In 1960, a pivotal moment in Canadian history took place. It was the year when the Canadian Bill of Rights, officially titled “An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms,” came into existence. This remarkable document was not only voted on but also signed into law by Prime Minister John Diefenbaker. And right above his signature, in a powerful statement, Diefenbaker boldly proclaimed:
“I am a Canadian, a free Canadian, free to speak without fear, free to worship God in my own way, free to stand for what I think is right, free to oppose what I believe is wrong, free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and for all mankind.”
These words encapsulated the essence of what it meant to be a Canadian—a citizen of a nation that cherishes and safeguards individual liberties. The Canadian Bill of Rights, though partially absorbed into the Canadian Charter of Rights and Freedoms, still holds legal weight to this day. However, the Charter has surpassed its predecessor in significance. It now proudly stands as an integral part of the Constitution, the highest law of the land—a testament to Canada’s unwavering commitment to upholding the rights and freedoms of its people.
In the realm of legal documents, even the smallest details can hold immense significance. Such is the case with the Canadian Bill of Rights and the Charter of Rights and Freedoms. Interestingly, these two foundational texts share an almost identical introductory clause. It begins with the profound words: “Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law:”
What sets this clause apart is its concluding punctuation mark—a simple colon [:]. This unassuming symbol holds the key to understanding the profound nature of the text that follows. It signifies that the introductory clause is not a complete sentence but rather a contextual introduction to the subsequent list of articles. Everything that unfolds after those two vertically aligned dots must be comprehended in the light of the words that precede them. The absence of this contextual foundation renders the articles of the Charter devoid of meaning. For instance, the recognition of the rule of law is indispensable for the enforcement of any section within the Charter.
While commonly referred to as the preamble, labelling this clause as such undermines its true essence. It is the very heart and soul of the Charter—an embodiment of its principles and values. The heading that precedes this introductory clause amplifies its importance, boldly declaring: “CONSTITUTION ACT, 1982 (80) PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS.” This proclamation further solidifies the foundational nature of the introductory clause, emphasizing its indispensable role in shaping the Canadian legal landscape.
Imagine a charter as a powerful document, a grant of authority that bestows rights upon its recipient. In this case, it is the Federal and Provincial Governments of Canada who formally recognize and acknowledge the recipient’s prerogative to exercise those specified rights. However, it’s important to note that the granter retains superiority or sovereignty, while the recipient acknowledges a limited or inferior status within the relationship. This historical understanding of charters still holds true in modern usage.
Now, let’s delve into the controversy surrounding the introductory clause of the Charter, with its pivotal colon. Interestingly, the controversy primarily revolves around recognizing the supremacy of God and not, except for anarchists, the rule of law. Here’s the intriguing dilemma: Regardless of its controversial nature, acknowledging the supremacy of God is the most crucial and fundamental aspect of the Charter. Ignoring it simply because it sparks debate would undermine the Charter itself. Just as removing recognition of the rule of law invalidates it, so too does the omission of God’s supremacy. It is through God’s supremacy that the rights listed within the Charter gain their context, and it is the rule of law that upholds and protects these very rights.
The statement affirming the supremacy of God remains etched into the original document, signed into law by Queen Elizabeth II and accepted on behalf of all Canadians by then Prime Minister Pierre Trudeau on April 17, 1982. It holds a permanent place within the Charter, as indelible as the ink used to print it. Even if there were attempts to remove God’s supremacy, it would require physically altering the document itself. No amendment, no matter how widely sanctioned by provinces and territories, could erase it. As long as the Canadian Charter of Rights and Freedoms exists, the interpretation of God’s supremacy must endure. In fact, back in 1999, NDP MP Svend Robinson proposed the removal of the mention of God from the preamble, but his efforts led to his relegation to the backbenches.
Some argue that recognizing the supremacy of God contradicts Section 2 of the Charter, which upholds freedom of thought, conscience, opinion, and religion. However, this is not the case. The Charter specifically grants the right to freedom of religion, not freedom from religion. Similarly, one is free to hold the opinion that the Charter may have flaws, but it does not grant the lawful right to ignore it. In a notable Alberta Court of Appeal case, Justice Belzil emphasized that the preamble of the Charter acknowledges Canada’s Christian heritage, and courts should not misuse Section 2’s right to freedom of religion to erode the traditions rooted in this heritage.
The concept of the “separation of Church and State” is often invoked in discussions, but it is important to note that this is an American idiom and is frequently used out of context. In Canada, the situation is quite the opposite. Through the Charter, the Federal and Provincial Governments implicitly recognize the supremacy of God and, by extension, His church.
The significance of the rule of law mentioned in the Charter’s preamble was carefully considered by the Supreme Court of Canada in the Manitoba Language Rights case (1985). The court underscored the importance of the Charter’s preamble by affirming that “The constitutional status of the rule of law is beyond question.” One cannot simply negate one part of the preamble while endorsing the other. The interconnectedness of the principles must be acknowledged.
Theologian Douglas Farrow astutely points out that the word “Whereas” indicates that all sections of the Charter should be understood in light of the principle recognizing the supremacy of God. This includes the rule of law, which follows the supremacy of God in the preamble. Farrow argues that the rule of law is difficult to explain, interpret, or uphold without reference to the supremacy of God, as the development of the rule of law stems from Canada’s religious foundations. Essentially, a consistent moral law or right cannot exist without a Moral Law Giver.
On their website, the Canadian Secular Alliance poses an intriguing question: “If Canada officially recognizes the supremacy of one particular God, in what sense are Canadians free to choose their own religion and follow their own conscience?” However, the Alliance overlooks an important aspect. Within the boundaries of the Charter, individuals are free to exercise and follow their religion or lack thereof, as well as their conscience. For example, one can practice witchcraft or Satanism, but offering child sacrifices as an expression of these beliefs is not protected by the law. The legal recognition of the Biblical principle “You shall not kill [murder]” (Exodus 20:13) reasonably places limitations on the rights of those who engage in such practices.
In a related vein, Section 7 of the Charter declares that “Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”Additionally, Section 15 emphasizes that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” Unfortunately, the Government of Canada has yet to recognize and include unborn children as part of the “Everyone” protected by the Charter. Unborn children are subject to significant discrimination based on age (their rights are typically only recognized at nine months), sex (gender-selective abortion), and mental or physical disability (with around ninety percent of children diagnosed with Down syndrome in Canada being aborted). It is worth noting that there is no explicit provision in the Charter granting anyone the right to end the life of a conceived child.
God, who is supreme, says of the unborn child, “Before you were in the womb, I knew you.” Jeremiah 1:5.
We would be a much more virtuous country if we took the Charter’s colon seriously (no pun intended).
– David Harrison, Huntsville resident
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Nadya,
I can almost guarantee that, if you or a member of your family became a victim of a hoodlum, you would welcome the justice administered by a male or indeed, female “punitive judge”.
Thank you, David. A very well-reasoned and well-written statement of how faith provides the basis for the rule of law. If there is no right and wrong in a society, as defined by religious fundamentals, then should we be surprised to see that the law is routinely challenged and violated in such a society? While the law does not change a human heart, it does provide for the order and stability that justice requires. Justice is not determined by human preferences, as in, “I prefer that you not beat me (or worse) and steal my wallet.” What if a miscreant decides that he/she “prefers” to do so? In that case, a law code is our protector and guide. It will provide for justice to be done. But without a recognition of a universal standard such as contained in a religious code of law–like the Ten Commandments, which prohibits murder and theft–we are left with the chaos of “might makes right”. Civilization would devolve into a hellish place where the rights of the weak and the innocent matter not at all.
Appreciate your insight David.
We did not study the Charter in school, and it should be the basis of our government and ethics classes to help us better understand where the rule of law comes from.
If only I could share this article for others to read and reflect upon…
The whole essay depends on one’s definition of God. According to my religion God is a gender neutral, loving creative energy that is the “ground of all being,” not a punitive, male judge.