One of the most fascinating cases ever decided by the Supreme Court of Canada is one that you have never heard about ― or at any rate hadn’t heard about until two weeks ago, if you read Yves Boisvert’s account of it in La Presse. The case is Brassard v. Langevin, (1876-77) 1 S.C.R. 145 ― one of the very first decisions by the then-newly-created Supreme Court. It dealt with a challenge to the outcome of a by-election that had been held in January 1876 in the riding of Charlevoix. The Conservative candidate, Hector-Louis Langevin (for whom the Langevin block on Parliament Hill is named) had narrowly defeated the Liberal Pierre-Alexis Tremblay. But Tremblay’s supporters challenged the result because, they said, the local clergy’s campaign in favour of Langevin amounted to undue influence on the voters. Unanimously, the Supreme Court agreed.
One reason the case is so fascinating is simply the vividness with which it presents the entanglement of religion and politics in Québec in the late 19th century. Langevin only agreed to run for the Conservatives after having been assured of the clergy’s support ― and he got the full measure of it. Bishops had sent out a pastoral letter, to be read by the parish priests shortly before the election, defending the Church’s right to concern itself with politics and denouncing the dangers of Catholic Liberalism:
The Church is not only independent of civil society, but is superior to it by her origin, by her comprehensiveness and by her end. (152)
The people have, therefore, no greater enemies than those men who want to banish religion from politics, for under the pretence of freeing the people from what they call priest tyranny, priest’s undue influence, they are preparing, for the same people, the heaviest chains, and the most difficult to throw off : they put might above right, and they take from the civil power the only moral restraint which can stop it from degenerating into despotism and tyranny! (153-54)
The priests’ sermons echoed the bishops’ letter:
Is it not true that on your death-bed you would reproach yourselves bitterly if your conscience should upbraid you for having contributed, by your vote, to the election of men who wish to separate the Church from the State, and who are working to destroy the confidence which you are to have in the priest? (160)
And though a priest might claim to have “no party but that of good principles” (161), the partisanship was not disguised:
[O]ur chief pastors … do not wish to warn you against phantoms, but, indeed, against Liberalism and its partizans … You shall see men having outward appearances of piety and religion allow themselves to be fascinated without suspecting it, by the deceitful words of the serpent Catholic Liberal. … Be firm, my brethren, our Bishops tells us that it is no longer permitted to be conscientiously a Catholic Liberal ; be careful never to taste the fruit of the tree Catholic Liberal. (160-61)
The question such sermons presented for the Court is interesting too: the clergy claimed that they were entitled to speak out, no less than ordinary citizens were. They were exercising the freedoms of religion and of speech, which British and Canadian law protected. On the other hand, as the appellants’ lawyer pointed out, to allow the Church effectively to bar candidates it deemed insufficiently orthodox from being elected to Parliament would be to circumvent Parliament’s policy to abolish religious tests for office. And so, “[t]he question is, after all, which policy is to be supreme, the Church or Parliament?” (173-74) Parliament, the judges pointed out, had chosen to make elections free of undue influence. There was, therefore ― then as now ― a balance to be struck between competing claims; so Justice Taschereau:
I admit, without the least hesitation, and with the most sincere conviction, the right of the Catholic priest as to preaching to the definition of dogmas and of all points of discipline; I deny that he has, in this case or in any other similar case, the right to point to an individual or a political party and hold them up to public indignation, by accusing them of Catholic Liberalism or of any other equally grievous irregularity, and, above all, to say that he who should help in the election of such individual would commit a grievous sin. (196)
The respondents ― and the elements of the Church which they represented ― overplayed their hand. They claimed a complete immunity for the Church from all challenge in civil courts. If, they said, someone is aggrieved at what a priest has said, he ought to complain to ecclesiastical authorities, not to a civil court. Justice Taschereau fumed at the suggestion:
[L]et us say a word as to the ecclesiastical tribunal of which the Respondent invokes the jurisdiction as exclusive, and I ask myself where is that tribunal to be found in Canada. For me it is invisible, intangible, non-existent in this country … If this tribunal exists, I am not aware that it has any code of law or of procedure … And if it existed, it would be very singular to see the Jew seeking, at the hands of a Catholic Bishop, the justice he can claim from civil tribunals, and submitting to a corporal punishment adjudged by that tribunal, and the same might be said of any other individual belonging to a different religion. … All are equal before that law, which declares that whosoever does injury to another must repair it, and indicates the means to be used to compel him to do so. (197)
Justice Taschereau, indeed, is himself a fascinating character in this drama. The brother of the Archbishop (and later Cardinal) of Québec, he opened his opinion by
acknowledg[ing] that it is with great misgivings as to my own powers, and with a deep feeling of regret that I find myself compelled to pronounce a decision as a Judge in a contestation of the nature of the present (188)
His opinion is visibly emotional, in contrast to the drier and more legalistic one of Justice Ritchie. It must have taken courage to write ― just as it must have taken a great deal of courage for the plaintiffs to pursue this case, and for the witnesses who came forward to describe the clergy’s campaign of insinuation and intimidation to risk oppose the will of the men who, they all believed, had their souls at their mercy.
This is just a flavour of the case. I really recommend reading the whole thing. Here it is.