III. Background and context

[31] Periodisation based on Seljak (2012); see also; Beyer (2006); Beyer (2008); Bramadat (2005); and Grant, (1988) for similar periodisations.

[32] The main forms of religious diversity among early settlers in Canada overwhelmingly involved variations of Christianity. The popular hold of Roman Catholicism in Quebec, along with growing Christian religious diversity with the immigration of Lutherans, German Reformed Christians, Presbyterians, Methodists, Baptists, Congregationalists, Mennonites, Eastern Orthodox, and Irish Roman Catholics over the course of the late 18^th and 19th century, scholars argue, led the early governors of Canada and Ontario to adopt a more strategic and pragmatic approach, in part an effort to deter and dissuade dissent and rebellion. Statistical data on religion since the late 1800s also reveals that Sikhs, Muslims, Buddhists and Hindus, even if not always counted, have also all been present in Canadian society at least since the first census (Beaman & Byer, 2007; Beyer, 2008; see also Bromberg, 2012). Some argue that this pluralism not only forced the early recognition of religious freedoms, but also played a key role in evolving democratic institutions in Canada more generally (see Seljak et al., 2008).

[33] The Supreme Court of Canada traces the first expression of religious freedom in Canada to the 1760s, more specifically the (1763) Treaty of Paris, which, while bringing New France under the control of the British Crown (and by default, the Anglican Church of England), simultaneously “grant[ed] the liberty of the Catholick [sic] religion to the inhabitants of Canada” (Saumur v. City of Quebec and Attorney General, [1953] 2 S.C.R. 299 at 357, cited in Bhabha, 2012).

[34] For more on the idea of “plural establishment,” see, Novak (2006), O’Toole (2006), and Seljak (2007).

[35] David Martin describes these officially recognized churches as functioning as a “shadow establishment” in the century of “Christian Canada” that followed Confederation. The term denotes the “semblance of detachment that the church maintained from the affairs of the state, when in reality, ’separation’ really was mostly a demarcation of responsibilities” (Bramadat et al., 2008). The mainline Christian churches provided the new nation with its most sacred symbols and narratives, guiding its moral vision and cultural orientation. These churches also:

• semi-autonomously ran various public institutions in the new dominion, including education, healthcare and social services
• helped to legislate Christian morality (for example, passing laws protecting the Lord’s Day, imposing restrictions on divorce, marriage, sexual morality, abortion, the sale and consumption of alcohol etc.)
• greatly influenced public policy and culture, partly from the pulpit (Canada had one of the highest church attendance rates in the world from the mid-1800s until the 1960s) (Seljak et al., 2007; Seljak et al., 2008).

[36]Also see Seljak et al. (2007); Seljak (2012).

[37] Biles and Ibrahim, 2005, p. 162 define social capital as “the community resources – the networks of social relations and the culture they generate – to achieve a common goal”. Scholars further distinguish between bridging capital which “connects individuals across community lines” and bonding capital which “strengthens ties within groups” (Kunz, 2009, p. 12; see also Benson (2012b); Buckingham (2012); Jedwab (2008).

[38] This estimate comes from the Canadian Non-profit and Voluntary Sector in Comparative Perspective, which reports on the sector in 37 countries based on size, scope and donations. Among the registered religious charities (in Canada), more than 40% (32,000) are faith-based, which includes places of worship, clubs and other forms of association. (Citizenship and Immigration Canada 2009; citing Hall et al., 2005).

[39] Seljak, 2012, p. 9. According to this “commonsense,” Peter Beyer, 2008, p. 14 further explains:

There were the white, European, Christian and civilized peoples, some of who were admittedly ‘more equal than others’; then there were the unalterable ‘others’ who had to be kept apart or, to the extent deemed possible, ‘civilized’.

[40] Summarizing the key impact and intent of the Indian Act of 1876, Beyer, 2008, p. 14 notes:

By the end of the 19th century, Canadian governments were pursuing a concerted policy whose aim was to assimilate Aboriginal people completely, to dissolve their separate identities both culturally and religiously. The Indian Act of 1876 was the corner stone and provided the blueprint for this policy. It effectively made Aboriginal people wards of the state, proscribed their religious practices, suppressed their distinct and highly varied forms of social and political organization, and attempted to socialize their children in residential schools run by Christian churches and designed to eliminate all distinct aboriginal cultural features, including language.

[41] See the Truth and Reconciliation Commission’s (TRC) history of residential schools in their 2012 publication, They Came for the Children available on the TRC website at www.trc.ca. In a section exploring the role of the churches, this publication explains:

Nineteenth-century missionaries believed their efforts to convert Aboriginal people to Christinaity were part of a worldwide struggle for the salvation of souls…The two most prominent missionary organizations involved with residential schools in Canada in the nineteenth century were the Roman Catholic Oblates of Mary Immaculate and the Church Missionary Society of the Church of England (the Anglican Church)…Methodist and Presbyterian mission societies, based in both Great Britain and the United States, also carried out work in Canada in the nineteenth century, and became involved in the operation of the residential school system…In his 1889 book The Indians: Their Manner and Customs, Methodist missionary John Maclean wrote that while the Canadian government wanted missionaries to “teach the Indians first to work and then to pray,” the missionaries believed that their role was to “Christianize first and then civilize” (2012, pp.13-14).

[42] The term “antisemitic” is used here, as opposed to the alternate spelling of “anti-Semitic”, for reasons explained in a formative (2002-2003) European Union Monitoring Centre on Racism and Xenophobia (EUMC) Report:

The notation “antisemitism” will be given preference to the notation “anti-Semitism”. This allows for the fact that there has been a change from a racist to a culturalist antisemitism, and in this context

helps to avoid the problem of reifying (and thus affirming) the existence of races in general and a “Semitic race” in particular (p.11).

While the term anti-Semitism, in this view, reproduces the false notion of the existence of a “Semitic” race, and, as such, more strictly connotes racist forms of anti-Jewish thinking and behaviour, the term “antisemitism” can encompass new forms of hostility towards Jews or Judaeophobia that may not depend on notions of Jewish people as a “race” (see Section III 3.2.4 for further exploration of evolving forms of antisemitism historically and in the present).

[43] Bromberg, 2012, p. 61. Bromberg goes on to note how “[i]n 1829, the law requiring the oath ‘on my faith as a Christian’ was changed to allow Jews to not take the oath”. “In 1831,” she moreover notes, “a law which granted full equivalent political rights to Jews was passed, a first for the British Empire” (ibid.).

[44] Employment discrimination against Jews was common well into the 50s and 60s. Many institutions had quotas on the number of Jews they would hire, or forbidding their employment altogether (such as the City of Toronto’s police force). In workplaces, and in both public and private facilities, signs commonly stated, “Gentiles Only,” or “No Jews or Dogs Allowed.” Overt discrimination was also happening in education, the military and in housing. For example, it was common for neighbourhood organizations and land developers to band together to form agreements (“racial restrictive covenants”) to not rent or sell housing to members of unwanted races (including Jews), and/or to place such clauses in property deeds to maintain segregated neighbourhoods. Animosity towards Jews was particularly pronounced during economic downturns, such as the Depression of the 1920s and 30s, during which “foreigners” of various kinds were scapegoated. This included Canadian-born Jews, and often drew on rising international antisemitic propaganda, exemplifying the impact of globalization trends before the current era. See Adelman and Simpson (1996); Davies (1992); and Mock (2008).

[45] Liberal Prime Minister, William Lyon Mackenzie King (Canada’s longest-serving Prime Minister) voiced such beliefs in Jewish inferiority, reflecting acceptable norms at the time. A 1943 Gallup poll, for instance, put Jews in third place, below the Japanese and Germans, as the most undesirable immigrants to Canada (Adelman & Simpson, 1996).

[46] See Bromberg (2012) and Patrias and Frager (2001) for more on the key historical role of Jewish Canadians in passing the Ontario Human Rights Code and other anti-discrimination legislation.

[47] The Act required all Chinese immigrants entering Canada to pay a $50 fee, which became known as a head tax. By 1903, the fee had increased to $500. This served, in effect, as a strong deterrent to further Chinese immigration after Chinese labourers built the Canadian Pacific Railway in the late 19th century. While the 1923 Chinese Immigration Act removed the head tax, this Act also stopped all Chinese immigration with few exceptions (such as business people, clergy, educators and students).

[48] This Act prohibited the immigration of persons who “in the opinion of the Minister of the Interior" did not "come from the country of their birth or citizenship by a continuous journey and or through tickets purchased before leaving their country of their birth or nationality.” This, in effect, barred immigration from South Asia since the long journey by boat necessitated a stopover in Japan or Hawaii to refuel and resupply.

[49] See, for instance, Lai, Paper and Paper (2005). Peter Beyer (2008) describes popular and government reactions to the significant growth and ethnic and religious diversification of Canada’s population between 1881 and 1911 as follows:

The dominant Canadian identities could with some reluctance and suspicion accommodate the presence of Russian Doukhobors and eastern European Jews, but not Japanese Buddhists, Chinese Confucians, or Punjabi Sikhs…From the time of the first Chinese Immigration Act of 1885 to the second of 1923, government policy progressively made it more difficult and then virtually impossible for people from above all India, China, and Japan to enter Canada. The dominant attitude was that such people were just too unalterably foreign even to be assimilated (p. 13).

[50] The information about this case is derived from an article by Kevin Plummer, “Historicist: Citizenship and Character,” published in the online journal, Torontoist, on July 16, 2011. Drawing on archival material from, among other sources, an April 3, 1965 Toronto Star article, Plummer relates reported testimony from the original Citizenship proceeding as follows:

[Judge] Leach asked what church they attended. “None,” Ernest replied. Didn’t the Bergsmas believe in God, the dumbfounded judge asked. Ernest paused to consider his answer and then replied, “No.” “Do you know that this is a Christian country?” Leach replied, according to a court transcript quoted in the press. “You must believe in something. The oath (of allegiance) doesn’t mean anything if you don’t believe in God…The things we believe in, in this country, stand for Christian values and the teachings of Jesus Christ.” He added: “Not everybody follows this, but that is what we try to attain in this country, the Christian way of life. I feel you must have some kind of faith, but you don’t seem to believe in anything from what I can gather… As I understand from your evidence, you have no religion at all.”

In the first appeal ruling at the Supreme Court of Ontario on March 17, 1965, Justice Stanley Nelson Schatz upheld this decision.

[51] The oath of allegiance which was required by law of all new citizens read: “I — swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her Heirs and Successors, according to the law, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen so help me God” (Cited in Plummer, 2011).

[52] See Bussey (2012) for poignant example of discrimination against Seventh Day Adventist conscientious objectors during WWII. The persecution, and advocacy efforts, of Jehovah’s Witnesses played a particular key role in advancing freedom of religion laws in Canada (see for instance Bhabha, 2012 for an account of precedent-setting case law in this respect).

[53] Seljak, 2012, p. 9 for instance notes that much of the anti-Catholicism in Protestant Canada before the 1960s was connected to prejudice against French Canadians (the great majority of whom were Catholic), as well as “anti-immigrant sentiment aimed at the Irish, Italians, Germans and other newcomers from Eastern and Southern Europe”. Dominant “White” racial identities of the time were far from inclusive of all European ethnic groups. Canada and Its Provinces (1914-17), a popular and respected history text published in Toronto in 1914, presents Galatians as mentally slow; Italians as devoid of shame; Turks, Armenians, and Syrians as undesirable; Greeks, Macedonians and Bulgarians as liars; Chinese as addicted to opium and gambling; and the arrival of Jews and Negroes as ”entirely unsolicited” (Mclaren, 1990).

[54] Scholars vary in how they explain these transformations in Canadian policy, law and sensibilities. Most acknowledge multiple causal factors at work. These include:

• unintended impacts of state centralization and expansion during WWII, which accelerated secularization processes (differentiation, rationalization of spheres, etc.);
• growing human rights awareness and community activism, mainly in response to the genocidal atrocities committed by Nazi Germany during WWII, but also as inspired by the US Black civil rights and strengthening labour movement;
• to a lesser degree, the growth of diversity in Canada following immigration policy reforms in the late 1960s (see Appendix I charting historical legal, policy and demographic shifts over this era).

The steady increase in the number and kind of ethno-cultural and religious categories reported in Canadian censuses over the last century – ethnic categories jumped from 30 to 232 from 1911 – 2001, and religious categories from 32 to 124 – are just one indication of this demographic transformation (Byer, 2008).

[55] There has been a move away from overt policies of assimilation requiring people to abandon cultural and religious differences to gain equal citizenship. The introduction of policies and legislation protecting minority groups’ ’right to be and remain different’, Seljek et al. argue (2008), reflects a significant transformation from a politics of social hierarchy emphasizing and privileging the rights of political, economic and social elites, towards what Charles Taylor calls a ’politics of universalism’: a new consensus based on ideals of equality and non-discrimination.

This new universalism can be seen in the introduction of anti-discrimination legislation in the inter-war years, and its consolidation after that. Examples are:

• the Ontario Human Rights Code enacted in 1962, after the Bill of Rights first introduced human rights law at the federal level in 1960;
• the lifting of some of the more draconian restrictions on Aboriginal cultural and religious practices in the 1950s and 1960s (granting Aboriginal people with “Indian status” full Canadian citizenship and the right to vote in 1960);
• the introduction of non-discriminatory federal immigration policy in the 1960s, and the state policy of multiculturalism in 1971 (later enacted in 1988), in the context of a greatly diversified and expanded (non-English and French) immigrant population;
• perhaps most significantly, the enshrinement of individual and minority group rights, multiculturalism and religious freedom in the repatriated 1982 Constitution Act’s Charter of Rights and Freedoms.

[56] Signs of this growing separation of church and state, erosion of Christian privilege, and decline of its power to define public morality, post-1960, include:

• liberalizing laws governing sexual morality, marriage, divorce and abortion, beginning with the Trudeau governments (1968-1979, 1980-1984);
• displacing church control and assuming state control over healthcare and social services since the 1960s;
• de-Christianizing Canada’s public schools, especially after the 1982 Canadian Charter of Rights and Freedoms, and increasing public questioning of special government funding of Roman Catholic separate schools in Alberta, Ontario and Saskatchewan;
• overturning the Lord’s Day Act (1906) in 1985 to allow Sunday shopping;
• a series of cases since then, that seek to put religions on an equal footing in the workplace (Bramadat et al., 2008; Seljak et al., 2007).

[57] Summing up such transformative developments, Seljak,et al. (2008) observe: “Christianity no longer enjoys the public power and prestige it once had. Christian churches no longer control the powerful social institutions they once operated hand-in-glove with the various levels of government. To a significant extent, religion in Canada has been privatized.”

[58] Seljak, D., Schmidt, A. & Steward, A. (2008). Secularization and the Separation of Church and State in Canada. Multiculturalism Report # 22 (Unpublished)

[59] There were several key Supreme Court of Canada legal decisions in the 1950s that extended protection from discrimination to various disfavoured religious minorities, such as the Jehovah’s Witnesses, long before the Charter enshrined religious freedom and equality (see Bhabha, 2012 for details on some of the cases). Bhaba argues that human rights tribunals largely followed American civil rights jurisprudence when they incorporated “reasonable accommodation” approaches to resolving workplace disputes in the 1970s. (Ibid.). Bhaba states that this approach was first applied to freedom of religion cases under section 2(a) of the Charter in the seminal R. v. Big M Drug Mart Ltd. case in 1985 ([1985] 1 S.C.R. 295).

[60] Bhabha (2012) cites the recent issue of Muslim congregational prayers in a Toronto-area middle-school cafeteria as one recent example of this new “transformative” versus merely “accommodative” vision of religious freedom. The section below on creed accommodation further traces the legal evolution of this more transformative and systemic approach.