Religious freedoms: How will Canada relate to its minority communities
April 18, 201718 April 2017
As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National is featuring opinions by leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ recent conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Howard Kislowicz, an assistant professor at UNB Fredericton Faculty of Law, who shares his views on where litigation of religious freedoms may be headed in the coming years.
CBA National: Why are religious freedoms so difficult to balance against other rights recognized under the Charter?
Howard Kislowicz: Well the main challenge is that the Supreme Court of Canada has said that there’s no hierarchy of rights in the Charter. So there’s no presumption that when an equality right comes into conflict with a religious freedom right that one or the other will win. The lawyers advising clients can’t give necessarily too sound a prediction just based on the nature of the right. Like all constitutional analysis now, context is everything.
N: So where do the tensions lie within religious rights themselves?
HK: First, you have to read the Charter guarantee in conjunction with other mentions or constitutional protections of religious rights in the constitution. The most obvious one is in the 1867 Constitution Act which gave protection to minority religious communities in terms of having their schooling rights protected. What it generally meant was that in Quebec, Protestant schools would get constitutional protection in most of the province, and then in the other provinces, Catholic schools would get protection. So this idea that Canada is Catholic and Protestant in its constituent parts, is in tension with the more universalistic, more non-denominational guarantees of religious freedom, which are supposed to apply to everybody, regardless of whether they’re one of those two founding groups.
The second tension is internal to the debate about religious freedom and in understanding whether religious freedom is an individual right, or whether it has some collective aspect. And the Supreme Court has shown both of those tendencies and there’s a tension in the jurisprudence. It understands religion as being valuable to the individual and as being private in nature rather than public in nature. On the other hand it has recognized that religion has inescapable collective aspects. And I think for many religious adherents, this makes a lot of sense. That there might be individual aspects to the religious practice, but there are collective community oriented aspects as well, whether that means coming together in worship, coming together for educational purposes or coming together in religiously motivated acts of social action.
N: How are these tensions being reflected in the public around secularism today?
HK: So to my mind these tensions are a way of looking back at where we’ve been and where we are. The first question is, how will Canada as a state relate to members of religious minority communities who are not part of the founding compact. So there have been questions about whether Muslim veiling practices can co-exist with other practices of the state. So during the last government for example, it had been the announced policy of the government that a woman wearing a niqab could not swear in a citizenship ceremony. In Quebec, the question is whether can you even work in the public service or even receive public services if your face is covered. Because these are religious practices that are not familiar to the founding religious groups of the country – and given the tension around this origin story that is Catholic and Protestant – the question is how is Canada, as a state, will it relate to those minority communities.
N: So what are you hoping to hear from the courts on these issues?
HK: The question for me, as a legal scholar and researcher, is how are the courts going to contribute to the articulation of a Canadian identity that’s not tethered to a particular religious tradition. We started to see a few steps in that direction in the 2015 case of Mouvement laïque québécois v. Saguenay, where the court articulates what it calls an identity of inclusive neutrality. That is to say we don’t have to necessarily worry every time we see a religious symbol in a public space. But what we have to ensure is that the State is neither favouring nor hindering any particular religious expression. Now, ultimately in that case, that meant for the court that a municipal council in the City of Saguenay could no longer open its meetings with a particular prayer that was preceded by the mayor making the sign of the cross. The court said that this was favouring a Catholic tradition and hindering an atheist member of the municipality who had wanted to attend the municipal council meetings but objected to the continued use of the prayer. So, even when neutrality is inclusive, there are situations in which one side has to win and the other side has to lose, right. Neutrality can’t answer all disputes, particularly where two fundamental rights are in conflict. A really good example of that is the current litigation surrounding Trinity Western University’s proposed law school. So as readers may know, this isn’t the first time Trinity Western University has gone to the Supreme Court. In the 1990s, Trinity Western made a similar argument about its teacher-training program, and in that case Trinity Western was successful. But the nature of the arguments have changed quite a bit and Canada is in quite a different place than it was in the 1990s, when it was still not possible to have a same-sex marriage in Canada. The social tides have turned quite a bit on that question. So that’s a case where somebody has to win and somebody has to lose. Either Trinity Western gets accredited and LGBTQI rights activists across the country are hurt and disappointed and feel that they’ve suffered discrimination, or the Law Society of Upper Canada is successful in denying accreditation to Trinity Western and [advocates] of religious freedoms lose. One of the reasons these questions are so challenging is because people with different worldviews have fundamentally different ways of understanding the way life works. What makes Canada an interesting and valuable place to live is allowing for that pluralism, allowing for those very different views of the world to exist in a single place, to demonstrate the richness of our religious fabric.
This interview was edited and condensed for publication. Photo licensed under Creative Commons by Dougtone