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The following is a pertinent excerpt from the Right Honourable Beverley McLachlin’s essay, “Freedom of Religion and the Rule of Law: A Canadian Perspective” in Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy, edited by Douglas Farrow.
The uniquely Canadian experience of the legal protection of religious conscience is that from the outset – even before the creation of Canada as an autonomous nation – the law has been charged with the responsibility for creating this space. For Canada, religious liberty under the law is not an issue that emerged as the state matured; rather, it is an issue that has been at play since the country’s inception, has been a topic for judicial consideration, and has since been entrenched in our fundamental laws. Canadian law has always been concerned in some manner with freedom of religion, and the courts have, therefore, always been a forum in which these issues have been deliberated.
One can trace the issue of religious liberty in Canada to the articles of capitulation for Quebec and Montreal in 1759 and 1760, respectively. Both documents granted the inhabitants of the cities “the free exercise of the roman religion.” Despite the Crown’s desire to extend the Church of England to the New World, the Treaty of Paris, which formally recognized Britain’s claim to Canada in 1763, included a provision that guaranteed the rights of Roman Catholics to practise their religion in Canada. The British King promised to “give the most express and the most effectual orders that his new Roman Catholic subjects may profess the worship of their religion according to the rights of the Romish church, as far as the laws of Great Britain permit.” This final proviso – “as far as the laws of Great Britain permit” – threatened to eviscerate the guarantee: English penal laws of the time effectively banned Roman Catholicism, including the sacrament of the mass. However a legal opinion of the Attorney and Solicitor Generals issued in 1765 declared that Roman Catholics living in Canada were not subject to the penal laws of England. This exemption guaranteed the freedom to practise a religion not condoned by the state.
The Quebec Act, 1774, gave fuller articulation to this approach to freedom of religion, providing that Roman Catholic residents of Quebec were entitled to the free exercise of religion, while the Crown was simultaneously empowered to encourage the Protestant religion and support the Protestant clergy. An even more expansive concept of religious liberty was set out in an 1851 statute that guaranteed to all Canadians “the free exercise and enjoyment of Religious Profession and Worship, without discrimination or preference.'” This same statute asserted that “the recognition of legal equality among all Religious Denominations is an admitted principle of Colonial Legislation,” that Canada was a province “to which such a principle is peculiarly applicable,” and that this notion of the legal protection of religion is “a fundamental principle of our civil polity.”‘ Ultimately, with Confederation, the British North America Act, 1867, introduced a constitutional guarantee for minority religious schools, a guarantee of continuing legal significance.’ Thus, the Canadian experience of legally recognized religious liberty was forged in the laws of the country.
Douglas Farrow will be presenting at the Freedom of Religion in Education symposium this week at McGill University.
A Pluralism, Religion & Public Policy Symposium
3–5 October 2013
Education is one of the chief interests of families, of religious communities, and of society and the state; it is both a field of cooperation between private and public bodies and, by nature, a primary cultural and political battleground. It has long been a legal battleground as well, particularly where religious issues arise. From the famous 1940 Minersville case in the USA, for example, to the current Quebec case, Loyola v. Courchesne, the courts have been asked to adjudicate the boundaries between family, religion, and the state. The UDHR (art. 26), the Toledo principles, and various international covenants seek to provide guidance in negotiating these boundaries. The purpose of this symposium will be to explore the question of religious freedom in both public and private education.
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