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God and the Constitution: the Significance of the Supremacy of God in Preamble of the Canadian Charter of Rights and Freedoms

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God and the Constitution: the Significance of the Supremacy of God in Preamble of the Canadian Charter of Rights and Freedoms God and the Constitution: the Significance of the Supremacy of God in Preamble of the Canadian Charter of Rights and Freedoms by John Helis, B.Soc.Sc. (Hons.), LL.B. A thesis submitted to the Faculty of Graduate and Postdoctoral Affairs in partial fulfillment of the requirements for the degree of Master of Arts in Legal Studies Carleton University Ottawa, Ontario © 2011 John Helis Library and Archives Bibliotheque et Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-87777-7 Our file Notre reference ISBN: 978-0-494-87777-7 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distrbute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondaires ont ete enleves de thesis. cette these. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. Canada ii ABSTRACT Despite being a unique part of the Canadian Constitution, the reference to the supremacy of God in the preamble of the Canadian Charter of Rights and Freedoms has received relatively little scholarly attention. This study will demonstrate that the supremacy of God reveals something significant about the Canadian Constitution, the theory of rights, Canadian nationalism and the theory of the state. A review the supremacy of God's historical origins will draw links to the foundation of rights and nationalism. A legal analysis will reveal that it represents the source of rights and nationhood without religious exclusivity. Engagement with rights discourse will demonstrate that the supremacy of God corresponds to the idea that universal rights require a foundation that transcends human affairs. Finally, the supremacy of God will be shown to serve as the transcendent principle that underlies both the symbolism of civic nationalism and the theory of the state. Ill ACKNOWLEDGEMENTS To Isabelle, Theodore and Maria, who believed and made it possible. iv TABLE OF CONTENTS Abstract: ii Acknowledgements: iii Introduction: 1 Section A: The Meaning and Significance of the Supremacy of God 1 Section B: Chapters 2 Section C: Definitions 6 CHAPTER I: The Origins of the Supremacy of God and its Inclusion in the Charter 10 Section A: Introduction 10 Section B: The Supremacy of God, Secular Politics and Religious Interests 11 Section C: The Supremacy of God - From the Canadian Bill of Rights to the Charter of Rights 17 Section D: The Supremacy of God, Patriation and a Preamble to the Entire Constitution 24 Section E: From a Preamble to the Entire Constitution to a Preamble to the Charter 32 CHAPTER II: The Legal Significance of the Supremacy of God and the Role of Religion 38 Section A: Introduction and the Existing Literature 38 Section B: Secularism, Establishment and the Wall of Separation 40 Section C: Religion and the Canadian Constitution 51 Section D: Judicial Considerations of the Supremacy of God 57 V Section E: The Relationship Between the Supremacy of God and the Rule Of Law 63 CHAPTER III: The Supremacy of God and the Foundation of Rights 70 Section A: Introduction and the Existing Literature 70 Section B: Natural law and God 73 Section C: Modernity, Revolution and Rights 84 Section D: Universalism: Decline and Restoration 93 CHAPTER IV: The Supremacy of God and the Foundation of Canadian Nationhood 105 Section A: Introduction 105 Section B: Nationalism and Symbolism 107 Section C: God and Nationalism 115 Section D: God, Democracy and the Theory of the State 127 CONCLUSION: 137 BIBLIOGRAPHY: 145 Section A: Legislation 145 Section B: Jurisprudence 146 Section C: Government Documents 150 Section D: International Materials 157 Section E: Secondary Sources - Books 158 Section F: Secondary Sources - Articles 160 Section I: Secondary Sources - Newspaper Articles 164 1 INTRODUCTION GOD AND THE CONSTITION: THE SIGNIFICANCE OF THE SUPREMACY OF GOD IN THE PREAMBLE OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS A. The Meaning and Significance of the Supremacy of God The patriation of the Canadian Constitution in 1982 resulted in the addition of a number of new terms to the Constitution that have generated a considerable degree of public attention and scholarly focus. Terms such as multiculturalism, equality and the rule of law have received extensive attention and are arguably as representative of the Canadian Constitution as the older phrases such as peace, order and good government. One addition to the Constitution at the time of patraition that has not received the same degree of consideration as some of the other terminology is a reference to the supremacy of God in the preamble of the Canadian Charter of Rights and FreedomsThe preamble of the Charter reads as follows: "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law." At the time of patriation the inclusion of a reference to God in the Constitution was the subject of considerable debate, but despite being a unique aspect of the Constitution it has since received very limited legal or scholarly attention, and very few serious attempts at explaining its significance and historical origins have been made. The brevity of the preamble not only makes the reference to the supremacy of God a difficult subject for an in-depth study, but it has also resulted in a number of negative reviews and surface-level analyses that fail to provide a satisfactory account. Much of the existing literature questions the relevance of the supremacy of God based on an incomplete review of its origins during the patriation process, a brief account of its limited legal application, or by 1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [hereinafter "Charter"]. 2 automatically tying it to specific religious interests. The purpose of this thesis is to undertake a broad and comprehensive study of the supremacy of God clause in order to ascertain why a reference to God was included in a defining legal document of a secular and multicultural state in the 20th century, and to consider its overall meaning and significance. In the course of the next four chapters, the supremacy of God will be shown to be an important provision that reveals something significant about the Canadian Constitution, the theory of rights embodied by the Constitution, Canadian nationhood and the theory of the state more generally. The limited results achieved by the existing literature in ascertaining the full meaning of the supremacy of God is due in large part to its complexity. The comprehensive account which is the goal of this study requires a broad and multidisciplinary approach that includes aspects of historical inquiry, legal analysis, and legal and political theory. Discerning the supremacy of God's origins and concrete links to the foundation of rights and nationalism requires a historical inquiry concerning the circumstances surrounding its inclusion in the preamble of the Charter. An examination of the Canadian constitutional structure and the jurisprudence on the supremacy of God is also necessary in order to determine how the courts have interpreted and applied the reference, as well as to ascertain its link to the freedom of religion in the Charter and the practice of secularism in Canada. Lastly, engagement with numerous perspectives on rights discourse, political and legal theory will assist in revealing the deeper theoretical significance of the reference to the Supremacy of God as the transcendent foundation of rights protection, civic nationalism in Canada and the theory of the state. B. Chapters Chapter I will present the intriguing story of how the supremacy of God found its way into the short preamble to the Charter by considering the rich and varied debate on the reference 3 that occurred in Parliament at the time of patriation, and by analyzing the draft preambles to the Constitution and the quasi-constitutional Canadian Bill of Rights.2 This will help display the thought process of the Charter's framers and the theory that inspired them. A review of the history behind the supremacy of God will reveal that, contrary to the arguments of some scholars, it is much more than a last minute addition to the Charter. While some have suggested that the supremacy of God is attributed to the influences of a religious lobby, this chapter will consider the tension of the social climate at the time of patriation, which was marked by both increasing secularism and the rise of the religious right that sought to influence social policy debates.
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