rights was enacted in 1960.

Because the Bill of Rights was not a constitutional document, it did not appear to give priority to human rights. It was considered “quasi constitutional.” There continued pressure, particularly from minorities and most particularly religious minorities, to establish constitutional protection for human rights.

Pierre Trudeau, who grew up in Quebec during the Duplessis years, was motivated to strengthen human rights protection. He had seen firsthand repression of Jehovah’s Witnesses. Including human rights in the Canadian constitution, however, was not an easy matter. First, our constitution was a multitude of documents passed by the British Parliament. Second, constitutional protection for human rights needed to apply to all levels of government, meaning that the provincial governments must be supportive.

We all know the stories, even myths, surrounding the 1982 adoption of the Charter of Rights and Freedoms. And interpretations under the Charter have not been without controversy. But the Charter brought in a new era of human rights protection.

I will deliberately not tread too much into the current Charter era of religious freedom as Don Hutchinson is addressing that.

But I will look briefly at the types of issues that are dominating religious freedom discourse.

While Canadian society was already moving in this direction, court decisions under the Charter moved Canada more quickly towards secularism. In one of the early cases before the Supreme Court of Canada, the court struck down Sunday closing laws as being coercive. It was coercive to force people to observe the Christian Sabbath. Court decisions related to education removed religious instruction and observances from schools. The result was that religion was privatized, removed from the public realm.

A subsequent case ruled that this made Canada a secular country. But what does “secular” mean? Does it require that religion be excluded from public discourse, as some argue? Does it rather require neutrality towards both religion and non-religion? Or can it encourage religion but not participate in it?

Can religion break out of its privatized box and engage meaningfully with secular society?

Another current hot issue is that of competing rights. The hottest of these issues is the perceived conflict between religious freedom and equality rights for gays and lesbians. Only slightly cooler is the conflict between religious freedom and women’s reproductive rights. Both these issues have garnered heated commentary nationally.

Lastly, religious rights cannot be fully protected unless the communal aspect of religion is recognized. Religion practiced alone is called spirituality. Most religions are practiced in communities such as churches, mosques, temples and synagogues. Because of the community aspect, religions found camps, shelters, schools and universities. There is sometimes tension between individual members of religious communities and the community itself. But more often, those outside the community fail to understand the nature of the community. This can result in limiting religious practices. One current example of this is my university, Trinity Western, which is criticized for having a community covenant adhered to be faculty, staff and students. What people fail to understand is that the university is a community that students choose to participate in.

Canada is a diverse, multi-cultural and multi-religious society. Understanding our past helps us to frame the current religious conflicts as part of our on-going struggle to find ways to get along. The more we can dialogue and seek understanding, the more likely we are to be able to find positive, affirming ways forward.