Canada is a country of continuing settlement, where the older French and British settler community has become outstripped by a great diversity of more recent immigrants. Responding to this demographic change and its associated cultural and religious changes was one of the impetuses behind the introduction of the Charter of Rights and Freedoms in 1982 and the Multiculturalism Act 1988. An inherited common law legal system operates within a federal constitution that gives considerable autonomy to the ten Canadian provinces, each of which possesses its own legal system. Controversial policy issues can therefore become aired and judicially considered in a particularly rich legal firmament.Footnote 1
Edited by two academic lawyers, this collection of essays originated in an Osgoode Law School workshop in the autumn of 2014 but has been published following the end of a nine-year Conservative government whose marked and sometimes controversial character occasionally obtrudes a spectral presence in the collection. Lawyers comprise only a bare majority of the contributors, the minority including anthropologists, philosophers, sociologists and religious studies scholars. The editors explain that the focus on religion and the exercise of public authority ‘brings to the surface the many difficulties involved in separating religious belief and practice from political action, exposing the complexity of these outwardly orderly concepts’ (p 2).
The collection's interest to British readers lies in how the state – both national and provincial – has addressed issues that are also of concern in the UK. Discussion can be seen as taking place on two principal levels. The first includes the examination of very specific and local cases posing particular questions about how, if at all, plurality of religious expression should be accommodated in public life. At a higher, second, level – and discussed in the first main chapter and less centrally elsewhere – are larger questions about the viability of state neutrality and the extent to which the courts should become involved in determining religious questions. Overall, it is evident that the Canadian and UK courts have been treading similar paths in comparable, but not identical, political cultures.
Eleven chapters range widely in relation to what at first sight may appear to be specifically Canadian problems. However, even when reflecting on the work of a 1913–1916 Royal Commission charged with considering aboriginal land claims and how to adjudicate claimants’ appeals based on conflicting assertions as to their legitimation by the Almighty, it becomes apparent that such issues are not by any means uniquely Canadian. Similarly, a chapter on legal ethics for ‘religious’ lawyers could find a place in any common law jurisdiction and beyond.
Two essays deal with the ongoing litigation arising from the refusal of some Canadian law societies to accredit a law school planned to be inaugurated by Trinity Western University, a controversy noted elsewhere in the collection. Both ponder how far professional integrity is really threatened by the university's recruitment policy, which makes adherence to ‘traditional’ views on marriage and sexuality a prior condition of admission. Religious positions, it is argued, are more fluid and mutable across generations than is commonly allowed and, if religious freedom means anything, it has to allow for choices that some may find objectionable but which are not actually contrary to public policy – a position the writers perhaps hope will be ultimately endorsed by the Supreme Court of Canada.
Broadly speaking, that is the position largely favoured by the contributors. A chapter recounting the experiences of Muslims in government workplaces brings out the continuing cloaked dominance of Christian assumption. The discussion about whether public officials – including the judiciary – should be banned from wearing religious symbols concludes, on the one hand, that no hostile assumptions of automatic bias should be made and that it is not for the state to intervene. On the other hand, it is maintained that recent litigation shows that a clearer approach is needed to the reconciliation of patients’ and physicians’ rights in the context of conscientious objection. No room is found, however, for excusing public servants from performing tasks because they are morally opposed to government policy. Whereas the political claims of religious groups should be entertained as a legitimate part of public debate, such claims fall to be either accepted or rejected in the democratic process. Moving beyond the minutiae of litigation, an anthropologist analyses controversies about public prayers.
Two chapters discuss religious schooling. The first argues provocatively that the regulation of religious schools is in fact the best way of preserving religious freedom and preserving the child's right to a sufficiently open future. The second reflects on the issues involved in the Canadian Supreme Court's 2015 decision in Loyola High School v Quebec. The issue was whether the relevant minister had been correct to refuse to accept the request of the school – a private Jesuit establishment – to teach its own version of the state's ethics and culture course, which is required to be taught from a faith-neutral perspective. The majority of the court found that the minister's decision disproportionately infringed the religious freedom of the school and in effect upheld the school's objection to what it claimed was ‘normative pluralism’. The author concludes that responding to Loyola will require imagination, dedication, co-operation and respect on the part of all acting with authority for government, schools and religious communities.
This book – all too barely summarised above – is a well-produced and reflective consideration of state/religion issues common to the Canadian and UK jurisdictions. The mix of disciplinary backgrounds results in something discernibly more than a wholly lawyerly treatment and is all the richer as a result. It presents an instructive counterpoint to UK concerns and cogently covers a great deal of ground. It is recommended both for its intrinsic interest and as a spur to UK reflection.
