The Interface between Law and Religion in Canada

The books Fighting over God by Janet Epp Buckingham, Freedom of Conscience and Religion by Richard Moon, and Free to Believe: Rethinking Freedom of Conscience and Religion in Canada by Mary Jane Waldron each make a significant contribution to the literature on the interface between law and religion in Canada. Taken together, they offer a wide-ranging overview, and trenchant analysis, of the way in which Canadian law protects and restricts belief-based practices. Each of these books would be accessible to a reader new to the area, not because the approaches are simplistic but because of clear writing style, intelligent organization, and the deft weaving together of various strands of analysis. At the same time, each offers insights and challenges for those of us who have been working in the field for some time. I was delighted to be nudged on occasion to rethink deeply familiar cases. It was also fascinating to see how different thematic approaches led to different emphasis or different groupings of specific topics.

In Fighting over God, Janet Epp Buckingham (2014) organizes conflicts involving religion along three themes: “the fault lines of the French Roman Catholic / British Protestant divide … the position of religious minorities in Canada … [and] the rise of secularism” (4–5). Epp Buckingham illustrates the influence of Roman Catholicism and Protestantism by looking to foundational texts such as the Quebec Act of 1774, which protected the civil law, religion, and language of those living in Quebec, and section 93 of the Constitution Act, 1867, which protects certain rights of separate religious schools as they existed at the time of Confederation. Epp Buckingham notes that prior to the First World War, most Canadians’ sense of identity was located in Protestantism or Catholicism (13). After the Second World War, Canada saw both a shift away from religiously based identity and religiously motivated public policy and the privatization of religion, hastened by the Canadian Charter of Rights and Freedoms. Despite these changes, Epp Buckingham argues that “Canada has never truly had a separation of church and state,” on the grounds that

separate schools are publically funded, religious charities receive government funding to provide services to the vulnerable, the national anthem and the Charter have references to God. Concomitantly, the state regulates charities, including churches, mosques, and synagogues.

(18)

Epp Buckingham applies her thematic approach to specific issues, including, but not limited to, religion in education, freedom of religious speech, intersections between religion and law on the one hand and family life and employment law on the other, and state involvement in the internal affairs of religious institutions. A common thread throughout a number of these chapters is the argument that the move to a more secular sense of national identity and a more neutral relationship between the state and religion has on occasion been experienced as marginalization by religious adherents and communities (202).

In her discussion on education, Epp Buckingham describes how education and religion were historically harnessed in the name of assimilation, referencing both the better known history of church-run Indian residential schools (202) and lesser known accounts of how Doukhobor parents were jailed and children were seized in a struggle over authority to educate (48). She also provides a thorough province-by-province description of the constitutional status of public funding for separate schools, arguing against the Supreme Court’s holding in Adler v. Ontario (1996) that only those separate religious schools fitting within the constitutional promises made at the time of Confederation are entitled to public funding. Instead, Epp Buckingham takes the position that, “for those from minority religions...