Did you know that the “supremacy of God” is Canada’s founding principle? Read the Canadian constitution, if you don’t believe me. This is the preamble to the Canadian Charter of Rights and Freedoms: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law …” Recently, a Quebec Superior Court Judge Gérard Dugré relied on these words to stop the Quebec government from blocking one private school’s religious curriculum. This caused secular activists to call for removing the reference to God from our Charter.
Secular Canadians took offence. To them, Judge Dugré’s novel use of the preamble appears to make non-religious Canadians second-class citizens. His ruling may also look like an attempt to cut the ancient Gordian Knot of whether God exists in one judicial stroke. Of course, this cannot be the meaning of the preamble to the Charter. But the words about God do not have to be empty rhetoric ignored by the courts either. A reasonable interpretation of the preamble treats “God” as a power that is superior to the state and that have endowed Canadians with rights and freedoms secure from the state.
I do not know if judge Dugré’s decision is correct. Nor am I trying to answer this question here. But regardless of his ruling, there is a reasonable interpretation of the entire preamble to the Charter.
First of all, the purpose of the Charter is to protect rights and freedoms of the people against the government. This principle should imbue every interpretation of this constitutional document.
One of the fundamental methods of testing legality is tracing claimed powers and freedoms to their source. Many state agents’ powers come from or are allowed by the sovereign—the federal parliament or provincial legislatures. Police powers, for example, come from statute or are allowed by statute because they pre-existed legislative intervention. No state power can exist without parliamentary consent or an explicit constitutional grant. Even “Crown prerogatives” such as international relations powers exist only until legislatures wish to withdraw them.
But people are not agents or creatures of the state. We pre-date the state.
To reserve some freedoms to the people, to protect them from the overarching sovereign, and to ensure the legality of freedoms, you need a source other than the sovereign itself. Otherwise, the sovereign would be free to take freedoms back from the people. This source cannot be the state, it cannot be a person, and it cannot be a corporation. The humanity have always imagined a source of power and freedom completely independent of the state. It’s been called different names but a common one in English is God. Why not? It’s good enough to symbolize the idea that fundamental human rights and freedoms are not a gift from the sovereign. We have them by birth or naturalization, or symbolically as a gift from “God.”
Second, to emphasize the idea that the state and our legislative sovereigns cannot expropriate the independent rights and freedoms of the people, a concept of supremacy is necessary. Not only is the source of our freedoms and rights independent from the state, it is also supreme to the state. This concept leaves not a shred of doubt about any ability of the government to repossess our freedoms.
For these two reasons, “Canada is founded upon principles that recognize the supremacy of God.” It is to protect our freedoms and rights from state intrusion, which is exactly the purpose of the Charter. The rule-of-law part is equally critical, because unless there is an institution that deeply believes in these principles and holds the state in check, the words alone are not worth much. Thank God for the independent judiciary and the independent legal profession. Yes, essentially: thank God for lawyers.
According to the Black’s Law Dictionary (8th ed.), a preamble may help interpreting its enclosing document. The dictionary cites Den v. Urison, 2 N.J.L. 212 (1807), a New Jersey case: “… in case any doubt arises on the enacting part, the preamble may be resorted to to explain it, and show the intention of the law maker.” If our courts turn to the preamble of the Charter to inform their interpretation of that document, they should treat the words “supremacy of God” not in a religious sense but as an affirmation of Canadians’ rights and freedoms secure from and independent of the government.