12 to 15 minute read.

Recently, I had the privilege of speaking with a group of parliamentary interns about freedom of religion in Canada. The interns had a two-part request, a summary history and my thoughts on today’s three greatest threats to religious freedom in Canada.

Part one: an overview of the history of religious freedom in Canada, divided into two eras. First, its development from 1867 to 1982, which necessarily involved reference to pre-Confederation recognition. Second, the status of freedom of religion post-1982 following it being referenced as a fundamental freedom in the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982). This part of the conversation is covered in detail in my book, Under Siege: Religious Freedom and the Church in Canada at 150 (1867–2017).

Part one was a good ask in preparation for discussion about part two. Too many today protest violation of their rights and threats to their freedoms without having a credible understanding of those rights and freedoms as recognized in Canada. On more than one occasion the Supreme Court of Canada has found it necessary to remark the U.S. constitutional context (and social media memes) are not Canadian law.

Part two: what I consider to be the three greatest threats to religious freedom in Canada today.

First, I perceive the greatest threat to freedom of religion in Canada is fear. To some degree all three points devolve to this one word, fear. There is an escalating ambiance of fear within and about religion.

Within various and several Canadian religious communities when fear has been permitted to override faith there has been one of two prevalent responses.

One response, a religious community fears those who are not a part of it will not understand it, then will criticize or condemn it for beliefs that are different from the beliefs and opinions held by non-community members. This generates a general fear of others. Community members consciously or sub-consciously decide to treat their religious beliefs and association with their religious community as private, something they will only reluctantly share with people outside the group. Being secretive stimulates a sense of embarrassment or victimization for adherents who perceive those outside the community are societally accepted when open about religious or non-religious beliefs. As a result, our “free society” seems less free. In consequence, Canadians are deprived of opportunity to accept, understand and engage with people who enjoy a diversity of religious beliefs, practices, and motivations that inform key traits of our multicultural citizenry and interactions between neighbours, co-workers, and society generally.

The second response, some members in a religious community are motivated to claim they are being victimized or persecuted, seeking redress through societal power structures or the pursuit of influence over them―some examples of which are: politics (of late it seems public protest overshadows policy proposal efforts); judicial and quasi-judicial settings (threatening or taking action in courts or human rights tribunals); media (looking for attention in traditional, alternative, and social media), etc. In pursuit of their goals, activists may demonstrate militant behaviour (rather than peacefully countercultural) that engenders an image their religious group is aggressive or control-seeking. Societal attitudes toward a religion are frequently informed by the most visible and vocal claimants of the faith. Militant activists’ behaviour may itself generate a fear reaction in those not part of the religious group. This in turn results in similar fear-stimulated behaviour from those outside the religious community directed toward the religious community, such as refusal to engage relationally with members of the identified religion or activism directed against individuals or congregations of the religious community. Those who claim to not fear religion are too often in the forefront of insisting religious people conform to societal expectations or be constrained from equal participation alongside fellow citizens.

When fear is the motivator, behaving badly fuels vitriol on both sides.

The second serious threat to freedom of religion in Canada is government officials’ disregard for constitutionally entrenched guarantees of societal diversity, including freedom of religion. Elected officials and unelected bureaucrats tend to prioritize political preferences over liberal ideals of freedom or constitutionally mandated state accommodation and neutrality concerning religious/non-religious beliefs and related practices. True, not every politician or government employee is a lawyer, has read court decisions outlining constitutional limitations on government action, or has even read the Canadian Charter of Rights and Freedoms. Still, political determinations, whether founded in ideology or polling results, and the desire to have and to hold political power ought not be permitted to overshadow constitutional rights. Ill-advisedly, Canadian politicians and bureaucrats have been sowing fear from parliament to city hall and legislatures to school boards with identifiable religious groups too often a target or caught in the crossfire.

In recent years Canadians have witnessed discrimination toward religious communities by all levels of government. The federal government required support for abortion services on applications for student summer jobs funding in 2018, aware it was a barrier for several religions. Quebec’s 2019 Act respecting the laicity of the state (Bill 21) prohibits wearing clothing/symbols identified with religious beliefs by employees in government funded jobs―clerks, teachers, police, and more. Provincial and territorial governments were inconsistent during Covid-19 public health guidance concerning religious gatherings. School boards nationewide have mandated participation in LGBT Pride month activities knowing this runs contrary to the religious convictions of countless students and parents. Teachers in Edmonton, Alberta and Windsor, Ontario as well as Prime Minister Justin Trudeau were recorded this year demeaning Muslims for participating in protests of compulsory school-related Pride activities.

The failure or refusal of government power brokers to properly consider constitutional rights and freedoms―and when rights conflict to balance how each may best be recognized rather than ranking one right as preferred over another―demonstrates unwillingness to actively seek to understand and accommodate the variety of sincerely held beliefs guaranteed to religious and non-religious Canadians alike under the Charter and other human rights instruments.

Non-religious beliefs and practices have historically shifted with public opinion or activist influence about any number of topics, frequently inciting disrespect or disregard for identifiable religious communities whose adherents embrace a historically consistent set of beliefs and practices that might not align with the preferred opinions of populist culture. The constitution, however, intends and declares protection for both.

Canada’s societal integrity is undermined when government officials fail to consider and be attentive to both constituents with mutable cultural values and citizens who hold immutable religiously informed perspectives.

The third threat to religious freedom in Canada is a developing lack of commitment to consistency in recognition and application of all Charter rights by the legal community, including the judiciary.  Judiciary here includes both quasi-judicial (e.g. human rights tribunals) and judicial (i.e. the courts) adjudicators.

In 1985’s first decision by the Supreme Court of Canada dealing with religious freedom under the Charter, R. v. Big M Drug Mart, the court affirmed the historic jurisprudence on religious freedom. Then, in terms resonant with the Charter, stated:

94. A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct… The essence of the concept of 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 religious belief by worship and practice or by teaching and dissemination…
95. Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint… Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.
96. … The Charter safeguards religious minorities from the threat of “the tyranny of the majority”. [Edited for brevity.]

The Big M decision documented basic principles to anchor judicial understanding of freedom of religion under the Charter. In the decision, the court also noted the state’s obligation to be neutral in its treatment of citizens, not favouring one set of beliefs over another, striking down the federal Lord’s Day Act which had asserted government preference for one religion’s beliefs over other beliefs.

These principles were subsequently applied by the Supreme Court in more than a dozen decisions over the next thirty-plus years. [For more detail see chapters 7 to 16 in Under Siege. For summary form see chapter 8 in my book Church in Society: First Century Citizenship Lessons for Twenty-First Century Christians.]

In 2018 the court made twin decisions that appear to be either an aberration from the Big M context or a dramatic departure from the Big M principles, the Trinity Western University law school (TWU law) cases with the law societies of Ontario and British Columbia.

The TWU law cases arrived at the Supreme Court with widespread expectation the court would apply the precedent of its 2001 decision in Trinity Western University v British Columbia College of Teachers (TWU teachers). In TWU teachers the court applied the Big M principles and decided Canadian society is required by the Charter to accommodate a diversity of institutions, including religion-based post-secondary education that meets educational standards. The court also determined regulation of graduates begins only if and after they join the government authorized regulatory association for their profession.

The TWU law decisions did not apply or overturn the decision in TWU teachers. The majority did not even address the principles or precedent of TWU teachers. As a result, one may interpret TWU law as applicable only to the legal profession. However, Supreme Court decisions are rarely so narrowly isolated in their future consideration. Thus, aspects of the TWU law decisions troublingly suggest potential threats to freedom of religion and other Charter rights.

En route from TWU teachers to TWU law the court made a decision in 2012 that has wrought confusion throughout the judiciary. The 2012 decision in Doré determined appeal courts were to give deference to the decision-maker of first instance, on appeal assessing only whether Charter rights had been considered and a reasonable decision made rather than whether the correct result achieved. The court continues to be criticized for the Doré decision’s failure to require Charter rights have consistent and correct benchmarks for judicial interpretation and application.

In the TWU law cases the governing boards of the law societies of Ontario and B.C. were dealt with as the decision-makers of first instance―the starting point then being their decision to decline approval of the proposed law school (per Doré) rather than their role in regulation of graduates (per TWU teachers)―despite both law societies having agreed the Canadian Federation of Law Societies make the decision on approval of applicants for new law schools and the Federation either making the correct decision or simply reasonable (per Doré) when it approved the TWU law school.

Avoiding the TWU teachers precedent which states the relevant applicable constitutional and legal principles, in order to justify its conclusion in TWU law the majority of the court opted to use the concerning concept of Charter values. Despite a long history of precedential jurisprudence and legislative explanation in regard to understanding and application of human rights protection from government interference as itemized in the Charter, the Supreme Court of Canada opted to creatively and inventively use a category of law and constitutional interpretation it calls “Charter values” in order to apply the Charter’s requirements for government and government authorized regulatory organizations to a private religious institution.

Devised by the Supreme Court in its 1986 decision in the Dolphin Delivery case as a tool to ensure the understanding of law generally would be consistent with constitutional principles, Charter values language has taken on an altered life of its own. As a concept for constitutional interpretation Charter values has become a poorly defined and vague form of parallel judicial tool to the actual constitutional rights of Canadians stated in the Charter. Charter values are supposedly found underlying the understanding of the rights and freedoms guaranteed in the Charter. Like societal values these values may shift with prevailing winds of culture, relinquishing the consistency and certainty―the anchoring as it were―found in application of long-established constitutional and legal principles.

Justices Côté and Brown described Charter values in the following terms in their dissenting opinion in the British Columbia TWU law case:

308. First, Charter “values” — unlike Charter rights, which are the product of constitutional settlement — are unsourced. They are, therefore, entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so. … What is troubling, however, is the imposition of judicially preferred “values” to limit constitutionally protected rights, including the right to hold other values.
309. Secondly, and relatedly, Charter “values”, as stated by the majority, are amorphous and, just as importantly, undefined. [Edited for brevity.]

The dangers inherent in the TWU law decisions are at least threefold.

Decision-makers of first instance considering the right to religious freedom are only required to arrive at a reasonable decision, although it may be incorrect.

Appeals courts are compelled to uphold such decisions rather than apply principles of constitutional interpretation and require a standard of correctness in regard to the rights of Canadian citizens guaranteed under the Charter and other human rights instruments.

The courts, from first instance to final appeal, may avoid principles of constitutional and legal interpretation in favour of applying shifting social and cultural values to constitutional rights and freedoms.

Also disconcerting in the TWU law process was a referendum held by the Law Society of B.C. in which 5,491 (40%) of B.C.’s 13,530 lawyers didn’t find constitutional concerns of sufficient importance to vote, 5,951 cast ballots that ignored constitutional law principles taught in law school (I’m a UBC law grad), and only 2,088 (15%) voted in favour of a religion-based university opening a law school.

Determined application of the three concepts from TWU law and the general disregard for constitutional principles demonstrated by a large segment of practicing lawyers in British Columbia could effectively signal the removal of lawyers and the courts from their role as guardians of the constitution, counterbalance to citizens and governments behaving badly based on ever-changing values.

This final paragraph contains brief thoughts on suggested response to these threats for my religious community. Believe, behave, and be proclaimers of the Gospel. There is biblical admonition to: bear witness for Jesus; honour governing authorities; and, should proclaiming the Gospel be prohibited, be prepared to accept the penalties for continuing to preach the good news of Jesus Christ. In the New Testament there is no provision for anarchy or insurrection by disciples of Jesus; there are many examples of submission to secular authority and employing advocacy when available within social, governing and judicial structures. The advocacy component means we, along with our fellow citizens from other religious and non-religious communities, are encouraged to promote and defend principled understanding and application of the rights and freedoms guaranteed in Canada’s constitutionally declared “free and democratic society.”