THE ROLE OF CANADIAN MUNICIPALITIES IN THE MANAGEMENT OF RELIGIOUS DIVERSITY
What role do Canadian municipalities play in the management of religious diversity? In a certain way, they are not unlike constitutional absentees. Yet, municipalities, especially large urban ones, play a crucial role in the daily management of religious diversity.
What role do Canadian municipalities play in the management of religious diversity?
I wish to address this question from a dual constitutional law and sociological perspective, focussing on the role granted by the Canadian constitution to the federation’s various levels of government: federal, provincial, and municipal. This task first requires examining Canada’s constitutional history, as well as the formal powers afforded to those three levels of government. This exercise will show that, from a constitutional law standpoint, municipalities represent a subordinate level of government enjoying very little protection from the dictates of their provincial masters. In a certain way, they are not unlike constitutional absentees. Yet, municipalities, especially large urban ones, play a crucial role in the daily management of religious diversity.
A sinuous constitutional history
Prior to the arrival of Europeans, Canada was no terra nullius. Various Aboriginal societies co-existed with their own legal orders and spiritualities. The first contact between these societies and Europeans took place when the French created the colonies of New France and Acadia at the beginning of the 17th century.
The French colonies heavily suffered from the wars between France and Great Britain. The rapid growth of British colonies south of the border and the comparatively greater investment of Great Britain in its North American colonies created a power imbalance that would eventually haunt France. Several episodes of war led to the dismemberment of France’s empire in North America. After Acadia was ceded to Great Britain after the 1713 Treaty of Utrecht, New France suffered the same fate in 1763 with the Treaty of Paris that followed France’s defeat in the Seven-Year War.
This regime change entailed significant consequences from the standpoint of the religious make-up of the colony: a Roman Catholic colony – non-Catholics were prohibited from immigrating to New France – suddenly came under the rule of a Protestant monarch. In the future, the bulk of new migrants would also be Protestants.
Legal and political implications flew from these changes. In the 1763 Royal Proclamation, which created a new British colony called the “Province of Canada”, the Test Oath was imposed upon Catholic subjects if they wanted to occupy a public position. This implied renouncing their religion, which they could not and would not do, as a result of which the former inhabitants of New France were functionally excluded from public office.
Their position improved with the 1774 Quebec Act, in which the British Parliament restored the application of French civil law in private law areas and abolished the Test Oath, a policy change in part explainable by Britain’s fear that the discontent felt in its American colonies would spread to Quebec. In 1776, the American Revolution took place, which prompted an exile of loyalists to Canada. A substantial number of them relocated to the Western part of the province of Quebec, which is now Ontario. This influx of Protestant immigrants led to a difficult coexistence between the French/Catholic inhabitants, still a majority then, and the Anglo-Protestant immigrants. Taking stock of the problem, the British Parliament enacted in 1791 the Constitution Act, which divided the province of Quebec in two distinct colonies, Lower Canada (French-Catholic, now Quebec), and Upper Canada (Anglo-Protestant, now Ontario). The constant arrival of British migrants after 1791 eventually shifted the demographic balance in favour of Anglo-Protestants.
Repressed rebellions in the 1830s led to the enactment of the 1840 Union Act, which united the two Canadas into a single entity governed by a common legislature, with an equal representation of representatives from each Canada in spite of a larger population in Lower Canada. The assimilationist policy underlying the Union Act was fiercely resisted in former Lower Canada (now called “Canada East), and ultimately failed. The next constitutional step was the enactment in 1867 of the British North America Act (now called the “Constitution Act, 1867), which established a federation of provinces (initially four, i.e. Québec, Ontario, New Brunswick and Nova Scotia).
The last significant step in Canada’s formal constitutional evolution took place with the adoption of the Constitution Act, 1982. This constitutional instrument triggered a tectonic shift in Canadian constitutional law, as a Charter of Rights and Freedoms, Aboriginal rights, and the principle of constitutionalism were given preeminent status in the country’s legal order.
Protecting religious diversity in the Canadian constitutional ecosystem
In the early days of the Canadian federation, religious groups could not rely on a formal bill of rights to protect themselves from undue state-imposed constraints. They could either rely on the general principles of the British constitutional system, or on the federal division of powers.
For their part, municipalities are considered, in the Constitution Act, 1867, as mere objects of legislation for provincial legislatures; they are, to use a famous expression, “creatures” of the provinces. They are thus under the absolute jurisdiction of such provinces, and enjoy no constitutional status, as a result of which the powers they have are delegated to them by provincial legislatures who can withdraw or reduce them at will. And as was held in a 2021 case involving the city of Toronto, the implicit constitutional principle of democracy cannot be relied upon to change that status, even though cities are, in fact, major political, social, and economic actors. Actually, irrespective of recent legislative evolutions in some provinces concerning the responsibilities of municipalities, recognizing them as “governments of proximity”, they have no legal recourse if such evolutions are halted or reversed. In short, there is a clear disconnect between their constitutional/legal status and their importance in the daily lives of citizens.
Today, religious groups can primarily rely for the protection of their rights on the Canadian Charter of Rights and Freedoms, which, while lying at the apex of the country’s rights-protection ecosystem, only applies to governmental action. Freedom of religion, guaranteed in s. 2a), protects one’s rights to one’s intimate beliefs in relation to a theist entity, and to express them freely. The evaluation of a claim based on freedom of religion centers around the claimant’s subjectivity; what counts is the claimant’s sincerity or good faith, rather than a formally ascertainable “objective” religious obligation or prohibition. What needs to be objectively demonstrated, however, it the restriction itself, which must be more than trivial or insignificant. Freedom of religion also imposes upon the state a duty of religion neutrality. For example, a Roman Catholic prayer recited at municipal council meetings was found to have an exclusionary effect on other religious groups, agnostics, or atheists; it was thus struck down as unconstitutional.
Beyond freedom of religion proper, religious groups may also rely on the Canadian Charter’s protection of equality rights, which lists religion as a prohibited ground of discrimination (s 15(1)). It is primarily on the basis of equality rights that the “reasonable accommodation” doctrine was elaborated in Canada. In a nutshell, if one has a prima facie right to be accommodated, the organization from whom the accommodation is requested must demonstrate that granting the accommodation would impose a form of “undue hardship”, which refers to a tangible and not merely conjectural hardship. This doctrine applies to municipalities qua “governmental actors”, but is also applied to private actors through provincial human rights legislation.
A last word on the Canadian Charter, which elevates multiculturalism as one of its principles of interpretation (s. 27). It is important to understand that, precisely because it is a mere principle of interpretation, multiculturalism does not, and cannot, have the effect of creating rights ex proprio vigore. In contexts where cultural claims often overlap with religious ones, this means that a person cannot claim that the multiculturalism clause guarantees her a “right to culture”.
A mosaic of cultures: Canada’s sociopolitical history, and its contemporary consequences
Canada is a country of immigration. Functionally, it is composed of two main societal cultures (a majority English one and a minority French one, which is mainly concentrated in Quebec). While not separated by watertight cultural walls and far from being internally homogeneous, these two societal cultures are often at odds with one another, with very different cultural references beyond the common ones emanating from US-manufactured mass culture. Such contrasting perspectives are particularly obvious on questions pertaining to religion.
On the one hand, Quebec was for a long time a largely French-speaking Roman Catholic province with a powerful Anglo-Protestant minority. After the triumph of Ultramontanism in the mid-19th century, a very conservative clergy heavily influenced society, including public policies. It is only in the early 1960s, with the Quiet Revolution, that the state broke its ties with the Church, and that Quebec underwent a major secularization process. Yet, even though religion was symbolically expelled from the public sphere, there is still a defiance, if not outright hostility, towards religions in general, and since the Catholic church is hardly a significant social actor anymore, attention has turned to more “visible” contemporary assertions of religiosity, most often coming from Muslims or Sikhs. In contrast, English-speaking Canada has never known any form of such social control on the part of any religion; thus, the type of defiance towards religion that exists in Quebec is absent elsewhere. After years of debate, Quebec has clearly moved away from a model of “open laicity” and embraced instead a form of laïcité à la française. Indeed, the most recent chapter of Quebec’s perennial debate on the place of religion in society is the enactment of the Act respecting the Laicity of the state. This statute’s most contentious substantive provisions force some groups of state employees to remove their religious signs when working; it targets not only employees allowed to exercise coercion of behalf of the state (police officers, prison guards, etc.) but also primary and high school teachers.
That said, even though the Laicity Act is in principle shielded from constitutional challenges based on freedom of religion by the resort to the Canadian Charter’s and Quebec Charter’s notwithstanding clauses – which is itself a source of contention -, this Act is being challenged before the Quebec Court of Appeal as I write this article. This case, which will certainly climb up to the Supreme Court, does not say much in the abstract about the management of religion in a multi-level polity. However, it does say that in some circumstances, issues such as religion may inflame relations between various societal cultures and constitutional entities within such a polity, and this, even beyond their primordial summa divisio, such as language in Canada. Whatever the decision, if any, of the Supreme Court may eventually be, it is likely to add fuel on the fire. In this respect, one can see that the combination of federalism with a system of constitutionalism in a context where the apex court is omni-competent, being able to adjudicate both on federal and provincial issues, may lead to a “federalization” of local conflicts and, perhaps to a certain extent, to their exacerbation. Thus, as of the mid-2000s, originally arcane conflicts about the scope of freedom of religion and its legal consequences morphed into broader conflicts about the meaning of Canada from a Quebec perspective. It (again) raised the question of the margin of autonomy Quebec really enjoys to advance public policies that are at odds with those valued in the rest of Canada (together with the protection of French as the official language).
The broad picture that I just brushed of Canada’s sociopolitical history reveals an absence, that of municipalities. Indeed, where do they fit in the Canadian political ecosystem?
Canada’s “municipal paradox”
Recall that municipalities do not enjoy any specific constitutional status in Canada. Yet, they are frontline providers of essential services, and this is particularly true for large municipalities, where immigration and religious diversity are largely concentrated. However, such municipalities tend to be treated in the exact same way as small ones. On the ground, the main tools they possess if they want to regulate religion essentially lie in zoning by-laws, the interpretation of which is often a source of tension; this has notably been the case with the location of places of worships and cemeteries. In so doing, they must comply with regular constitutional requirements, particularly state neutrality, which means they can neither advantage nor disadvantage specific religious groups. For example, as freedom of religion is primordially a negative freedom, they have, as a matter of principle, no positive obligation to amend their zoning by-laws to assist religious groups in finding a land for worship that fits their preferences. There is always some cost to the practice of any religion, and municipalities are not bound to remove all such costs when zoning.
It is here, however, that the legal lens that I have so far employed to look at what municipalities can do, and actually do, reveals its limits. Indeed, their most fruitful initiatives regarding the management of religious diversity are not of a regulatory nature. They rather seek to enhance intercultural sociability, for example by creating inclusive public spaces, to foster the feeling of belonging of all people, for example by creating forums where marginalized groups can speak up, and to facilitate, to the extent possible, the creation of community-based spaces, such as allowing for minority religions’ cemeteries in a Christian-dominated society. Such actions, which are often transversal, may seek to deal with issues as diverse as governance, policing, zoning, urban planning, transportation, social development, housing, immigration, community development, sports, culture, or urban indigeneity. They may encompass information campaigns, the enactment of formal policies or symbolic declarations, studies or evaluations, action plans, reference frameworks, the creation of dedicated municipal offices, consultation or concertation mechanisms, mediation programs, training programs for employees, group-specific initiatives, etc. What counts is their effectiveness on the ground. These examples are drawn from the experience of the city of Montreal, but most large Canadian urban centers have equivalent initiatives in place.
The challenge for these Canadian cities, however, is to find the funding that is needed to realize and sustain such initiatives, which is always a problem given their limited taxation base and the fact that not all of the situations they are faced with, such as caring for immigrants, are under their jurisdiction. In practice, they are dependent upon higher governments for such funding, which may hinder their ability to act.
It is hard, if not impossible, to draw any universal lesson from Canada’s multi-level governance system on the management of religious diversity. Indeed, the system’s idiosyncratic nature renders it hardly exportable. That system is largely a product of the country’s incremental evolutions, and reflects its internal tensions. From a legal/constitutional standpoint, a forecoming challenge will be to determine how to grasp the potential revival of Aboriginal spiritualities in the current context of reconciliation with First Peoples.
However, when it comes to assessing the role that municipalities play in the management of religious diversity, one must conclude that it is both important and precarious. Important in the sense that, on the ground, municipalities play a critical role in the concrete integration of religious groups in society, and particularly religious minorities which tend to be concentrated in large urban centers. Precarious because their regulatory powers are limited and, most importantly, their dependence on external funding from higher levels of government is significant. Yet, in spite of that precariousness, they are instrumental actors in the implementation of social and cultural rights for minorities and, by way of consequence, in the creation of sustainable forms of convivencia.