God and Canada’s Charter of Rights

For a quick summary of the CSA’s position, read this PDF: CSA briefing note on God and the Charter

Overall recommendation

The government should remove the “supremacy of God” clause from the preamble of the Canadian Charter of Rights and Freedoms.

1. The Canadian Secular Alliance supports removing “the supremacy of God” from the preamble of the Canadian Charter of Rights and Freedoms.

The Canadian Charter of Rights and Freedoms [1], is one of the documents comprising the Constitution of Canada. It begins with the phrase, “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”. The Canadian Secular Alliance, on behalf of the many Canadians that do not recognize the supremacy of any God, calls for this clause to be removed.

2. One in four Canadians do not recognize the existence of God, let alone his “supremacy”.

In the 2001 Census of Canada, 16.2% of Canadians (4.8 million people) reported having no religion, a 43.9% increase since the previous census in 1991 [2]. Non-religious Canadians comprised the largest identifiable group after Christians, outnumbering Muslims, Jews, Hindus, Buddhists, and Sikhs combined [2]. A recent poll, conducted by Harris/Decima in May 2008, found that 23% of Canadians (and 36% of Canadians under age 25) say that they do not believe in any god [3]. It is nonsensical for Canada’s constitutional documents to recognize the “supremacy” of a deity who is dismissed as non-existent by 1 in 4 Canadians.

3. As a legal concept, the recognition of the “the supremacy of God” is incoherent.

3.1. It is contradictory to simultaneously recognize the supremacy of God and freedom of religion and conscience.

As law professor Lorne Sossin has noted,

“the reference in the Preamble of the Charter to the “supremacy of God” represents the actual term in the Charter about which the [Supreme] Court has said the least. The supremacy of God… is difficult to conceive as a justiciable concept. It cannot be substantiated nor can it be disproven… the supremacy of God has not been the subject of judicial elaboration. Not even the most basic questions about its place and purpose in the Charter have been addressed. Whose God is supreme and supreme in what way? Are the supremacy of God and the rule of law intended to be complementary constitutional principles, or distinct? How and should the supremacy of God be reconciled with the freedom of conscience and religion provisions under s. 2 of the Charter?” [4].

Indeed, if “God” is construed as specifically the Christian God, then the preamble violates the Charter’s section 2(a) clause guaranteeing freedom of conscience and religion [1]. 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? This intractable problem is summarized by University of British Columbia philosophy professor Paul Russell as follows: “The basic problem with the God-clause is that it runs into an impossible dilemma, given the actual content of the Charter itself. More specifically, what it claims is either meaningless (and therefore worthless), or it has real meaning, in which case it strikes a blow against the very principles that the Charter is in place to protect (in which case it is pernicious)” [5]. Similarly, theologian William Klassen has noted that “to mention God with a capital letter in the preamble to the Charter and then go on to say that the Charter provides a fundamental freedom of conscience and religion, is a contradiction which even a theologian, to say nothing of all the lawyers, must surely recognize. For that reason alone, our members of Parliament owe Canadians the removal of the name of God from this document. […] The cause of religion is never advanced by putting God’s name on a document, in a national anthem, on coins, or generally in the public sphere. God, in whatever form we may understand him or her, is surely best served when the freedom to worship is acknowledged, not only in the heart of a document, but also in its preamble” [6].

3.2. Acknowledgment of the supremacy of God does not reflect the actual principles upon which laws are made, or how rights and freedoms are defined in Canada.

The CSA recognizes the undeniable historical influence of the Judeo-Christian tradition on the development of Canada’s legal system, and the great contributions of believers towards the development of a more just society. However, religion is only one of many motives for creating a system of laws and a judiciary designed to be fair and just to all. Indeed, history repeatedly demonstrates that when any single religious denomination gains dominance, justice for those with differing perspectives suffers greatly.
Acknowledgment of the supremacy of a deity does not offer a universal statement of the actual principles upon which laws are made, and how rights and freedoms are defined and interpreted in Canada. Though religion provides many Canadians with moral and ethical benchmarks, the foundation of the Canadian system is not theistic belief. Rather, in a secular liberal democracy like Canada, laws are the result of ongoing critical ethical inquiry, within the framework of a shared “social contract” among citizens. This process requires an open, rational debate between competing groups with differing concepts of how to best obtain moral and legal order in society. The foundation of our freedoms, then, is the principle that each person has not only a significant social role but an intrinsic worth as an individual. The current preamble to the Charter is a symbolic affront to the value of the individual in that it places an ill-defined deity as an arbiter of the collective discussions of Canadians, regardless of their religious affiliation or philosophical predisposition.

3.3. It is impossible to know which god’s supremacy is being recognized.

Clearly, even within the community of believers, the question of, “Which god?” inevitably arises. There are significant doctrinal differences on the nature, personality, and moral decrees of God within the monotheistic faiths, as demonstrated by numerous wars and conflicts over the centuries. Even more significantly, there have been a multitude of gods worshiped by scores of civilizations since the beginning of our species, with the relatively recent Judeo-Christian God being just one. (One online encyclopedia currently catalogues over 2,850 deities [7]). How can the supremacy of God be recognized, even symbolically, in the face of radically differing interpretations about the nature and content of God’s will? Some Canadian Muslim and Christian organizations sidestep this question by taking it as a given that the God referred to in the Charter is their god [8,9]. However, a pluralistic society like Canada harbours dozens or hundreds of separate religious groups, each with mutually incompatible ideas of what constitutes “God’s will”. Thus, from a practical legal perspective, recognition of “the supremacy of God” is so vague as to be essentially meaningless.
Finally, it is unclear how the “supremacy of God” clause can be reconciled with the countless instances in which our laws currently permit activities that are supposedly forbidden by one or more gods – for instance: freedom of expression (blasphemy), freedom of conscience (apostasy), equality of men and women under the law, homosexuality, contraception, premarital sex, abortion, stem-cell research, believing in Darwinian evolution, depicting prophets, drinking alcohol, eating pork, etc. Supreme Court Justice Wilson, in R. v. Morgentaler [10], hinted that the supremacy of God stands in conflict with a free and democratic society, noting that while she was “not unmindful of the fact that the Charter opens with an affirmation that “Canada is founded upon principles that recognize the supremacy of God””, she was “also mindful that the values entrenched in the Charter are those which characterize a free and democratic society.” Thus, the underlying assumption seems to be that the supremacy of God stands in opposition to freedom and democracy.

4. The preamble to the Charter is not trivial – it has real legal, social and political consequences.

4.1. Constitutional preambles, although they do not have the force of law, are nonetheless important tools for interpretation of law.

Many consider the recognition of “the supremacy of God” – because it is contained within the preamble (and not the main body) of the Charter – to be irrelevant. For instance, journalist Andrew Coyne has noted that “God, in this context, is simply out of place. […] But if it was silly to put God in, it would be equally silly to get too worked up about it. The reference is in the preamble: It has no legal weight. It is simply a statement of belief. If it is unnecessary, it is also essentially harmless” [11].

However, as law professor Lorne Sossin has noted,

“while not all preambles attract judicial attention or reflect legislative aspiration, it is fair to observe that Constitutional preambles often do. […] Preambles are arguably even more significant when the object of a constitutional document is to protect rights and freedoms rather than apportion political or legislative authority” [4]. In fact, in considering the importance of the Preamble to the Constitution Act, 1867, Chief Justice Lamer of the Supreme Court of Canada wrote: “But the preamble does have important legal effects. Under normal circumstances, preambles can be used to identify the purpose of a statute, and also as an aid to construing ambiguous statutory language. The preamble to the Constitution Act, 1867, certainly operates in this fashion. However, in my view, it goes even further. In the words of Rand J., the preamble articulates “the political theory which the Act embodies”. It recognizes and affirms the basic principles which are the very source of the substantive provisions of the Constitution Act, 1867. As I have said above, those provisions merely elaborate those organizing principles in the institutional apparatus they create or contemplate. As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. It is the means by which the underlying logic of the Act can be given the force of law” [12].

Indeed, legal scholars Jonathon Penney and Robert Danay have noted that “the Supreme Court of Canada has, on a number of occasions, cited and applied the “rule of law” – referred to in the Preamble to the Charter in the very same sentence as the supremacy of God clause – with quite remarkable results. To see this, one need look no further than the Supreme Court of Canada’s extraordinary decision in Manitoba language reference [13]. In that case the Court held that all of the Province of Manitoba’s statutes enacted since the end of the 19th century were unconstitutional as they were adopted in English only. To deal with this sweeping declaration, however, the court invoked the foundational constitutional principle of the “rule of law” to prevent the “chaos” that would result if all the laws were immediately ruled invalid” [14].

4.2. A metaphorical interpretation of the “God” clause is commendable, but ultimately naive.

Some legal scholars have argued that the “supremacy of God” clause is legitimate because it should be interpreted metaphorically – to mean that the Charter embodies universal and inalienable human rights that cannot be taken away by the state. For instance, law professor Lorne Sossin has argued that “the supremacy of God… can only play a meaningful role in constitutional interpretation if it is taken as a general statement regarding the universal, normative aspirations of the Charter, rather than as a direction to privilege any one particular religious or spiritual perspective over another, or over those perspectives which deny the existence of God per se” [4]. Similarly, legal scholars Jonathon Penney and Robert Danay have argued that “any interpretation of the supremacy of God clause that results in the privileging of certain belief systems over others is clearly inconsistent with the purpose and text of the Charter itself” [14]. They suggest instead that “the supremacy of God clause is linked to the modern notion of human rights and their antecedents in the natural law tradition – that rights are not derived from the processes and laws of the state, but from other sources. In the past, human rights were said to derive from God. More recently, rights have been said to derive from human dignity” [14]. Echoing this view, theologian William Klassen has suggested that the preamble should read: “Whereas Canada is founded upon transcendent principles and the rule of law” [6].
This attempt to interpret the “God” clause metaphorically is admirable. However, it is ultimately unrealistic to assume that judges, politicians, and ordinary Canadians – especially those who believe in God – will take this nuanced view. As shown by the cases below, outside academic circles the “God” clause is routinely taken at face value and exploited to undermine church-state separation.

4.3. From a legal standpoint, the “God” clause represents a mechanism by which the judiciary can privilege religion – and Christianity specifically – in its interpretation of the law.

Canada’s Supreme Court has historically ignored or downplayed the importance of the “supremacy of God” clause (reviewed in [4,14]). As law professor Lorne Sossin has noted: “What can a secular Court in a multicultural society say about the supremacy of God except to look away and ask for the next question?” [4]. However, Sossin also notes that “almost universally, and without serious inquiry, Canadian lower courts have equated the “supremacy of God” with a claim to religious orientations generally and Christian ones specifically” [4].

In R. v. Big M Drug Mart [15], the courts examined whether the Lord’s Day Act – the federal legislation forcing retailers to close on Sunday – represented an unconstitutional attempt to compel religious observance of the Christian Sabbath. Justice Belzil of the Alberta Court of Appeal wrote: “I do not believe that the political sponsors of the Charter intended to confer upon the courts the task of stripping away all vestiges of those values and traditions, and the courts should be most loath to assume that role. With the Lord’s Day Act eliminated, will not all reference to Christmas, Easter and Thanksgiving be next? What of the use of the Gregorian calendar? Such interpretation would make of the Charter an instrument for the repression of the majority at the instance of every dissident and result in an amorphous, rootless and godless nation contrary to the recognition of the Supremacy of God declared in the preamble” (quoted in [4]).

In McBurney v. Canada (Minister of National Revenue – M.N.R) [16], Justice Muldoon noted the financial support of organized religion by the Canadian government and wrote: “So it is that while Canada may aptly be characterized as a secular State, yet, being declared by both Parliament and the Constitution to be founded upon principles which recognize “the supremacy of God”, it cannot be said that our public policy is entirely neutral in terms of ‘the advancement of religion’” (quoted in [4]).

In O’Sullivan v. Canada (Minister of National Revenue – M.N.R) [17], the Federal Court considered the meaning of the Charter’s preamble and wrote: “What then is meant by this preamble? Obviously it is meant to accord security to all believers in God, no matter what their particular faith and no matter in what beastly manner they behave to others. In assuring that security to believers, this recognition of the supremacy of God means that, unless or until the Constitution can be amended – the best of the alternatives imaginable – Canada cannot become an officially atheistic State, as was the Union of Soviet Socialist Republics or as the Peoples’ Republic of China is understood to be” (quoted in [4]).

4.4. From a political standpoint, the “God” clause is routinely exploited by forces that seek to have public policy conform to religious doctrine.

Regardless of its technical legal implications, the “supremacy of God” clause clearly undermines the premise that Canada is a secular state. Religious studies professor Douglas Farrow has noted that “Canada cannot be regarded as a strictly secular country, in the popular sense of the term, so long as its constitutional documents, not to speak of its anthem, continue to offer this sanctuary for the sacred” [18]. Indeed, the Christian Heritage Party declares itself to be “the only federal party that endorses the principles of the Preamble to the Charter of Rights and Freedoms in the Canadian Constitution, which says: ‘Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law…'” [9]. Moreover, on December 6, 2006, Conservative M.P. Dean Del Mastro stated that: “The Charter reads: ‘Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law…’ This passage in the Charter specifically indicates that ultimately faith influences how this House makes law, as the supremacy of God will ultimately dictate how the laws of the land are crafted by parliamentarians” [19]. If Canada truly is a secular state, then its constitutional documents should reflect that fact – to do otherwise only gives legitimacy to those who seek to have Canadian public policy mimic their religious doctrine.

5. Background note: Origins of the “God” clause in the Charter.

History professor George Egerton has noted that

“the constitutional proposals for an entrenched charter generated by Trudeau and his advisors contained no religious or divine referent, but rather expressed the core themes of liberal pluralism that the protection of human rights and freedoms represented the fundamental purpose of democratic government and that ‘individual fulfillment is the fundamental goal of society’” [20].

Trudeau’s personal views were expressed in the Globe and Mail of April 25th,1981, in which he was quoted as saying he thought it “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” (quoted in [20]).

Law professor Lorne Sossin, in reviewing what he calls the “inglorious origins” of the God clause, noted that “its inclusion was advocated by religious groups and linked by those groups with a particular conservative social agenda (hostile to gay and lesbian rights, staunchly pro-life, etc.). This conservative agenda also had political overtones, as those who supported the amendment justified it as a bulwark against Soviet Union style atheistic tendencies” [4]. The Evangelical Fellowship of Canada petitioned Prime Minister Trudeau to include a reference to God in the Charter, arguing that “the acknowledgment of one Supreme God to whom we as a nation are answerable gives ground for legislation bearing on all matters human. To omit any such reference only leaves the door open for substitution of less worthy grounds – utilitarianism, naturalism, secularism, etc…” (quoted in [20]). At the height of the debate in the House of Commons, Trudeau received information documenting the increasing influence of evangelical Christians in Canada, and advising the insertion of a reference to God in the Charter – otherwise, the Liberals would “pay for this politically for years” [20]. The “supremacy of God” clause was added as an amendment to the Charter’s preamble by Conservative M.P. Jake Epp. Trudeau supported it, although he privately told the Liberal Causus: “I don’t think God gives a damn whether he’s in the constitution or not” (quoted in [20]).

History professor George Egerton has noted that “the inclusion of the reference to God represented a signal success for the evangelical Christian lobbyists, working effectively through sympathetic parliamentarians… and demonstrating an ability to mobilize impressive public support. […] Without this mobilization there would have been no ‘sacred canopy’, however small, erected over the new constitution. The brief confessional preamble also erected a barrier against future pressures, feared by conservative Christians, to remove all public functions and privileges of religion in the construction of a completely secular state. […] The constitutional reference to God had come as a result of tactical political calculations, not from any conversion on the part of Trudeau or the Liberals to the philosophical or theological convictions expressed by Conservatives…” [20].

6. Background note: Svend Robinson’s unsuccessful attempt to remove “God” from the Charter.

In 1999, over 1000 residents of New Democratic M.P. Svend Robinson’s Vancouver riding signed a petition that called for the substitution of the phrase “intellectual freedom” for “supremacy of God” to reflect “the deeply held views of people of many different religious faiths as well as those who have no religious beliefs” [21]. The petition criticized the existing language in the Charter’s preamble as a “discriminatory reference and offensive to millions of Canadians who are non-Christian and non-religious” [21]. When Robinson presented his constituents’ petition in the House of Commons on June 8, 1999, he was loudly booed by his fellow legislators, and – in the weeks that followed – publicly chastised by NDP leader Alexa McDonough and demoted to the backbenches [21,22].

References

  1. Canadian Charter of Rights and Freedoms, 1982. http://laws.justice.gc.ca/en/charter/index.html
  2. Statistics Canada. 2001 Census: analysis series – Religions in Canada. Ottawa: Statistics Canada, 2003. http://www12.statcan.gc.ca/english/census01/products/analytic/companion/rel/pdf/96F0030XIE2001015.pdf
  3. Harris/Decima, 2008 June 1. One in Four Canadians Atheist. Accessed 24 May 2009. http://www.harrisdecima.com/en/downloads/pdf/news_releases/080602AE.pdf
  4. Sossin, L, 2003. The ‘Supremacy of God’, Human Dignity and the Charter of Rights and Freedoms. University of New Brunswick Law Journal 52, 227-241. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1156569
  5. Russell, P, 1999 June 11. ‘The supremacy of God’ does not belong in the Constitution. National Post. Accessed 24 May 2009. http://www.philosophy.ubc.ca/faculty/russellp/Journals/The%20supremacy%20of%20God.pdf
  6. Klassen, W, 1991. Religion and the Nation: An Ambiguous Alliance. University of New Brunswick Law Journal 40, 87-98.
  7. Godchecker’s Mythology Encyclopedia. Accessed 24 May 2009. http://www.godchecker.com/
  8. The Canadian Society of Muslims – online library project & resource centre. The basic concepts and special features of Rights and Duties, Fundamental Freedoms and Reasonable Constraints. Accessed 24 May 2009. http://muslim-canada.org/aposno9.htm
  9. The Christian Heritage Party website – homepage.  Accessed 24 May 2009. http://www.chp.ca/en/index.html
  10. R. v. Morgentaler, [1988] 1 S.C.R. 30. http://csc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html
  11. Coyne, A, 1999 June 18. Oh, for God’s sake. National Post. Accessed 24 May 2009. http://andrewcoyne.com/columns/NationalPost/1999/19990618.html
  12. Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3. http://csc.lexum.umontreal.ca/en/1997/1997rcs3-3/1997rcs3-3.html
  13. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721. http://csc.lexum.umontreal.ca/en/1985/1985rcs1-721/1985rcs1-721.html
  14. Penney, J, and Danay, RJ, 2006. The Embarrassing Preamble? Understanding the Supremacy of God and the Charter. University of British Columbia Law Review 39, 287-331. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=941221
  15. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. http://csc.lexum.umontreal.ca/en/1985/1985rcs1-295/1985rcs1-295.html
  16. McBurney v. Canada (Minister of National Revenue – M.N.R), [1984] C.T.C. 466.
  17. O’Sullivan v. Canada (Minister of National Revenue – M.N.R), [1992] 1 F.C. 522.
  18. Farrow, D, 2004. “Of Secularity and Civil Religion”. In Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy (Farrow, D, ed.) Montreal & Kingston: McGill-Queen’s University Press, 2004. http://books.google.com/books?id=-azFnydvmZwC
  19. Macleans, 2007 April 17. In their words: On the 25th anniversary of the Charter of Rights and Freedoms, a look at what our MPs have had to say about it. Accessed 24 May 2009. http://www.macleans.ca/article.jsp?content=20070417_192003_11724
  20. Egerton, G, 2001. “Trudeau, God, and the Canadian Constitution: Religion, Human Rights, and Government Authority in the Making of the 1982 Constitution”. In Rethinking Church, State and Modernity: Canada Between Europe and America (Lyon, D & Van Die, M, eds.) Toronto: University of Toronto Press, 2001. http://books.google.com/books?id=NA2usbOnF0EC
  21. Council for Secular Humanism, 1999. “Church-State Separation Comes to Canada”. In Secular Humanist Bulletin, Volume 15, Number 3. Amherst, New York: Council for Secular Humanism, 1999. http://www.secularhumanism.org/library/shb/canada_15_3.htm
  22. CBC News, 1999 June 9. Robinson disciplined for ‘no-God’ petition. Accessed 24 May 2009. http://www.cbc.ca/canada/story/1999/06/09/robinson990609.html

Revision date: 24 June 2009

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