Preamble to the Canadian Charter of Rights and Freedoms
Encyclopedia
The preamble
Preamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...

 to the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

 is the introductory sentence to the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...

's Charter of Rights and
Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...

. In full, it reads,

Interpretation

Writing in 1982, when the
Charter came into force, constitutional scholar Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....

 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
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...

 of the
Charter, which protects freedom of conscience, which Hogg felt would include a right to atheism
Atheism
Atheism is, in a broad sense, the rejection of belief in the existence of deities. In a narrower sense, atheism is specifically the position that there are no deities...

. In
R. v. Morgentaler
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...

(1988), Justice Bertha Wilson
Bertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...

 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
R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, is a Canadian civil rights decision of the Supreme Court of Canada. The Court upheld the child pornography provisions of the Criminal Code of Canada as a valid limitation of the right to freedom of expression under section 2 of the Canadian Charter of...

, the British Columbia Court of Appeal
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...

 referred to it as a "dead letter
Dead letter
A dead letter is one that can neither be delivered nor returned to sender. The term may also mean:* "Dead letter", legislation which has not been revoked but is obsolete, inapplicable, or no longer enforced....

" which the BC justices had "no authority to breathe life" into.

The Supreme Court did consider the preamble's mention of the rule of law in
Reference re Manitoba Language Rights
Reference re Manitoba Language Rights
Reference re Manitoba Language Rights [1985] 1 S.C.R. 721 was a reference question posed to the Supreme Court of Canada regarding provisions in the Manitoba Act stipulating the provision of French language services in the province of Manitoba...

(1985), noting that striking down most of Manitoba
Manitoba
Manitoba is a Canadian prairie province with an area of . The province has over 110,000 lakes and has a largely continental climate because of its flat topography. Agriculture, mostly concentrated in the fertile southern and western parts of the province, is vital to the province's economy; other...

's laws as unconstitutional (because they were not enacted in both languages as required by the
Manitoba Act
Manitoba Act
The Manitoba Act, originally titled An Act to amend and continue the Act 32 and 33 Victoria, chapter 3; and to establish and provide for the Government of the Province of Manitoba, is an act of the Parliament of Canada that is defined by the Constitution Act, 1982 as forming a part of the...

) 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 thus confirmed the Charters preamble's importance by writing that "The constitutional status of the rule of law is beyond question". As a result some time was given before the unconstitutional laws would expire.

In Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...

(1985), the Supreme Court also linked the rule of law to the principles of fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...

, as illustrated by sections 8
Section Eight of the Canadian Charter of Rights and Freedoms
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...

 to 14
Section Fourteen of the Canadian Charter of Rights and Freedoms
Section Fourteen of the Canadian Charter of Rights and Freedoms is the last section under the "Legal rights" heading in the Charter. It provides anyone in a court the right to an interpreter if the person does not speak the language being used or is deaf.-Text:The section states:-Background:Before...

 of the Charter. The Court noted the importance of these rights to the justice system, stating that sections 8-14 "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

Theologian
Theology
Theology is the systematic and rational study of religion and its influences and of the nature of religious truths, or the learned profession acquired by completing specialized training in religious studies, usually at a university or school of divinity or seminary.-Definition:Augustine of Hippo...

 Douglas Farrow has written that, while some courts have rejected that the preamble's mention of God can have any force, the preamble indicates that "Canada cannot be regarded as a strictly secular country, in the popular sense of the term". Farrow writes that either Canada "is, or is not, committed to the notion that divine worship is linked- one way or another- to 'a love of the laws,' and a love of the laws to divine worship". The word "Whereas", moreover, indicates all sections of the Charter should be read in light of the principle recognizing the supremacy of God. This includes the "rule of law", which comes after the "supremacy of God" in the preamble, and Farrow writes that the rule of law "is hard to account for, to interpret, or to sustain without reference" to the supremacy of God, as the rule of law developed from the religious backgrounds of Canada.

Farrow also questioned whether the preamble refers to a specific God (the Christian God or Jewish God) or to a more abstract concept that promotes civic virtue
Civic virtue
Civic virtue is the cultivation of habits of personal living that are claimed to be important for the success of the community. The identification of the character traits that constitute civic virtue have been a major concern of political philosophy...

 (i.e., civil religion
Civil religion
The intended meaning of the term civil religion often varies according to whether one is a sociologist of religion or a professional political commentator...

).

In the case R. v. Big M Drug Mart, a dissenting judge on the Alberta Court of Appeal, 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
Freedom of religion 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; the concept is generally recognized also to include the freedom to change religion or not to follow any...

 to eliminate certain traditions. Otherwise, the Canadian majority would lose various rights, such as having laws recognizing Christmas
Christmas
Christmas or Christmas Day is an annual holiday generally celebrated on December 25 by billions of people around the world. It is a Christian feast that commemorates the birth of Jesus Christ, liturgically closing the Advent season and initiating the season of Christmastide, which lasts twelve days...

. Even the Gregorian calendar
Gregorian calendar
The Gregorian calendar, also known as the Western calendar, or Christian calendar, is the internationally accepted civil calendar. It was introduced by Pope Gregory XIII, after whom the calendar was named, by a decree signed on 24 February 1582, a papal bull known by its opening words Inter...

 might be endangered.

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," 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 that 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, the prime minister of Canada
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...

 at the time, Pierre Trudeau
Pierre Trudeau
Joseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...

, 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.") There were, however, various religious and Conservative
Progressive Conservative Party of Canada
The Progressive Conservative Party of Canada was a Canadian political party with a centre-right stance on economic issues and, after the 1970s, a centrist stance on social issues....

 criticisms of the Charter during its drafting, with fears that denominational schools and Canada's abortion law
Abortion law
Abortion law is legislation and common law which pertains to the provision of abortion. Abortion has been a controversial subject in many societies through history because of the moral, ethical, practical, and political power issues that surround it. It has been banned frequently and otherwise...

 were threatened. At this time as well, religious groups in Canada such as 100 Huntley Street
100 Huntley Street
100 Huntley Street is a Christian daily talk show and the flagship program of Crossroads Christian Communications based in Burlington, Ontario, Canada. Created in 1976 by Rev. David Mainse, it first aired on June 15, 1977 from its first studios located at 100 Huntley Street in the St...

and the Evangelical Fellowship of Canada
Evangelical Fellowship of Canada
The Evangelical Fellowship of Canada is a national parachurch association of over . All affiliated groups identify themselves as part of the evangelical movement in Canada....

 were growing and wanted God acknowledged in the Constitution. Despite the Liberal Party of Canada
Liberal Party of Canada
The Liberal Party of Canada , colloquially known as the Grits, is the oldest federally registered party in Canada. In the conventional political spectrum, the party sits between the centre and the centre-left. Historically the Liberal Party has positioned itself to the left of the Conservative...

's protests that a better preamble could be written after patriation
Patriation
Patriation is a non-legal term used in Canada to describe a process of constitutional change also known as "homecoming" of the constitution. Up until 1982, Canada was governed by a constitution that was a British law and could be changed only by an Act of the British Parliament...

 was achieved, and thus 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
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....

, said it was the top issue in all of the letters the government was sent during patriation.

Farrow identified the Charter preamble as being the successor to, although shorter than, the preamble in the 1960 Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...

, which reads
There was also precedent for religious references in Canadian politics in the national motto ("A Mari usque ad Mare"), which is derived from Psalm 72
Psalm 72
-Judaism:*Verses 18-19 are the third and fourth verses of Baruch Hashem L'Olam in Pesukei Dezimra and Baruch Hashem L'Olam during Maariv....

. The reference to the supremacy of God was new to the Canadian Constitution itself, however. The British North America Acts
British North America Acts
The British North America Acts 1867–1975 are the original names of a series of Acts at the core of the constitution of Canada. They were enacted by the Parliament of the United Kingdom and the Parliament of Canada. In Canada, some of the Acts were amended or repealed by the Constitution Act, 1982....

made no mention of this, even though as author George Egerton remarked, "It is doubtful if the Canadian political elites of 1982 were as firm as the patriarchs of 1867
Fathers of Confederation
The Fathers of Confederation are the people who attended the Charlottetown and Quebec Conferences in 1864 and the London Conference of 1866 in England, preceding Canadian Confederation. The following lists the participants in the Charlottetown, Quebec, and London Conferences and their attendance at...

 in their devotion to the supremacy of God"; indeed, many were aiming for more separation of church and state
Separation of church and state
The concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....

.

The preamble has been politically controversial. In 1999 New Democratic Party
New Democratic Party
The New Democratic Party , commonly referred to as the NDP, is a federal social-democratic political party in Canada. The interim leader of the NDP is Nycole Turmel who was appointed to the position due to the illness of Jack Layton, who died on August 22, 2011. The provincial wings of the NDP in...

 MP Svend Robinson
Svend Robinson
Svend Robinson is a former Canadian politician. He was a Member of Parliament in the Canadian House of Commons from 1979 to 2004, representing the suburban Vancouver-area constituency of Burnaby for the New Democratic Party...

 proposed before the Canadian House of Commons
Canadian House of Commons
The House of Commons of Canada is a component of the Parliament of Canada, along with the Sovereign and the Senate. The House of Commons is a democratically elected body, consisting of 308 members known as Members of Parliament...

 that the mention of God be struck from the preamble, citing concerns about Canada's diversity and those Canadians who would not share that principle. He was supported by a thousand constituents who had signed a petition, but the proposal was controversial and the party responded by undermining Robinson's responsibilities and position in the caucus. Indeed, the NDP itself had its origins in social gospel
Social Gospel
The Social Gospel movement is a Protestant Christian intellectual movement that was most prominent in the early 20th century United States and Canada...

.

Sociological impact

The preamble has proved valuable to some groups and political parties. The Christian Heritage Party of Canada
Christian Heritage Party of Canada
The Christian Heritage Party of Canada, also referred to as CHP Canada, is a federal political party that advocates that Canada be governed according to Biblical principles...

, for example, quoted the preamble on the main page of their website, and the party called itself "Canada's only pro-Life
Pro-life
Opposition to the legalization of abortion is centered around the pro-life, or anti-abortion, movement, a social and political movement opposing elective abortion on moral grounds and supporting its legal prohibition or restriction...

, 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 that "'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."

Muslim Canadians
Islam in Canada
According to Canada's 2001 census, there were 579,740 Muslims in Canada, just under 2% of the population. In 2006, the Muslim population was estimated to be 0.8 million or about 2.6%. In 2010, the Pew Research Center estimates there were about 0.9 million Muslims in Canada. About 65% were Sunni,...

 have also cited the preamble as being important to them: Some have written that "in Canada these are the principles of the Islamic Law which correspond to similar principles in the Canadian Charter of Rights and Freedoms which relate to: (1) The Supremacy of God and the Rule of Law (Preamble); (2) Guarantee of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...

 (3) Fundamental Freedoms (4) Equality Rights
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...

; (5) Multicultural heritage
Section Twenty-seven of the Canadian Charter of Rights and Freedoms
Section Twenty-seven of the Canadian Charter of Rights and Freedoms is a section of the Charter that, as part of a range of provisions within the section 25 to section 31 bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts...

." Since, in their view, Islamic law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...

 originated with God, and since multiculturalism
Multiculturalism
Multiculturalism is the appreciation, acceptance or promotion of multiple cultures, applied to the demographic make-up of a specific place, usually at the organizational level, e.g...

 would indicate the God referred to in the Preamble would include the Islamic god
God in Islam
In Islamic theology, God is the all-powerful and all-knowing creator, sustainer, ordainer, and judge of the universe. Islam puts a heavy emphasis on the conceptualization of God as strictly singular . God is unique and inherently One , all-merciful and omnipotent. According to the Islamic...

, then Islamic law should have a place in Canada.

See also

  • Preamble to the United Nations Charter
    Preamble to the United Nations Charter
    The Preamble to the United Nations Charter is the opening of the United Nations Charter.-History:Jan Smuts originally wrote the opening lines of the Preamble as, "The High Contracting Parties, determined to prevent a recurrence of the fratricidal strife which twice in our generation has brought...

  • Preamble to the United States Constitution
    Preamble to the United States Constitution
    The Preamble to the United States Constitution is a brief introductory statement of the Constitution's fundamental purposes and guiding principles...

  • Constitution of Fiji: Preamble
    Constitution of Fiji: Preamble
    The 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...

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