The Canadian constitution does not have a formal establishment clause separating church and state as the USA does, so can Canada be considered a secular country? In this presentation, BC Humanist Association Executive Director Ian Bushfield argued that Canada’s unique legal and political history, coupled with a forward-looking Charter of Rights and Freedoms and judiciary, has resulted in more robust protections for the nonreligious and state neutrality than presently exist in America.
Note: This is a transcript from our recent talk and podcast delivered for KASHA. The audio is linked above and the video recordings is here.
[00:00:00] Thank you all for coming. As Nina said, I'm Ian Bushfield and I'm so glad to be here.
[00:00:12] My family happened to be on a vacation here and I said I need to talk to the KASHA group because you're great. I love seeing local groups. And we don't have enough of them in Canada. And so I'm proud of what you've been able to do here for so many years, and to keep it going is such a testament to the hard work of Nina, Darrell, Janice, everyone who else has been involved on the board over the years. So good work to all of you, but I'm not here to talk about you because I don't know enough.
[00:00:38] But before I begin my own talk, I do want to acknowledge my own presence here as an uninvited guest on the territories of the Sylix Okanagan peoples. So my speech today is more than just- I don't do that territorial acknowledgement, just proforma- I do wanna recognize that my speech is based on colonial law. Like I don't know enough about the indigenous history to really dig into that. And much of what I am basing this on is a colonial European British understanding of secularism, which is probably the same one we all have. That doesn't mean it's the correct one.
[00:01:09] And I think there are interesting ways we can develop secularism by having more discussions but I haven't had those yet with indigenous ways of knowing. This is both out of respect for the inherent rights and dignity of indigenous people, which has been denied through centuries obviously of oppression but also because of the diversity of thought within indigenous communities.
[00:01:34] Like I've met indigenous people who are non-religious. But they still want to retain parts of their culture. And so there's things to be reconciled within secularism within there. Because secularism, I do believe is for everyone, as is humanism in many ways. But the humanism I know has a certain tinge in flavor based on my own experience, but that's a much bigger discussion for another time. So I'm acknowledging my own limitations to speak to that.
[00:01:58] I also want to acknowledge that I'm not a lawyer. I haven't gone to law school, as you heard in my bio, I've not taken legal classes aside from I think one on charity law, which was a fun class, but it's not relevant today for the most part. I have studied all the cases I've talked about and have in many ways read many of these cases, more than many lawyers have, because the lawyers I tend to meet are corporate lawyers or other kinds of lawyers who have a business that is not constitutional law, so they don't get to spend as much time reading about religious freedom in Canada, aside from academics who might be able to give a better talk than me.
[00:02:36] But I'm here and I have a nice background, I like to think with the BC Humanist Association and our own work in litigating some of these cases more recently as an intervener, not as like the test case. And so, all of my experience comes with the recognition of the very generous lawyers who've done pro bono work for us, including Wes McMillan at AMLC law down in Vancouver.
[00:03:01] I wanna start my talk though. I'm gonna kind of take you through a bit of history. My kind of premise here, and my thesis is that Canada is a secular country today. It wasn't always, but people kind of look at Canada and they say, we don't have the establishment clause that the US has. The US says there has to be a strict separation of church and state. They're not doing so well now, but that's a very separate talk. Historically, the founding fathers there had a lot of enlightenment to ideals that ours didn't. Ours wanted to just kind of be a quasi British colony that allowed resources to go and serve the empire.
[00:03:37] I mean, we can debate what the history of Canada is, but it was not to further the enlightenment ideals in the same way that the US did. That was not the point of confederation here. In many ways it was to keep America from taking this land. And so Canadian history as a colony is this weird meld though.
[00:03:57] Many British colonies were purely British and therefore they were purely Church of England or Protestant or other colonies were French and they were Catholic or Spanish and they were Catholic. And so they have a very clear single track. Other countries looking around the world have, you know, Shia Muslims or the dominant or Sunni Muslims are the dominant or the Hindus. They're religious countries that we wouldn't necessarily call theocracies, but they're clearly hegemonic in terms of the power structures.
[00:04:23] Canada's history is more complicated because of this competing power struggle between French settlers and British settlers. There was always this tension between Protestants and Catholics in Canada, and that created a kind of unique structure to the foundation of Canada. Now to be clear, Canada was founded on religious premises from both of those.
[00:04:44] They're Christian. Both the British and French relied on religious doctrines of discovery and Terra Nulles which basically said, if there's no one here who's Christian, you can claim that for a European colony. There were people here as we know but they still claimed it because they didn't consider them Christian enough. Both of those are being increasingly denied, but the complex history of Canada is still being disputed to this days. Again, not here to talk about that.
[00:05:10] We all know the broader history. The English eventually won over the French in the disputes. But to make Canada work, the English had to acknowledge that there was a large French colony in this land, in these territories.
[00:05:23] And so concessions were made in the Constitution of 1867, the British North America Act that recognized the rights of minority religious people. Specifically, section 93 of the Constitution says, nothing in any such law shall prejudicially affect the right or privilege with respect to denominational schools at which any class is a person by law of a province at the union.
[00:05:44] In other words, if you had a religious minority school, you were allowed to continue to have religious minority schools in that province. And this is why Alberta, Saskatchewan and Ontario have Catholic school boards as separate, fully funded school boards in this country. Quebec had a fully funded Protestant school board until 1997. That is now a new constitutional amendment that was brought in that says these paragraphs don't apply to Quebec. And that was a constitutional amendment that was actually easy to do because it only required Quebec and the federal government to agree.
[00:06:17] So whenever anyone says it would be really hard to get rid of the Catholic school boards because you need a constitutional amendment, they're lying. It's been done. It was done in 1997 by Quebec, and it was also done by Newfoundland. Newfoundland had seven different school boards representing different religions and regions, and eventually amalgamated them as well I think in 95, I don't have the number in front of me, but through a similar process.
[00:06:40] Because we're in British Columbia, I do want to talk about our own province's history a little bit. We were always different. We were always a special place because of the mountains, because of the distance and just how the province was colonized.
[00:06:52] Many of the people who came to British Columbia were either Americans coming here for gold mining and to get rich in different resource ways, or they were people fleeing religious persecution or other ideals elsewhere in the country. This was the land of the wilderness, it was beyond even the Great West. You had to cross the mountains. So you got a really interesting mix.
[00:07:14] And there's some great history books on irreligion in early colonial BC. One's by Lynne Marks, who's at University of Victoria, I believe, and the other's by Tina Block, who's at Thompson Rivers University that look at the history of irreligion in BC. And BC was always a standout in this country. And a lot of these non-religious people in bc unlike in the East, who were the academics, they were unionists here. They were the coal miners and they were the socialists.
[00:07:40] And that's why they were non-religious. They didn't have like high-minded ideals about it necessarily. They read some Marx and went, well, the bosses are bad and the church is just another boss, so let's just get rid of them all. And I find that kind of cool.
[00:07:54] We also got really weird characters like you may know if you know anything about the history of BC, our second premier's name was Amor de Cosmos. He was a nut. But he pushed back against dogma in many ways. And after he was premier BC he went on to be a member of Parliament for Victoria, I believe.
[00:08:13] And in 1877, just a few years after Confederation, the Parliament was actually holding a debate over whether or not to introduce daily prayers. They didn't have it initially in the House of Commons and Amor de Cosmos was one of the few people to actually stand up and oppose it. There were a few others out there, but he pointed to British Columbia as an example of why you don't need prayers.
[00:08:33] He said BC has one of the best school systems on the continent, a non-sectarian school system, under which the Bible was not allowed to be read in the public schools, lest it should interfere with the prejudice of Catholic or Jews. There was no more necessity to have prayers in this house to do legislation of the country than to have prayers in dry good stores in Toronto to sell goods.
[00:08:51] So Amor de Cosmos was writing the same secular arguments you could make in 2023 about why prayer doesn't need to be done in a multicultural legislative assembly. And what he references there about the school system is super interesting, right? Because when BC School Act was passed in 1872, is one of the first bills in the province to create a school system, it said, and it still says to this day that all schools must be strictly secular and non-sectarian because the founders of BC brought those American Enlightenment ideals in many ways and were having debates in the early years about what kind of province should this be, and they wanted it to be a secular province.
[00:09:26] They recognized the value of that to religious and non-religious people alike, and just the diversity that it was necessary for. Now anyone who is old enough to have attended school in BC prior to the eighties will remember we had Bible readings in the Lord's Prayer in BC schools, despite this section that said it should be strictly secular and non-sectarian.
[00:09:46] And that's because in 1944, the Christian conservatives won the battle and got a line inserted that kind of caveated out that Bible readings in the Lord's Prayer was fine. And so it was a really awkward bit of the school act that said there they should be secular, but do some Bible readings if you want.
[00:10:05] The BC Civil Liberties Association and the BC Humanist Association, others argued against that. The BCCLA started in 1969 and finally got a court case in 1989 to strike that down and BC has had secular schools since. There have been a few other battles, including creationism, that both the BC Civil Liberties Association and Humanists were involved in in the nineties, and we won those because of the Charter, which I'll get to in a little bit.
[00:10:31] Federally though, the pre charter Canada was a Christian nation. It can't really be denied. It was founded by a Catholic and a Protestant country, and many of the MPs were happy to see it that way. That debate over prayer in the House of Commons was about, this is a Christian country and we should recognize that the prayer in the House of Commons is non-denominational. It just refers to God, but it's one that they wanted to come together and they explicitly made sure it was a prayer that would be acceptable to Catholics and Protestants and they didn't think about anyone else.
[00:11:02] In the 1940s, as I mentioned, we had the prayer enter in the BC legislature or in the BC schools. And similarly at the federal level, there was a big push for Christianity. And in the 1949, the federal government introduced the clergy residence deduction. And I referenced this bit of the tax code because the BC Humanist Association did a full report on this called an Extra Burden that looked at this little bit of the tax code, where when you do your income taxes, if you are a member of the clergy, you can write off your housing expenses from your income.
[00:11:31] So say you make $60,000 in a year and you spend $10,000 on your house. Effectively, you now only make $50,000 according to the government, and you are not taxed on the amount of money that it costs to live. This is a huge savings. This ends up costing the Federal Treasury about a hundred million dollars every year today because about 27,000 clergy people qualify for this, and other ministers, they now have broadened it to include more than just clergy men, which was the original one.
[00:11:58] Things started to shift in the 1960s with the Quebec quiet Revolution. Prior to this, most aspects of society in Quebec were run by the Catholic Church healthcare education. Up and down social services were run by the church, and people were starting to get frustrated and dislike that. It kept Quebec as a very backward province in many ways. And with the growing intellectualism led by people including Henry Moregentaler or Pierre Elliott Trudeau, who were in Quebec and some of whom were involved in the Humanist Fellowship of Montreal at the time, one of the founding humanist groups of Canada, pushed back and we saw a rapid societal change in that province to become more secular and anti clerical. That rippled across the country in many ways. I'm not here to talk about the full history of that, but I think that's where we start to see the shift out of those discussions. We start to see the push towards a multicultural as opposed to a bilingual country. This was Pierre Elliot Trudeau's famous push.
[00:12:57] And out of that, we get the Charter of Rights and freedoms officially brought into law in 1982, the patriation of our Constitution. We became a real country finally, that wasn't just governed by the House of Lords and the British Parliament still.
[00:13:10] Charter of Rights and Freedoms contains a bunch of different sections for our purpose, we're concerned solely with Section 2 A, the fundamental freedom of conscience and religion. This is guaranteed to everyone, so the state can't pass laws that infringe your freedom of conscience and religion. It's very nice they put conscience in there, even though the courts have almost never touched on the word conscience, they even include the freedom of religion to include atheists. But I do appreciate that it's broader than just freedom of religion.
[00:13:38] But I think most of you'll know, especially from the title of this talk, the preamble of the Constitution says, whereas Canada is founded upon principles that recognize the supremacy of God and rule of law. And why is that in there? And we don't fully know.
[00:13:51] The initial drafts didn't include that preamble. There was one initial draft that included a different God recognizing principle, but it got discarded. And at one point Pierre Elliot Trudeau actually told MPs I don't think God gives a damn whether he is in the Constitution or not. As far as I can tell the story is basically conservative MPs in the late seventies, early eighties, groups like the Evangelical Fellowship of Canada, who are still around today and a lot of other local churches really pushed to make sure God would be in the constitution in some way. They were afraid that if he wasn't there abortion laws would get struck down, denominational schools would be ripped out of the country and we'd go to a secular hell in a hand basket. They were right. But there God didn't save them.
[00:14:41] What's even fascinating about this is Jean Chretien, who was then Justice Minister to Trudeau and Future Prime Minister, he said the top issue among people who are writing to cabinet about the Constitution and the charter was putting God in it. And so that shows you the strength that they had, especially in the eighties. But as I said, they've largely failed constitutional experts consider the preamble a dead letter, which means it doesn't do anything. And I'll talk about that a little bit more when I get into the Saguenay case a little bit later on.
[00:15:11] We're still good on time. I'll go a little bit faster so I'm not talking about legal cases for like 30 minutes to you. But yeah, in the 2015 Sagueany case justice Gascon said, "The reference to the supremacy of God and the preamble to the Canadian charter cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to consciously profess a theistic faith. The preamble, including its reference to God articulates the political theory on which the charter's protections are based. The reference to the supremacy of God does not limit the scope of freedom of conscience and religion, and does not have the effect of granting a privileged status to theistic religious practices contrary to what the people who wanted to pray in that city did, I do not believe that that the preamble can be used to interpret this freedom this way."
[00:15:53] In other words, he said, it's just some words that don't matter. It says that we should think about the charter in terms of this like vague God, but that God can't affect rights. The rights is what is important in our charter.
[00:16:07] The preamble is kind of like view it a little bit this way, but let's not, mean that it implies Christianity is right, which is a pretty strong actual statement for the court to take because he basically wrote that those law words don't matter and that's good for us . So this was the Supreme Court of Canada, the highest court in 2015.
[00:16:27] So charter in 1982, the first religious case to really hit the court was the Big M Drug Mart case of 1985. As I said, Canada before the charter was a Christian country in many ways. This included Sunday shopping laws. This was mandatory laws or blue laws that said all shops had to close on Sundays and you had to just have your day of rest.
[00:16:48] Alberta had one, Ontario had one. I don't know if BC had one, but many provinces did. Nova Scotia, I think did for quite a while. This one was a Calgary drug store called Big M Drug Mart that wanted to sell goods on a Sunday. And Alberta's Lord's Day Act, which was passed in 1906, forbade them from doing that.
[00:17:06] They nevertheless opened their doors, got ticketed, they appealed and fought their way all the way to the Supreme Court and the Supreme Court of Canada unanimously sided with the store and struck down the law itself. So they said the law violated the freedom of religion as there was no secular basis for the legislation.
[00:17:26] Now this is a really interesting case because you have a store that doesn't have beliefs, right? It's a drug store. It doesn't have a religion or non-religion. It's not in America where they do apparently. But the court didn't want to deal with that. And what they ultimately did is they used a later part of the constitution section 52 of the Constitution, which says any law that is in inconsistent with the provisions of the constitution is of no force and effect.
[00:17:52] So rather than deal with is anyone's rights infringed, they said this law itself doesn't have a valid secular purpose. It's a religious based requirement and it coerces people to do religion things like not shop on a Sunday. And if there's no secular purpose for it can't be justified. So it's trying to force people to be Christian and we can't allow that in Canada as of 1982.
[00:18:16] Justice Dickson wrote the majority opinion there. He said, I just love quoting some of these 'cause they're very good, I apologize for the length of some of these:
[00:18:23] "what may appear good and true to a majoritarian religious group or to the state acting at their behest. May not for religious reasons, be imposed upon citizens who take a contrary view. The charter safeguards religious minorities from the threat of the tyranny of majority, to the extent that it binds all to a sectarian Christian ideal. The Lord's Day Act works to form a coercion inimical to the spirit of the charter and the dignity of all non-Christians. In proclaiming the standard of Christian faith, the act creates a climate hostile to and gives the appearance of discrimination against non-Christian Canadians. It takes religious values rooted in Christian morality, and uses the force of the state, translate them into a positive law binding on believers and non-believers alike." This was the court in 1985, recognizing non-believers exist. " The theological content of the legislation remains a subtle and constant reminder to religious minorities within the country of their difference and alienation from the dominant religious culture."
[00:19:15] And it goes on like that. It was a very good ruling for us. And we could go through a bunch of cases through the nineties, but I think the most notable one eventually comes up in 2004 in a case called Syndicat Northcrest v Amselem because we have freedom of religion put in the charter, but we don't actually know what that is defined as, and the court kind of plays around with it for a while and some of these cases come up and they talk a lot about the individual nature of that. Because the rights of the charter are really viewed through an individual liberal lens that is, you have the right to believe what you want and that can't interfere with so and so.
[00:19:52] This Amselem case was really fascinating because you have. Jewish residents of a Montreal condo building effectively wanting to erect sukkahs on their balconies. This is a structure that's required for orthodox holiday observance where they spend it in it. The manager of the building, and the residents own their condos, is Syndicat Northcrest and said, constructing these violated the bylaws of the building. The residents pointed out that you could put up Christmas decorations without violating the bylaws, and so there seemed to be discrimination here. And the managers sought an injunction to prevent them from doing it again and again in the future.
[00:20:28] The Quebec charter is a little bit different here. Quebec has its own charter of rights. It doesn't really matter to our broad purpose. It still guarantees freedom of religion, but it also protects you from individual against individual discrimination in some cases.
[00:20:42] And that's why it gets played up here, even though the state doesn't really intervene. And there was also this injunction, but that's the admin law side that I could get a lot into, but I'm not going to because it's boring. This decision ultimately comes forward from Justice Iacobucci. He writes for the majority, the first definition of freedom of religion and what religion is in Canadian law. And that is the Amselem test that continues to be in law today.
[00:21:07] So from 1985 to 2004, courts were kind of just guessing what religion meant in our law. And even now the test is as we'll see, fuzzy. Freedom of religion is quote, "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 beliefs by worship and practice, or by teaching and dissemination."
[00:21:32] He didn't define religion, but he said a number of things that you would usually expect to see with religion, because if you ask any academic to define religion, they'll give you a fuzzy definition that kind of varies based on what they're looking at in their own specialties. So there's not even a coherent academic definition of religion.
[00:21:49] I'm not against this, but some of the characteristics he mentioned is a particular and comprehensive system of faith and worship, a belief in divine, superhuman or controlling power. And this is one of the things that has worked against humanists in the past. And or personal conviction or belief that fosters a connection with the divine or with the subject or object of that spiritual faith.
[00:22:08] So his definition of religion and religious freedom doesn't really deal with churches and organizations. It's a very individualized belief. The court has gone on and said that section two a explicitly protects atheists and agnostics. So don't worry, you're still safe. There's always, every once in a while someone throws out a bad argument of like, human rights code protects freedom from discrimination on the basis of religion, but you're an atheist, that's no religion. So we can discriminate against you and they're wrong. It would be nice to explicitly include belief systems in the human rights code, but it's not necessary.
[00:22:40] Iacobucci goes on to give a test to find out if your religious beliefs have been infringed by the state. Because just because you have religious beliefs doesn't mean it matters in court, right? The court only cares if something has happened that it needs to deal with, and so what it's looking for in terms of a constitutional infringement are two steps.
[00:22:57] First, that you sincerely believe in a belief or practice that has a nexus with religion. So you have a sincere belief in something. How do they test what a sincere belief is? I think they basically just ask you, do you sincerely believe it? And for the most part they'll accept that, although they've generally not accepted Pastafarians and Church of the Flying Spaghetti Monster when those cases have gone through lower courts, they say this is a satire and no one sincerely believes a satire. So it is a higher test in some ways than the Americans and even sometimes I think the British law, who have had these cases go forward, because I guess our justices don't have a sense of humor.
[00:23:36] The second step, once they say, all right, you have something that you sincerely believe that is religious, then the impugned measure, whatever the state is trying to do, must interfere with the claimant's ability to act in accordance with his or her religious beliefs in a matter that is more than trivial or insubstantial.
[00:23:52] So it's not just that you believe something, but that the state doing whatever it's gonna do, whether it's passing a law or doing a regulation prevents you from doing your religion. So if the state passes a law that says you can't open church in your basement, but you really believe that you should have Church groups meet with you and you can't afford anything else, you'd have a case that you were being infringed upon.
[00:24:16] Like church groups saying we can't meet because of covid restrictions is an infringement. I think we can all agree that if you can't meet in your church, that's an infringement. Now there's a section one of the charter, which I won't really talk about, talks about balancing, and that we are allowed reasonable restrictions on our freedoms in Canada, and that's where a lot of these cases end up going is, is was it a reasonable restriction on your freedom for what the state did? And in the case of the covid restrictions, the courts said yes, it seemed very reasonable based on the evidence that they had, that closing churches would save lives. But that's not always the case.
[00:24:53] A good counter example was a Sikh student was wearing a kirpan, a ceremonial dagger to school and was banned from that. And he said, well, it's my sincere belief that I should have to wear this kirpan. And the court said, well, what's the countervailing requirement for the school board and the government to do here? And if they talk about safety, well, is there a way that this student can make that in a way that is safe? And there was. And so the state did infringe his religious belief and had to allow that kirpan to be worn, in a way that was acceptable to both.
[00:25:26] What's interesting about this is, first, as I mentioned, it keeps it religion as a deeply personal thing. We were talking about individuals and that the government can pass laws that restrict religion. They just have to do so in a trivial or insubstantial way. So the government can legislate around questions of religion. It's just a matter of scale rather than, you know, black and white.
[00:25:51] So let's jump forward to 2015 and my favorite case the Supreme Court has ever done Mouvement laique Quebecois versus Saguenay the City. To tell you how long the Supreme Court of Canada and the legal process can take, in 2006 this case started, Alain Simoneau, a resident of the city of Saguenay in Quebec, asked the Mayor Jean Tremblay to stop opening every council meeting with a Catholic prayer. He would get up, do a very Catholic prayer, and then cross himself and then begin council sessions. The mayor did not want to do that.
[00:26:24] Mouvement laique Quebecois, MLQ and Simoneau filed a complaint with the Quebec Human Rights Commission, the Commission des droits de la personne et des droits de la jeunesse, and that was filed in 2007. They also asked the city to remove the giant cross and religious symbols that were all around City Hall. Yeah. Very non-secular state. As I mentioned, the quiet revolution happened in Quebec, but it didn't happen equally. It was very much in many ways, I think a more urban kind of thing than necessarily permeated all of society. And there are definitely still pockets, like you see pockets of evangelism and religion everywhere.
[00:27:02] The mayor of Saguenay would pass a bylaw to change the prayer from a Catholic one to a non-denominational one. But he kept doing Christian symbolism throughout this whole time and would harass Simoneau personally during council meetings, allegedly. The case was referred from the commission to the tribunal, who is the body that actually judges it. Just like here in BC we have a human rights commission now again, and a tribunal, the tribunal actually makes the decisions. They ruled in favor of Simoneau in 2008. They ordered that the prayer bylaw is invalid. The mayor should stop praying in chambers. The religious symbols should be removed and semino should be awarded $30,000 for damages.
[00:27:42] The mayor appealed, the Quebec Court of Appeals set aside the ruling and found the prayer was universal, and given the historical context of the city was fine.
[00:27:52] So Simoneau and MLQ appealed to the Supreme Court of Canada. They heard it in 2014 and ultimately ruled in 2015. They brought back in the human rights tribunal ruling unanimously with one justice writing, a concurring reason, basically arguing on technical grounds that we should decide this slightly differently for technical reasons of standards of review, which aren't relevant here, but they all agreed that the prayer was bad and shouldn't have been happening.
[00:28:19] Justice Gascon wrote for the majority, as I mentioned earlier, he said, and he framed it in terms of the state's duty of religious neutrality. They didn't use the word secularism once in this, and they didn't talk about the secular. And they talked about, duty of neutrality, states', duty of religious neutrality. And I think that is an important distinction because this case took place in Quebec. The direct translation for secularism is usually laicite. But that word also has a deep historical meaning both in the past and I guess even present in Quebec and in France, as meaning the kind of anti clerical approach to religion and government that you see today with like the charter of Quebec values and some of those battles where religion shouldn't just peacefully coexist, but should be hidden and the state should push religious symbols out of public life in many ways.
[00:29:09] You keep your religion at home. We don't bring religion to the public square, whereas the English version has been more of a free market of religions and non-religious beliefs. And I think the Supreme Court Canada didn't really wanna weigh in on that debate so much as they just wanted to look at where both sides agree: governments shouldn't pray at and in formal ways like this. And so Gascon writes that "the state must not interfere in religion and beliefs, the states must instead remain neutral in this regard. This neutrality requires the state neither favor nor hinder any particular belief, and the same holds true for non-belief." A pro atheist government is as bad to the Supreme Court as a pro Catholic one. It requires that the state abstain from taking position and thus avoid adhering to a particular belief.
[00:29:57] The Supreme Court, for technical reasons, ultimately didn't decide on the question of religious symbols in Saguenay. They argued basically, I think that there wasn't enough evidence presented. So they said the commission needs to rehear that part of the case and then decide again. Presumably they would've gone for MLQ, but he won the big victory on the prayer.
[00:30:19] Gascon in his decision would go on to recognize the difference between unbelief and true neutrality saying "there is a distinction between unbelief and true neutrality." This is like, is a secular state, just an atheist state. He says, "true neutrality, presupposes abstention, but it does not amount to stand in favor of one view over another. No such interference can be drawn from the state's silence." In other words, if the state isn't professing anything, you can't just say it's an atheist state. It's secular. It's not pushing something.
[00:30:47] Because the city had also moved to this non-denominational prayer and, this decision's really great because it breaks down all these different arguments that have been brought forward, and they're the ones we keep hearing. Whenever someone says, oh, we can open Kelowna city council with a prayer and it doesn't matter because, for example, it's non-denominational, and the Supreme Court here said "true neutrality is concerned not with the strict separation of church and state on questions related to religious thought. The purpose of neutrality is instead to ensure that the state is and appears to be open to all points of view regardless of their spiritual basis. Far from requiring separation, true neutrality requires the state in neither favor nor hinder any religion. And that it abstained from taking any position on this subject. Even if a religious practice engaged by the state is inclusive, it may nevertheless exclude non-believers. Whether it is consistent with the Quebec charter depends not on the extent to which it is inclusive but on its exclusive nature and its effect on the complainant's ability to act in accordance with his or her beliefs."
[00:31:42] So because Alain Simoneau said if they pray to a God, I don't care which God it is, even if it's all Gods, it still excluded me. And that's the argument we can bring to any city council that brings any prayer at the start of its meeting. This is why as the BC Humanist Association, we fight really hard on municipal prayers because it is a very clear ruling and anyone who tells you otherwise is just trying to get away with doing prayers in a municipal council meeting.
[00:32:14] And that's the case that really defines Canada as a secular country in many ways. So the US has a lot of jurisprudence on its establishment clause. But in many ways it doesn't have that, especially now, that clear definition, that state action must be secular in this way.
[00:32:30] We get a couple other decisions that I'll just briefly go through over the last few years.
[00:32:34] One really fascinating one out to BC in 2017 was the Ktunaxa Nation versus British Columbia. This was the first nation in Eastern Kootenays that wanted to prevent ski hill from being built. There was a proposal to build a jumbo ski resort, and the Ktunaxa Nation had opposed it for a number of years. And at one point the nation announced that they had discovered that the Qat'muk mountain was inhabited by the grizzly bear spirit. What makes this actually really fascinating is this was a newly discovered spiritual belief, but the court didn't care about the veracity or the tenure of that belief, they said that is as valid a belief as any other religious belief we got.
[00:33:16] What they did say is the charter doesn't protect the object of your belief. So they said that section 2 A, the majority, is not actually infringed here because the government can build the ski hill and that chases your belief away and that's too bad for you. But you're still allowed to believe in the grizzly bear spirit.
[00:33:38] It was a very weird kind of decision that I've talked to some lawyers and they're like, I don't, I don't know about that one. The dissent or it was a unanimous decision to dismiss the appeal. Two justices or two other justices, Moldaver and Cote also agreed that the ski hill should go ahead, but they went taking this approach where the object of belief isn't protected is problematic for kind of just hollowing out Section 2 A. And I don't actually know where I come down personally on this because it's a weird case with a weird set of beliefs and saying that the object of belief has to be protected, seems problematic, but so does not protecting beliefs that are not in the mold of Judeo-Christian beliefs in many ways like if they're land-based. Nevertheless, that's what the Supreme Court did in that one. And so we've narrowed down what religion is to not include objects of belief, whatever that means. That's not come up again, as far as I know in the courts.
[00:34:36] A couple that I followed closely and I've been involved with Highwood versus Wall, happened in 2018. Randy Wall was disfellowed from the Jehovah's Witnesses, I believe, in Southern Alberta for alleged drunkenness and verbally abusing his wife. Which is not great, but he appealed the process, arguing that there were smears against him and he followed his internal appeals process within the Jehovah's Witnesses to the very end.
[00:34:59] And I think he's convinced that they were just out to get him. And so they made some of it up or something, but he wanted to appeal to the courts to say, can you review our internal decision making process? For procedural fairness, like did they actually gimme a fair hearing? And initially the lower courts in Alberta, including the court of appeal, said there is a breach of natural justice here and we should be able to look at this case and decide whether you had a fair hearing within your church tribunals.
[00:35:26] Ultimately, the Supreme Court of Canada unanimously disagreed saying, for technical reasons, effectively, judicial review doesn't apply. We, the courts have no business peering into private organizations, and this wasn't for religious reasons so much as the Jehovah's Witnesses, that congregation he was part of was unincorporated, private, and there was no contract for them to essentially rule on.
[00:35:50] It's kind of a disappointing decision in the end for me because it would be nice to see that and I know some here would, people who leave religion should have the ability to still have rights and still be able to challenge those processes. And like a minor hockey association, like if you're expelled from that, what is your recourse? And maybe it's nothing, and maybe it's just a private club that you've left and that's what it is. But in Randy Wall's case, he alleges that he was, his disfellowship wasn't just simply they kicked him out of church, but they shunned him locally and he lost all his business. And so it can have deep effects on the individual.
[00:36:27] A case we got involved in was the Law Society of British Columbia versus Trinity Western University. This is the famous case of the Christian Evangelical University down in Langley trying to open a law school. They had a policy of banning same sex couples effectively from their institution by only recognizing heterosexual couples and sex inside heterosexual marriage. That wound its way through the courts, we intervened at the BC Court of Appeal and at the Supreme Court of Canada thanks to pro bono counsel. We argued that as an organization, as an institution, Trinity Western doesn't have beliefs. It is a school. It is a bunch of bricks and pieces of paper, like legal documents. How can it say that its rights to discriminate and its beliefs in the biblical worldview are being discriminated against when they're a school and not like, Individual pastors, based on what I've said, is the Canadian approach to religious freedom, which is the individual.
[00:37:30] One justice actually bought that justice Malcolm Rowe in his concurrence with the majority, which is his way of saying I agree, but for different reasons, said that no Trinity Western as a university should not be subject to section 2a rights. And this policy they had is compelling non-Christians to either go there or because there's a finite number of law spots or to behave as Christians.
[00:37:57] The majority ultimately said, there's a marginal, a small infringement of the religious freedom of the community of Trinity Western University. So not the organization, but whatever the community is. Sometimes the court likes to use fuzzy words to try to get away from the deep logic that we'd all hope they do. But the majority in that case did decide that the harm to the queer community was much greater than the inconvenience of having to accept gay students to Trinity Western. And so they sided with the law society. A couple other justices disagreed for different ways. But that was a pretty prominent case that really put religion up against LGBT rights.
[00:38:41] And that was most notable as well, because Trinity Western University in 2001 won a very similar case when they tried to open a college of teachers. And they said basically all the same arguments. There's finite number of teaching spots, but we're a religious institution and we don't want to include LGBT students in our faulty or in our classes. But the Supreme Court at that time didn't see the harm as real. And so societal shifts in terms of same-sex marriage and greater acceptance really helped change that battle in many ways.
[00:39:14] Since that decision, Trinity Western University has dropped its community covenant and now doesn't require students to say that they will abstain from same sex relations. That's pretty good. They still don't have a law school though. So the, the one thing TWU still has is a staff agreement. . And that is even more strict and it says you must believe in a biblical hell and things. And I remember there was an individual who spoke out against that years ago who was like, I'm Christian, but the kind of hell they believe in is not what I believe in.
[00:39:44] The next time we were at the Supreme Court of Canada was just back in 2021. This was a really weird case. The Ethiopian Orthodox Tewahedo Church of Canada, St. Mary Cathedral versus Teshome Aga. And we intervened as on the side of the more devout people. So in this case, five members of the church were complaining about heresy within their church. They were upset the church wasn't expelling people who weren't doctrinal enough and ultimately they annoyed their church enough that the church expelled these five people who then went back and sued the church for expelling them against the bylaws of the association. And they said, you didn't do a proper process to get us out, so our recourse is to sue you, which would seem reasonable, right?
[00:40:30] If an organization doesn't follow its bylaws, you should be able to sue them for not following their bylaws or else what do the bylaws even mean? Because many would consider that to be an a kind of contract. And once again, this is like the Wall case where we're trying to figure out can the court look inside how processes of an organization are being run.
[00:40:49] And so the BC Humanist Association intervenes and argues that the religious nature of this church shouldn't shield whether or not this case goes forward, right? It shouldn't matter whether this is a church or a minor hockey association. Bylaws are bylaws and you should treat them all the same.
[00:41:04] Ultimately, the court did decide these are not justiciable issues, and so the expelled members, they just don't get to be part of their club, and that's too bad for them. The court can't solve their dispute, but there was no question on the religion in there. The court didn't even touch those issues, which was a win.
[00:41:22] Although ultimately, like on the personal level, I would've hoped there's some like ability to look at are groups that have a set of policies following them or what are they even worth? And I think in this, and the Wall case, both had issues where their incorporation status was up in the air. And so it wasn't necessarily clear that they were sueable under like the societies act as you could sue the BC Humanist Association or KASHA if you were expelled, please don't.
[00:41:52] I will talk about one more case that's upcoming. We've been involved in a couple others, but they ultimately didn't go to human rights tribunals, thankfully. The big one that's coming up involves the congregations of Grand Forks and Coldstream Jehovah's Witnesses. This is Vaboulos et al versus Information and Privacy Commissioner of British Columbia. In this case, two ex Jehovah's Witnesses wanted records held by those former congregations. This is one of the rights you have in BC under the Privacy Act is to say, I know you have information on me, what information do you have? Will you delete it? You can ask that of any organization. Almost political parties I think, are exempted because political parties pass the law.
[00:42:33] The Jehovah's Witnesses refused to provide the information saying these include confidential religious communications and therefore are protected under Section 2 A.
[00:42:42] The. Applicants, the ex Jehovah's Witnesses, appeal to the office of the Information of Privacy Commissioner for a ruling on whether or not the congregations would have to give up the records. And this included deliberations relating to their excommunication or their leaving. So it's not just simply like who they are, date of birth and that kind of thing but internal discussions about these individuals, which I would wanna see 'cause that sounds juicy. The Jehovah's Witnesses have since filed for judicial review basically asking the courts to decide whether the Office of Information Privacy Commissioner made a mistake in deciding whether or not these records can be reviewed.
[00:43:20] And basically the process that will happen is if the Office the Privacy Commissioner is allowed to go ahead, they get the records from the congregations and decide if there's anything in there that should not be released. But the Jehovah's Witnesses are arguing, even letting that person outside the church see it would violate their religious freedom.
[00:43:42] So the question that this really raises right is what is the shroud of secrecy that religions can maintain? And we know that many have used this in many cases to cover up abuse and scandals. The Catholic church is well documented to for doing this, Jehovah's Witnesses and many others have documented cases of covering up their dirty secrets. And so this is a really important case. I'm hopeful about how we can go in there. We are, the BC Humanist Association has been granted leave to intervene and a pretty broad one so we can argue pretty much whatever we want. I won't talk about what we are gonna argue 'cause we haven't submitted our actual factum yet, but that will be done in a couple weeks and we'll be in hearings in court in this September, actually making our arguments before the justice, which will be pretty fun. Not me, our counsel, who is much more apt at this.
[00:44:33] So I just wanna close off by kind of just summing up where we've gone through.
[00:44:37] So, as I said, Canada was never like an overt theocracy, and we weren't even like a hegemonic country on one religious viewpoint. We had this dualism, at very least between the Protestant and Catholic. That allowed a sort of non-sectarian approach. I remember at the University of Alberta, our founding documents highlighted the non-sectarian nature of our institution. And in many ways that at the time just meant, well, you're either Catholic or Protestant, but you could, you could be either.
[00:45:06] But it's evolved, at least I would say, especially with the charter, to really mean multicultural including non-religious people. Nevertheless, we still have that deeply Christian heritage to this country. And so our laws, regulations, and culture are permeated with that hegemony and those symbols and those practices, whether it's prayers in the legislature and the parliament, and the reason those aren't being fought against is, or the reason we can't easily strike those down is parliamentary privilege.
[00:45:39] That doesn't extend to municipal level or even just the giant cross outside Montreal, or the holidays are Christmas and Easter and not Diwali and Vaisakhi or whatever else, or anything secular, like human light.
[00:45:59] Also, despite the efforts by Christian conservatives in the eighties, to put God into the preamble the courts have built up a strong conception of religious neutrality in Canada, rooted in that multicultural history, that freedom of religion we enjoy today is deeply individualized.
[00:46:14] The courts have avoided deciding whether or not organizations can have religion. I cited one justice who was writing a standalone opinion on the Trinity Western case that organizations can't have religion. There was also a religious schools case, I believe in Quebec or Ontario that said organizations can have religion, but they were in a dissent. So we don't have strong case law either way. Basically the courts want to avoid a tough question if they can. So they will always try and decide a question on easier grounds.
[00:46:42] There are some other aspects that are out of the court's reach as well. This includes, as I mentioned, parliamentary privilege of parliamentary prayers, as well as the Catholic school boards in Alberta, Saskatchewan, Ontario, because those are written into the constitution itself.
[00:46:55] There have been some novel charter arguments trying to chip away at that funding. But for the most part, the courts have really refused to bite on those. And it's a political battle to end the funding to religious schools in those three provinces, as it was in Quebec and Newfoundland. I don't know enough about those battles to know why they were ultimately won other than just pure administrative ease of managing one kind of school board instead of two competing ones in every district.
[00:47:18] Nevertheless, the courts are very slow vehicle. As you can see, it can take a decade for a case to go from someone mad to someone has a victory at the Supreme court of Canada, and it can cost hundreds of thousands of dollars. Even if you have pro bono counsel, you often require expert witnesses and other information disbursements, and it takes a very long time.
[00:47:37] So that's my pitch. That's the story. Please give money to the BC Humanist Association so we can keep going to the courts and fighting for a secular future.