Constitutional Fundamentals

• Author: M.H. Ogilvie
• Pages: 93-154

93

CHAP TER 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 mo st other countries,

the consequence of history. It ref‌lects the constitutional inheritance of

a specif‌ically English1 under standin g of parlia mentary government, a s

modif‌ied by indigenous Canadian constitutional requirements and ar-

1 Scots constit utional law differs f rom English constitution al law in regarding

church and state a s two separate kingdoms, ea ch sovereign within it s own

realm, and t his is ultimately ref‌lect ed in the Church of Scotland Act, 1921 (11 &

12 Geo. 5, c. 29) and the Articles De claratory thereto. The princ iple of separate

but equal kingdom s enshrined in that Act i s the consequence of four centur-

ies of strug gle by the established Church of S cotland for such recognition. S ee,

generally, Francis Lyall, O f Presbyters and Kings: Church and State in the Law of

Scotland (Aberdeen: Ab erdeen University Press, 1980); the Stair Memorial En-

cyclopedia of the Laws of Scotland V. 136–162, 357–372; Lord Rodger, The Courts,

the Church and the Constitut ion: Aspects of the Disruption of 1843 (Edi nburgh:

Edinburgh Un iversity Press, 2008); and Mar jory A. MacLean The Crown Righ ts

of the Redeemer: The Spir itual Freedom of the Church of Scotland (Edi nburgh:

St. Andrews Pr ess, 2009). See also Anon., “The Legal Position of Di ssenting

Churches in Scot land” (1887) 31 Journal of Juri sprudence 616; R. King Murray,

“The Constitution al 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, “Marria ge 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;

RELIGIOUS INSTITUTIONS AND THE LAW I N CA NADA94

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 hi story and contemporary ex perience.

Although Canada is, and has been from its inception, a coun-

try with a n overwhelming, if nominal, Ch ristian m ajority, Christian

theologies of the two kingdoms, which as sert the independence of the

spiritual from the temporal realm, have never been accepted in consti-

tutional law, although they have enjoyed tacit acceptance in practice.3

Rather, the inheritance of the English theor y of parliamentary sover-

eignty means that in Canada, Parliament has supreme and sovereign

authority over the affairs of all individuals a nd institutions within its

geographical jurisdiction, including all relig ious institutions and the

religious practices of individual citizens, subject only to the generally

applicable const itutiona l limit ations on it s sovereig n legislat ive power.

Parliament ary s overeignty means t hat Parliament has t he power, as

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

In England the sovereignty of Parliament was f‌i rst asserted in t he

legislation of the English Reformation, which threw off the universal

claims of the Roman pontif f 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 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, t he state enjoyed authority

over the church. The English Reformation, from a legal perspective,

was f‌irst and foremost about the assert ion of the primac y of the English

state over the church and the assimilation of that church with the state.

and Elizab eth Wicks, “A New Constitution for a New State? The 1707 Union of

England and Sc otland” (2001) 117 Law Q. Rev. 109.

2 The reluctance, unt il recently, of Canadian legi slatures and courts to m ake law

for religious in stitutions is surely a ref‌lect ion of the greater respect for Ch risti-

anity found in t he United Kingdom historica lly in contrast to the anti- clerical-

ism charact eristic of French history a nd society.

3 See chapter 1 for thi s theological background.

4A.V. Dicey, The Law of th e Constitution, 10th ed. (London: MacM illan, 1959) at 39.

5 22 Henry VIII, c . 15 (1531); 23 Henry V III, c. 20 (1532); 24 Henry VIII, c. 12

(1533); 26 Henry VI II, cc. 1, 19, 20, 21 (1534); and 28 Henry V III, c. 10 (1536).

6Bill of Rights, 1 Will. & Mar y, c. 2 (1689); Mutiny Act, 1 Will. & Mary, c. 5

(1689); Tole rat ion 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).

Constitutional Fundamentals 95

Once a sovereign Parliament emerged as the supreme authority with in

the state, that sovereignty wa s as much over the church as the state.

From the Refor mation leg islation of t he 1530s onward, Parliament

asserted the const itutional right to determine all eccle siastical 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 th at constitutional right today in

relation to the established church. While such intervention ha s become

increasingly rare in t he past century and i s 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 w ithin the state also

enjoys sovereignt y over all other non-establ ished Chr istian denomina-

tions and all other non-Chr istian religious institutions wit hin the Brit-

ish state. With the growt h of religious toleration in England7 in the

course of the eighteenth century, Parli ament enacte d legislation not

only to permit religious pluralism but also to facilitate property-hold-

ing 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 legislation of particular application, a nd at the request of

the concerned church. Yet, by virtue of residence within t he geograph-

ical jurisd iction of Parliament, al l 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 individuals engaged in religious practices. However, in

7 Again, histor ically Scotland ha d a different religious hi story, in respect to the

evolution of religiou s toleration.

8 This means t hat although religious in stitutions may engage in alt ernative

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 stat e. There can

be no separate rel igious spheres or jurisd ictions within Ca nada, as contemplat-

ed by, for example, Islamic Sh aria law.

9 The understandi ng and analysis of Cana dian constitutional l aw in this chapter

is derived from t he leading text: Peter W. Hogg, Constitutional Law of Canada,

Student Edition (Sca rborough, ON: Thomson/Carswel l, 2009). See also for Charter-

related issue s: Gerald A. Beaudoin & Ed Rat ushny, eds., The Canadian Charter of

Rights and Freedoms, 2d ed. (Toronto: Carswel l, 1989); Gerald A. Be audoin & Errol

Mendes, eds., The Canadia n Charter of Rights and Freedoms, 3d ed. (Toronto: Car-

swell, 1995); and Gerald A. Be audoin & Errol Mendes, eds., The Canadian Charter

of Rights and Freedoms, 4th ed. (M arkham, ON: LexisNexi s Butterworths, 2005).