Constitutional Fundamentals

• Author: M.H. Ogilvie
• Pages: 99-155

Chapte

r F

o

ur

Constitutional

Fundamentals

A.

CONSTITUTIONAL

FUNDAMENTALS

The

constitutional relationship

of the

governments

of

Canada,

both fed

eral

and

provincial,

to

religious

institutions

is, as in

most

other

countries,

the

consequence

of

history.

It

reflects

the

constitutional

inheritance

of a

specifically

English1

understanding

of

parliamentary

government,

as

1

Scots constitutional

law

differs

from

English constitutional

law in

regarding

church

and

state

as two

separate kingdoms, each sovereign within

its own

realm,

and

this

is

ultimately

reflected

in the

Church

of

Scotland

Act, 1921

(11

&

12

Geo.

5, c. 29) and the

Articles Declaratory thereto.

The

principle

of

separate

but

equal kingdoms enshrined

in

that

Act is the

consequence

of

four

centuries

of

struggle

by the

established Church

of

Scotland

for

such recognition.

See

gen-

erally

Francis

Lyall,

Of

Presbyters

and

Kings:

Church

and

State

in the Law

of

Scot-

land

(Aberdeen: Aberdeen University Press, 1980);

and the

Stair

Memorial

Encyclopedia

of

the

Laws

of

Scotland

V.

136-162,

357-372.

See

also

Anon.,

"The

Legal

Position

of

Dissenting

Churches

in

Scotland"

(1887)

31

Journal

of

Jurisprudence 616;

R.

King

Murray,

"The Constitutional Position

of the

Church

of

Scotland"

[1958]

PL.

155; T.B. Smith, "The Union

of

1707

as

Fundamental

Law"

[1957]

PL. 99;

T.M. Taylor, "Church

and

State

in

Scotland" [1957] J.R.

121;

Michael Upton, "Marriage

Vows

of the

Elephant:

The

Constitution

of

1707" (1989)

105

L.Q.R.

79;

Rodney Brazier, "The Constitution

of the

United

Kingdom"

[1999]

Camb.

L.J.

96; and

Elizabeth Wicks,

"A New

Constitution

for

a

New

State?

The

1707 Union

of

England

and

Scotland" (2001)

117

L.Q.R.

109.

99

100

RELIGIOUS

INSTITUTIONS

AND THE LAW

modified

by

indigenous Canadian constitutional requirements

and

arrangements,

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 accepted

in

constitutional law,

although they have

enjoyed

tacit acceptance

in

practice.3

Rather,

the

inheritance

of the

English theory

of

parliamentary sovereignty means

that

in

Canada, Parliament

has

supreme

and

sovereign authority over

the

affairs

of all

individuals

and

institutions within

its

geographical jurisdic-

tion, including

all

religious institutions

and the

religious practices

of

individual citizens, subject only

to the

generally applicable constitution-

al

limitations

on its

sovereign legislative power. Parliamentary sovereign-

ty

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

leg-

islation

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.3

While

the

conflict

for

supremacy within

the

realm

of

England 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

2 The

reluctance,

until recently,

of

Canadian legislatures

and

courts

to

make

law

for

religious institutions

is

surely

a

reflection

of the

greater respect

for

Chris-

tianity

found

in the

United Kingdom historically

in

contrast

to the

anti-cleri-

calism characteristic

of

French history

and

society.

3 See

above chapter

1 for

this

theological background.

4

A.V

Dicey,

The Law

of

the

Constitution,

10th

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,

c. 1,

19,

20, 21

(1534);

and 28

Henry

VIII,

c. 10

(1536).

6

Bill

of

Rights,

1

Will.

&

Mary,

c. 2

(1689);

Mutiny

Act,

I

Will.

&

Mary,

c. 5

(1689);

Toleration

Act,

1

Will.

&

Mary,

c. 18

(1689);

Triennial

Act,

6 & 7

Will.

&

Mary,

c. 2

(1694);

Civil

List

Act,

9 & 10

Will.

Ill,

c. 23

(1697);

Treasons

Act,

7 &

8

Will.

&

Mary,

c. 3

(1696);

and Act

of

Settlement

12 & 13

Will.

HI, c. 2

(1701).

Constitutional

Fundamentals

101

English

Reformation,

from

a

legal perspective,

was

first

and

foremost

about

the

assertion

of the

primacy

of the

English state over

the

church

and the

assimilation

of

that church with

the

state. Once

a

sovereign

Par-

liament emerged

as the

supreme authority within

the

state, that sover-

eignty

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 matters

not

just

in

relation

to

property

and

contract

but

also

all

matters

of

doc-

trine,

polity,

and

liturgy.

The

Westminster Parliament continues

to

enjoy

and

occasionally

to

exercise that constitutional right today

in

relation

to

the

established church. While such intervention

has

become increasing-

ly

rare

in the

past century

and is

unlikely ever again

to be

exercised with-

out

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 legislation

not

only

to

permit reli-

gious pluralism

but

also

to

facilitate

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

application,

and at the

request

of the

concerned church.

By

virtue

of

residence within

the

geographical jurisdiction

of

Parliament,

all

religious institutions

and

persons

are

subject

to

Parliament.

This constitutional inheritance means that

in

Canada8

Parliament

theoretically

enjoys

sovereign

and

supreme authority over

all

religious

institutions

and

individuals engaged

in

religious practices. However,

in

7

Again, historically Scotland

had a

different

religious

history.

8 The

understanding

and

analysis

of

Canadian constitutional

law in

this

chapter

is

derived

from

the

leading

text: Peter

W.

Hogg,

Constitutional

Law

of

Canada

(Toronto:

Carswell,

2001

Student Edition).

See

also

for

Charter-related

issues:

Gerald

A.

Beaudoin

and Ed

Ratushny,

eds.,

The

Canadian

Charter

of

Rights

and

Freedoms,

2d ed.

(Toronto: Carswell,

1989);

and

Gerald

A.

Beaudoin

and

Enrol

Mendes,

eds.,

The

Canadian

Charter

of

Rights

and

Freedoms,

3d ed.

(Toronto:

Carswell,

1996).