Canada
Canada is a federal parliamentary democracy, extending north into the Arctic Ocean, and sharing the world’s longest land border with the United States. Despite what should be strong constitutional protections for freedom of thought and expression, significant religious privileges are in force, both nationally and in several of its ten provinces and three territories.
In 2019, over two-thirds (68%) of the population in Canada reported having a religious affiliation. The majority of the population are Christian (63.3%); representing 26.3% of the population, the non-religious are the second largest group. Other groups include Muslims (3.7%), Hindus (1.7%), Buddhists (1.4%) , Sikh (1.4%), Jewish (1%), and other religious and spiritual traditions not specified represent a further 1.2% of the population. In its long-form census, completed every 10 years, Statistics Canada asks Canadians what is their religion “even if no longer practising.” This has likely had the effect of creating an inflated impression of religious adherence and practice in Canada as, when asked whether they practise a religion or faith, only 23% of Canadians said they participated in religious activities more than once per month.1https://www150.statcan.gc.ca/n1/pub/11-627-m/11-627-m2021079-eng.htm
| Constitution and government | Education and children’s rights | Family, community, society, religious courts and tribunals | Freedom of expression advocacy of humanist values |
|---|---|---|---|
Constitution and government
The Charter of Rights and Freedoms,2https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/ part of the Canadian Constitution, protects freedom of thought, conscience and religion, as well as the right to the freedoms of expression, association and assembly.
Rulings by the Supreme Court of Canada have established that Canadian governments have a “duty of religious neutrality” and in context of the multicultural nature of the country should not use secularism to exclude religion from the public sphere.3https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2a.html
The symbolic supremacy of God
The recognition of the supremacy of God is included in the preamble of the Charter of Rights and Freedoms following the passage of the Constitution Act 19824https://laws-lois.justice.gc.ca/eng/Const/page-12.html#h-39 (“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”). The French version of the national anthem references carrying a sword or a cross. God is also present in the English version (“God keep our land glorious and free!”). In February 2018 the national anthem was amended in order to make it gender-neutral. Unfortunately the necessity of religious neutrality for an inclusive anthem escaped the legislators.
While these references to divinity are symbolic, and are not used to justify discrimination as such, the preamble to the Constitution was deployed as an argument from city lawyers in Saguenay (see below) for allowing governments to endorse prayer or religion as part of public office. In April 2015, the Supreme Court of Canada ruled against prayers at municipal councils. This was a significant victory for Mouvement Laïque Québécois (MLQ) and several Humanist groups which supported the MLQ. The judgement also represented the first jurisprudence which attempts to define the contours of religious neutrality in Canada. It specifically recognizes that the rights of the non-religious must be included when talking about religious rights.5documentcloud.org/documents/1875528-mouvement-laique-quebecois-v-saguenay.html; montreal.ctvnews.ca/supreme-court-hears-saguenay-council-prayers-case-1.2052696
In 1985, the Supreme Court of Canada (Crown v. Big M Drugs) said that “freedom of religion” in section 2 of the Charter of Rights and Freedoms included the right to “freedom from religion.”6https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/43/index.do Despite this, freedom from religion is denied when the religious, official lyrics of O Canada (National Anthem Act, 1980) are played over the P.A. system in schools and when teachers ask students to memorize the religious, official lyrics in French class.
Provincial privileges
Debatable use of the notwithstanding clause
The Canadian Charter of Rights and Freedoms also includes a “notwithstanding clause.” Any provincial government or the federal government can invoke this clause to overrule a court ruling for five years, at which point the clause can be renewed. The clause was used by the government of Alberta in 2000 to maintain an opposite-sex definition of marriage, a use that was later deemed ultra vires (beyond their legal power). The government of Saskatchewan used it in 2017 to permit non-Catholic students to attend publicly-funded Catholic schools (see “Education” below).7cbc.ca/news/canada/saskatchewan/sask-notwithstanding-catholic-1.4093835
Unwarranted precedence of prelates
Also in Quebec, provincial and municipal government authorities offer direct subsidies to religious organisations. The typical reasoning provided being that it helps the local economy or that buildings are of patrimonial value8https://www.canada.ca/en/office-infrastructure/news/2016/06/nearly-53-million-for-a-major-upgrade-of-saint-joseph-s-oratory.html; https://www.cbc.ca/news/canada/montreal/quebec-religious-heritage-funding-1.5236410
Discriminatory regulation of charities
Charities in Canada are regulated by the Income Tax Act. The Act fails to provide a definition for what constitutes a charity. Instead, common law is used to determine what is deemed to be a charitable purpose. This includes “the advancement of religion”.9https://www.canada.ca/en/revenue-agency/services/charities-giving/charities/registering-charitable-qualified-donee-status/apply-become-registered-charity/establishing/what-charitable.html There is no equivalent for atheist or humanist groups. Courts and the CRA have interpreted religion in this context to require “an element of theistic worship”, instead of enlarging the reference to include ‘religion or belief’ for example.10https://www.canada.ca/en/revenue-agency/services/charities-giving/charities/registering-charitable-qualified-donee-status/applying-charitable-registration/charitable-purposes/advancement-religion.html Most humanist organizations in Canada therefore register as educational or human rights charities. They report facing greater scrutiny on their activities than religious organizations.
According to the Centre for Enquiry Canada,11https://centreforinquiry.ca/wp-content/uploads/2021/04/introduction-to-cost-of-religion-2021-.pdf
“The boundary between religious charities and other charities is not always clear. Some charities organizing under “advancement of religion” have strayed from their religious origins (such as the YMCA). Other active religious orders offer social programs, such as foodbanks, that would fit under other categories of charities, in addition to their work advancing religion. Many charitable organizations in other categories are run by faith groups. While their programs are typically available to everyone, they may restrict services as a result of the tenets of their religion.”
Charitable status allows organizations to receive tax exemptions as well as government subsidies, and makes it possible for them to issue charitable tax receipts to encourage donations.12http://sectorsource.ca/managing-organization/starting-organization/implications-becoming-charity The Centre for Inquiry Canada estimates that Canadian governments – be they federal, provincial or municipal – provide approximately CAD$1 billion (approx. US$735.5 million) annually in subsidies to charities registered under the advancement of religion category.13https://centreforinquiry.ca/wp-content/uploads/2021/04/CoR-government-transfers.pdf
Human rights protections
Every province and the federal government has a Human Rights Act that protects Canadians from discrimination in employment, housing, accommodation and services. Most of these acts include “religion” and this generally protects atheists from being coerced to practice a religion. However, in a Quebec case, the Human Rights Commission ruled that the protection did not extend to protect a humanist group as humanism is not a religion.14bchumanist.ca/marriage_across_canada#quebec
Ontario’s Human Rights Act includes “creed”, which the Ontario Human Rights Commission has explicitly said does include the non-religious.15ohrc.on.ca/en/policy-preventing-discrimination-based-creed
Quebec formally becomes a “secular state”
In June 2019, the Quebec government made Quebec a formally “secular” state through its much publicized Bill 21. Its institutions may no longer favour any religion or religion over non-belief. Simultaneously, it took the unprecedented step in Canada to restrict the dress codes of some civil servants, mostly teachers in primary and secondary schools and civil servants in positions of authority. During their hours of service they may no longer wear religious signs. This measure is applicable only to new hires after March 2019. This measure was widely supported in Quebec (more than 60% of the population, and the organization Humanists in Quebec), though many others in Canada and beyond considered it an unacceptable restriction of individual freedom of religion. The debate and differences in opinion may be said to reflect the split between Aglophone secularism and Francophone laïcité. In Quebec, the negative experience of mixing religion and politics is keenly felt, and any attempt by religious groups to use the power of the state, consciously or unconsciously, is met with immediate opposition.16www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2019C12A.PDF
Following this move, the crucifix in the Quebec parliament and in the various Courts of Justice in Quebec were removed.17https://assnat.qc.ca/en/actualites-salle-presse/communiques/CommuniquePresse-5459.html
Education and children’s rights
Education is a provincial, rather than federal, responsibility in Canada and most provinces provide at least partial financial support for religious schools.18https://www.state.gov/reports/2022-report-on-international-religious-freedom/canada/
Colonization through education
Historically, the Government of Canada worked with four churches to establish residential schools across the country to “Christianize” indigenous peoples across the country. A Truth and Reconciliation Commission into residential schools declared this practice a form of “cultural genocide” in 2015.19http://nctr.ca/reports.php The Government of Canada formally apologized for these schools in 2008 (and to those specifically in Newfoundland and Labrador in 2017) and all four churches have apologized.20https://www.cbc.ca/news/canada/edmonton/edmonton-pope-alberta-apology-1.6530947
Public funding of religious schools
According to the US State Department,21https://www.state.gov/reports/2022-report-on-international-religious-freedom/canada/
“Catholic and Protestant schools in Ontario, Alberta, and Saskatchewan retain the federal constitutionally protected right to public funding they gained when those provinces joined the federation. Other provinces either had no legally recognized denominational schools that qualified for such protection at the time of federation or accession, or they subsequently secured a federal constitutional amendment allowing them to terminate religious education funding rights and introduce an exclusively secular publicly funded education system. Federal statutory protection for Catholic and Protestant publicly funded minority education exists in the Yukon, Nunavut, and Northwest Territories, which do not have provincial status.”
Constitutional protection for funding of religious schools does not extend to schools run by other religious groups. However, British Columbia, Alberta, Saskatchewan, Manitoba, and Quebec offer partial funding to religious schools of any faith that meet provincial scholastic criteria.22https://www.state.gov/reports/2022-report-on-international-religious-freedom/canada/
Separate Catholic Schools
Certain provinces, maintain separate Catholic school boards. Catholic schools are able to discriminate in hiring staff and in student admissions. Students or parents are typically asked to provide baptismal certificates prior to admission. Teachers are required to be “practicing Catholics” and must provide a “faith formation plan and baptism certificate.” 23https://www.cdsbeo.on.ca/policies/B8-1_Admission_of_Students.pdf
Other Catholic schools routinely encourage students to take part in pro-life protests.24https://www.cbc.ca/news/canada/london/mom-furious-students-making-anti-abortion-posters-london-1.6426019; https://edmontonjournal.com/news/local-news/edmonton-catholic-parents-upset-over-message-from-school-inviting-families-to-abortion-protest
Multiple initiatives are currently challenging the public funding of Catholic schools.25oneschoolsystem.org In November 2022, when the Ontario Supreme Court dismissed a case arguing that public funding of Ontario Catholic schools violated section 15(1) of the Canadian Charter of Rights and Freedoms by granting religious privilege.26https://www.canlii.org/en/on/onsc/doc/2022/2022onsc6651/2022onsc6651.html
In 2017, a Saskatchewan court ruled that the province’s practice of allowing non-Catholic students to attend Catholic schools was unconstitutional. In essence, the court ruled the constitution only permits the state to fund minority faith schools for members of that faith. To fund non-minority faith students violates the state’s duty of religious neutrality and equality rights under the Charter. The court ruled that all non-Catholics must be transferred to public schools by 30 June 2018. The provincial government plans to appeal the ruling and has invoked the notwithstanding clause to maintain the status quo.27leaderpost.com/news/local-news/long-running-theodore-court-case-decides-non-catholic-students-wont-be-funded-to-attend-catholic-schools
Other religious programs in schools
In Alberta, the public school system operates a number of religious-based “alternative programs”. The number of these programs has ballooned in recent years and includes numerous Protestant Christian, Jewish and Islamic programs. 28epsb.ca/programs/faith-based/; pallisersd.ab.ca/schools/faith-based-alternative-programs
Section 58 of the Alberta Education Act also permits “religious and patriotic instruction.” This permits school boards to “prescribe religious instruction” or “religious exercises” to public school students. Parents must provide a signed, written request to exclude their children from this instruction, at which point the student will either “leave the classroom” or not take part in the instruction.29https://www.alberta.ca/education-guide-education-act
Section 580.1 of the Alberta School Act requires parent’s receive written notice for “subject matter that deals primarily and explicitly with religion or human sexuality.” This section was added as part of a compromise with evangelical parents in the province who wanted the option to pull their students from classes they objected to.
Upholding secular education in British Columbia
Unique until recently among the provinces, British Columbia’s School Act30https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96412_00 requires all public schools to be “strictly secular and non-sectarian” (Section 76). The Supreme Court of Canada ruled in 2002 that this section meant school board trustees could not impose religious values by refusing to allow pro-LGBTI+ materials in the classroom.31https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2030/index.do
Family, community and society
According to the Centre for Inquiry Canada,32https://centreforinquiry.ca/wp-content/uploads/2021/04/introduction-to-cost-of-religion-2021-.pdf
“Canada has many hospitals, universities, private schools, and social service organizations which are run by religious organizations. Often the name of the institution indicates the religious order that directs it (such as Montreal’s Jewish General Hospital, British Columbia’s Trinity Western University, and Catholic Family Services). These charities do not fall under the advancement of religion category. They are usually publicly funded, charitable organizations and generally provide services to people from all faith groups; however, they may require their users to agree to edicts set out by their religion or they may limit the services they provide to align with their beliefs.”
Faith based hospitals, conscientious objections
The first hospitals and healthcare facilities in Canada were established by Catholic and Protestant missionaries. Following the spread of socialized medicine in the mid-twentieth century, many of these facilities are now funded by provincial governments, even though they retain religious leadership. These hospitals, care homes and other institutions provide healthcare services without discrimination on the basis of faith but many, notably Catholic-run facilities, may refuse to provide abortion (legal in Canada), tubal-ligations, vasectomies, and birth control medications and methods under certain circumstances.33https://www.ctvnews.ca/health/abortion-accessibility-in-canada-the-catholic-hospital-conflict-1.5911306
In respect of medical assistance in dying (legal in Canada), these facilities will not allow the end-of-life procedure nor will they allow applications to be completed on their property, or the involvement of their employees in any way. Their statutory requirement to provide effective referral to those who will consult on and provide medical assistance in dying services is being legally challenged.
The environment for secular and non-religious people entering these quasi-faith-based hospitals has them being exposed to religious imagery, bibles and approaches by clergy. These may not be in the best interests of their treatment and recovery.34https://thewalrus.ca/catholic-hospitals/
Though it may be possible for those in major centres to choose to avoid these quasi-faith-based institutions, patients in much of Canada will face serious travel hardship to obtain standard health care that does not discriminate against them.35https://www.ctvnews.ca/health/abortion-accessibility-in-canada-the-catholic-hospital-conflict-1.5911306
Numerous religious groups are also arguing for the right for doctors, pharmacists and other healthcare providers to claim conscientious objections to providing services that violate their faith (generally abortions and medical assistance in dying). These rules vary by province and can create difficulties for patients in remote rural communities from accessing health care.36https://chco.ca/en/chsos-strategic-plan/
Addictions treatment
Many addictions treatment facilities in the country, including some paid for by provincial healthcare systems, rely on faith-based 12-Step programs. People are routinely required to attend these and follow up with Alcoholics Anonymous (AA) by employers, health insurers or as part of a court order. Unlike in the USA, there is no jurisprudence on the constitutionality of these requirements. In 2016, the BC Human Rights Tribunal agreed to consider a complaint by an atheist who lost his job after refusing to attend AA.37http://www.bchumanist.ca/human_rights_complaint_over_religion_in_aa_to_proceed In 2017, the Toronto-area umbrella for AA settled a complaint over whether it had to admit agnostic AA groups.38https://www.theglobeandmail.com/news/national/organizing-body-of-alcoholics-anonymous-in-gta-opens-doors-to-secular-groups/article33920196/
Solemnization of marriage
Regulating who may perform a marriage is provincial jurisdiction in Canada. Every province permits religious clergy to solemnize a marriage but only Ontario has recognized Humanist officiants.39https://data.ontario.ca/dataset/registered-marriage-officiants/resource/e010f610-c3d6-4f88-849b-6f8c11e98d9c This inconsistency inherently constitutes a discriminatory practice that fails to recognize freedom of religion or belief as a fundamental human right for all. Most provinces offer a civil marriage option but those positions are generally tightly controlled by the government. Humanists Canada is currently working across all provinces to redress the issue.
When the Association humaniste du Quebec applied to their government to perform marriages in 2011, they were denied. They subsequently launched a human rights complaint with the Commission des droits de la personne but were unsuccessful. The Commission ruled in 2016 that since Humanism is not a religion, the Association cannot claim protection from discrimination based on religion.
In British Columbia, the BC Humanist Association (BCHA) was denied an application to register as a religious organization to perform marriages in 2012. The BCHA filed a freedom of information request in 2016 and showed that Zen Buddhists, Wiccans and Scientologists have been registered by the government. The BCHA continues to petition the Government of BC and is considering a constitutional challenge.40bchumanist.ca/the_case_for_humanist_marriage_in_bc; https://www.bchumanist.ca/humanist_marriage
Freedom of expression, advocacy of humanist values
Section 2(b) of the Charter of Rights and Freedoms protects the right to freedom of expression.41https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2b.html According to the Canadian Civil Liberties Association,42https://ccla.org/our-work/fundamental-freedoms/freedom-of-expression/
“Restrictions on freedom of expression come in many forms including Criminal Code and Human Rights provisions limiting hate speech, municipal by-laws that regulate signage or where protests may take place, civil defamation (libel) actions, and restrictions placed on press freedoms. With more and more communication taking place online, government restrictions on access to the internet and the content and filtering policies of private companies also place limits on free expression.”
“Blasphemy” repealed
In December 2018, Section 296 of the Criminal Code that criminalized “Blasphemous Libel” was repealed following years of campaigning led by Canadian humanists.
“Religion” as an exemption to anti-hatred legislation
Section C319 of the Criminal Code43https://laws-lois.justice.gc.ca/eng/acts/C-46/index.html makes the public incitement of hatred of identifiable groups an offence punishable by an imprisonment for a term not exceeding two years. However, subsection (3)(b) if the same law exempts such hate speech from prosecution “if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text”. Other defences include that the statement was true, or “if on reasonable grounds he believed them to be true” and in the public interest.44https://laws-lois.justice.gc.ca/eng/acts/C-46/page-42.html#h-121176
In 2002-2004 an amendment proposed by NDP MP Svend Robinson failed to pass (Bill C-250).45carters.ca/pub/bulletin/church/2004/chchlb02.htm A 2017 Parliamentary e-Petition calling for the repeal of this exemption has received over 1400 signatures.46https://petitions.ourcommons.ca/en/Petition/Details?Petition=e-763
A petition to the Federal Parliament (e763) demanded the abrogation of exception C319(3)b. However it was rejected by the government on the basis that:47petitions.ourcommons.ca/en/Petition/Details?Petition=e-763
In R. v. Keegstra, [1990] 3 SCR 697, the Supreme Court of Canada examined these defences. The Court said that the three defences which include elements of good faith or honest belief–namely, paragraphs 319(3)(b), (c) and (d) –seemed to negate the mens rea or mental fault requirement for the offence, for only rarely would a person who intends to promote hatred be acting in good faith or upon honest belief. The Court also said that the defences found in subsection 319(3) reflect a commitment to the idea that an individual’s freedom of expression will not be curtailed in borderline cases.
Humanist groups have expressed dissatisfaction with this answer which is now 29 years old and continue to request a change of this section of the C319 law.
Highlighted cases
Failure of religious schools to provide a proper education
In October 2014 a former Hassidic Jew, Yohanan Lowen, living in Quebec, sued the schools and authorities whom he claims deprived him of a proper education, and therefore the capacity to work in a professional job. He sued for $1.2 million two Hasidic schools in Boisbriand, near Montreal (Yeshiva Beth Yuheda and the Rabbinical College Oir Hachaim D’Tash), the Quebec Government, the Seigneurie-des-Mille-Îles School Board and the Direction of the Youth Protection (DPJ), which, according to his suit, were negligent with regard to the dire situation in those religious schools while he was a pupil. The two named schools, according to the formal notice, failed to conform to the provincial mandatory curriculum, choosing to offer instead a program centred on the Torah. Thus, Mr Lowen “was not able to benefit from the free, mandatory, education expected from the laws ruling the Quebec province”. Mr Lowen’s complaint alleged he was not properly taught English or French because of this religious program, hence his difficulties to find a job as an adult.48http://rightswatch.ca/2017/10/13/former-hasidic-jews-sue-province-of-quebec-for-lack-of-quality-education/
In February 2020, Lowen and his wife’s case went to court.49https://www.cbc.ca/news/canada/montreal/yohanen-lowen-hasidic-quebec-lawsuit-1.5456205; https://www.cbc.ca/news/canada/montreal/yohanen-lowen-hasidic-quebec-lawsuit-1.5037629 In December 2020, A Quebec Superior Court judge ruled against Lowen, opting not to issue a declaratory judgement against the province that would have forced the government to take additional steps to oversee children attending religious schools. The judge concluded that the problems outlined by the case had already been addressed by a 2017 law that provides the government with greater powers to monitor children in religious schools. The law was subsequently strengthened in 2019 to require that students attending religious schools learn the same subjects in the same year as their peers in the public school system and that they take part in mandated provincial exams.50https://www.cbc.ca/news/canada/montreal/yohanen-lowen-hasidic-quebec-lawsuit-1.5826920
Failure of constitutional challenge regarding religious discrimination in school system
Efforts to counter religious discrimination in Canada have recently faltered due to the existing legal framework. In November 2022, the Ontario Superior Court rejected a case contending that state-funding of Ontario Catholic schools contravenes section 15(1) of the Canadian Charter of Rights and Freedoms by offering religious favouritism. Justice Meyers maintained the Canadian Supreme Court’s past ruling: Ontario’s Catholic minority has a historic right to separate school education with full, fair funding. This decision upholds systemic religious bias rooted in Canada’s founding constitution.51https://www.canlii.org/en/on/onsc/doc/2022/2022onsc6651/2022onsc6651.html; https://www.catholicregister.org/item/35144-ontario-court-sides-with-catholic-schools-over-public-funding-challenge; https://www.thepeterboroughexaminer.com/news/hamilton-region/hamilton-teacher-s-bid-to-abolish-funding-for-ontario-catholic-schools-fails/article_7ab9e99c-47aa-5996-9a59-04b3365387e8.html
References
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