Canadians as a group have a striking level of respect for, and knowledge of, the Canadian Charter of Rights and Freedoms.
Earlier today I spoke with a group of young people (and a few not so young) about the Charter. They were reasonably well educated but had no particular reason to know much about Canadian Constitutional Law -- and yet not only did they know a lot about the Charter, they looked on the Charter as being one of the defining aspects of Canada as a nation. The Charter was a matter of pride.
I have seen this in other contexts. Canadians look on the Charter as representing what is best in Canada -- a respect for individuals as well as communities. The Charter does not presume government is bad and in need of restraint -- rather it presumes government is sometimes good and sometimes it better to just stay out of the way. It is a moderate document.
Of course, the Charter can prove inconvenient for some. It does force the recognition of rights some would prefer to ignore -- same sex marriage and a right to union membership stand out as examples. The courts, when confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes. And yet the Charter does not seek to change Canada but rather to reflect its natural growth and development.
The Charter's preamble puts the context well:
"Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law"
The Charter protects ordered liberty and traditional freedoms as they evolve to become fuller and more inclusive. A very Canadian concept.
6 comments:
I'm confused about your comment regarding the Charter's preamble. You say it "puts the context well", but it is mostly a sop. "God" is an undefined term given unlimited powers over our "secular" government. This statement should not be in any legal document, let alone a defining document. I'd like to be able to accept it as the one nod to religion in our constitution, but since it abdicates all governmental power to an undefined deity it actually has the function of making the charter an embarrassment.
Although I am an atheist, and I would certainly have an objection to any mention of supernatural beings in our charter, in this case it is the abdication and rationalizations that have dragged the Charter down. I have heard the arguments about including such a reference but they are wanting. To me, the "god" reference in our charter is the elephant in the room.
I always find it surprising when a lawyer either defends its inclusion or when they ignore its inclusion. If I was having a contract written up, or was drafting legislation, that included an undefined term like that I should rightly expect vilification. If I then proceeded to abdicate all authority over the contract to this undefined term I would expect to be disbarred.
That you would highlight this particular part of the Charter as somehow anything noble or positive is baffling, or it was at least until I clicked on one of your "recommended" links that took me to "First Things", a religious site whose lead article is a challenge to the Theory of Evolution.
I guess, as long as no one actually reveals to you that the "god" of the charter isn't the same "god" you worship then you won't be worried, and, in my opinion, your ability to ignore, indeed to praise, this part of the Charter reflects very poorly on your legal judgement.
Actually First Things doesn't dispute evolution -- it is a remarkably subtle magazine of many faiths. In any event, I think the reference to God in the Charter is a useful reminder that the roots of the rule of law, as opposed to the rule of kings, arises from Canon Law. But we will agree to differ! Thanks for writing.
I don't understand how you could say that First Things doesn't dispute evolution -
http://www.firstthings.com/onthesquare/2011/11/intelligent-design-atheists-to-the-rescue
Your explanation of the "roots" of the "rule of law" comes from Canon Law is one of the responses I find most disingenuous. Since both Plato and Aristotle discussed the concept and there are other ancient references and exhortations, there is no need for people to use ANY religious justification for it, therefore, any use of this justification must have an alternative reason.
This is a case where the Charter is being used by religious elements to give their religious beliefs the power of the state, and not, as you imply, the reverse - the state is deriving its power from the church. Removing the reference to a god only changes the Charter in the way that there would be no more threat that this "god" will be used by people to usurp the Charter. It doesn't disempower the Charter at all to remove the phrase, and it would make the Charter a stronger document.
There's over 1500 years between Aristotle and Canon Law (I know there were "informal" canons), and along the way there are many who advocated the rule of law.
That you would advocate that our secular government needed to reference some sort of god as a source of authority indicates a concern for your religion, not for the law. That you are okay with an undefined term in our Charter of Rights and Freedoms, and that you are further okay with this undefined term being granted complete authority over the rights and freedoms we have codified indicates a belief that the "undefined term" is commensurate with your beliefs and does not present a threat to you.
Yes, we will agree to differ. The mention of a god in our charter is dangerous and embarrassing. Your acceptance of undefined terms in contracts and your admiration for the same contracts abdicating all authority to "it" is quite disturbing coming from anybody, much less a lawyer / law professor.
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