God’s Place in Canadian Charter Challenged
Posted by faithandthelaw on July 10, 2010
When a judge last month ruled that a Catholic high school in Montreal could choose its own religious curriculum, in defiance of an order by the Quebec government, he wrote that the Charter of Rights and Freedoms specifically referred to “the supremacy of God” in its preamble. Now, in the ruling’s aftermath, some are wondering whether that language is out of place in a society that has grown increasingly secular.
“From an atheist’s perspective, what happens to those who don’t believe God exists?” asks Justin Trottier, executive director of the Centre for Inquiry Canada in Toronto.
“If God needs to be defended [by a court], then does God need to be defended by those of us who don’t believe in God?”
Mr. Trottier this week called for a change to the Charter to remove the “supremacy of God” phrase, something that would be nearly impossible to accomplish. But his public objections have sparked a debate about why Canada shows such reverence in a prime legal document to the divine.
- A full interview with the Dean of the Osgoode Law School Lorne Sossin about the place of “Supremacy of God” in the charterThe phrase was cited by Superior Court Judge Gérard Dugré in June, as he ruled that Loyola High School, a Jesuit private school, did not have to use the provincial religion curriculum and could teach ethics and religion from a Roman Catholic point of view. He called Quebec’s demand on the high school “totalitarian,” using the preamble to the Charter to make his case.
“Canadian democratic society,” the judge wrote, “is based on principles recognizing the supremacy of God and the primacy of the law — both of which benefit from constitutional protection.”
The clause has rarely been invoked in Canadian jurisprudence, perhaps only once before.
“I was astonished to see that in the case,” said Janet Epp Buckingham, a legal scholar and the former legal counsel for the Evangelical Fellowship of Canada. But she was pleased to see it noted in a major case and said it is was long overdue that a judge would make note of the preamble.
“Courts always refer to the ‘rule of law’ and ignore the ‘supremacy of God.’ But the supremacy of God should be considered equally valuable because it points to the importance of religion in Canada.”
Many believe then-prime minister Pierre Trudeau included the line in the Charter in 1982 as a way to appease to Christians.
Trudeau was even quoted at the time saying that “ it was strange, so long after the Middle Ages that some politicians felt obliged to mention God in a constitution which is, after all, a secular and not a spiritual document.” The Charter also includes a separate declaration affirming freedom of religion and conscience.
Lorne Sossin, dean of Osgoode Hall Law School, said there is clear reason it has been used so rarely.
“Both because the preamble is secondary to the text of the Charter and because the public neither expects nor is comfortable with open expressions of religious views by judges.”
In 1999, the British Columbia Court of Appeal referred to the phrasing as a “dead letter” which the justices had “no authority to breathe life” into for the purpose of interpreting the Charter. The Evangelical Fellowship of Canada raised objections to the interpretation in a document to the court.
By calling it a “dead letter,” Ms. Buckingham explained, the judge was essentially saying: “Nobody uses it, so don’t even bother with it. It’s basically meaningless.”
However, Ms. Buckingham, now the director of the Ottawa-based Laurentian Leadership Centre, a school where top evangelical students are trained to work in government and in other spheres of public life, said the phrase is essential to ensure that freedom of religion is not defined too narrowly and interpreted in a “secular fashion.”
“[To be interpreted in a secular fashion] means religion becomes privatized and people should not have to be exposed to it — whereas the preamble shows that religion is part of Canadian life and should have as broad and expansive definition as possible. Freedom of religion does not mean freedom from religion.”
Much of Western law is based on such religious precepts as the Ten Commandments. In that way, Mr. Sossin said, the phrase can be seen as a “metaphor” that highlights the Charter’s moral foundations. The phrase should not, he added, be taken as a literal acknowledgement of the divine.
Mr. Trottier said he takes no comfort from the rarity of its use and nor should God’s supremacy be considered part of Canadian society. He noted there is no good way that the principle of the supremacy of God can be consistently used in a legal framework.
“How would do you reconcile the ‘rule of law with the ‘supremacy of God?’ They are contradictory.
“The Charter is such an important legal document and the document that all our other legal traditions are supposed to be consistent with. So it’s really important that in enshrine the most fundamental values of Canadians. And I’m concerned when God is a foundation for authority.”
There is probably little chance that an such an amendment to remove the phrase would survive the long and complicated process it would take to remove it from the Charter. Any amendment would need the approval of the House of Commons, the Senate and a two-thirds majority of the provincial assemblies representing at least half the population, a process that could take years and is seen as unlikely.
Canadian legal scholar Peter Hogg, who holds the unusual position of scholar in residence at the noted legal firm Blake, Cassels & Graydon LLP in Toronto, said it would not be worth the time and effort to remove the phrase.
“I don’t think anything would change if the phrase were removed, because the guarantee of freedom of religion is what does the work in protecting religious belief and practice.”