From Immigration To Integration
The Canadian Jewish Experience:
A Millennium Edition
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From Immigration To IntegrationThe Canadian Jewish Experience:
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Julien Bauer
Jews have constituted a part of society since the creation of Canada as a state. From a small number of immigrants, they have become a sizeable permanent minority. One way to assess their evolving place in Canadian society in the post-war era is to analyze the treatment of Jews by the educational system.
Education follows two different philosophical approaches. The first sees the educational system as a reflection of society according to the status quo; the goal is to perpetuate the way that society functions. The second approach treats education as a tool to promote transformation, to modernize, to be the vanguard of planned change. This debate, present in every society, is all the more acute when societies are themselves confronted by rapid changes, specifically, changes in their composition. Canada presents a specific case. Education is under provincial jurisdiction and therefore cannot be analyzed generically at the federal level. Quebec provides us with an interesting case study of a dominant host society seeking to regulate the role of minorities through its educational system. Quebec has witnessed a dramatic transformation in the composition of its population. Whereas the large majority was traditionally French-Canadian Catholic and the minority English-Canadian Protestant, immigration began affecting demography. The Jewish community became the largest and oldest non-Christian group in Quebec, forcing the educational system to react to a new reality. This essay focuses on changes in the Quebec educational system as it attempted to grapple with diversity and change, and the way in which this process was related to Canadian policies to combat prejudice.
Quebec’s educational system was a symbol of the dual composition of society as foreseen by the British North American Act and other constitutional documents, and accepted as such by Quebec’s population. Schools were divided into two confessional streams, Catholic and Protestant, with Catholic also meaning French-speaking and Protestant referring to English-speaking.1 Confessional school boards, within their jurisdiction, could levy school taxes in order to defray education costs. The results were major differences between the regions - the poorest regions providing limited services and the richest offering better ones - and between the confessions. For a variety of reasons, Protestant school boards decided to levy higher taxes and were therefore able to offer better education. Until the 1960s, Catholic public schools were limited to elementary institutions, while the Protestant system had both elementary and secondary schools. French-Canadian children who wanted to continue their schooling went to cours classiques, secondary schools under the direction of the Catholic Church.
This extremely decentralized and unequal system functioned until the Quiet Revolution, the few years in the 1960s when Quebec decided to drastically modernize its public structures, including education. The Quebec government gave a mandate to a royal commission, chaired intentionally by a bishop, Monsignor Alphonse-Marie Parent, to suggest new directions for education. The Parent commission report, published in 1963, recommended major changes, inter alia the creation of a Ministry of Education and the opening of Catholic, French high schools, instead of cours classiques.2 The educational system was revamped: the new Ministry of Education rapidly became one of the ministries with the highest budget and public Catholic high schools mushroomed throughout the province. The ministry had two deputy-assistant ministers, one nominated after consultation with the Catholic committee and one after consultation with the Protestant committee, both committees being part of the Superior Council of Education. Parallel to these changes, a growing number of Protestant schools chose, of their own free will, to offer education in French, thus creating a new type of school: Franco-Protestant. The end of the “revenge of the cradle,” the precipitous decline of Franco-Catholic fertility and the greater reliance on immigration to compensate for this trend, forced Quebec political leaders to face a new reality. Instead of perceiving immigration as a kind of federal plot to lower the relative influence of French-speaking Quebec in Canada - a self-fulfilling prophecy since non-Catholic children were barred from Catholic schools and, therefore, from learning French at a time when Protestant and English were synonymous - they began to perceive immigrants as tools to maintain a linguistic equilibrium. Immigrant children, barred from French-Catholic schools until then, were suddenly obliged to enrol in French-speaking schools, either Catholic or Protestant. Bill 101, the French Language Charter,3 had a major impact: newcomers had to learn French and Catholic schools had to open their doors to immigrants if they did not want to fade away due to the low number of French-Canadian children. A further change was only recently introduced by constitutional amendment, replacing confessional school boards-Catholic or Protestant-with linguistic ones-French or English.
In this evolving double-track system, what was the status of the Jewish minority?
There has been a small Jewish presence in Canada since the early eighteenth century, but Jews only became numerous enough to be considered a minority, rather than just a few individuals and families, in the last quarter of the nineteenth century. Census findings reveal that there were less than a thousand Jews (989) in Quebec in 1881. The numbers increased to over 7,000 in 1901, 30,000 in 1911, 60,000 in 1931, then, following World War I, jumping to 82,000 in 1951, peaking at 111,000 in 1971, declining again to 80,000, and then rising again to the present figure of approximately 100,000.
Religious Jewish education was traditionally offered by rabbis, and then more formally by synagogues. In secular education, Jews were subject to a double discrimination. French-Catholic schools were closed to them and would remain so until 1972, while English-Protestant schools only reluctantly accepted them. When, in 1903, the Quebec government tried to have Jewish children treated as regular children and their parents as regular taxpayers, Protestant school boards disagreed. The case went to the Privy Council which ruled, in 1929, that Jewish attendance at Protestant schools was a “matter of grace, not of right.”4 Nevertheless Jewish children went to Protestants schools, so much so that certain schools, such as Baron de Byng, were attended almost exclusively by them. Their parents paid school taxes to the Protestant school boards, but the adage “no taxation without representation” did not apply to them. Jews were not only barred from being elected commissioners, they were denied the right to vote. Decentralization resulted in different policies for different boards: Jews living in Westmount could vote, while those living in Hampstead could not. With the creation of the Protestant School Board of Greater Montreal in 1965, the situation improved. Non-Protestants - mainly, but not exclusively, Jews - living outside the Montreal municipality obtained the right to vote. The board had twenty-five commissioners: ten from Montreal (five chosen by the city and five by the Quebec government), ten who were elected by municipalities outside Montreal, and five Jews appointed by the Quebec government.
The struggle of Jewish parents to be treated like all other citizens illustrates the opposition of both Catholics and Protestants to equal rights for Jews. It also gives an idea of the atmosphere in which Jewish pupils received their education.
To correct this situation, in the 1920s some Jewish parents tried to create their own school board which would be recognized by the Quebec government, a Jewish, public, school board. The debate over this issue provides a model of ambivalence. Jews were divided. Many of the newcomers, incensed by Protestant discrimination, opted for a Jewish board where their rights and beliefs would be respected. Most of the leadership, on the other hand, who were socially upwardly mobile, were afraid to be cut off from society. Anglo-Protestants were opposed to a Jewish board; as much as they adamantly refused to grant voting rights to Jewish taxpayers and remained content to merely tolerate Jewish children rather than to respect them for their differences, they wanted to keep the taxes paid by Jews. The Quebec government vacillated between a desire to weaken the English educational system and a respect for a Christian ideology with its anti-Judaic elements. Faced with a divided Jewish community, the opposition of Anglo-Protestants, and the reservations of French Catholics, the government abandoned the idea.
This did not solve the problem. Many Jewish parents did not want their children to be forced to follow Christian prayers, rituals, and customs. They wanted a Jewish education for their children, a secular education free from continual references to Christian theology, and a say in the educational system. They therefore decided to create private Jewish day schools. These various schools were supported by private funds alone. During the 1970s, a period of major educational initiatives, the Bourassa government gave the status of “public interest” to private confessional schools - Jewish, Armenian, Greek-Orthodox, and, since 1985, Muslim - thus entitling them to public subsidies.
Subsidies were later used to promote a policy of francization. Private minority confessional schools, mainly Jewish, were ordered to increase the percentage of French teaching in their curriculum in order to keep receiving public funds. After negotiations, the schools complied. In brief, the system entitled a Jewish child whose parents had received education in English in Canada to also receive an English education (certificat d’éligibilité). The new arrangements stipulated that if the parents chose to send their child to a Jewish school, the child would receive the majority of instruction in French. This naturally led to curricula with a very heavy workload (French, English, Hebrew, and sometimes Yiddish), a state of affairs that can be arduous for children with below average, or even average, abilities.
This system had some unanticipated results: the greater the interest the parents had in maintaining Jewish identity through a Jewish day school education, the greater the French skills of the children. It seems probable that the next generation of Jewish leadership in Quebec will come from the Jewish schools rather than the public ones, and they will have greater command of the French language than those who attended public schools.
The mere fact of subsidizing Jewish schools is a clear departure from the previous anti-minority and anti-Jewish policies. These subsidies are perceived by many politicians and members of the Quebec intelligentsia not as a right, but as a proof of the unique openness of Quebec. An argument often repeated, in particular by David Payne, member of the Quebec national assembly (MNA) and assistant to Camille Laurin, father of Bill 101, is that Quebec is the only place outside Israel to subsidize Jewish schools. This is obvious nonsense. North America has, in general, a rather dubious record on this issue: the US, because of its strict interpretation of separation between church and state, does not subsidize confessional schools of any stripe, while Ontario, for example, subsidizes only Catholic schools (see below). However, many democratic regimes, including such stalwart champions of separation between church and state as France, do channel public funds to private confessional schools. Recognition and subsidies for private minority confessional schools, in this case Jewish ones, far from being unique, is an example of the modernization process in Quebec, putting the province on an equal footing with other democratic societies.
From a situation of discrimination against Jews -children barred from Catholic schools, tolerated in Protestant ones, and limited voting rights for parents - the educational system has evolved to a de jure opening of all public schools to all children, and to a democratic election of commissioners. The recognition of Jewish schools as being in the public interest is also a step in promoting equality between citizens regardless of their religion. The continuing belief held by many that the Ministry of Education has the right to impose specific conditions on Jewish schools, while politically understandable, is a remnant of the old policy of differential treatment.
What about Jewish children attending public schools? As noted, they had traditionally been sent to English-Protestant schools. The creation of linguistic boards instead of confessional ones took place after an amendment to the Constitution demanded by an unanimous resolution of Quebec national assembly - in which two members representing English-speaking constituents did not vote - that was accepted by the House of Commons on November 18, 1997. The change was not as drastic as believed and had few immediate repercussions: within the new secular boards, schools could keep their religious - that is, Catholic or Protestant - status. Jewish children who used to attend schools of the Protestant School Board of Greater Montreal stayed in the same schools in new boards, whether French or English. Former Protestant schools were the least likely to keep their religious status in the new public framework. Very few Jewish children were enrolled in the former Commission des écoles catholiques de Montréal schools, institutions that were the most likely to keep their religious status.
Laïcité has become a code word for a new, up-to-date educational system. There is a distinct difference between the meaning of laïcité and secularism, the first term being more neutral. According to the Robert Dictionary, laïcité means “le principe de séparation de la société civile et de la société religieuse, l’Etat n’exerçant aucun pouvoir religieux et les Eglises aucun pouvoir public” (the principle of separation of civil society from religious society, the state not exercising any religious power nor the churches any public power). Ernest Renan wrote, “L’Etat est neutre entre les religions” (The state is a neutral party among religions)5; both politics and religions are legitimate, but do not mix. Secularism, on the other hand, puts the onus on religion not to interfere in civil society matters. It is the “belief that religion and ecclesiastical affairs should not enter into the functions of the state, especially into public education.”6 Both definitions apply neither to Canada nor to Quebec. With a sovereign who is supreme governor of the Church of England, with recognition of specific rights for specific religions in its Constitution, with its national anthem which, in the original French version, sings “Ton bras sait porter la croix,” (Your arms know how to hold the cross), Canada is not laïc. Quebec, with its religious status for schools and religious instruction in public schools, albeit limited to Catholicism and Protestantism, with its crucifixes in public institutions such as courts, municipal buildings, hospitals, and universities, is not laïc, either, although the authorities appear to believe otherwise.
In March 1997 the Ministry of Education announced the creation of the Task Force on the Place of Religion in Schools in Quebec, chaired by Jean-Pierre Proulx. In March 1999, it submitted its report called Laïcité et religions: perspective nouvelle pour l’école québécoise (“Religion in secular schools: A new perspective for Quebec” - note the difference in translation).7 In this document, non-Catholics and non-Protestants were presented as immigrants whom the educational system should integrate into Quebec society (p. 124-27). The report uses the term neutrality without defining it and then introduces laïcité, reminding us that this concept is controversial in Quebec (p. 67). It recommends the abolition of the confessional status for public schools and the introduction of courses to “study religions from a cultural perspective” (enseignement culturel des religions). While the Proulx report provides a glimpse of what constitutes laïcité à la québécoise, its ideas are not without practical problems. It is unclear how teachers, with no foundation in the vast field of comparative religion, will be up to this complex task. Even if they take a course on Judaism at one of Quebec’s universities, it will be taught from a Christian perspective. It is thus a real challenge for an essentially Christian, Catholic society, with a Christian calendar and Christian symbols, to become neutral and treat both Christian and non-Christian religious minorities on an equal footing.
Since most Jewish children attend either Jewish schools or institutions that were formerly Protestant, the latter with a minimal religious curriculum, they are not affected by this kind of laïcité. Strangely enough, they may become adversely affected in institutions with no religious affiliation - collèges d’enseignement général et professionnel (CEGEPs) and universities. These post-secondary institutions are officially non-denominational, both those directly created by Quebec - CEGEPs and the various campuses of Université du Québec - and those receiving most of their funding from Quebec, even if they are legally private, that is, all the other universities. The role played by the Catholic Church in the creation of Université Laval or Université de Montréal, by Protestant denominations in the establishment of McGill University, and by both Catholics and Protestants in the formation of Concordia University, is now part of history and the religious connection is no longer considered relevant. However, some of these universities have a record of de facto discrimination against Jewish students, which endured until the 1960s.
McGill, for example, had a quota system to limit the number of Jews and, as a matter of policy, required them to have higher marks for admission. Every Jewish student knew he had to do better than his Christian colleagues in order to be accepted for university education. Such a system did not exist at Université de Montréal. There the problem was different. Since most Jewish youngsters had attended English-Protestant schools, few were able to attend French universities. Those who were accepted faced discrimination, not from the administration of the Université de Montréal, but from other students, as demonstrated by a strike of interns in 1934 against the appointment of a Jewish intern, Samuel Rabinovitch. Contrary to the situation in elementary schools, it was therefore not the law that discriminated against Jews, but the private institutions, as in the McGill example, and the student associations, as in the case of Université de Montréal. Both kinds of discrimination disappeared in the 1960s due to a combination of factors: a greater awareness of the evil of racism, an increased receptiveness on the part of Canadian society to human-rights issues - as symbolized by the 1960 Canadian Declaration of Rights - and the growing consensus that discrimination was counter-productive to the interests of universities. Thus the difference between the 1960s and the situation prevailing by the end of the millennium is great: McGill has Jewish students without a trace of quota or other discrimination, Jewish professors and, recently, a Jewish rector. Does that mean we have arrived at a full recognition of minority rights in Quebec?
Quotas and other forms of discrimination have been outlawed both by the Canadian Charter of Rights and Freedoms (1982)8 and the Quebec Charter of Human Rights and Freedoms (1975).9 Officially, therefore, there can be no discrimination; however, for practical purposes, the Quebec government has invoked the notwithstanding clause in educational matters. Not to do so would have required a considerable and immediate reorganization of the whole system. For example, the Conseil supérieur de l’education, an advisory board to the minister of education, has two panels, one Catholic and one Protestant, corresponding to the two streams of schools before the 1997 change. By law, only Catholics may be appointed to the Catholic panel, whereas a few seats are reserved for non-Protestants on the Protestant panel. This differential treatment, according to faith, is in contradiction to the Charters, but it seems to be more a remnant of the old system rather than overt discrimination.
The Quebec Charter goes further than affirming the equality of all before the law; it promotes the notion of accommodement raisonnable (reasonable accommodation). This means that when dealing with a demand linked to religion, institutions should try, as far as possible without undue cost (contrainte excessive), to accommodate those asking for their specific requirements to be respected.10 An example of accommodement raisonnable would be to put a Jewish worker on a Sunday shift rather than making him work on Saturday. This approach, emanating from a philosophy that respects people for what they are, can hardly be written in legal terms. Its implementation depends on the kind and number of demands, on the specifics of each situation, and on good will. Accommodement raisonnable does not apply in elementary and secondary schools. Children with particular ad hoc demands, specifically for religious holidays that do not coincide with the Western-Christian calendar, have the opportunity to attend their own schools, be they Jewish, Armenian, Greek-Orthodox, or Muslim. However, at the post-secondary level, particularly in universities, this opportunity does not exist. How do universities treat minority students, including Jewish ones?
English-speaking universities seem to be at ease with the notion of accommodement raisonnable. They are used to non-Catholic and non-Protestant students, they are influenced by universities elsewhere in North America, and they do not perceive the accommodation of specific demands as succumbing to pressure. The classic case is the demand by religious Jewish students who cannot write exams on the Sabbath or Jewish holidays to be offered an alternate date. Most of the time, their demands are met. We are far from the situation prevailing forty years ago.
French-speaking universities have more difficulty dealing with this problem. As an extension of what was a French-Catholic educational system, they are not familiar with other students. Students of all backgrounds are welcomed, but the notion that some of them may need specific accommodations to general rules is not well understood. Current faculty members are often the first generation to shake off the overwhelming power of the Catholic Church. They have difficulty understanding why followers of other religions will not do the same. In the name of laïcité, many French universities are reluctant to accommodate religious Jewish students.
One way to express this reluctance is to refuse them entry to professional programs. The most recent case involved a religious Jewish candidate, with very good marks, who applied to the school of medicine at the Université de Montréal. Faculty members only asked him questions about his religious background, his beliefs and practices, and, specifically, his availability to write exams on Saturday. He was not accepted, but applied successfully elsewhere. This refusal of accommodement raisonnable is therefore present, though difficult to assess. For obvious reasons, most participants, whether professors or students, prefer not to talk about it. As far as alternatives exist, for example, the school of medicine at McGill, this type of subtle discrimination is hardly noticed.
More surprising is the policy of Université du Québec à Montréal (UQAM). On October 17, 1995, its board adopted a politique sur les relations interethniques (policy on interethnic relations). This very liberal document stresses in its first article that UQAM is a “public, francophone, and laïque” institution. Another article, number 7, explains that these three characteristics are to be respected by every member of the university community and, more specifically, that no one can “invoquer ses origines ethniques ou convictions religieuses pour déroger ou se dérober à ses obligations d’étudiant” (no one can invoke ethnic origins or religious beliefs to evade or escape student duties), but that, nevertheless, the notion of accommodement raisonnable applies.11 This apparent contradiction has been interpreted in a restrictive manner. In its Guide d’inscription (Registration Guide), the Ecole des sciences de la gestion has a notice regarding Report d’examen pour motifs religieux (Postponement of exam for religious reasons) printed in a frame. It repeats articles 1 and 7 without the section on accommodement raisonnable, adding that
most common exams are on Fridays, Saturdays, and Sundays. In respect to the above policy, no student may claim a dispensation for an exam (ne peut prétendre être dispensé d’un examen) for reasons linked to certain religious rites. UQAM respect all religious beliefs but cannot "make its activities vassal" (inféoder) to one or another belief.12
Reference to secularism without a word about accommodement raisonnable does not have much to do with neutrality. It can be called laïcité à la québécoise. In violation of the Quebec Charter, this peculiar laïcité constitutes a refusal to recognize the legitimacy of other cultures and customs. No exam would ever be scheduled on a Christian holiday such as Christmas or Easter Monday. Its message is crystal clear: all students are welcome as long as they follow the norm of the majority. Students who want to follow their religious beliefs, in this case Jewish ones, must try to settle their problems on an ad hoc, unofficial, basis. They are usually confronted by a negative answer and, in quite a few cases, change universities in the middle of their studies. This policy has the support of most professors and lecturers involved, regardless of their own religious or ethnic background. It is not geared against Jewish students as a whole, or against any other minority, but rather against those students who refuse to follow the rules of uniformity and to abandon their religious practices in public.
The laïcité debate is an indicator of the major changes in the Quebec educational system. Official discrimination, as it existed until the 1960s and 1970s in schools and universities, is no more. The present school system with its elementary and secondary schools, English or French, with its mixture of public linguistic boards and the possibility of confessional status, with its private confessional minority schools, has indeed become free of discrimination. Problems may appear here or there, but not on a regular, institutionalized basis. Universities, under the cover of laïcité, seem to be the last stronghold not of open discrimination, but of prejudice, as in the negation of a diverse and open society. Jews may not be openly discriminated against as in the past, but they are still not always respected for their diversity. This state of affairs is not linked to the government - the Quebec Charter is respectful of differences - but rather to parts of the universities’ apparatus.
As we face the challenges of the new millennium, and look back on the progress we have made in the battle for equal treatment of our minorities, how can we explain that eradication of legal discrimination has not prevented, in some cases, a refusal to recognize minority rights? Is this only a Quebec interpretation or rather misrepresentation of both Charters? It would be easy to respond in the affirmative, but the question deserves a more complex answer. It is noticeable that many French-Canadian intellectuals have gone through a dual process of identity change: they are no longer French-Canadian, but are now Québécois; they are faithful no more to the Catholic Church but follow the principles of laïcité. They feel that other segments of society should follow the same path and rid themselves of their religious identity. Religion is passé. If it is passé for us, the argument runs, why would others not feel the same way? These intellectuals seem unaware that the laïcité they espouse is limited to a specific group, the one they belong to, with its omnipresent Catholicism. An example of this viewpoint was provided during the UQAM-TAV controversy in the closing years of the twentieth century.
The Torah and Vocational Institute (TAV) is a body linked to the Lubavitch Hasidic movement. In 1999 TAV signed an agreement with Université du Québec à Montréal to offer, in the TAV building, courses leading to UQAM degrees in computer science and business administration.13 This agreement was violently denounced by the Syndicat des professeurs de l’Université du Québec, (Professors’ Union), and, after a passionate debate within the university and in the media, it was cancelled. Three objections were raised: gender, language, and laïcité. The first issue centered on the request from TAV that a few courses would be divided according to gender: separate courses for men and for women with male and female teachers respectively. This requirement was due to the religious sensibilities of the ultra-Orthodox, who do not sanction co-educational classes. The second bone of contention was that English would be the predominant language of instruction. These two points raise legitimate questions and it understandable that they should elicit differences of opinion. However, the use of laïcité as a reason for cancelling the TAV program was more problematic. No course on any religious topic was proposed, nor was student selection on the basis of faith introduced. In fact two thirds of the student body were not only non-Hasidic, they were not Jewish. The only remaining issue was the religious-based nature of TAV.14
This opposition to any kind of agreement between a secular university and a religious institution was a microcosm of laïcité à la québécoise. The UQAM-TAV controversy, in effect, characterized the uneasy relationship between civil society and religion through the prism of a Catholic society. A retired professor wrote an in an article: “L’UQAM accorde aux Lubavitcher ce qu’on a refusé naguère aux Jésuites” (“UQAM grants the Lubavitch what was refused earlier to Jesuits”).15 In the controversy that followed, a person closely related to Mouvement laïque de langue française used such phrases as “pernicious little integrationists,” “viol fascisant des consciences,” and “these people think of money” (ces gens-là songent à l’argent).16 Opponents refused to consider the fact that the cancellation of the agreement would deprive Hasidic Jewish women of a university education and thus adversely affect their ability to earn a livelihood. Their religious requirements, right or wrong, were deemed irrelevant and their socio-economic position of no account. Particularly interesting was the divide between professors. Those in total opposition to the agreement, in order to protect laïcité, were not familiar with the specifics of the situation. Many who were involved in the program, who had met TAV administrators and students, though often reluctantly at the beginning, changed their minds and became supporters of the TAV proposal.
In this case laïcité was used to deny any option that would accommodate the needs of the subculture, in this case the ultra-Orthodox Jewish one, outside the framework of existing public, secular institutions. It is disappointing that the Professors’ Union that was so adamantly opposed to the partnership with TAV did not challenge whether the university’s school of business policy was in accordance with the Quebec Charter, specifically its notion of accommodement raisonnable.
Certain elements of Quebec intelligentsia are not alone in their perception of the place of minorities in society. Leaders in English Canada have also shown a tendency to minimize the scope of rights for those deemed different.
Ontario provides an example of an educational system whose goal is to perpetuate society rather than to adapt it to change. Public schools in Ontario are secular, while Catholic schools are separate and subsidized by the province. In the early 1990s, two groups of private confessional schools, one Jewish, another “independent Christian,” linked to the Christian Reform Church, petitioned the Ontario government to receive the same funding as the Catholic schools. Their argument was based on two articles of the Canadian Charter of Rights and Freedoms, article 2a regarding freedom of conscience and religion, and article 15, which bars discrimination on counts such as religion. If successful, all denominational schools would have received educational subsidies, as well as some services for children with a variety of learning difficulties or disabilities, services provided freely in public and Catholic schools. The Ontario government refused. The two groups went to court and, eventually, to the Supreme Court.
In November 1996, the Supreme Court rejected the appeal of the private confessional schools by an overwhelming majority decision. Seven judges voted in favor, one completely dissented (Justice L’Heureux-Dubé), and one partially dissented (Justice McLachlin). The Supreme Court rationale was as follows: Article 93 of the British North America Act, providing for public funding of Catholic schools, is the result of a “historic compromise.” The plaintiffs - Jews and some Protestants - are not covered by article 93. To confer on them the privileges enjoyed by Catholic schools would mean that “one article of the Constitution [is] violative of another.”17 The judges based their opinion on article 29 of the Canadian Charter of Rights and Freedoms, protecting “rights and privileges” given by the British North America Act to “separate schools,” in this case, to Catholic schools. It is a fact that two religions - Catholicism and Protestantism - that are the religious expressions of two founding peoples - the French and the English - were recognized by the state and guaranteed privileges. Other religions, although they benefit from freedom of religion and cannot be discriminated against, do not enjoy the entrenched privileges of what could be labelled “founding religions.”
This narrow, legalistic interpretation is perplexing. A court is expected to respect the law, but the Supreme Court of Canada has not hesitated to get involved in judicial activism, for example, interpreting the law beyond the text, such as broadening the protection of the Charter to groups not mentioned in it (article 15), or calling for changes in legislation. In the Adler v. Ontario case, the Supreme Court chose to side with tradition rather than progress. To maintain privileges was inevitable, to refuse to extend them to other groups was not. Privileges for some could have become rights for all. This Supreme Court decision delivered a clear message, a message that is disturbing as we review the progress we have made in the past century: Canadians are still not equal before the law. According to the Supreme Court, if it is written in the British North America Act, it does not constitute discrimination. The only official differentiation between Canadians - de jure discrimination - is thus the one provided by the Constitution.
Within Canada, Quebec has come a long way. The Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms constitute turning points in the fight against discrimination in the province. The Quebec educational system has gone through a metamorphosis. But, while legal discrimination in education is out in Quebec, it is still alive in Ontario, despite a ruling by the United Nations Human Rights Committee that has censured Canada in this regard.
In an era when human-rights issues are of such significance, how can this be? Prejudice in Canada is being encouraged by a combination of insistence on antiquated legal texts and promotion of uniformity, under the disguise of laïcité. Both have a common goal: to maintain the status quo, a two-tier society where the founding religions still retain special privileges.
Prejudice is even now considered acceptable - in either the name of history or of laïcité - against groups and individuals within minorities who insist on the public exercise of their religious requirements, be they Ontario Jews who request the same rights for their schools as those enjoyed by Catholics, or Jewish students in Quebec who want to follow their religious customs. Ontario Jews who do not deviate from majority norms and send their children to public schools, or Jewish students in Quebec who behave like majority students and do not ask for any accommodement raisonnable will face no problems under the current arrangements.
Considerable progress has been made. To go further does not require new legislation or new institutions, but a more determined effort to apply concepts such as accommodement raisonnable. The challenge for the new millennium is thus to recognize that for us to move forward we need to address the kind of prejudice that is still alive in Canada today, the French-Canadian variety that hides behind laïcité, or the English-Canadian brand that hides behind history. In this way, Canada will truly be able to uphold not only the right of its citizens to be protected from overt discrimination, but also the specific right to be different. Only then will every Canadian become a full partner in society.