Quebec Judge Uses Preamble to Charter of Rights and Freedoms in Decision - July 12, 2010

A Quebec judge’s ruling last week, based on the Preamble to the Canadian Charter of Rights and Freedoms has opened up a bit of a judicial hornet’s nest.  The ruling allowed a Catholic high school in Montreal to choose its own religious curriculum in defiance of an order from the provincial Ministry of Education.  The judge based his ruling on the phrase in the Preamble which refers to “the Supremacy of God.”

This has upset at least one atheist organization. Justin Trottier, Executive Director of Toronto’s Centre for Inquiry Canada said “From an atheist's perspective, what happens to those who don't believe God exists?  If God needs to be defended [by a court], then does God need to be defended by those of us who don't believe in God?"

This has led Mr. Trottier to call for a change in the Charter, specifically to remove the “supremacy of God” phrase.  His public objections have sparked a debate within legal circles whether Canada should show such reverence to the Divine in a foundational document.

Quebec Superior Judge Gerard Dugre sited the phrase in his ruling in favour of Loyola High School, a Jesuit private institution.  They had asked to be exempt from the new provincial religion curriculum that gives equal status to all world religions including Wiccan.  Judge Dugre stated that the province’s demand on the High School was “totalitarian” and used the preamble to make his case.

"Canadian democratic society," the judge wrote, "is based on principles recognizing the supremacy of God and the primacy of the law -- both of which benefit from constitutional protection."

Legal experts were surprised that the preamble was used, believing that it has only been used once before in making a decision. Janet Epp Buckingham, former legal counsel for the Evangelical Fellowship of Canada and currently the director of the Ottawa-based Laurentian Leadership Centre said “I was astonished to see that in the case. Courts always refer to the 'rule of law' and ignore the 'supremacy of God.' But the supremacy of God should be considered equally valuable because it points to the importance of religion in Canada."

Others disagree.  Lorne Sossin, dean of Osgoode Hall Law School, said there is clear reason it has been used so rarely. His view is that “the preamble is secondary to the text of the Charter and because the public neither expects nor is comfortable with open expressions of religious views by judges.”

In 1999, the British Columbia Court of Appeal referred to the phrasing as a "dead letter" which the justices had "no authority to breathe life" into for the purpose of interpreting the Charter. The Evangelical Fellowship of Canada raised objections to the interpretation in a document to the court.

By calling it a “dead letter,” Ms. Buckingham explained, the judge was essentially saying: “Nobody uses it, so don't even bother with it. It's basically meaningless.” However, Ms. Buckingham said the phrase is essential to ensure that freedom of religion is not defined too narrowly and interpreted in a “secular fashion.”

“[To be interpreted in a secular fashion] means religion becomes privatized and people should not have to be exposed to it -- whereas the preamble shows that religion is part of Canadian life and should have as broad and expansive definition as possible. Freedom of religion does not mean freedom from religion.”

A change in the Constitution such as Mr. Trottier suggests is unlikely.  Amending the Constitution in any way is a long a involved process, requiring the approval of the House of Commons and Senate and a two-thirds majority of the provincial legislatures representing at least half of the population.  In the words of Canadian legal scholar Peter Hogg who says it would not be worth the time and effort to remove the phrase, “I don't think anything would change if the phrase were removed, because the guarantee of freedom of religion is what does the work in protecting religious belief and practice.”

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