Canadian Law and Religion: Confederation

The British North America Act, 1867

In 1867, the Parliament of the United Kingdom passed the British North America Act, thus creating the country of the Dominion of Canada.  The British North America Act (and its subsequent amendments) became the core of Canada's constitution.  This Act was officially renamed the Canada Act in 1982, when the Canadian Constitution was patriated.  The Canada Act gave Canada the authority to patriate its Constitution.  Canadian Parliament, in turn, enacted the Constitution Act, 1982, which officially created in Canadian legislation Canada's own constitution.  Canada's modern Constitution includes the core of the original British North America Act, as well as the Canadian Charter of Rights and Freedoms.

Religion at the Time of Confederation

The British North America Act, 1867 did not explicitly refer to the freedom of religion.  The centrality of religion in the life of the fledgling country, however, is evident.

For example, the division of power between the federal and the provincial governments ensured that the provinces (including Quebec) would have legislative authority over certain aspects of life that intersect with religion, including:

• The establishment and maintenance of hospitals, asylums, and charities: s. 92(7);
• The solemnization of marriage: s. 92(12)
• Property and civil rights within the province: s. 92(13); and 
• The administration of justice in the province: s. 92(14).

Giving the provinces the authority over civil rights meant that the Freedom of Worship Act, 1851 S.P.C. 1851,14-15 Vict., c. 175, which had been adopted by the Province of Canada (then comprising both Upper and Lower Canada), would continue to be good law. This Act recognized the right to the "free exercise and enjoyment of religious profession and worship, without discrimination or preference".

Significantly, section 93 of the Act (and our modern Constitution) also give provinces the exclusive right to make laws relating to education, subject to certain protections and safeguards extended to Protestant, Roman Catholic, Denomination, and Separate schools in the Provinces.

93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:

(1.) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

(2.) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec:

(3.) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education:

(4.) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

Source: s. 93, British North America Act, 1867, as am.