4.1 Connecting Litigation with Pre-Existing Narratives

Interview participants often situated the stories of their litigation within the context of their larger individual and community narratives. In particular, they drew connections between their religious practices, stories of migration, and litigation experiences. These narratives provide the foundations for the senses of inclusion and exclusion experienced during the litigation. Litigants reflected back on the choice to become members of Canadian society and the consequences of that choice as seen in the results of their religious freedom claims.

In some cases, litigants drew a connection between a religious tradition and the decision to emigrate. For example, even though the Hutterite immigration to Canada was far removed in time (both Hutterite participants said Hutterites came to Canada in 1918), it was clear in their narratives that the motivation for this original move was religious. As pacifists, Hutterites refused to serve in the American army and faced persecution on this account.^{Footnote 20} This episode of migration fits into a larger Hutterite narrative of flight from religious persecution. In their factum before the Supreme Court of Canada, the Wilson Colony outlined this history:

Though Hutterite participants’ narratives of exile were perhaps idiosyncratic to their community, the Hutterite participants were not alone in connecting their faith to their immigration experiences. A litigant in Amselem praised God for granting the litigant the ability to leave his country of origin, then explained that his decision to emigrate stemmed from his desire for his children to receive a religious education:

Though this litigant was not fleeing the kind of religious persecution faced by Hutterite conscientious objectors, he left his country of origin in search of a larger Jewish community with accessible institutions for religious instruction. Common to both narratives is an emphasis on the search for a location where the religious communities could live full lives as communities, and identifying Canada as this kind of destination.

After explaining their reasons for immigrating, participants often connected their litigation and immigration experiences. A lawyer in the Multani case accentuated the difficulties faced by the litigants by putting the litigation in the context of the family’s recent arrival in Canada:

Interestingly, however, the Multani litigant interviewed recalled that his family faced the litigation optimistically, based on their perception of Canada as a country that protects human rights: “[W]e knew that we gonna win since it’s a human right country… you know, according to Charter of rights and human rights, we knew, we were sure that we gonna win.”^{Footnote 24}

More significantly, the litigant’s narrative of becoming Canadian does not focus on the family’s legal acquisition of citizenship, but on the family’s eventual success in litigation:

This litigant’s response parallels the reaction of a participant in the Amselem litigation. The Amselem claimants were, like the Multani claimants, eventually successful before the Supreme Court. The Amselem participant praised all of the judicial decisions in his case, loosely linking his pride in his adopted country and its values to his own religious tradition: “[Q]uand on lisait le jugement, c’était un cours de Talmud… moi je trouve c’est magnifique la justice ici dans ce pays. Les gens sont bien informés, et bravo! … il faut être fier de ça.”^{Footnote 26} In response to a question about whether his views on Canada had changed when he was unsuccessful in the first rounds of litigation, the participant answered:

In the above narratives, participants strongly linked becoming and being Canadians to the freedom they were afforded to practice their religion. The next sections address more directly the links between participants’ feelings of inclusion in Canada’s political communities (federal and provincial) and their experiences in litigation, addressing each case in turn.

4.2 Multani

In Multani, the claimants sought the right for a secondary school student to wear his kirpan in a public school. The interview participants primarily characterized this as stemming from a desire to be included within the province’s social institutions.^{Footnote 28} When Gurbaj Singh Multani arrived in Québec, he started his schooling in a private English-language school because the local French-language public school told his family that he had arrived too late in the school year to begin classes. Nonetheless, he maintained his desire to learn French and, in contrast with his older brother who remained in a private English-language school, began classes in the French-language public school after nearly a year in the private school.^{Footnote 29} Indeed, one aspect of the narratives mostly left out of the judicial accounts was that Gurbaj Singh Multani sought access to the public school system in order to learn French. In the litigant’s words: “Obviously living in Québec you need to learn French, so that was the time [Gurbaj Singh] decided to learn French and went to French school.”^{Footnote 30} Given the social and political importance of the French language to Québécois identity,^{Footnote 31} this seems a crucially underemphasized aspect of the legal narrative. Though the judge in the interlocutory proceedings noted the importance of acquiring French language skills for new immigrants, this idea disappeared from the subsequent decisions.^{Footnote 32}

While the issue of learning French may not have figured prominently in the Supreme Court’s decision in Multani, the Court was concerned about the implications that its decision would have for the inclusion/exclusion of members of minority religious groups, as shown in the passages cited in section 3.^{Footnote 33} These themes figured in participant narratives as well, though with some nuance. With regard to his sense of acceptance in Québec society, a Multani litigant drew an interesting distinction between the period leading up to the decision of the Superior Court and the period that followed:

For the participant, then, there was a meaningful difference between being opposed to a public institution and being opposed to other individuals who used that institution. The participant felt more threatened when he was opposed to this group of individuals, who called for the student’s exclusion. This led to a sense of marginalization, making the litigant feel more compelled to pursue the litigation. This suggests that, in this case, state institutions were not the only drivers of feelings of inclusion and exclusion in public institutions. In response to these feelings of exclusion, the Multani family sought the assistance of the courts, counting on them to mandate inclusion.

Ultimately, perhaps due to hindsight bias, the litigant’s narrative depicts a tale of inclusion based on communication and understanding. Thus, even when asked how he felt about the ruling of the Québec Court of Appeal, which upheld the school board’s prohibition on the kirpan, the participant responded:

Here, the Supreme Court’s decision in Multani is cast as a success story in the acceptance of Orthodox Sikhs into Québécois and Canadian societies. This was consistent with the narrative expressed by a lawyer involved in the litigation:

This passage emphasizes that it was not only the fact of being allowed to wear a kirpan in school that was important in the Multani litigation, but the emotional responses to this inclusion as well. Indeed, by the time the Supreme Court’s decision was handed down in Multani, Gurbaj Singh Multani had nearly finished high school at a private, Seventh Day Adventist school. He remained in that school until his graduation and thus did not personally benefit from the Supreme Court’s decision, but the emotional implications remained.^{Footnote 37}

4.3 Amselem

Amselem presents less straightforward issues of inclusion than those in Multani. On one hand, both the Amselem and Multani claimants sought to be accepted into a common space without sacrificing their religious practices. On the other hand, condominiums are not public institutions. While discrimination is prohibited in the private sector, citizens are not guaranteed the right to access a particular condominium and can legally be excluded (on the basis of price, for example). More to the point, condominiums are not publicly funded, nor are they imagined as places in which civic values are taught.^{Footnote 38} Additionally, in Amselem, when the claimants purchased their units, they had apparently agreed to the by-laws they later contested.

However, from the perspective of the claimants, one reason for pursuing the case was to combat what they saw as discriminatory exclusion. For this reason, one participant explained that, though he enjoyed celebrating the holiday at his child’s home while he was enjoined from installing his own succah, he nevertheless decided to pursue the litigation: “[C]’est très bien chez mes enfants, c’est comme chez moi, mais j’étais frustré de voir, parce que, vous savez, j’ai ressenti un relent d’antisémitisme.”^{Footnote 39}

For one lawyer participant, this form of discrimination became apparent in his cross-examination of the condominium’s building manager:

The litigant participant recounted a similar experience from a year before the litigation, when the condominium association’s president asked him to be discreet about his succah.^{Footnote 41} In the litigant’s narrative, the issue became even more overt at a meeting of the building’s co-owners:

In the end, the litigant presented his case as a triumph for integration^{Footnote 43} and for Canada:

The litigant also provided a negative framing of the same notion: “Si la vision de la succah vous dérange, vous êtes un mauvais citoyen. Parce qu’on n’acceptait pas l’autre.”^{Footnote 45} Here, the participant specifically linked the idea of good citizenship to the acceptance of the other.

Not all interview participants shared this litigant’s understanding of the case. One expert witness participant maintained that religious groups should make “reasonable” demands for accommodation, lest the unreasonable demands of religious groups increase resentment against them: “[I]f it would turn out that [Jews seeking accommodations for religious reasons] would win all the time, then clearly this would… probably increase the anti-Semitism that’s… coming down the pipe.”^{Footnote 46} From this participant’s perspective, the Amselem claimants made a request that was not reasonable by Judaism’s own internal logic; to the extent that the claimants felt excluded, these feelings were unjustified. By seeking an accommodation for more than the religion required (according to this participant’s understanding of the requirements), the Amselem claimants were potentially frustrating the acceptance of Jews in Québec. These tensions, confirmed in other interviews,^{Footnote 47} suggest that there were multiple narratives of inclusion at play in Amselem within the affected religious community.

4.4 Wilson Colony

As seen above, the claimants in Multani and Amselem told a narrative of wanting to be full participants in Canadian social institutions while celebrating their religious differences. As in the other cases, the Wilson Colony members sought accommodation. Consistent with a pluralist narrative of religious freedom, the Wilson Colony participants said they highly value religious freedom and want to be accepted as they are. However, they resisted this narrative in their discussion of public institutions. As participants explained it, they valued religious freedom because it allowed them to live, to the extent possible, apart from the rest of the world: “See we’re self sustained, which you maybe have read, we’re kinda isolated from the world, we might be in the world but we’re not of the world, that’s why we’re isolated.”^{Footnote 48} One participant explained that the absence of televisions, radios, and computers on Hutterite colonies was another expression of this desire for isolation:

Another participant explained that colony members do not send their children to public schools or vote in public elections: “Well we try not to mix in with voting or politics too much… we tend to shy away from politics altogether, from the outside world.”^{Footnote 50} In other words, these are narratives of consciously avoiding the cultural exchanges that typify multiculturalism in its idealized form.^{Footnote 51}

Indeed, in contrast to the ideas of multiculturalism and inclusion that figure in Canada’s religious freedom jurisprudence,^{Footnote 52} the narrative understanding of religious freedom presented by Hutterite interview participants was essentially contractual. The defining feature of the participants’ understanding of their relationship with the state was a quid pro quo: the government guaranteed absolute religious freedom and the Hutterites promised to develop farmland. In their submissions to the Supreme Court, the Wilson Colony argued that, when they immigrated, “[t]he Canadian government of the day guaranteed the Brethren’s right to religious freedom in Canada.”^{Footnote 53} A Hutterite participant said that Canada promised the Hutterites religious freedom “till the end of time.”^{Footnote 54}

According to historical accounts, there is some basis for this understanding. In 1898, Hutterites initiated communications with Canadian officials when they first considered moving to Canada in order to avoid military conscription in the United States. Hutterite leaders sought a number of assurances from the Canadian government, chiefly an exemption from military service. The Canadian government gave the Hutterite leaders assurances of such an exemption, viewing the Hutterites as a “desirable class of settlers to locate upon vacant Dominion Lands.”^{Footnote 55} The Department of the Interior, in charge of immigration, also told the Hutterites that they would “not be molested in any way in the practise of their religious services and principles, as full freedom of religious belief prevails throughout the country.”^{Footnote 56} Moreover, they would be permitted to “establish independent schools”^{Footnote 57} and would not be compelled to take oaths in court, vote, or hold public office. The department even promised that Hutterites could live “as a commonwealth, if they desire to do so.”^{Footnote 58}

In 1899, some Hutterites established a colony at Dominion City in Manitoba. That year, an order in council granted the Hutterian Brethren an unconditional exemption from Canadian military service.^{Footnote 59} The larger Hutterite migration into Canada began in 1918 when, as noted above, they fled mandatory conscription in the United States. The Wilson Colony was established as a result of this migration.^{Footnote 60} John Bennett notes:

This account rings true with the litigants’ narrative that the Canadian government had promised “absolute religious freedom.”^{Footnote 62} However, some careful historical studies complicate this narrative. Victor John Peters notes that, in 1918, the Canadian government told the Brethren that while they would be exempted from military service in Canada, they might nevertheless be required to return to the United States for military service. Further, the federal government was not in a position to make any promises with respect to education, as this was a matter of provincial jurisdiction. Nevertheless, by then “the Hutterian communities in the United States were desperate, and the exodus began in the same year.”^{Footnote 63}

Though there are significant reasons to qualify the claim that the Canadian government promised Hutterite immigrants absolute religious freedom, the contractual understanding described above predominated among Wilson Colony interview participants. Perhaps because of this, the Hutterite participants did not relate an inclusion-based narrative.^{Footnote 64}Wilson Colony was not a case in which members of a religious minority group sought inclusion in a public institution that socializes young people (like Multani), or sought to join a private community without abandoning a religious practice (like Amselem). Wilson Colony turned out to be a case about access to public resources: public roads and the driver’s licencing system.

This is a request for a kind of inclusion. The Wilson Colony needs driver’s licences so it can trade with non-Hutterites and receive social services such as health care. But this reading of the claim does not carry the same rhetorical weight as the image of the tolerant and diverse public school classroom or the condominium complex where all residents can carry out their religious practices in harmony. In the Supreme Court’s reasoning, Gurbaj Singh should be allowed to wear his kirpan so that schools can teach about tolerance and multiculturalism.^{Footnote 65} Amselem and his co-litigants should be allowed to install their succoth so that diversity can thrive in a condominium complex.^{Footnote 66} There is no equivalent so that in the Court’s understanding of the Wilson Colony claim. Instead, the Hutterite claim came to be read as a request for isolation on the basis of religious freedom. This may, to some extent, help explain why their claim was rejected. The Hutterites of Wilson Colony did not present an account congruent with the prevailing legal discourse, which understands the coming together of diverse religious groups as a reason for religious freedom.^{Footnote 67}

At some moments, litigant participants interpreted the holding of the Supreme Court as a rejection, confounding their image of Canada as a place where they could freely practice their religion without limitation. This was clear in the contrasting terms a litigant used to describe his previous image of Canada and his view of the Alberta government’s position on driver’s licence photos. He described Canada as having historically promised the Hutterites that they could practice their religion with “no hindrance”; he summarized the Alberta government’s position as: “[I]f you don’t do as I tell you… why, you haven’t got anything, you’re a nobody.”^{Footnote 68}

Another participant expressed the view that, through God’s intervention, the civic authorities would eventually restore religious freedom. He explained how, in his understanding, political changes in Alberta could be explained through divine influence:

Thus, participants related somewhat conflicting narratives on their relationship with the state. They were bewildered by their loss at the Supreme Court of Canada and the position of the Alberta government. However, they maintained some belief, tied to their particular faith, that Canada would be a relatively hospitable place to practice their religion.

In sum, though the theme of inclusion in Canada’s civic community figured in participant narratives of Wilson Colony, it did so quite differently than in Multani or Amselem. The Hutterite narratives revealed an attachment to Canada but not through participation in civic processes and institutions. Rather, the narratives understood Canada as a haven of religious freedom, beginning with a historical exemption from military service. All the while, the Hutterite narratives told of purposeful separation from many parts of society.