Constitutional Fundamentals

AuthorM.H. Ogilvie
The constitutional relationship of the governments of Canada, both fed-
eral and provincial, to rel igious institutions is, as in most other countr ies,
the consequence of history. It ref‌lects the constitutional inheritance of
a specif‌ically Engli sh1 understanding of parliamenta ry government, as
1 Scots constit utional law differs from En glish constitutional l aw in regarding
church and state a s two separate kingdoms, eac h sovereign within its ow n
realm, and t his is ultimately ref‌lect ed in the Church of Scotland Act, 1921 (11 &
12 Geo. 5, c. 29) and the Articles Dec laratory thereto. The principle of sep arate
but equal kingdom s enshrined in that Act i s the consequence of four centurie s
of struggle by t he established Church of Scot land for such recognition. See,
generally, Francis Lyal l, Of Presbyters and Kings: Church and State in the Law of
Scotland (Aberdeen : Aberdeen University Pres s, 1980); the Stair Memoria l En-
cyclopedia of the Laws of Scotlan d V. 136–162, 357–372; Lord Rodger, The Courts,
the Church and the Constitu tion: Aspects of the Disru ption of 1843 (Edinburgh:
Edinburgh Uni versity Press, 2008); and Mar jory A. MacLean The Crown Rights
of the Redeeme r: The Spiritual Freedom of the Church of Scotland (Edinburgh:
St. Andrews Pr ess, 2009). See also Anon., “The Legal Position of Di ssenting
Churches in Scot land” (1887) 31 Journal of Juris prudence 616; R. King Murray,
“The Constitutiona l Position of the Church of Scotland” [1958] P.L. 155; T.B.
Smith, “The Union of 1707 as Fundamental L aw” [1957] P.L. 99; T.M. Taylor,
“Church and State in Sc otland” [1957] J.R. 121; Michael Upton, “Marriage Vows
of the Elephant: The Con stitution of 1707” (1989) 105 Law Q. Rev. 79; Rodney
Brazier, “The Constit ution of the United Kingdom” [1999] Cambridge L.J. 96;
Elizabet h Wicks, “A New Constitution for a New State? The 1707 Union of
England and Sc otland” (2001) 117 Law Q. Rev. 109; and Javier Garc ia Oliva,
Constitut ional Fundamental s 95
modif‌ied by indigenous Canadian constitutional requirements and ar-
rangements, ref‌lecting in tur n Canadian hi storical experience. It also
ref‌lects historical Br itish2 understandings of the proper relationship of
“church and state,” again as modif‌ied by the historical evolution of those
understandings in Canadian history and contemporary experience.
Although Canada is, and h as been from its inception, a country
with an overwhelmi ng, if nominal, Christ ian majority, Christian
theologies of the two kingdoms, which as sert the independence of the
spiritual from the tempora l realm, have never been explicitly accepted
in constitutional law, although they have enjoyed tacit acceptance in
practice.3 R ather, the inheritance of the English theor y of parliament-
ary sovereignty means that in Canada, Parliament has supreme and
sovereign authority over the affairs of all individuals and i nstitutions
within its geographical jurisdiction, including al l religious institutions
and the religious practices of individual citizens, subject only to the
generally applicable constitutional limit ations on its sovereign legisla-
tive power. Parliamentary sovereignty me ans that Parliament has the
power, as Dicey stated, “to make or unmake any law what soever.4
In England the sovereignty of Parlia ment was f‌irst asserted in the
legislation of the English Reformat ion, which threw off the universal
claims of the Roman p ontiff over England and created the Church of
England as the state church whose earthly head was the Crow n-in-
Parliament .5 While the conf‌lict for supremacy within t he realm of Eng-
land between Crown and Parli ament was not f‌inally resolved until a
century and a hal f later, after the Glorious Revolution of 1688– 89,6 it
was never doubted from the 1530s onward that whichever contestant
won the tussle for supremacy in the state, the state enjoyed authority
over the church. The English Reformation, from a legal perspect ive,
was f‌irst and foremost about the assert ion of the primacy of the Engl ish
state over the church and the assim ilation of that church with the state.
“Church, State and Est ablishment in the United Ki ngdom: Anachronism or Idio-
syncracy?” [2010] Public Law 482.
2 The reluctance, unti l recently, of Canadian legisl atures and courts to ma ke law
for religious in stitutions is surely a ref‌lect ion of the greater respect for Chr isti-
anity found in t he United Kingdom historical ly in contrast to the anti-c lerical-
ism charac teristic of French histor y and society.
3 See chapter 1 for thi s theological background.
4 A.V. Dicey, The Law of the Constitution, 10t h ed. (London: MacMillan, 1959) at 39.
5 22 Henry VIII, c. 15 (1531); 23 Henry VIII, c. 20 (1532); 24 Henry VIII, c. 12
(1533); 26 Henry VIII , cc. 1, 19, 20, 21 (1534); and 28 Henry VI II, c. 10 (1536).
6 Bill of Rights, 1 Will. & Mary, c. 2 (1689); Mutiny Act, 1 Will. & Mary, c. 5
(168 9); Toleration Act, 1 Will. & Mary, c. 18 (1689); Triennial Act, 6 & 7 Will. &
Mary, c. 2 (1694); Civil List Act, 9 & 10 Will. III, c. 23 (1697); Tre aso ns Act , 7 &
8 Will. & Mar y, c. 3 (1696); and Act of Settlement 12 & 13 Will. III, c. 2 (1701).
Once a sovereign Parliament emerged as the supreme authority w ithin
the state, that sovereignty wa s as much over the church as the state.
From the Reformation legislation of the 1530s onward, Parliament
asserted the const itutional right to determine all ecclesiastical mat-
ters not just in relation to property and contract but also all matters
of doctrine, polity, and liturgy. The Westminster Parliament continues
to enjoy and occasionally to exercise t hat constitutional right today in
relation to the established church. Wh ile such intervention has become
increasingly rare i n the past century and is unlikely ever again to be
exercised without the clear request of the church, Parliament retains
sovereignty over the Church of England, and the Crown-in-Parliament
is the “supreme governor” of the church.
However, it is also the case that Parlia ment simply by virtue of its
sovereignty over all persons and institutions within the state also enjoys
sovereignty over all other non-established Christian denominations and
all other non-Christian religious institutions w ithin the British state.
With the growth of relig ious toleration in England7 in the course of the
eighteenth century, Parliament enacted legislat ion not only to permit reli-
gious pluralism but also to faci litate property-holding and the enjoyment
of civil status by non-est ablished churches and religious institutions by
public statutes of general application as well as by private legi slation of
particular applicat ion and at the request of the concerned church. Yet, by
virtue of residence wit hin the geographical jurisdiction of Parliament, a ll
religious institutions and persons are subject to Parliament.8
This constitutional inher itance means that in Canada9 Parlia ment
theoretically enjoys sovereign and supreme authority over all religious
institutions and ind ividuals engaged in religious practices. However, in
7 Again, hist orically Scotland had a d ifferent religious hist ory, in respect t o the
evolution of religious t oleration.
8 This means that althoug h religious institution s may engage in alternative
dispute resolut ion to resolve internal matte rs pursuant to provincia l Arbitration
Acts, these r emain subject to the sovereignt y of the Canadian state . There can
be no separate rel igious spheres or jurisd ictions within Can ada, as contemplat-
ed by, for example, Islamic Sh aria law.
9 The understanding and a nalysis of Canadi an constitutional law in t his chapter
is derived from t he leading text: Peter W. Hogg, Constitut ional Law of Canada,
Student Edition (Scar borough, ON: Thomson/Carswell, 2011). See also Guy Régim-
bald and Dw ight Newman, The Law of the Canad ian Constitution (Markham, ON:
LexisNex is Canada, 2013). For Charter-related issues, see Gér ald A. Beaudoin &
Errol Mendes, ed s., The Canadian Charter of Rights and Freedom s, 3d ed. (Toronto:
Carswell, 1995); Gérald A. Beaudoi n & Errol Mendes, eds., The Canadian C harter
of Rights and Freedoms, 4th ed. (M arkham, ON: LexisNexi s Butterworths, 2005);
Errol Mendes & Stépha ne Beaulac, eds., The Canadian C harter of Rights and Free-
doms, 5th ed. (Markha m, ON: LexisNexis Butter worths, 2013).

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