A Brief History of Secularism in Canada

July 1, 1867 British North America Act

The British North America Act, 1867 (also referred to as the Constitution Act, 1867) comes into effect after having been passed by the British Parliament. It creates the Dominion of Canada, laying out the structure of government and the division of powers.

The statutes also include Section 93, Laws respecting Education, which affirms, “Rights and Privileges with respect to denominational schools,” allowing for public taxpayer support of separate Roman Catholic and Protestant School systems. Education is also defined as under the jurisdiction of the Provincial Legislatures, which has allowed for amendments to Section 93.

1891 Charities

The British House of Lords, by ruling in Special Commissioner Of Income Tax v. Pemsel, develops a common law test for charitable purposes. The ruling effectively creates four possible purposes for charitable designation:

the relief of poverty

the advancement of education

the advancement of religion

other purposes beneficial to the community as a whole that the courts have identified as charitable

The Canadian Revenue Agency uses these common law rules for deciding on the granting of charity status to Canadian non-profit organizations. The decision in Special Commissioner Of Income Tax v. Pemsel was in turn based on the preamble of the Statute of Elizabeth of 1601, which provided a list of charitable purposes recognized at that time in history.

These are the legal documents which allow missionary and evangelical activity to be considered charitable by law, and grant tax incentives and tax-deductible donations to be offered merely for religious advancement.

1908 “O Canada”

Building on English and French national hymns that had been sung since as far back as 1880, Mr. Justice Robert Stanley Weir, a lawyer and Recorder of the City of Montreal, drafts what would become the most popular version of the lyrics of our national anthem “O Canada.”

O Canada! Our home and native land!

True patriot love thou dost in us command.

We see thee rising fair, dear land,

The True North, strong and free;

And stand on guard, O Canada,

We stand on guard for thee.

O Canada, glorious and free,

O Canada! We stand on guard for thee.

O Canada! We stand on guard for thee.

The first verse (shown above), as well as the second and third verses, contained no reference to God, though the fourth was a theistic prayer (albeit not specific to any particular religion):

Ruler supreme, who hearest humble prayer,

Hold our Dominion in thy loving care;

Help us to find, O God, in thee

A lasting, rich reward,

As waiting for the better Day,

We ever stand on guard.

The official words would be altered many times before being finalized in the National Anthem Act of July 1, 1980. The official version replaces the first “O Canada” of the chorus with “God keep our land”, and entrenches the replacement of the original “Thou dost in us command” with the gender-specific “In all thy sons command”. Since 2011, there have been several proposals to change “In all thy sons” to the more inclusive “In all of us”. Understandably, people in favour of public secularism have followed this up by suggesting that this would also be an excellent opportunity to also remove the reference to God.

August 10, 1960: Bill of Rights

The Canadian Bill of Rights is enacted by Prime Minister John Diefenbaker’s government and is the earliest enactment of federal human rights law in the country. The legislation was influenced by the 1947 Saskatchewan Bill of Rights, which covered fundamental freedoms and equality rights. The notion of a bill of rights was largely popularized by Jehovah’s Witnesses who presented a petition to Parliament in 1949 following attempts by the Quebec government to suppress the group in violation of freedom of speech, religion and association.

The Canadian Bill of Rights guarantees the right to life, liberty and security of the person, freedom of speech and religion, and equality rights. While considered quasi-constitutional given its introduction via an ordinary Act of the Parliament of Canada, most of its provisions were later migrated into the Charter of Rights and Freedoms.

1977: The Canadian Human Rights Act

The Canadian Human Rights Act is passed by the Parliament of Canada to ensure equal opportunity to victims of discrimination based on a series of protected grounds, including religion.

1982: The Constitution Act

In the early 1980s, Prime Minister Pierre Trudeau began the process of repatriation of the Constitution of Canada, including the creation of a charter of rights and an amending formula. The Constitution Act, 1982 (Schedule B of the Canada Act 1982), passed by the Parliament of Canada on April 17, amends the British North America Act while repatriating the Constitution of Canada. The first 35 sections of the Act contain the Canadian Charter of Rights and Freedoms. The Charter provides for a series of political and civil rights with jurisdiction over the policies and actions of all levels of government. The Charter significantly enlarged the scope of judicial review, providing judges with greater powers to rule on cases of Charter right violations. Many court cases would follow related to the separation of religion and state.

In 1998, the Supreme Court of Canada identified four “supporting principles and rules” that are included as unwritten elements of the very fabric of Canadian law: federalism, democracy, constitutionalism and the rule of law, and respect for minorities.

The Supremacy of God

The Canadian Charter of Rights and Freedoms opens with the following preamble:

“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law,”

Legislative preambles are generally recognized as containing no force of law, and many legal scholars have pointed out the incoherence of such a premise and its contradiction with the Charter’s well articulated freedoms of religion and conscience. Law Professor Lorne Sossin has noted:

the reference in the Preamble of the Charter to the “supremacy of God” represents the actual term in the Charter about which the [Supreme] Court has said the least. The supremacy of God… is difficult to conceive as a justiciable concept… the supremacy of God has not been the subject of judicial elaboration. Not even the most basic questions about its place and purpose in the Charter have been addressed.

Theologian William Klassen has said:

to mention God with a capital letter in the preamble to the Charter and then go on to say that the Charter provides a fundamental freedom of conscience and religion, is a contradiction which even a theologian, to say nothing of all the lawyers, must surely recognize… The cause of religion is never advanced by putting God’s name on a document, in a national anthem, on coins, or generally in the public sphere.

Supreme Court Justice Wilson, in R. v. Morgentaler, hinted that the supremacy of God stands in conflict with a free and democratic society, noting that while she was “not unmindful of the fact that the Charter opens with an affirmation that ‘Canada is founded upon principles that recognize the supremacy of God,’”, she was “also mindful that the values entrenched in the Charter are those which characterize a free and democratic society.” The underlying assumption seems to be that the supremacy of God stands in opposition to freedom and democracy.

As an interesting historical footnote, history Professor George Egerton has said “the constitutional proposals for an entrenched charter generated by Trudeau and his advisors contained no religious or divine referent.” In fact, Trudeau’s personal views were expressed in the Globe and Mail on April 25, 1981. Trudeau admitted he found it “strange, so long after the Middle Ages that some politicians felt obliged to mention God in a constitution which is, after all, a secular and not a spiritual document.” Law professor Lorne Sossin, in reviewing what he calls the “inglorious origins” of the God clause, noted that “its inclusion was advocated by religious groups and linked by those groups with a particular conservative social agenda. This conservative agenda also had political overtones, as those who supported the amendment justified it as a bulwark against Soviet Union style atheistic tendencies.”

The Evangelical Fellowship of Canada petitioned Prime Minister Trudeau to include a reference to God in the Charter, arguing that “the acknowledgment of one Supreme God to whom we as a nation are answerable gives ground for legislation bearing on all matters human. To omit any such reference only leaves the door open for substitution of less worthy grounds – utilitarianism, naturalism, secularism, etc….” The “supremacy of God” clause was added as an amendment to the Charter’s preamble by Conservative M.P. Jake Epp. Trudeau supported it, although he privately told the Liberal Caucus:“I don’t think God gives a damn whether he’s in the constitution or not.”

Fundamental Freedoms

The Charter provides for the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

In a series of court precedents, freedom of conscience and religion has been interpreted to include protection for atheists, agnostics and secular humanists, as well as freedom to doubt and disbelief.

April 24, 1985 Lord’s Day

The Supreme Court of Canada strikes down the Lord’s Day Act in R. v. Big M Drug Mart Ltd., ruling that prohibiting business from opening on Sundays was an unconstitutional violation of section 2 of the Canadian Charter of Rights and Freedoms since there was no true secular basis for the legislation, which served only to establish a state religious-based requirement. The courts interpreted freedom of religion to include a prohibition on imposing religious requirements.

September 23, 1988 Public prayers in school

In Zylberberg v. Sudbury Board of Education, the Ontario Court of Appeal ends the practice of reciting prayers in public schools, amending the Education Act accordingly. The Courts found that reciting the prayer, and reading from the Christian Bible, as some schools were doing, imposes Christian observances on non-Christian students

1991 Religious arbitration

Ontario passes the Arbitration Act, which allows for religious law in civil law arbitrations.

January 14, 1998 Separate Schools Abolished in Newfoundland

Term 17 of the Terms of Union of Newfoundland with Canada are amended by the Constitution Amendment, 1998 (Newfoundland Act) to disestablish public support to the Roman Catholic school system in favour of providing courses in religion that are not specific to a religious denomination.

September 23, 1999 Prayers in City Council Meetings in Ontario

In Freitag v. Penetanguishene, the Ontario Court of Appeal ruled that town council led public recitations of the Lord’s Prayer violates the Canadian Charter of Rights and Freedoms, Section 2(a) the right to freedom of conscience and religion. The court interpreted religious freedom to include “freedom to practice your religion of choice, freedom from direct or indirect pressure to act contrary to your beliefs, and freedom from pressure to conform with a religious majority.” In addition, the Court found that “the purpose of reciting the Lord’s Prayer was to impose a Christian moral tone on council meetings. This practice pressured non-believers to conform with the majority.”

October 18, 1999 Quebec ends public support for religious separate schools

The Quebec National Assembly passes Constitutional Amendment, 1999 (Quebec), which amends the Constitution Act, 1867by adding to Section 93 the line

93A. Paragraphs (1) to (4) of section 93 do not apply to Quebec.

This removes public support from faith-based school systems in favour of establishing schools organized along linguistic lines.

2004 Sharia Law is proposed in Ontario

The Islamic Institute of Civil Justice begins lobbying for the creation of Sharia tribunals for Muslims who wish to utilize Sharia courts for family arbitration purposes. In response, Marion Boyd, Ontario New Democratic Party MPP, releases a study recommending the continued use of the Ontario Arbitration Act, with certain provisions and amendments.

September 12, 2005 Sharia Courts are Dismissed for Ontario

Ontario Premier Dalton McGuinty ends religious arbitration, ruling out the setup of Sharia courts in Ontario, declaring there shall be “one law for all Ontarians.”

February 2013 Public Prayers in Saskatchewan

Saskatchewan Human Rights Commission rules there is enough evidence to proceed in the case of a complaint lodged against the Mayor of Saskatoon for participation in a public prayer.

2013-2014

Quebec Government launches a controversial secular charter.

Check back for further updates and references as CFI Canada continues to update the Secular History of Canada.

Do you have facts and information to add, please send us your comments and references and we may update this article.

Suggested Reading From the CFI Canada Library

1. The Encyclopedia of Unbelief

2. The Canadian Revolution: From Deference to Defiance, Peter C. Newman