Constitutional Fundamentals

• Author: M.H. Ogilvie
• Pages: 94-162

94

CHAPTER 4

CONSTITUTIONAL

FUNDAMENTALS

A.CONSTITUTIONAL FUNDAMENTALS

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 English1 understanding of parliamentary 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 s95

modif‌ied by indigenous Canadian constitutional requirements and ar-

rangements, ref‌lecting in turn Canadian historical experience. It also

ref‌lects historical British2 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 has been from its inception, a country

with an overwhelming, if nominal, Christian majority, Christian

theologies of the two kingdoms, which assert the independence of the

spiritual from the temporal realm, have never been explicitly accepted

in constitutional law, although they have enjoyed tacit acceptance in

practice.3 Rather, the inheritance of the English theory of parliament-

ary sovereignty means that in Canada, Parliament has supreme and

sovereign authority over the affairs of all individuals and institutions

within its geographical jurisdiction, including all religious institutions

and the religious practices of individual citizens, subject only to the

generally applicable constitutional limitations on its sovereign legisla-

tive power. Parliamentary sovereignty means that Parliament has the

power, as Dicey stated, “to make or unmake any law whatsoever.”4

In England the sovereignty of Parliament was f‌irst asserted in the

legislation of the English Reformation, which threw off the universal

claims of the Roman pontiff over England and created the Church of

England as the state church whose earthly head was the Crown-in-

Parliament.5 While the conf‌lict for supremacy within the realm of Eng-

land between Crown and Parliament was not f‌inally resolved until a

century and a half 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 perspective,

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).

RELIGIOUS INSTITUTIONS AND T HE LAW IN CA NADA96

Once a sovereign Parliament emerged as the supreme authority within

the state, that sovereignty was as much over the church as the state.

From the Reformation legislation of the 1530s onward, Parliament

asserted the constitutional 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 that constitutional right today in

relation to the established church. Wh ile such intervention has become

increasingly rare in 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 Parliament 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 within the British state.

With the growth of religious 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-established churches and religious institutions by

public statutes of general application as well as by private legislation 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 inheritance means that in Canada9 Parliament

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).