preamble to the Canadian Charter of Rights and Freedoms
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The preamble to the ''Canadian Charter of Rights and Freedoms'' is the introductory sentence to the
Constitution of Canada The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
's Charter of Rights and ''
Constitution Act, 1982 The ''Constitution Act, 1982'' (french: link=no, Loi constitutionnelle de 1982) is a part of the Constitution of Canada.Formally enacted as Schedule B of the ''Canada Act 1982'', enacted by the Parliament of the United Kingdom. Section 60 of t ...
''. In full, it reads, "Whereas Canada is founded upon
principles A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule that has to be or usually is to be followed. It can be desirably followed, or it can be an inevitable consequence of something, such as the la ...
that recognize the supremacy of God and the rule of law".


Interpretation

Writing in 1982, when the ''Charter'' came into force, constitutional scholar
Peter Hogg Peter Wardell Hogg (12 March 1939 – 4 February 2020) was a New Zealand-born Canadian legal scholar and lawyer. He was best known as a leading authority on Canadian constitutional law, with the most academic citations in Supreme Court jurisp ...
noted that these words, being a preamble, could not really be applied by the courts but in theory could help to determine how other sections of the ''Charter'' should be read and applied. In this particular case, however, Hogg expressed doubt as to how much help this preamble could be, noting the term "rule of law" is "notoriously vague" and that the mention of the "supremacy of God" is contrary to section 2 of the ''Charter'', which protects freedom of conscience, which Hogg felt would include a right to
atheism Atheism, in the broadest sense, is an absence of belief in the existence of deities. Less broadly, atheism is a rejection of the belief that any deities exist. In an even narrower sense, atheism is specifically the position that there no d ...
.Hogg, Peter W. ''Canada Act 1982 Annotated''. Toronto: Carswell Company, 1982. In ''
R v Morgentaler ''R v Morgentaler'', 9881 SCR 30 was a decision of the Supreme Court of Canada which held that the abortion provision in the ''Criminal Code'' was unconstitutional because it violated women's rights under section 7 of the ''Canadian Charter of R ...
'' (1988), Justice Bertha Wilson defined freedom of conscience as protecting "conscientious beliefs which are not religiously motivated", and balanced the preamble out with the statement that "the values entrenched in the Charter are those which characterize a free and democratic society". In considering the legal implications of the preamble in the 1999 case ''
R v Sharpe ''R v Sharpe'', 2001 SCC 2 is a constitutional rights decision of the Supreme Court of Canada. The court balanced the societal interest to regulate child pornography against the right to freedom of expression possessed by the defendants under sec ...
'', the
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referred to it as a "
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" which the BC justices had "no authority to breathe life" into.Farrow, Douglas. "Of Secularity and Civil Religion." In ''Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy.'' Ed. Douglas Farrow. McGill-Queen's University Press, 2004. The Supreme Court did consider the preamble's mention of the rule of law in '' Reference Re Manitoba Language Rights'' (1985), noting that striking down most of Manitoba's laws as unconstitutional (because they were not enacted in both languages as required by the ''
Manitoba Act The ''Manitoba Act, 1870'' (french: link=no, Loi de 1870 sur le Manitoba)Originally entitled (until renamed in 1982) ''An Act to amend and continue the Act 32 and 33 Victoria, chapter 3; and to establish and provide for the Government of the Pro ...
'') might be a threat to the rule of law. This would render Manitoba nearly lawless, and the principle of the rule of law was defined as meaning no one is above the law and that laws must exist, as they uphold society's values. The court therefore confirmed the ''Charter'' preamble's importance by stating, "The constitutional status of the rule of law is beyond question." Consequently, some time was given before the unconstitutional laws would expire. In '' Re BC Motor Vehicle Act'' (1985), the Supreme Court also linked the rule of law to the
principles of fundamental justice In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as ...
, as illustrated by sections 8 to 14 of the ''Charter''. The court noted the importance of these rights to the justice system, stating that sections 8 to 14 "have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in 'the dignity and worth of the human person' (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on "the rule of law" (preamble to the ''Canadian Charter of Rights and Freedoms'')."


Alternate interpretations

Some theologians and philosophers have questioned whether the preamble refers to a specific God (the Christian God or Jewish God) or to a more abstract concept that promotes
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(i.e., civil religion). For instance, Paul Russell has stated that "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)". In ''
R v Big M Drug Mart Ltd ''R v Big M Drug Mart Ltd'' ''(Her Majesty The Queen in Right of Canada v Big M Drug Mart Ltd)'' is a landmark decision by Supreme Court of Canada where the Court struck down the federal ''Lord's Day Act'' for violating section 2 of the ''Canadia ...
'', a dissenting judge on the
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, Justice Belzil, wrote that the preamble to the ''Charter'' indicated Canada had a Christian heritage and thus courts should not use the section 2 right to
freedom of religion Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom ...
to eliminate traditions of this heritage.


History

After one version of the ''Charter'' drawn in June 1980 that lasted until September, which said in its preamble that Canadians "shall always be, with the help of God, a free and self-governing people",Egerton, George. "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''. Eds. Daniel Lyon and Marguerite Van Die. University of Toronto Press. the ''Charter'' was not going to have a preamble. The current preamble only first appeared in the April 1981 draft, which came relatively late in the process. It was included despite the fact there was no call for the ''Charter'' to have a preamble by the Special Joint Committee which was reviewing the Constitution, and that according to George Egerton, then Prime Minister Pierre Trudeau, called it "strange" that some of his colleagues wanted God referenced in the ''Charter''. (Trudeau told his MPs, "I don't think God gives a damn whether he's in the constitution or not.") However, there were various religious and
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criticisms of the ''Charter'' during its drafting, with fears that
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s and Canada's
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were threatened. Also at this time, religious groups in Canada such as "100 Huntley Street" and the
Evangelical Fellowship of Canada The Evangelical Fellowship of Canada (EFC; french: Alliance évangélique du Canada) is a national evangelical alliance, member of the World Evangelical Alliance. Its affiliates comprise 43 evangelical Christian denominations, 66 Christian org ...
were growing and wanted God acknowledged in the Constitution. Despite the
Liberal Party of Canada The Liberal Party of Canada (french: Parti libéral du Canada, region=CA) is a federal political party in Canada. The party espouses the principles of liberalism,McCall, Christina; Stephen Clarkson"Liberal Party". ''The Canadian Encyclopedia'' ...
's protests that a better preamble could be written after
patriation Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the Parliament o ...
was achieved and that therefore there was no need for the preamble being proposed at the time by the Conservatives, religious groups increased their activism. Trudeau's justice minister, Jean Chrétien, said it was the top issue in all of the letters the government was sent during patriation. The preamble has been politically controversial: in 1999, New Democratic MP
Svend Robinson Svend Robinson (born March 4, 1952) is a Canadian politician. He was a Member of Parliament (MP) from 1979 to 2004, who represented suburban Vancouver-area constituencies of Burnaby for the New Democratic Party (NDP). He is noted as the first me ...
, presented a petition created by members of Humanist Canada in the House of Commons that the reference to God be struck from the preamble, citing concerns about Canada's diversity and those Canadians who did not believe in God. The proposal was controversial and the party responded by undermining Robinson's responsibilities and his position in the caucus.


Societal impact

The preamble has proved valuable to some groups and political parties. The
Christian Heritage Party of Canada The Christian Heritage Party of Canada (french: Parti de l'héritage chrétien du Canada), also referred to as CHP Canada, is a minor social conservative and Christian right federal political party in Canada; it was founded in 1987, the brainc ...
, for example, quoted the preamble on the main page of their website, and the party called itself "Canada's only
pro-Life Anti-abortion movements, also self-styled as pro-life or abolitionist movements, are involved in the abortion debate advocating against the practice of abortion and its legality. Many anti-abortion movements began as countermovements in respon ...
, pro-family federal political party, and the only federal party that endorses the principles of the Preamble to the ''Charter of Rights and Freedoms''". The words "principles that recognize the supremacy of God and the rule of law" also appear in the party's official policies regarding what they feel all laws should be based upon, and the party states, "'Human rights' as expressed in the ''Canadian Charter of Rights and Freedoms'' can only, therefore, be legitimately interpreted in light of, or in conjunction with, the higher Moral Law of God."


See also

*
Preamble to the 1997 Constitution of Fiji {{Constitution of Fiji The 1997 Constitution of Fiji begins with a Preamble, which sets out the historical, cultural, and political reasons for the drafting of the 1997 Constitution. The writing of the Preamble was a careful balancing act. Fij ...
*
Preamble to the United Nations Charter The Preamble to the United Nations Charter is the opening (preamble) of the 1945 United Nations Charter. History Jan Smuts from South Africa originally wrote the opening lines of the Preamble as, "The High Contracting Parties, determined to preve ...
*
Preamble to the United States Constitution The Preamble to the United States Constitution, beginning with the words We the People, is a brief introductory statement of the Constitution's fundamental purposes and guiding principles. Courts have referred to it as reliable evidence o ...


References

{{Constitution of Canada, patriation Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...