Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774

Abstract

The human rights and civil liberties guaranteed by the Canadian Charter of Rights and Freedoms did not spring into existence in 1982. Although this assertion might seem trite, the Charter has engulfed how scholars study constitutional rights and freedoms in Canada. As a result, many jurists are not fully aware of the broader history of Canadian civil liberties. This article seeks to remedy this amnesia through a study of the constitutionally significant statutes and documents enacted following the Seven Years’ War which promised varying degrees of religious freedom to British North America’s Roman Catholic population. Geopolitics played an undeniable role in shaping imperial policy regarding religious freedom in Canada. But it would be a mistake to conclude (as the Quebec Superior Court did in its 2021 ruling in Hak c. Procureur général du Québec) that these guarantees were little more than the product of a political calculus. While many colonial leaders in late 18th century Canada appeared to largely value religious freedom for its political utility, others came to articulate a decidedly aspirational vision for these guarantees. It was to the efforts of these latter individuals that the late W.P.M. Kennedy referred when he asserted that this period of history establishes “religious toleration [as] one of the corner-stones of the Canadian constitution”.

Keywords: religious freedom, Canadian constitutionalism, freedom of religion, Canadian Charter of Rights and Freedoms, civil liberties, unwritten principles, legal history, constitutional history