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Not Written in Stone

 | 
Daniel J. Elazar
, 
Michael Brown
, 
Ira Robinson

Part I: The Setting

‘Do Justice to Us!’ Jews and the Constitution of Canada

Lorraine Eisenstat Weinrib

Texte intégral

Introduction

  • 1 A.M.C. Waterman, “The Lord’s Day in a Secular Society: A Historical Comment on the Canadian Lord’s (...)
  • 2 Ibid.
  • 3 Sunday Observance Report, pp. 58-59. Bowman v. Secular Society, Limited (1917) A.C. 406 departed f (...)

1In 1906, the tiny Jewish community in Canada asked national legislators for the opportunity to be “good citizens.”1 Parliament had legislation under consideration to mandate Sunday Sabbath observance. Jews pleaded for a policy flexible enough to allow them to keep their own Sabbath without disadvantage. Simple words expressed the essence of the request: ‘Do justice to us’ according to the standards of other civilized, Christian countries.2 This plea for justice, equal citizenship, and civilized standards proved futile. “Alien immigrants,” came the reply, could not enjoy the benefits of their new country without being subject to the rules that, as a Christian community, Canada saw fit to lay down.3

2In the years since this cold and ungenerous response, a massive transformation has taken place in Canada’s constitutional order. The country has now amended its Constitution to incorporate the very attributes of justice for which the Jewish community pleaded some eighty years earlier. In 1906, however, legislatures acting within their allotted jurisdiction were subject to no overarching laws, bound by no substantive principles, and constrained by no guarantees of individual or collective rights. There was no recourse to the courts. By 1985, the Supreme Court of Canada could easily invalidate the legislation produced by the 1906 debate as a breach of constitutional rights. This transformation, viewed against the background of the Jewish community’s unsuccessful plea for ‘justice’ in the political forum in 1906, is the subject of this paper.

  • 4 See L.E. Weinrib, “The Religious Clauses: Reading the Lesson,” Supreme Court Law Review 8 (1986): (...)

3In the early twentieth century, the Canadian constitutional order possessed none of the touchstones to which Americans could turn in attempting to secure freedom of religion and its non-establishment. There was no foundational, revolutionary, written constitution committed to the creation or recognition of a Canadian ‘people’ or ‘nation’ or to citizenship. More specifically, there was no formal rejection of establishment, no benchmark value of separation of church and state, no strong idea of equality of religions, and no acceptance of the equal status of non-believers. (Indeed, the Canadian Constitution still requires governments to aid religion in some ways, and Canadian legislatures have chosen to support religious life in other ways, as well.)4 On the other hand, because Canada remained in a quasi-colonial relationship within the British Empire, it developed ideas of religious toleration. In addition, demographic diversity inhibited the creation of a common identity. Thus, unlike other countries which tended to absorb and privilege (and some would say, debase) the symbols, ceremonies, and practices of the religion of the majority, Canada did not cultivate a new nationality with its own ‘civil religion.’

4Canada has had its share of controversies involving religious minorities. Each episode has exerted pressure on its self-understanding as a nation. The trend has been to supplant a historical understanding that promoted the well-being of the early Protestant and Catholic population with a more pluralist and secular approach. The new dispensation offers inclusion and affirmation to Canada’s increasingly diverse population and to the original inhabitants of British North America, the First Nations.

5Although liberal democracy presupposes freedom of individual conscience and thought, democratic governments often fail to respect the religious convictions and ways of life of members of minority religions. Majority rule automatically accommodates the majority’s religious values and stipulations to the point that legislators often remain unaware of the phenomenon. Not only do they fail to register the cogency of claims to well-being put forward by those whose lives are organized around divergent religious practices, they regard these as extraordinary. This reaction is a result of the majority’s religious values constituting both the basic moral framework and, by extension, the terms of social ordering. It should not be surprising, therefore, that the minority’s beliefs and practices appear inadequate, inferior, primitive, illegitimate, foreign, and even threatening. This dynamic is intensified when the majority religion maintains a negative attitude to a specific minority religion, not merely as different and inferior, but as a negation of what is deeply understood to be divinely ordained. And while the openness of the political process makes it possible for minorities to seek to change public opinion, the success of small, albeit strongly committed, minorities is often limited.

  • 5 See D.J. Doyle, “Religious Freedom in Canada,” Journal of Church and State 26 (1984): 413-35; Will (...)
  • 6 See I.A. Hunter, “The Origin, Development and Interpretation of Human Rights Legislation,” in The (...)

6Being largely the product of political consensus, the legal system is often as conservative as its political masters. But opposing pressures can be brought to bear. The claims of politically powerless religious groups often turn up in courts of law as resistance to enforcement of regulatory or penal laws or as challenges to discriminatory rules.5 A legal system built upon the sovereignty of the legislature leaves judges ill equipped to offer much relief. The public conscience frequently registers the merits of the claims, nonetheless. Over time, a more expansive commitment to individual freedom and equality can emerge from a handful of unconnected, unsuccessful claims. In 1982, such a pattern contributed to extensive constitutional change with the adoption of the Canadian Charter of Rights and Freedoms.6

7The Jewish experience during this transition is noteworthy because, until recently, Jews constituted Canada’s largest non-Christian minority. The treatment of Jewish claims over the years provides a case study by which to measure the development of religious tolerance and equality. Jewish sensitivities, beliefs, and practices are sufficiently distinctive to clash with a wide range of legal standards that reflect, promote, or privilege norms based on Christianity. In contrast to the Jehovah’s Witnesses, for example, who have raised a limited number of issues of religious freedom, and these mostly in times of repression, Jewish religious practice creates a variety of conflicts in relatively liberal contexts. Christian assumptions of superiority over Judaism have induced public authorities in Canada – as in many countries with overwhelmingly Christian populations – to hesitate to take what, from the Jewish vantage point, appear to be small steps to accommodate a different, but fully legitimate, way of life. Historical patterns of antisemitic thinking, moreover, have often worked to transform relatively minor accommodations into perceived threats to the moral, social, and economic order.

8The scourge of antisemitism has contributed to acute Jewish sensitivity to subtle, as well as blatant, forms of discrimination in both private dealings and public policy. As a result, Canadian Jewish organizations, like their counterparts elsewhere, have worked over the years for a broad range of legal and constitutional changes. To their credit, these organizations have not seen their goal in parochial terms. They have made impressive efforts to have the desired standards of freedom and equality extended to other beleaguered and less fortunate minorities. There is no doubt that Canada’s constitutional transformation has been good for Canadian Jews. In large measure, however, the transformation reflects the wider appeal of the constitutional principles long advocated by the Jewish community as indispensable components of liberal democracy.

Nineteenth-Century Beginnings

9In the new Dominion of Canada in 1867, religious diversity meant diversity among Christian denominations. For more than a century afterwards, public policy tended to ignore the concerns of the small non-Christian population. The Canadian Constitution had to undergo considerable change before it could provide wider protection from state disadvantage or preferences based on religion. This transformation was caused by the increasing diversity of the Canadian population after the Second World War and the domestic affirmation of a commitment to human rights at the international level in the postwar world. The Jewish community made a distinguished contribution to this change, and for Jews, as well as other religious minorities, the result has been fuller engagement with Canadian society. One can appreciate the revolutionary quality of the change by recalling the roots onto which postwar values were grafted.

  • 7 For the pre-Confederation background, see D.J. Doyle, “Religious Freedom,” pp. 414-17.
  • 8 P.B. Waite, The Life and Times of Confederation, 1864-1867 (Toronto: University of Toronto Press, (...)

10The Constitution Act, legislated by the United Kingdom in 1867, established Canada as a Dominion with a constitution “similar in principle” to that of Britain. Canada acquired a parliamentary system in which legislatures were supreme, and it inherited British common law protection of individual freedom and inviolability. What was new, however, was a federal system designed to alleviate the difficulties experienced by the French Catholic and English Protestant populations in sharing a common political space.7 To acccomplish that goal, legislative jurisdiction was divided between a national government and multiple provincial governments. What Canada needed and what federalism facilitated was a political system that separated the French and English to the extent possible, while at the same time realizing the anticipated economic potential and defence advantages of a large country rich in natural resources.8

  • 9 The Constitution Act, 1867 is the name, since 1982, of the British North America Act, 1867, U.K., (...)
  • 10 Constitution Act, 1867, s. 133.
  • 11 S. 93. The importance of these guarantees is revealed by the provision of unusual enforcement mech (...)
  • 12 To a great extent, for the provinces of New Brunswick, Nova Scotia, and Prince Edward Island, the (...)

11The challenge posed by diverse ethnicities, religions, and languages was thus a foundational concern for the new Canadian Constitutional order. The Constitution Act, 1867 addressed this diversity in a number of ways.9 Of prime importance was the creation of the province of Quebec, which allowed the French Catholic population to function as a majority within a sub-unit of a nation with a Protestant majority. In addition, the French and English languages were given specific protections in the political process, in the courts at the federal level, and in the new province of Quebec.10 The Act also provided constitutional protection of existing legal rights to minority religious education in the newly created provinces (Protestants in Quebec, Catholics elsewhere).11 Out of respect for the religious diversity of the population – and unlike England itself – the new nation did not establish any church at the national or provincial level.12

  • 13 See P.B. Waite, ed., The Confederation Debates in the Province of Canada, 1865 (Toronto: McClellan (...)

12Under Canadian federalism, matters most relevant to social life fell exclusively to provincial jurisdiction, as did charitable institutions and the solemnization of marriage. Much of the substance of religious life was left to the churches or, if taken up in state regulation, to the provinces. With the exception of the education rights of the ‘official’ religious minority, the expectation was that the interlocking minority arrangements would work as a political check on the majority in religious matters. In other words, the Protestant majority in all provinces except Quebec would safeguard the position of the Protestant minority in Quebec, while the Catholic majority in Quebec would serve this function for the Catholic minority in Ontario and elsewhere.13 The Act made no provision for non-Christian religious communities or for nonbelievers.

  • 14 See A.G. Ontario v. Hamilton Street Railway Company, [1903] A.C. 524 (invalidating Ontario legisla (...)

13The Constitution Act, 1867 then, neither established a state church nor provided assurance of separation of church and state. For decades, the provinces assumed responsibility for the moral framework of daily life, including observance of Sunday as the Sabbath. The Judicial Committee of the British Privy Council, then Canada’s highest appellate court, upset this understanding in an unexpected ruling in 1903. It determined that the regulation of morality in its sectarian manifestations fell not to the provinces but to the federal government.14 That decision set in motion an intense political battle for a new Sunday observance statute for the whole country. It also created the opportunity for public reflection on the place of Jews within Canadian society.

  • 15 For the view that it was Rev. J.G. Shearer, a Presbyterian minister, acting as founder and first G (...)
  • 16 Sunday Observance Report, p. 43. This was the characterization of the purpose of the Bill by the M (...)

14Canada’s Parliament took responsibility for Sunday observance legislation somewhat reluctantly. Nonetheless, its deliberations on the Lord’s Day Act, 1906 a federal bill to replace the invalidated provincial laws, made abundantly clear that concern for religious diversity did not extend beyond the Christian religion.15 The bill contained a variety of prohibitions against Sunday economic activity (retail sale, ordinary work, or business) as well as amusements and recreation (excursions, games for prizes, public amusement places that charged admissions). The undeniable purpose was to promote Sunday observance as a Christian holy day of rest, precluding not only ordinary economic activity but also the “pursuit of pleasure.”16 This statute was not conceived as secular day-of-rest legislation for Canadian workers, a type of enactment that came later.

  • 17 The much smaller Seventh Day Adventist Church had proposed a wider exemption. Sunday Observance Re (...)
  • 18 The exemption clause as proposed read:
    Notwithstanding anything herein contained whoever conscienti (...)

15The Jewish community sought a restricted statutory exemption from the new federal law. The aim was to permit its members to observe their own Sabbath rest from work on Friday night and Saturday and to escape the requirement of observing the Christian Sabbath as well.17 The proposal was to permit Sunday work by those who observed Saturday as a day of rest subject to two conditions: no disturbance of the Sunday observance of others and no opening of places of business to the public.18 The intention was to facilitate observance of the Jewish Sabbath without any negative impact on Christian Sunday observance.

16The Jewish community submission took the form of a plea for justice. Its major argument was to stress the ground common to the general prohibition, which it did not oppose, and the proposed exemption. Both Christians and Jews observed one day of rest in seven based on religious belief, a pattern established by the Divine law given to the Jewish people. Also shared was the need to earn a living for which a six-day work week was necessary. The imposition of a statutory prohibition against Sunday work, when added to observance of the Saturday Sabbath, would take Jewish workers below a subsistence level and result in increased poverty, perhaps rendering some Jews a burden on the general community. On the other hand, the exemption would facilitate both religious observance and economic self-sufficiency, while causing no diminution of the majority’s enjoyment of its preferred day of rest. The exemption buttressed the purposes of the statute for all, while diminishing the burdens on a small minority.

17The Jewish community also advanced other arguments. It invoked legal principles, making reference to the common law notions of autonomy and use of property. It demonstrated that the proposed exemption, while new to Canada, was used elsewhere, notably in the United States and in England, countries regarded as models of civilized, Christian nationhood. The submission called on Canada to maintain its recognition of the full civil, political, and religious liberty of its Jewish citizens. And it cautioned lawmakers that a good citizen was one who followed his own religious beliefs: the legal system should neither tempt citizens away from, nor impose financial burdens upon adherence to the fundamental tenets of these beliefs.

  • 19 Select Committee on Bill No. 12, Respecting the Lord’s Day-Minutes of Evidence, 27 April 1906, p. (...)
  • 20 See above, n.1.

18The submission, of course, could not make any claims to ‘rights’; it could only endorse the ‘right to ask’ the majority to grant ‘justice’ to the minority.19 The House of Commons Select Committee struck to consider and report on the bill, accepted the exemption as proposed by a vote of 5 to 4. After an intense debate, however, the House of Commons defeated the amendment to the Act by a vote of 79 to 57, ignoring both party lines and provincial allegiances.20

  • 21 Sunday Observance Report, p. 40.

19The defeat of the proposed exemption marked the victory of the politically astute Lord’s Day Alliance of Canada, the Canadian arm of an international movement that enjoyed the support of all the major Protestant denominations as well as the encouragement of the Roman Catholic Church. The Alliance had drafted and promoted the Lord’s Day Act bill, which had not been a matter of priority for the government, and it successfully battled the exemption. Rev. J.G. Shearer, General Secretary of the Alliance, filed a statement with the Select Committee on behalf of his organization, painting a distinctive picture of the Jewish proposal as well as the larger economic, political, and social questions engaged.21

  • 22 Ibid., pp. 48-49.

20Shearer also saw the merit of appealing to generally accepted principles, but his arguments constructed the Christian viewpoint as the generic and universal basis for public policy. He thus had to deny that the prime purpose of the Lord’s Day Act, 1906 as its name and subject matter indicated, was to impose prohibitions in support of Christian religious observance. What it offered, he claimed, was a general ‘liberty of rest’ for all, that is, the liberty to observe Sunday, or any other day, as a religious or secular day of rest. He did concede that creating this general liberty required the state to impose a general ‘law of rest’ on all persons; that imposition was liberating, however, and not coercive, because the choice of Sunday as the universal rest day reflected common practice. The plea for exemption by the Jewish community, styled as a claim for justice, was to be seen as nothing less than an attempt to ‘rob’ the majority of its ‘Sunday privileges.’22

21The Alliance discounted the impact on minority religions as a mere ‘temporal disability’ taking the form of financial loss or disadvantage. Because democracy works to produce a blend of majoritarian rule, custom, and tradition, no importance was attached to these effects. What validity could there be to complaints against a bill that merely continued an age-old imposition, levied only a reasonable and expected cost for religious non-conformity, and imposed that cost only on a small minority? The Alliance identified the Jewish petition-styled as a plea for religious freedom and economic self-sufficiency-as an effort to avoid the natural burdens of the politically powerless.

22The Lord’s Day Alliance went further. It argued that the proposed exemption would diminish the desired effect of the general prohibition. Its analysis depended on misreading the conditions stipulated: there were to be no disturbance of Sunday religious observance and no businesses open to the public. This deliberate misreading enabled Shearer to present a small minority as a powerful, even threatening, social phenomenon. He foresaw the beneficiaries of the exemption swelling to a mass of Sunday transgressors capable of undermining the rest day altogether, not only in their own communities, but in society at large, across all business undertakings. The explanation for this transformation was as simple as it was unsavoury: ‘greed.’ Under the general prohibition of Sunday labour, all would engage in some kind of rest on Sunday, and the very few who would bear the disadvantage of having an additional day without income would do so fairly and justly. But given the opportunity to shelter under the exemption, many more would ‘claim the right.’ Seeking neither their religious liberty (since they were merely doing ‘what they say they think they ought’) nor the good of the many, but merely their own economic advantage, they would ‘rob’ the majority of its Sunday rest.

23Antisemitic stereotypes hover just below the surface of the text: the just suffering of Jews for their rejection of Christianity, on the one hand, and the aggressively appetitive Jew seeking to secure more than a fair share of labour market participation, on the other. Shearer decried the limited exemption sought by the Jewish community as a competitive advantage for an ever-enlarging number of workers and factory owners.

  • 23 Canada’s prohibition against polygamy reflects the influence of U.S. law, in particular the suppre (...)

24Rev. Shearer also dismissed any general principle that would warrant exemptions from laws of general application to adherents of minority faiths. Such a concession would, he pointed out, lend legitimacy to a Mormon claim to exemption from the marriage laws. He thus deflected attention from the relevant context – the margins of the commercial marketplace – to much more contentious ground: the sanctity of marriage, the place of women in Canadian society, the structure of the family, and sexuality.23 By associating the Sabbatarian exemption with an exemption from the marriage laws, the Alliance equated the enforced imposition of a particular Christian religious practice upon non-Christians with the enforcement of monogamy, a basic institution of Western society.

25By raising the example of plural marriage, Rev. Shearer tried to undermine the general appeal to common ground embodied in the submission from the Jewish community. In effect, he accused those who sought the exemption of departing from a general principle to which they subscribed. There was, of course, no such hypocrisy. Christians and Saturday Sabbath observers could easily agree on a full ban on polygamy, whether for religious or secular reasons, without bridging their differences regarding an exemption from a sectarian religious law.

26The message to religious minorities was clear: public policy would seek no common economic, moral, or social ground. There should be no attempt to create a more inclusive idea of Canadian society, even when the benefits to the few vastly outweighed the cost to the many. The price of religious difference would be borne by the minority.

  • 24 Sunday Observance Report, p. 49. The support of the Catholic Church for the Lord’s Day Act, 1906 c (...)

27The Jewish community’s submission to the parliamentary committee stressed that its plea for justice was to federal politicians, not to religious authorities. While one would expect a religiously infused response from religious groups, such as that put forward by the Roman Catholic Archbishops of Canada,24 the hope was that the Canadian political system encompassed a religiously neutral public space apart from the personal religious beliefs of those who held political power. To elected politicians, therefore, the Jewish community appealed as citizens, seeking a secular response.

28The debate on the bill in the House of Commons disappointed that expectation. The federal Minister of Justice, Charles Fitzpatrick, sounded a stark note of exclusion for religious minorities early in the debate in these words:

  • 25 Sunday Observance Report, p. 44, citing 74 H.C. Deb. (Can.) at cols. 1010-1011; 1014. Mr Fitzpatri (...)

[It] is not desirable for us to be too considerate of the wishes of alien immigrants who,... while they are obtaining the benefits which this country is affording them, will not be subjected to undue hardship if they are obliged, in the public interests, to obey any rules which we, as a Christian community, find it necessary to lay down for the observance of the Sunday.25

  • 26 See above, n.3.

29The speeches of A.B. Aylesworth, who succeeded Fitzpatrick, made no attempt to minimize the Christian purpose of the legislation. Working with others in leading the opposition to the exemption, he went so far as to state that Christianity was part of the law of Canada.26

30The political genesis of the Lord’s Day Act, 1906 reveals that, in the early part of the century, those charged with the creation of public policy felt little need and less desire to respect minority religious practices within Canadian society. Members of these minorities were not considered stakeholders in the common good. The legislative responsibility was to realize the will of the majority, consistent with tradition. The costs entailed in being different were to be borne by those who were different. The Canadian polity could act upon ideas of general liberty for the majority within its religious heritage, while resisting any claim to equal religious liberty by members of other religious faiths.

  • 27 In Civil Liberties, n.12, pp. 103-10, Schmeiser identifies this clause as unique and analyzes its (...)

31Consistent with this understanding of the Canadian political order, Parliament expanded the means by which provinces could opt out of Sunday observance legislation.27 This unusual arrangement enabled provinces to legislate exemptions from federal criminal prohibitions. It sidestepped the Privy Council ruling that allocated morality-based law to the exclusive jurisdiction of the national Parliament, and at the same time, it undermined one of the federal powers: to provide uniform criminal law for the whole country. As initially drafted, the bill permitted the continued operation of provincial statutes regulating Sunday observance. The final version went further. It permitted provincial exemption from the Lord’s Day Act, 1906 in legislation enacted later, as well. Thus the federal structure of the country allowed provincial majorities to be substituted for national majorities on questions considered amenable to local preferences. And that was the only response to diversity.

32At this point in the development of Canadian constitutionalism, rights discourse was exceedingly feeble. It meant the right to petition politicians to do what was supported by principle and justice. At best, it offered recourse to majoritarian politics under the federal distribution of powers. Many decades would pass before the Canadian legal system included what the Jewish community had asked for in 1906: a generic guarantee of freedom of religion as an individual or group entitlement, enforceable in courts of law.

  • 28 The dispensation in the Constitution Act, 1867 noted earlier produced public school systems that o (...)

33It might appear from the high status of provincial rights, that is, provincial authority to set the terms of social ordering, that choices taken by the provinces to protect minorities would prevail. This, however, was not the way the Constitution Act, 1867 worked in practice. At about the same time as the ill-fated request for exemption to the federal Sunday observance legislation, the Quebec legislature was enacting a law designed to make Jewish children eligible for minority religious education entitlements under the Constitution Act, 186728 In Quebec, these entitlements formed the backbone of the public school system, made up of Catholic schools for the majority and separate Protestant schools for the minority. As the Jewish population grew, its members sought a place in the public school system, as well. In an imaginative overture, the Quebec government decided to define them as Protestants and thus included among those entitled to education at public expense under the Constitution. While this approach was unorthodox in religious and historical terms, it realized one of the purposes of the constitutional assurances at an abstract level by providing members of a minority religion access to the resources of the publicly funded system to which they contributed as taxpayers.

  • 29 Hirsch v. Protestant Board of School Commissioners of Montreal, [1928] A.C. 200, p. 213.
  • 30 Ibid., p. 214.
  • 31 While this ruling did not prevent a number of provinces from providing funding for Jewish separate (...)

34The Judicial Committee of Canada’s highest appellate court, the Privy Council, rejected the Quebec arrangement. Their lordships first discounted the express terms of the legislation, concluding that the legislature could not define the word ‘Protestant’ in the statute to include Jews. ‘Protestant’ could only mean Christians who were ‘non-Catholics.’29 Regarding the constitutional question, the Privy Council ruled that reading the word ‘Protestant’ to include Jews would constitute an infringement of rights enjoyed by Protestants at Confederation.30 As manifested in the deliberations on the ill-fated exemption to the Lord’s Day Act, 1906 the costs of difference were to be paid by the minority, and any concession to that minority was to be registered as a loss to the majority.31 In this ruling, the Privy Council shared Rev. Shearer’s rejection of a claim to respect all religions as equally deserving. It merely moved the sentiment from the context of regulation of morality to the choice of beneficiaries of expenditures from the public purse.

  • 32 These cases involved what, under the Charter, would be interpreted as rights to freedom of express (...)

35As these controversies illustrate, before the advent of the 1982 Charter, the Canadian Constitution did not serve all members of the Canadian polity. The Constitution responded to diversity by offering federalism, but federalism did not provide protection from majoritarian political processes. It merely divided Canada into smaller and varied majoritarian units, alleviating, but not solving, the problem of minority interests. A few specific constitutional protections were afforded to Protestants and Catholics as minorities. A small number of judges in the Supreme Court of Canada, Canada’s highest court by mid-century, devised imaginative ways to protect minority interests. They did so primarily by developing the common law and reading the division of powers to allot questions of political and religious liberty to the federal level of government, which was less prone to incursions. Their efforts provided some relief but did not protect against federal encroachment upon minority interests. In any event, this approach ultimately succumbed to a more expansive view of provincial authority.32

36The resistance of the Constitution Act, 1867 to the evolving demands of an increasingly more diverse Canadian society demonstrated the need for constitutional change. Those demands ultimately facilitated the adoption of the Canadian Charter of Rights and Freedoms in 1982.

The Charter of Rights and Freedoms

The Charter’s Adoption

  • 33 I. Brownlie, Basic Documents on Human Rights, 3rd ed. (Oxford: Oxford University Press, 1992).

37In the aftermath of the Second World War, Canadian politicians began to consider the adoption of a constitutional bill of rights. The defeat of ideas of racial and religious superiority in Europe led Canadians to look at improving the Canadian legal system. The 1948 Universal Declaration of Human Rights and the 1953 European Convention on Human Rights provided models for the recognition of constitutional rights.33 The transformation of the legal system necessary to entrench rights was, however, revolutionary.

  • 34 B.P. Elman, “The Constitutionalization of Multiculturalism in Canada: The Jewish Legal Role,” in M (...)

38The organized Jewish community worked for the adoption of legal instruments promoting liberty and equality for all Canadians.34 In November 1980, the Canadian Jewish Congress submitted a brief and made a presentation to the Joint Committee of the Senate and House of Commons considering the draft text of the Charter. This submission, which marked the culmination of a program of study under the direction of Maxwell Cohen, supported the adoption of the Charter. It accepted the judicial enforcement of rights guarantees as an expansion of the responsibility to enforce the limited language and religion provisions of the Constitution Act, 1867 and quasi-constitutional statutory instruments. Voicing the concerns of the Jewish community as well as more general interests, the submission recommended: a narrower basis on which to limit rights; express mention of the continuing validity of laws prohibiting hate promotion; stronger democratic rights; stronger protection of personal dignity and autonomy; stronger rights for the accused, including a right to legal assistance and legal aid; appropriate legal arrangements for prosecuting war criminals in Canada; immediate implementation of equality guarantees, without reliance on quota systems; wider entitlement to education in Canada’s official languages; clear judicial enforcement authority for breach of Charter guarantees; and stipulation of the narrowest of departures from Charter rights in situations of emergency, subject to legislative oversight. Many of these recommendations were based on Canada’s obligations under legal instruments created under the auspices of the United Nations. While not all of this agenda was ultimately successful, much of it found its way into the Charter’s text or its later interpretation. Over the years, the Canadian Jewish Congress also supported rights protection at the international level.

  • 35 For accounts of the history of antisemitism in Canada see A. Davies, ed., Antisemitism in Canada: (...)
  • 36 See references in n.6 above, and W.S. Tarnopolsky, The Canadian Bill of Rights, 2nd ed., rev. (Tor (...)

39These national aspirations contrasted with the manifold restrictions and disadvantages that Jews had experienced in many facets of Canadian life, fed by extensive antisemitism in private dealings as well as in the application of public policy.35 Slowly, the Canadian legal system responded, first at the provincial level with statutory human rights codes prohibiting discrimination in employment, accommodation, and public services and later at the federal level as well.36 What remained outstanding was the commitment to these values in the Constitution as the supreme law of Canada.

40The Canadian Charter of Rights and Freedoms, 1982 secured that change. One of its purposes was to bring the legal system into conformity with Canada’s international obligations in respect to the protection of liberty and equality, as urged by the Canadian Jewish Congress. Taking as models the postwar rights-protecting instruments at both the national and international level, the Charter did not simply provide an array of rights guarantees. It stipulated the exclusive basis on which the state might limit such guarantees, namely “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

  • 37 See L.E. Weinrib, “Canada’s Rights Revolution: Paradigm Lost?” Review of Constitutional Studies (f (...)
  • 38 In R. v. Oakes, [1986], 1 S.C.R. 103 at 136,26 D.L.R. (4th) 200, the Supreme Court of Canada’s cla (...)

41Those who drafted the guarantee and limitation clause did so with the intention of providing a narrower basis for limitation than might otherwise have emerged as a product of judicial interpretation or political preference.37 In this, the drafters took up the submission of the Canadian Jewish Congress, as well as submissions from representatives of other minority groups, which had condemned as overly broad an earlier formulation of the limitation clause. The final formula restricted the courts to consideration of the values that inform the rights themselves: freedom and democracy.38

  • 39 At a minimum, limits on rights must be consistent with the rule of law. Any encroachment on rights (...)

42This narrow and principled statement of limitation reflects the idea that the rights-protecting agenda cannot be adequately served in the context of the active, multicultural, pluralist state, by simply negating governmental power in favour of guaranteed rights and freedoms. In this model, the state is not invariably the enemy of freedom and equality. Rather, the Charter envisages that the state may, on occasion, act at the expense of individual rights to realize the social and political norms that underwrite liberal democracy as a coherent system of rights-protection. Other provisions of the Charter affirm and expand this idea in a manner consistent with the postwar approach to rightsprotection. Accordingly, Charter interpretation recognizes that one enjoys Charter guarantees not merely as a deracinated individual but as an equal citizen of a liberal democracy, having multi-layered social identities including ties to given and chosen communities.39 The interpretation of the Charter in this way has, as the discussion in the next sections illustrate, developed in a number of cases in which there was Jewish involvement.

Early Interpretation of the Charter: The Sunday Closing Cases

  • 40 R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 336, per Dickson J. This reading marked the rej (...)

43The Charter’s affirmation of the postwar structure of rights-protection seemed to bode well for the protection of minority religions. In one of the first major Charter judgements, the Supreme Court considered a challenge to the constitutionality of the Lord’s Day Act of 1906. As a preliminary matter, the Court interpreted the guarantee of freedom of religion and conscience set out in section 2(a) of the Charter as protecting the right to hold religious beliefs, to declare those beliefs openly, and to manifest belief by “worship and practice or by teaching and dissemination.”40 Moreover, the Court discarded the ideas that had animated the enactment of the Lord’s Day Act, 1906, in effect declaring an end to the propensity of Canadian legislatures to regard Christianity as both generic and normative in the formation of public policy.

  • 41 Big M Drug Mart, pp. 336-37.

44Stressing the particular vulnerability of religious minorities to “the tyranny of the majority,” Justice Dickson, later Chief Justice of Canada, invoked the provision of the Charter that mandates interpretation consistent with the “preservation and enhancement of the multicultural heritage of Canadians.”41 In one remarkable portion of the Big M Drug Mart Limited judgement of 1985, he stated:

  • 42 Ibid., p. 338.

If I were a Jew or a Sabbatarian or a Muslim, the practice of my religion at least implies my right to work on a Sunday if I wish. It seems to me that any law purely religious in purpose, which denies me that right, must surely infringe my religious freedom.42

  • 43 While the Charter’s protection of freedom of religion and conscience does not expressly counterman (...)

45Having thus established the equal status of all religions in Canada, Justice Dickson went on to include non-believers within the Charter’s range of protection; the state would breach the Charter by imposing religious belief or practice on the non-believer, just as it did in imposing one religion on everyone or religiously motivated observance on a willing believer.43 In other words, religion and conscience were free only to the extent that the state abstained from imposing religious orthodoxy.

  • 44 For an account of the political debate that culminated in including the statement in the preamble (...)
  • 45 Big M Drug Mart, p. 355.

46The Supreme Court of Canada combined its generous reading of the Charter’s freedom of religion guarantee with a minimalist reading of its preamble. This introductory clause, added in the final days of the Charter’s formulation, states that “Canada is founded upon principles that recognize the supremacy of God.”44 Such a preambular statement usually carries relatively minimal interpretative weight. Nevertheless, in Big M Drug Mart, Justice Dickson did not simply ignore it; he neutralized it by emphasizing its ecumenical character.45 So read, it maintained the Charter’s guarantee of freedom of belief of all kinds as well as freedom from belief.

  • 46 Ibid., p. 352. See John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p (...)

47The Court carried this liberal view of the guarantee even further. It rejected the government’s claims that the Lord’s Day Act, 1906 constituted a ‘justified limitation’ on the right to freedom of religion. Dickson identified the government’s arguments, based on tradition, efficiency, and expediency, as the very factors that demonstrated breach of the right. Were these considerations also to stand as the values justifying that breach, the Charter would offer no effective protection.46 He noted that

  • 47 Big M Drug Mart, p. 337.

[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 the majority.’47

48The Court’s analysis coincided with the approach that the Jewish community had advocated during the 1906 debate. Of particular significance was the strong equality component recognized within the guarantee of freedom of religion. So read, the Charter offered more than an admonition that the religious majority tolerate minorities: it signalled constitutional inclusion of non-Christians within the ‘Canadian People.’ In fact, the Court’s analysis rejected every argument that supported adoption of the Lord’s Day Act, 1906 without a minority exemption. It set aside the idea that the majority can order society to suit its religious beliefs and practices. It identified the purpose of the Act as impermissibly sectarian. It recognized that the Act imposed an economic burden on those who observed Saturday as their Sabbath. Finally, and perhaps most importantly the court labeled majoritarian preferences, convenience, and tradition as illegitimate bases on which to abridge Charter guarantees to freedom of religion.

49The demise of the Lord’s Day Act, 1906 in the Supreme Court of Canada ended the story that began with its tumultuous birth. The vindication of the Jewish community’s conceptualization of political justice, however, remains incomplete. The Court made no reference to the terms of the 1906 debate, although it did provide extensive general historical and legal background to many other aspects of the case. What would have been gained by such reference? In legal terms, an account of the range of arguments that led to the rejection of the exemption, identified as inimical to the Charter, might have clarified the area for later judges. In political terms, some reference to the way that history came full circle on this issue would have revealed to the current generation of Canadians how much Canadian society has matured in its ideas of citizenship, multiculturalism, and the place of religion in public and private life.

  • 48 Edwards Books and Art Limited v. the Queen, [1986] 2 S.C.R. 713 at p. 761. The

50The emphatic repudiation of social and political ordering based on the majority’s religion-centred inclinations in Big M Drug Mart proved short-lived. The Supreme Court had, in fact, deferred consideration of the validity of secular day-of-rest laws enacted by the provinces. Edwards Books and Art Limited raised this question in a challenge to Ontario’s Retail Business Holidays Act, which established Sunday as a common rest day for retail workers.48 The Court had no difficulty sustaining the legislation in its general application to workers in accordance with the Big M Drug Mart ruling because the statute was clearly secular in purpose.

  • 49 Ibid., p. 765.

51The Court then turned to the more difficult question, the impact of the legislation on those who observed a day other than Sunday as their Sabbath. Here the Court had to come to terms with the very arguments engaged in the 1906 debate. It first considered the effect of the legislation on retail operators who observed Sunday as their Sabbath. The easy conclusion was that the legislation had the beneficial effect of removing any burden that this religious practice would produce in a business environment where stores were permitted to open seven days a week. Turning next to the effect on Saturday Sabbath observers, it found that the Act had a deleterious effect: it cut back retail operations by one day a week by adding the Sunday closing to the Saturday Sabbath observance.49 In other words, the disadvantage formerly experienced by all Sabbath observers in an unregulated market place continued to apply only to Saturday Sabbath observers under legislation that mandated Sunday closing.

  • 50 Ibid., per Beetz J., pp. 788-89.

52Speaking for a majority of the Court, Chief Justice Dickson identified this burden as an infringement on the freedom of religion of Saturday Sabbath observers. It followed that the Charter imposed an obligation on governments to include exemptions for those deleteriously affected by Sunday closing laws. The 1906 petition to the Parliament of Canada asked for an exemption as a matter of ‘justice’; now it was being elevated into a right by the Supreme Court of Canada under the Charter. The dissenting justices, however, recognized no such right. In comments reminiscent of the 1906 position of the Lord’s Day Alliance, they dismissed any disadvantage as self-assumed, merely economic, or insubstantial.50

  • 51 Ibid., p. 759.

53Dickson took his analysis further. He pointed out that, in the highly competitive retail sector of the economy, the burden was so significant as to amount to pressure to abandon observance of one’s religious commitments. Even in the absence of an evidentiary record on the point, he concluded that consumers in minority communities would suffer impairment of their freedom of religion, as well. These findings reflected his view that freedom of religion under the Charter afforded protection against all unequal burdens imposed by the state whether direct or indirect, intentional or unintentional, foreseeable or unforeseeable.51

  • 52 Ibid., p. 748. The exemption was not expressly a religious exemption for Saturday Sabbath observer (...)

54The Court’s determination that the state must right the wrong done to Saturday Sabbath observers under Sunday closing laws did not resolve all the issues raised in Edwards Books. Unlike its ill-fated federal counterpart, the impugned Ontario legislation did offer an exemption, although not one based on religious observance. Small retailers were permitted to open on Sunday if they had closed their stores on Friday evening and Saturday for whatever reason.52 For larger retailers, the general prohibition against Sunday operation prevailed. The Court turned to consider whether this qualified exemption sufficiently mitigated the deleterious effect of the Sunday closing law.

55The exemption extended only to stores that had seven or fewer employees and less than 5,000 square feet in service to the public. Nortown Foods, the litigant raising the arguments of the Saturday Sabbath-observing retailer, did not satisfy these conditions. Its owners claimed that only an unconditional exemption to all Saturday Sabbath observers would meet the Charter’s requirements.

56The Supreme Court sustained the qualified exemption, abandoning the clarity and confidence of its analysis in the earlier stages of its reasons for judgement in Big M Drug Mart. It saw the claims of retailers who observed a Saturday Sabbath clearly. It had more difficulty determining how to deal with the religious and other claims of retail employees.

  • 53 Ibid., p. 773.
  • 54 Ibid., p. 779.

57Of great concern was the projected impact upon retail workers, particularly female employees, of a constitutionally mandated extension of the statutory exemption to more numerous and larger retail operations. Such workers were exceptionally vulnerable to the expectations and demands of their employers, because most of them were not unionized and tended to be dependent on part-time work and not highly skilled. The judges were apprehensive that a ruling in favour of a full religious exemption might increase the number of retail workers compelled to work on Sunday, their Sabbath, contrary to their wishes.53 The Chief Justice noted that the larger retailers asserting the invalidity of the exemption were economically more secure than their employees. He expressed the view that it would be inappropriate to interpret and apply the Charter as an “instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged people.”54 Alarmed that the general quality of the pause day would suffer as a result of a full religious exemption, some of the judges took the position further. This was a departure from the assumption that Charter-protected rights and freedoms take precedence over other elements of social ordering.

58The Court’s assumptions about the economic security of the retail operations that failed to qualify for the exemption bear examination. Comparatively larger floor space or number of employees does not invariably translate into economic security for a retail operation. Retailers who are members of and catering to a particular community must be situated in that community, so that the choice of rental space may not reflect the ordinary priority given to the size of the store. The number of employees is also not a clear indication of economic security, because some retail enterprises, such as those that sell religious artifacts, shoes, or specialty foods may require an unusually high ratio of sales clerks to customers. In any event, some data about these stores would have given substance to the Court’s speculation. The Court might also have considered other ways to capture its disinclination to extend the exemption to more economically secure retail operations: refusing to recognize a claim to freedom of religion by a corporation, for example, or by a corporation whose shareholders did not actually run the retail operation on a day-to-day basis.

59The Court’s concern for vulnerable retail workers was also an abstract and speculative exercise. The Court lacked critical data about the operation of the existing statutory exemption: the number of employees affected, for example, or the extent to which the stores in question employed Saturday Sabbath observers, a very important question given the analysis it adopted. It also lacked projections of the number of larger retailers that would become entitled to the exemption.

  • 55 Ibid., p. 777 and per La Forest J., p. 797.

60The judges deemed it unseemly for retailers to hire their ‘co-religionists’ to reduce the problem of coordinating days off work,55 thereby rendering it impossible for workers who observed Saturday as their Sabbath to choose their employment to match their religious observance. And these workers were already at a disadvantage in a marketplace where the majority observed Sunday as their Sabbath! Although the Court’s approach was first to identify disadvantages, it considered neither the precarious rights nor the particular vulnerability of these employees. Nor did it consider the likelihood that retail operations closed on Saturday would hire ‘co-religionists’ who preferred that day off for irreproachable reasons: to have experienced staff on Sunday, the busiest retail day for these stores, for example, or to enjoy the benefits of retail transactions carried out by staff with the linguistic, cultural and/or religious knowledge required for the specific merchandise or customers.

61Since the Court did not examine these obvious questions with any rigour, it is not surprising that it did not raise more difficult ones, such as: To what degree are the retail operations owned by observant Jews carried on by members of an extended family in order to provide employment consistent with the strictures of religious practice? What is the place of retail undertakings in a religious community whose members would, because of Sabbath and holiday observance, have a restricted range of options for employment generally? If family businesses and self-employment are chosen to enable observant Jews to live their lives more easily, then the restrictive conditions on the exemption, which reward expansion of retail premises or increase in the number of employees with the loss of the exemption, take on new significance.

  • 56 Ibid., p. 779.
  • 57 Recall that the ill-fated exemption proposed for inclusion in the Lord’s Day Act of 1906 offered r (...)

62Arguments in favour of a full Sabbatarian exemption for all retail operations proved unattractive to the majority of the Court for another reason. The judges were reluctant to create the need for “state conducted inquiries into religious belief,” which would, they said, expose members of minority religious groups to a judicial or quasi-judicial testing of the “most personal and private beliefs.”56 The assumption was that establishing eligibility for the exemption would require the state to engage in an intrusive procedure to ascertain that each applicant held certain beliefs as a matter of personal and private conviction. The judges extrapolated from the Christian religion as the norm, neglecting to consider that other religions might set other measures of orthodoxy, such as long-standing, public, communal religious practice. The Court’s failure to devise – or simply require the province to instate – an acceptable, yet reliable, exemption process is perplexing. Material before the Court indicated that provinces other than Ontario offered exemptions that did not require “state conducted inquiries into religious belief.”57 The majority concluded that it was permissible to ‘balance’ the religious protections of members of a religious group. This meant that it was permissible to privilege the interests of the ‘many’ (that is, the smaller retailers who would continue to enjoy the exemption) against those of the ‘few’ (the larger retailers) when the distributional criterion was a neutral factor such as the size of one’s business (understood as a proxy for economic well-being) and not a personal characteristic protected by the Constitution. Thus the Court proved unable to free itself entirely from the majoritarian calculus.

63A strong element of the Edwards Books analysis was a concern to preserve, to the extent possible, the common enjoyment of a day of rest from retail work for family visits and activities and recreation. In a case following Big M Drug Mart, one might have expected more emphasis on the religious and communal character of Jewish and Seventh Day Adventist Sabbath observance as a Charter value standing above other preferences in social and economic ordering, and on the Charter directive to preserve and promote the multicultural heritage of Canadians. One would also have expected more acute and better documented consideration of the relative vulnerabilities of retail operations and their employees. Also appropriate would have been closer consideration of the existing statutes that protect employees’ rights to Sabbath observance in the employment context.

64In dissent, Madam Justice Wilson took up these questions and concluded that the exemption was impermissibly narrow and unacceptable under the Charter. Her preference would have been to extend the exemption to include all retail operations that closed on Friday night and Saturday for religious observance. At the core of her judgement was the recognition that freedom of religion has priority over public policy concerns lacking constitutional stature.

  • 58 Edwards Books and Art Limited v. the Queen, p. 812.

65Wilson also departed from her colleagues in respect to the operation of the statute. She believed that there was insufficient evidence to conclude that a full religious exemption would undermine the statutory purpose of providing a common pause day. She noted that before it had restricted itself to the retail sector, the legislature had considered a much broader pause day that would have included industrial workers. Accordingly, she attached less importance to the general nature of the common pause day than the judges in the majority.58 If the legislature wanted to elevate the importance of a common day for family activities and recreational pursuits, then it would have to extend these benefits more broadly. She also expressed doubt that retailers would claim the exemption to secure an economic advantage rather than to accommodate their religious observance.

  • 59 Ibid., pp. 808–09.
  • 60 Ibid., p. 810.

66The most compelling aspect of Justice Wilson’s reasoning was her recognition of Charter protection for group, as well as individual, rights. In her view, the impugned Ontario statute impermissibly recognized only some members as entitled to a ‘group right’ and allowed the state “to introduce an invidious distinction into the group and sever the religious and cultural tie that binds them together.” She sought an interpretation of the Charter consistent with the preservation and enhancement of the multicultural heritage of Canadians,59 that is, the protection of “the freedom of religion of all those who close on Saturdays for religious reasons.”60

67Justice Wilson rejected the view that extending the exemption would privilege the privileged at the expense of the vulnerable. Citing Big M Drug Mart, she stated that

  • 61 Ibid., quoted from Big M Drug Mart, p. 336.

[a] truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of the fundamental freedoms and I say this without any reliance upon section 15 (the equality guarantee) of the Charter. Freedom must surely be found in respect for the inherent dignity and the inviolable rights of the human person.61

68The cases that followed Edwards Books on issues of particular interest to the Jewish community are not fully reconcilable. The difficulty derives to a large extent from the incompatibility of the approaches set down in the first two major cases: the deeply normative and egalitarian approach set down in Big M Drug Mart and the more flexible, deferential approach to public policy applied in Edwards Books. These two cases provided a rather intractable set of precedents for subsequent deliberation. The divisions on the Court are similar to those outlined earlier in the debate on the Lord’s Day Act, 1906: the tension between established and traditional social ordering, fostering, or at least consistent with, the majority’s religious inclinations and a more egalitarian and multicultural approach to the formulation of public policy in respect to the work week, family time, and recreational activities.

69The Charter litigation challenging provincial Sunday closing laws created sufficient instability in government policy and its enforcement that open Sunday shopping is now the rule in Ontario and most other provinces. This change marks the demise of Rev. Shearer’s vision of Canadian society, a society dedicated under pain of criminal sanction to Sunday as a religious day and not a day for the pursuit of pleasure. It exemplifies how legal arguments and judicial determinations, even if they do not fully recognize minority interests, can alter the political landscape dramatically.

Religion in the Schools: Building a Model of Equal Citizenship

  • 62 Zylberberg v. Sudbury Board of Education (1988), 52 D.L.R. (4th) 577. (Ont. C.A.)

70In the wake of Big M Drug Mart, early Charter cases rid the public schools of long-standing laws mandating Christian prayer. These cases, in which Jewish individuals and organizations participated, determined that religious exercises mandated by statute coerced students to perform religious acts (that is, prayer and readings of religious texts) contrary to the Charter. Of particular interest against the background of the Lord’s Day Act, 1906 controversy, is the fact that the statutes mandating classroom prayer offered full exemptions permitting children to leave the classroom upon request. This feature did not save the legislation. On the contrary, the judges concluded that these exemptions stigmatized minority students who, as young persons, would be especially vulnerable to being singled out from their peers during the course of the regular school day.62

  • 63 Re Corporation of the Canadian Civil Liberties Association and Minister of Education (1990), 71 O. (...)

71A similar conclusion followed in cases challenging religious instruction in the schools. The Ontario Court of Appeal concluded that the legislation under review had as its purpose the indoctrination of Christian religious precepts in order to inculcate morality. Following Big M Drug Mart, the court concluded that this religious purpose constituted a breach of freedom of religion. Again, the availability of exemptions did not excuse the breach of Charter rights.63 Central to the analysis was the interpretative clause contained in the Charter that mandates the “preservation and enhancement of the multicultural heritage of Canadians.” Also significant was the express rejection of arguments that had prevailed in the original debate on the federal Lord’s Day Act, 1906: that the majority may use political power to impose its religious practices on society generally; that the minority is only minimally burdened by such coercive imposition of religiously motivated legislation; that the minority must understand and pay the cost of its non-conformity; and that part of the social and moral cohesion of Canadian society rests on its adherence to Christian belief and practice.

  • 64 Reference Re Bill 30, an Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148,40 D.L.R. (...)

72In invalidating the legislation mandating sectarian prayer and religious instruction in the public school system, the courts were attempting to make the classroom equally welcoming to children of all faiths. As noted earlier, the school systems in various provinces include separate schools that offer religious exercises and instruction to the minority Christian denomination as protected by law in 1867. When the Supreme Court analyzed the relationship between the religious accommodations made at the time of Confederation and in the Charter (Reference Re Bill 30), it determined that religious education rights conferred at Confederation were immune from Charter scrutiny.64 This meant that the provision of state-funded, public, separate schools for the historical religious minority posed no breach of Charter rights.

  • 65 Adler v. Ontario, [1996] 3 S.C.R. 609 per McLachlin J., pp. 718-20.

73In a later case, the Court deliberated on this question in response to a claim brought by several parties, including Jews, which asserted that Charter rights required the province of Ontario to extend funding to private religious schools, including Jewish schools. The claim was twofold: that Jewish parochial education was necessary to teach Jewish children the languages, history, and religious practice of their heritage (freedom of religion claim); and that the province must now provide to unprotected Christian minorities and the Jewish claimants what the 1867 arrangements compelled it to provide for the protected Catholic minority (equality claim). The Court dismissed both submissions with reference to its earlier decision.65

74The majority of the Court did not deal with the Charter issue in the last case, basing its conclusion on the view that the Confederation compromise could not form the basis for a Charter claim to equal benefit. The one judge who did consider the Charter claim expressed the view that funding should not be extended to the private Jewish parochial schools, because such funding would entice some of the Jewish students from the public schools. In her view, this would undermine the important function these minority students serve in the public school system: providing the other students with a more diverse student body. This analysis seems misconceived. It fails to regard the Jewish children as ends in themselves and seems to regard Jewish students as outsiders who best serve the multicultural aspiration of Canada by adding an exotic element to the mix of students in its secular education system. It would have been more consistent with the Charter to see young Jews as free and equal citizens who deserve an education shaped to their own aspirations, including a heritage that mandates knowledge of their own religious traditions, values, and languages.

75These cases privilege the historical components of the Constitution over its conceptual unity. They fail to acknowledge that values of fairness and equality prompted the 1867 arrangements, that these arrangements do not stand merely as anomalous historical compromises. These judgements, moreover, ignore the idea of a living constitution that through interpretation grows to a fuller realization of its basic principles, a notion recently endorsed by a unanimous bench in the Quebec Secession Reference (released 20 August 1998).

Laws Against Hate Promotion: Building a Civil Society

76As noted, the Supreme Court of Canada has not been open to constitutional claims to financial support for Jewish parochial education. It has, however, been assiduous in protecting Canadian society from antisemitism. The Court has been receptive to the postwar value structure of the Charter, particularly the idea of equal citizenship in a multicultural state.

  • 66 R. v. Keegstra, [1990] 3 S.C.R. 697, [1991] 2 W.W.R. 1.

77In the landmark case of R. v. Keegstra, the Court confirmed the validity of postwar federal legislation that established as a criminal offence the public, wilful promotion of hatred against an identifiable group (a “section of the public distinguished by colour, race, religion or ethnic origin”).66 While the Court conceded that this prohibition breached Mr. Keegstra’s freedom to vilify Jews in public, it sustained the legislative provision as a justified limit on his right. The reasoning was loyal to the approach in Big M Drug Mart and the values of the international rights-protecting instruments that were the Charter’s models. It also marks a dramatic departure from the more absolutist protection of speech rights in the United States. Earlier, the Canadian Jewish Congress had proposed language that would have precluded Charter challenge to hate-promotion laws, but only in this judgement did it gain that objective. The Congress, B’nai Brith, and other intervenors urged the Court to consider the idea that it was permissible for Parliament to defend the public space of a free and democratic society from promotion of hatred against members of that society. Such an encroachment on freedom of expression would enable all members of society to live their lives with self-esteem, particularly in respect to the personal identities shaped by one’s birth community. Equality values linked the Charter’s guarantee and limitation clauses so as to enable minorities to enjoy full and equal membership in Canadian society.

  • 67 Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825,133

78On a later occasion, the Court affirmed respect for the multi-layered identity of citizens in the school system. As in Keegstra, the values in question were freedom of speech and the rights of religious minorities as equal citizens in a multicultural society. The Court determined that the province of New Brunswick was permitted to remove an elementary school teacher from the classroom, because knowledge that their teacher spent his time outside the school day involved in antisemitic and neo-Nazi activities had the effect of poisoning the learning environment of his students.67

79Some Charter cases have produced unexpected results disappointing to the Jewish community and others concerned about hate propaganda. For example, in R. v. Zundel, [1992] 2 S.C.R. 731, 95 D.L.R. (4th) 202, the Supreme Court invalidated a provision of the Criminal Code that had been the basis for prosecuting Canada’s premier Holocaust denier, Ernst Zundel. In a private prosecution, Zundel was charged with the offence of knowingly spreading false news. (Use of the hate promotion law used against Keegstra required the permission of the Attorney General of Ontario, which was not forthcoming.) In invalidating the false news offence (as a breach of freedom of expression), the Court’s disposition of the case was not inconsistent with its landmark ruling in Keegstra. Nonetheless, the failure to convict Zundel proved a bitter disappointment to those who saw the bigger picture; they regarded Keegstra’s teaching of antisemitic texts and attitudes in an Alberta high school as a minor irritant compared to Zundel’s skilful and widespread production, dissemination, and distribution of antisemitic materials. In 2001, the Canadian Human Rights Commission ruled that, based on the content of his website, Zundel was in breach of the prohibition against promoting hatred.

Prosecution of War Criminals

80One of the deepest ironies in the application of the Charter has been its inhibiting effect upon the prosecution of war criminals who have made their homes in Canada. Those who drafted section 11(g) of the Charter, supported at the time by the Canadian Jewish Congress, provided that a prosecution could proceed not only under Canadian or international law but also in circumstances where the acts committed were “criminal according to the general principles of law recognized by the community of nations.” In effect, the Charter acknowledged a basic common law of mankind incorporating crimes against humanity into the Canadian justice system, even though the acts had not taken place on Canadian soil.

  • 68 R. v. Finta, [1994] 1 S.C.R. 701,112 D.L.R. (4th) 513.
  • 69 In dissent, Justice La Forest formulated a different standard of mental awareness for war crimes o (...)

81In Canada’s major war crimes case, R. v. Finta, however, the accused successfully argued that Charter protections developed in the general criminal law context should apply to his case, as well.68 The Supreme Court required the Crown to prove a high degree of awareness of moral blameworthiness on the part of the accused. That meant proof that Finta had subjectively understood at the time that the acts he committed – unlawful confinement, robbery, kidnaping, and manslaughter – constituted crimes against humanity. Writing for the majority, Justice Cory ruled that such proof was lacking. The facts established only that the accused had robbed Jewish civilians of their valuables as part of a process that ended in their deportation. The majority of the Court held that pervasive dissemination of false information and propaganda in the war context raised a reasonable doubt as to whether the accused was sufficiently aware of the cruel and barbarous quality of his actions.69 This ruling made it unlikely that Canada ever would be able to prosecute war criminals successfully.

Outstanding Issues

  • 70 Divorce Act, R.S.C. 1985, c. 3, s. 21.1 (2nd Supp.) and Ontario Family Law Act, R.S.0.1990, s. 2 a (...)

82The cases already discussed have highlighted the resolution of some of the major long-standing issues of interest to the Jewish community; others remain unresolved. For example, the precedents do not provide a clear indication as to whether the Charter permits a Canadian legislature to give legal significance to those private acts of individuals which have significance under religious law. Both the federal and Ontario governments have passed laws to alleviate the plight of Jewish women who are unable to remarry under Jewish law because their former spouses refuse to grant a Jewish divorce.70 Such women often cede strong claims to assets of the marriage or to custody of the children in order to secure a divorce. The statutory provisions redress this vulnerability, making removal of all impediments to a spouse’s ability to remarry in her faith a condition of access to the courts. The sanction does not attach to the failure to provide the divorce under Jewish law. In effect, however, it requires the husband to provide the divorce as a precondition to his ability to engage the Canadian courts on his own behalf in divorce, custody, or support proceedings. To date, these provisions have not had to undergo Charter scrutiny, and opinion is divided on whether, in purpose and/or effect, they constitute a breach of freedom of religion.

  • 71 D. Usborne, “Quebec Wrangle Prompts a New Jewish Exodus,” The Independent (21 May 1996), p. 9; “La (...)

83A recent incident revives the clash between the pre-Charter idea of Canadian constitutionalism as a federal system that mediates differences in identity through federal-provincial arrangements, and the Charter’s idea of citizens enjoying equal rights. The issue was the application of Quebec’s labeling laws to Passover foods.71 When these imported foods failed to comply with provincial laws requiring French language labels, enforcement officials ordered them off store shelves. The order seemed excessive to many; the goods were on the market for a relatively short time, in limited quantities, with appeal to a very restricted clientele and therefore did not undermine the operation of the labeling laws in any significant way. As a result, label translation was prohibitively expensive. It remains an open question whether the Charter’s protection of freedom of religion would sustain a challenge to the enforcement of the language laws against foodstuffs required for particular religious holidays or for general kashrut observance.

84(On the political side, this incident has prompted allegations that the leaders of Quebec’s separatist government were, at best, unconcerned that the incident might unsettle the Jewish population, which greeted the separatist election victory in 1976 with a mass exodus from the province. Like the other ‘cultural communities’ in the province, the Jewish community has not warmed to separatism despite efforts to recast Quebec nationalism as territorial and pluralist rather than ethnic. In the immediate aftermath of the knife-edge defeat of the sovereignty option in the 1995 Quebec referendum, the then provincial premier stressed the high support for separatism among francophones and attributed the disappointing outcome to “money and ethnics.” The comments prompted his immediate resignation. This incident illustrates in microcosm how Canada’s constitutional project moves forward into the postwar world of multicultural commitment to equal human dignity carrying history on its back.)

Conclusion

85The Charter has had the effect of eliminating from the Canadian legal system some of the laws that imposed major burdens on Jews who were for many years the largest non-Christian minority in the country. In addition, the Charter has identified antisemitism as inimical to the value structure of Canadian society. It was the desire for such change that prompted the organized Jewish community to support the Charter and to work for its adoption as a strong and clear statement of freedom and equality. And it is for this reason that the leading Jewish community organizations have supported Charter litigation, both as principal participants and as intervenors. In fact, the Canadian Jewish Congress and the League for Human Rights of B’nai B’rith have been among the most frequent intervenors in Charter cases. The Canadian Holocaust Remembrance Association has participated in a number of cases, as well. But Jewish interest has not been limited to direct benefit or disadvantage.

  • 72 Factum of Canadian Jewish Congress, prepared by Lyle S.R. Kanee, submitted to the Supreme Court of (...)

86While one would expect the Jewish community to bring cases in its interest to the courts and to seek permission to participate in cases of particular interest to Jews in Canada, it is noteworthy that Jewish organizations have also endeavoured to advance liberty and equality generally. For example, Jewish groups have worked to extend application of the hate promotion laws to other vilified groups and to promote anti-discrimination. In an intervention in the Supreme Court, the Canadian Jewish Congress supported gays and lesbians in their claims to equality under Canadian human rights statutes. In a written brief and oral submissions to the Court, counsel representing the Congress noted that some Jews are homosexuals, recalled the status as victims shared by Jews and homosexuals under the Nazis, and made reference to the historical record that demonstrates that in times of pervasive stereotyping and prejudice, it is the courts, not the representative legislatures, that must illuminate the path of justice.72

87At the beginning of the twentieth century, Jews were unable to sustain their claims for ‘justice’ in a polity that understood itself as Christian and equated Christianity with moral order and general wellbeing. Today, in contrast, the vision of political justice invoked by that plea has become part of the supreme law of Canada. Jews are free to participate fully in social and political life. They are also able to lay claim to Charter rights to full and equal membership in Canadian society and to take a leadership role in promoting these values for all Canadians.

88This is a story in which Canada and Canadian Jewry can take great pride. The Jewish community’s commitment to the values of liberty and equality, as well as its security within the new constitutional order, have allowed it to strive to extend the reach of Canadian constitutional justice to include other disadvantaged groups. While there have been disappointments in the efforts to sustain the new values, one need only recall the 1906 Lord’s Day Act debate to appreciate the revolutionary nature of the change that has occurred. Open political dialogue, access to the courts, and a firm foundation in law now offer a framework in which all members of the Canadian polity can seek justice – to work together to achieve the best that multicultural liberal democracy has to offer.

Notes

1 A.M.C. Waterman, “The Lord’s Day in a Secular Society: A Historical Comment on the Canadian Lord’s Day Act of 1906,” Canadian Journal of Theology 9 (1965): 116, n.15. Prime Minister Laurier and the leader of the Opposition supported the exemption. (Ontario Law Reform Commission Report on Sunday Observance Legislation, 1970-hereinafter, Sunday Observance Report – p. 50).

2 Ibid.

3 Sunday Observance Report, pp. 58-59. Bowman v. Secular Society, Limited (1917) A.C. 406 departed from earlier cases in stating that Christianity is not part of the law of England. See D.A. Schmeiser, Civil Liberties in Canada (Toronto: Oxford University Press, 1964), p. 55, n.3.

4 See L.E. Weinrib, “The Religious Clauses: Reading the Lesson,” Supreme Court Law Review 8 (1986): 507.

5 See D.J. Doyle, “Religious Freedom in Canada,” Journal of Church and State 26 (1984): 413-35; William Kaplan, “The Supreme Court of Canada and the Protection of Minority Dissent: The Case of the Jehovah’s Witnesses,” University of New Brunswick Law Journal 39 (1990): 65; T.R. Berger, Fragile Freedoms: Human Rights and Dissent in Canada (Toronto: Irwin Publishing, 1982), pp. 163-90.

6 See I.A. Hunter, “The Origin, Development and Interpretation of Human Rights Legislation,” in The Practice of Freedom, R.St.J. Macdonald and J.P. Humphrey, eds. (Toronto: Butterworths, 1979), pp. 77-110; J.W. St.G. Walker, ‘Race,’ Rights and the Law in the Supreme Court of Canada: Historical Case Studies (Toronto and Waterloo: The Osgoode Society for Canadian Legal History and Wilfrid Laurier University Press, 1997), especially chapter 4.

7 For the pre-Confederation background, see D.J. Doyle, “Religious Freedom,” pp. 414-17.

8 P.B. Waite, The Life and Times of Confederation, 1864-1867 (Toronto: University of Toronto Press, 1962), pp. 35ff; A.R.M. Lower, From Colony to Nation (Toronto: McClelland and Stewart Ltd., 1977), pp. 319ff; F.H. Underhill, The Image of Confederation (Toronto: Canadian Broadcasting Corporation, 1964), pp. 47ff; G. Stevenson, Unfulfilled Union, 3rd ed. (Toronto: Gage Publishing, 1989), pp. 20ff; A. Silver, The French-Canadian Idea of Confederation, 1864-1900 (Toronto: University of Toronto Press, 1982), pp. 33ff.

9 The Constitution Act, 1867 is the name, since 1982, of the British North America Act, 1867, U.K., 30 and 31 Vict. c.3.

10 Constitution Act, 1867, s. 133.

11 S. 93. The importance of these guarantees is revealed by the provision of unusual enforcement mechanisms: an appeal to the executive branch of the federal government and, in the event of continuing provincial intransigence, remedial legislative authority in the Parliament of Canada.

12 To a great extent, for the provinces of New Brunswick, Nova Scotia, and Prince Edward Island, the Church of England served as the established Church, possibly until the late nineteenth century. See D.A. Schmeiser, Civil Liberties in Canada (Toronto: Oxford University Press, 1964), pp. 67-70. Under French rule, the Roman Catholic Church was the established Church of what later became the province of Quebec in 1867, but its power derived from convention, rather than law, after passage of the Quebec Act of 1774 marking the defeat of the French by the British. See Berger, Fragile Freedoms, p. 163. In 1835, Lower Canada (Quebec) passed legislation eliminating de jure discrimination against Jews: (1832) 1 Vict. IV c.57. Upper Canada, which became Ontario in 1867, moved from the predominance of the Church of England to a more modern approach with the enactment of the Freedom of Worship Act (1850-1), 14 and 15 Vict. c.175, which provided for the “free exercise and enjoyment of Religious Profession and Worship, without discrimination or preference” for all Her Majesty’s subjects, subject to restrictions pertaining to acts of licentiousness or acts contrary to peace and safety. The Jewish Relief Act of 1845 freed Jewish citizens from many civil disabilities in England: 8 and 9 Vict. c.52. See also 21 and 22 Vict. c.48.

13 See P.B. Waite, ed., The Confederation Debates in the Province of Canada, 1865 (Toronto: McClelland and Stewart, 1963), pp. 99-100. No such arrangement was made in Nova Scotia, British Columbia, or Prince Edward Island. Modified application was made in Manitoba, Alberta, and Saskatchewan in their constituent legislation. See I. Cotler, “Freedom of Assembly, Association, Conscience and Religion,” in The Canadian Charter of Rights and Freedoms: Commentary, W.S. Tarnopolsky and G.-A. Beaudoin, eds. (Toronto: Carswell, 1982), p. 189. Recent constitutional amendments have released the school systems of Newfoundland and Quebec from the requirement of religious organization.

14 See A.G. Ontario v. Hamilton Street Railway Company, [1903] A.C. 524 (invalidating Ontario legislation entitled An Act to prevent the Profanation of the Lord’s Day). See also Henry Birks and Sons v. Montreal, [1955] S.C.R. 799 (invalidating a Quebec law prohibiting retail sales on Catholic holy days). The Privy Council assigned laws having to do with morality to the exclusive jurisdiction of the Parliament of Canada as criminal law.

15 For the view that it was Rev. J.G. Shearer, a Presbyterian minister, acting as founder and first General Secretary of the Lord’s Day Alliance of Canada and as editor of the Lord’s Day Advocate, whose efforts pushed the federal government to act, see Waterman, “The Lord’s Day,” p. 108.

16 Sunday Observance Report, p. 43. This was the characterization of the purpose of the Bill by the Minister of Justice, Charles Fitzpatrick.

17 The much smaller Seventh Day Adventist Church had proposed a wider exemption. Sunday Observance Report, p. 48.

18 The exemption clause as proposed read:
Notwithstanding anything herein contained whoever conscientiously and habitually observes the seventh day of the week as the Sabbath and actually refrains from work and labour on that day, shall not be subject to prosecution for performing work or labour on the first day of the week, provided that such work or labour does not disturb other persons in the observance of the first day of the week as holy time, and that the place where the same is performed is not open for traffic on that day.... Sunday Observance Report, p. 48.

19 Select Committee on Bill No. 12, Respecting the Lord’s Day-Minutes of Evidence, 27 April 1906, p. 187.

20 See above, n.1.

21 Sunday Observance Report, p. 40.

22 Ibid., pp. 48-49.

23 Canada’s prohibition against polygamy reflects the influence of U.S. law, in particular the suppression of the practice among Mormons in the late nineteenth century.

24 Sunday Observance Report, p. 49. The support of the Catholic Church for the Lord’s Day Act, 1906 came after members of Parliament had described the bill as a Protestant effort to coerce Roman Catholic Quebec. Contemporary newspaper and magazine reports suggest that there was little public support for the bill and that the Lord’s Day Alliance was itself a minority interest. Sunday Observance Report, pp. 46-47,42-43; Waterman, “The Lord’s Day,” pp. 112-14. See also, n.15 above.

25 Sunday Observance Report, p. 44, citing 74 H.C. Deb. (Can.) at cols. 1010-1011; 1014. Mr Fitzpatrick made these comments in moving second reading, on April 5,1906. The idea was that Jews (despite the fact that they held Canadian citizenship) were foreigners because of their membership in the Jewish nation. Such membership meant that they reserved their ultimate loyalty to a future Jewish state and were thus incapable of the allegiance held by British subjects to their King.

26 See above, n.3.

27 In Civil Liberties, n.12, pp. 103-10, Schmeiser identifies this clause as unique and analyzes its constitutionality. In Lord’s Day Alliance of Canada v. AG. Man. (1925) A.C. 384 at 391, the Privy Council expressed the view that the concession to provincial legislative jurisdiction allowed for the diversity in “circumstances, usages and predominant religious beliefs of the people” in the various provinces. At the time, the Minister of Justice remarked that the change was consistent with the notion of provincial rights.

28 The dispensation in the Constitution Act, 1867 noted earlier produced public school systems that operated on a religious basis. In effect, this meant that the majority religious groups in the provinces of Ontario and Quebec established public school systems suitable to their beliefs and practices. In addition, the Constitution Act, 1867 required that the provinces provide separate school systems for the religious minority in conformity with legal entitlements enjoyed before Confederation.

29 Hirsch v. Protestant Board of School Commissioners of Montreal, [1928] A.C. 200, p. 213.

30 Ibid., p. 214.

31 While this ruling did not prevent a number of provinces from providing funding for Jewish separate schools in other ways, it did lay to rest any claim to statutory extension of the constitutional entitlement to unprotected religious minorities.

32 These cases involved what, under the Charter, would be interpreted as rights to freedom of expression, religion, association, and the press. The cases and the demise of this ‘implied bill of rights’ jurisprudence are presented in P. Hogg, Constitutional Law of Canada, loose-leaf edition (Toronto: Carswell, 1997, release 2), ch. 31, 31.4(c), pp. 31-10, 31-13. See also L.E. Weinrib, “The Supreme Court of Canada in the Age of Rights,” Canadian Bar Review 80 (2001): 699.

33 I. Brownlie, Basic Documents on Human Rights, 3rd ed. (Oxford: Oxford University Press, 1992).

34 B.P. Elman, “The Constitutionalization of Multiculturalism in Canada: The Jewish Legal Role,” in Multiculturalism, Jews, and Identities in Canada, H. Adelman and J.H. Simpson, eds. (Jerusalem: The Magnes Press, 1996), pp. 69-94.I am indebted to Professor Joseph Magnet, Faculty of Law, University of Ottawa, who was Special Advisor to the Cohen Committee, for providing me with a copy of the written submission.

35 For accounts of the history of antisemitism in Canada see A. Davies, ed., Antisemitism in Canada: History and Interpretation (Waterloo: Wilfrid Laurier University Press, 1992); G. Tulchinsky, Taking Root: The Origins of the Canadian Jewish Community (Toronto: Stoddart, 1997); J.W. St.G. Walker, ‘Race,’ pp. 182ff; I. Abella and H. Troper, None Is Too Many: Canada and the Jews of Europe 1933-1948 (Toronto: Lester & Orpen Denys, 1983); E. Delisle, The Traitor and the Jew: Anti-Semitism and the Delirium of Extremist Rightwing Nationalism in French Canada from 1929-1939 (Montreal: R. Davies, 1993); and I. Abella, “The Making of a Chief Justice: Bora Laskin, The Early Years,” Law Society Gazette 24 (1990): 191.

36 See references in n.6 above, and W.S. Tarnopolsky, The Canadian Bill of Rights, 2nd ed., rev. (Toronto: McClelland and Stewart Ltd., 1975), ch. 1, and I.A. Hunter, “Interpretation of Human Rights Legislation,” pp. 77-110.

37 See L.E. Weinrib, “Canada’s Rights Revolution: Paradigm Lost?” Review of Constitutional Studies (forthcoming); J.P. Humphrey, “The Just Requirements of Morality, Public Order and the General Welfare in a Democratic Society,” in The Practice of Freedom, R.St.J. Macdonald and J.P. Humphrey, eds., pp. 137-57.

38 In R. v. Oakes, [1986], 1 S.C.R. 103 at 136,26 D.L.R. (4th) 200, the Supreme Court of Canada’s classic statement of its approach to the guarantee and limitation clause, the values appropriate to limitation were described in this way:
The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

39 At a minimum, limits on rights must be consistent with the rule of law. Any encroachment on rights must be consistent with the goal of rightsprotection.

40 R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 336, per Dickson J. This reading marked the rejection of the Court’s interpretation of the same words in the Canadian Bill of Rights of 1960, a federal statute, as protecting religious belief but not action flowing from that belief. See Robertson and Rosetanni v. the Queen, [1963] S.C.R. 651.

41 Big M Drug Mart, pp. 336-37.

42 Ibid., p. 338.

43 While the Charter’s protection of freedom of religion and conscience does not expressly countermand establishment of religion, non-establishment values are clearly engaged in the interpretation of this provision. The attitude of the Supreme Court of Canada to the establishment of a church was made clear in the Protestant School Board decision. Here the Supreme Court sought to distinguish between a permissible limit upon and an impermissible denial of a Charter right. It gave, as an example of the latter, establishment of a state church. For the state so to privilege one religion would interfere with the right to freedom of religion so pervasively as to be beyond the possibility of justification under the limitation clause. To effect such a denial of the Charter right, the state would have to seek recourse through the legislative override provision found in section 33 of the Charter or through constitutional amendment. A.G. Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66 at 88,10 D.L.R. (4th) 321.

44 For an account of the political debate that culminated in including the statement in the preamble to the Charter, see W. Klassen, “Religion and the Nation: An Ambiguous Alliance,” University of New Brunswick Law Journal 40 (1991): 93ff. “One of the more amusing sidelights of the battle for a Canadian constitution is the debate on the place to be assigned to God.... [I]t was also clear that certain members of Parliament felt deeply that God might be slighted if left out of the Constitution.”

45 Big M Drug Mart, p. 355.

46 Ibid., p. 352. See John Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp. 295ff.

47 Big M Drug Mart, p. 337.

48 Edwards Books and Art Limited v. the Queen, [1986] 2 S.C.R. 713 at p. 761. The

49 Ibid., p. 765.

50 Ibid., per Beetz J., pp. 788-89.

51 Ibid., p. 759.

52 Ibid., p. 748. The exemption was not expressly a religious exemption for Saturday Sabbath observers, but it served this purpose for those retailers able to come within its qualifications. Ontario enacted the legislation in this way on the advice that an express religious exemption would conflict with the exclusive federal jurisdiction in respect to religion, as criminal law over morality, and thus create a constitutional infirmity on federalism grounds. Other provinces, however, offered religious exemptions.

53 Ibid., p. 773.

54 Ibid., p. 779.

55 Ibid., p. 777 and per La Forest J., p. 797.

56 Ibid., p. 779.

57 Recall that the ill-fated exemption proposed for inclusion in the Lord’s Day Act of 1906 offered relief in these terms: “whoever conscientiously and habitually observes the seventh day of the week as the Sabbath and actually refrains from work and labour on that day....”

58 Edwards Books and Art Limited v. the Queen, p. 812.

59 Ibid., pp. 808–09.

60 Ibid., p. 810.

61 Ibid., quoted from Big M Drug Mart, p. 336.

62 Zylberberg v. Sudbury Board of Education (1988), 52 D.L.R. (4th) 577. (Ont. C.A.)

63 Re Corporation of the Canadian Civil Liberties Association and Minister of Education (1990), 71 O.R. (2d) 341 (Ont. C.A.)

64 Reference Re Bill 30, an Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148,40 D.L.R. (4th) 18.

65 Adler v. Ontario, [1996] 3 S.C.R. 609 per McLachlin J., pp. 718-20.

66 R. v. Keegstra, [1990] 3 S.C.R. 697, [1991] 2 W.W.R. 1.

67 Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825,133

68 R. v. Finta, [1994] 1 S.C.R. 701,112 D.L.R. (4th) 513.

69 In dissent, Justice La Forest formulated a different standard of mental awareness for war crimes or crimes against humanity. For him, it was sufficient for the prosecution to establish the mental element that under Canadian criminal law usually attaches to the offences in question:
the accused need not have known that his act, if it constitutes manslaughter or forcible confinement, amounted to an ‘inhumane act’ either in the legal or moral sense. One who intentionally or knowingly commits manslaughter or kidnapping would have demonstrated the mental culpability required for an inhumane act.
Ibid., pp. 556-57.

70 Divorce Act, R.S.C. 1985, c. 3, s. 21.1 (2nd Supp.) and Ontario Family Law Act, R.S.0.1990, s. 2 and s. 56 (5).

71 D. Usborne, “Quebec Wrangle Prompts a New Jewish Exodus,” The Independent (21 May 1996), p. 9; “Language Wars: Not Kosher,” Maclean’s (22 April 1996), p. 21.

72 Factum of Canadian Jewish Congress, prepared by Lyle S.R. Kanee, submitted to the Supreme Court of Canada in Vriend v. Alberta [1998] S.C.J. No. 29 at para. 7. On file with the author.

Auteur

Professor of Law and Political Science at the University of Toronto. She has taught and published in the United States, Israel, and South Africa. Her interests include Canadian constitutional law and politics, as well as the protection of human rights at the national and international levels in the aftermath of the Holocaust

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