When the Charter of Rights and Freedoms became a part of the Canadian constitution on April 17, 1982 it arrived in Canada's modern post-industrial world with a curious recognition in its preamble, "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:" Some considered this simply to be a tribute to a former, non-secular era. Others, recognition of Canada's religious past.
Perhaps government should let go of concern that it might be perceived as supporting religion and accept the preamble's expression that Canada is not a secular society …
At a recent McGill University conference, The Charter @ 25, Senator Hugh Segal—who was Ontario's associate secretary for federal provincial relations during the constitutional negotiations that resulted in the Charter—noted that the recognition of God was of great significance to Premier William Davis and the people of Ontario. Pierre Elliot Trudeau—then Prime Minister and the visionary who drove pursuit of a constitutional bill of rights—when asked about the provision infamously stated, "I don't think God gives a damn whether he's in the constitution or not." He also noted he wasn't concerned about offending God so much as offending the electorate.
Was the recognition of God's supremacy just about votes? That's not what Segal said. Read it again. In fact, despite Trudeau's flippant remark, his inspiration for the Charter was his Jesuit education's outlook on the world and his exposure to the concepts of Catholic philosophers Emmanuel Mournier and Jacques Maritain. The public hearings that were held in regard to an earlier draft of the Charter resulted in large numbers of Canadians and religious organizations, including The Evangelical Fellowship of Canada, requesting recognition that human rights find their source not only in the rule of law but in something—or Someone—more transcendent.
Professor Bruce Ryder of Osgoode Hall Law School stated in a 2005 Supreme Court Law Review article entitled State Neutrality and Freedom of Conscience and Religion, "The preamble represents a kind of secular humility, a recognition that there are other truths, other sources of competing world-views, of normative and authoritative communities that are profound sources of meaning in people's lives that ought to be nurtured as counter-balances to state authority." I suspect the 88 percent of Canadians who claim a religious affiliation (according to the 2000 Law Commission of Canada Research Paper No. 10) would agree—84 percent if you prefer the 2001 Census: analysis report on Religions in Canada prepared by Statistics Canada.
The preamble references a unique balancing that has taken place in Canadian society since our nation's founding. Government cannot endorse or support one religion as against another—witness the constitutional provisions for Catholic and Protestant schools in the British North America Act (renamed the Constitution Act, 1867 with constitutional patriation in 1982). Protestantism and Catholicism were the only recognized forms of religion in the western world of the founding fathers. By 1982, there were many other forms of religion accepted in Canada. Thus, inclusion of this preamble presents a challenge to continue the neutrality of government as between religions and recognize the Canadian constitutional and societally accepted history of government being permitted, enabled and encouraged to support religion in a manner that was equally accessible to all religions—witness again the constitution provisions for Catholic and Protestant schools.
In its understanding of Charter rights and freedoms, government has largely concerned itself with the rule of law, ignoring constitutional reference to the supremacy of God that would ease its concerns about endorsing a positive religious pluralism in our country. Some governments have provided public funding for religious schools. Others have not. Some have sought to restrict access to funding for social service programs to non-religious expression only, while others have recognized the benefit of increased value in funding religious communities that supplement such programs and their funding because of a transcendent source of desire to engage in meeting social needs. Perhaps government should let go of concern that it might be perceived as supporting religion and accept the preamble's expression that Canada is not a secular society—secularism itself being a form of religion or belief system—but a non-sectarian society.
Similarly, in its interpretation of the Charter the Supreme Court of Canada has paid little attention to the preamble, except to reference the significance of the rule of law. In a 2002 lecture at McGill University, Chief Justice Beverly McLachlin of the Supreme Court of Canada stated that in addition to the authority of the rule of law 'there are other sources of authority, other cultural modes of belief, that make strong claims upon the citizen.' McLachlin went on to note that both the rule of law and religion make total claim upon the self. From the perspective of one charged with interpretation of the rule of law, the Chief Justice recognized the law's need to accommodate the other 'similarly comprehensive system of belief' that is religion. On the other hand St. Paul, one charged with the explanation of the supremacy of God, expressed a similar sentiment about faith accommodating government and the rule of law in his letter to the church at Rome (see Romans 13).
In Chamberlain v Surrey School Board, Madame Justice Saunders of the British Columbia Supreme Court echoed 19th Century philosopher Friedrich Nietzsche's declaration that 'God is dead' and British Columbia Court of Appeal Madame Justice Southin's statement in R v Sharpe that the reference to the supremacy of God in the Charter's preamble was 'dead letter' law. Was the concept of the supremacy of God indeed dead? Following appeals, Chamberlain was finally decided by the Supreme Court of Canada in 2002. Mister Justice Gonthier did not let the comment go unaddressed. Gonthier wrote:
I note that the preamble to the Charter itself establishes that ' … Canada is founded upon principles that recognize the supremacy of God and the rule of law.' According to Saunders, J., if one's moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has 'belief' or 'faith' in something, be it atheistic, agnostic or religious … Given this, why, then should the religiously informed conscience be placed at public disadvantage or disqualification? … The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of modern pluralism.
Gonthier thereby resurrected the concept of 'the supremacy of God' in Canadian law.
As recently as 1997 the court gave recognition to the strong interpretive weight that should be granted constitutional preambles when it referenced the preamble of the Constitution Act, 1867 in a case concerning remuneration of judges. Perhaps the time has come for greater weight to also be accorded Canada's other, and more contemporary, constitutional preamble found in the Charter.
Jesus said, "Give to Caesar what is Caesar's and to God what is God's." During His trial, He also told Pilate, "You would have no power over me if it were not given to you from above." So then, what authority would Caesar (government and the courts) have except that given from above? What source do rights or the rule of law have without God? Perhaps the time has come to give greater deference to the fact that Canada is founded upon principles that recognize the supremacy of God.
Don Hutchinson is General Legal Counsel for The Evangelical Fellowship of Canada.
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