Osgoode Hall Plaque

Osgoode Hall Plaque

Originally published on the Geocities mission_log page in 2005, this article on Canadian Human rights remains pertinent today, when our most basic human rights are still being challenged.




“You are the salt of the earth…You are the light of the world. A city set on a hill cannot be hidden”. Matthew 5:13-14 ESV

Separation of Church and State: Fact or Fiction ?

The recent public deliberations in Canada over Bill C38, the federal government’s proposal to redefine marriage, have brought the issue of the separation of church and state to the forefront of our national psyche once again. Most ordinary Canadians, many politicians, members of the legal profession and even the media view separation of church and state as a universal principal or over-riding rule of law which governs and controls legislation and application of all statute law in Canada. This is not the case. There is no legal separation of church and state in Canada.

Over the years there has been a wide range of divisive public issues. The list is long. It includes, but is not limited to, capital punishment, abortion, euthanasia, divorce, censorship, freedom of speech, hate crimes, pornography, pedophilia, sexual assault, violence against women, criminal sentencing, parole, violent offenders, education rights, young offenders, military actions, policing and even the electoral process itself. These are all moral and social issues which define the very fabric of our national identity. Regardless of the issue, when people voice a public opinion of moral values derived from their faith and fundamental religious belief, they are routinely opposed on the basis of widely held misconceptions regarding separation of church and state.

There was a recent Toronto Star Opinion article, Unholy alliance on the right“, (May 10, 2005), by Professor Saeed Rahnema of York University’s Atkinson Faculty of Liberal and Professional Studies. It was published on the Star’s main editorial page and stated: “Religions are on the offensive throughout Canada…Canadian democracy and its social cohesion are in danger if religious assaults are not confronted by a concerted response by progressive secular forces that believe in the separation of church and state and respect for citizens’ rights, as guaranteed by the Charter of Rights and Freedoms”.

a miscarriage of justice…
Unfortunately, people of the same opinion as Mr. Rahnema are guilty of a subtle form of discrimination which stains our Canadian social conscience and is spreading under the politically correct banner of secularism. They contend that secular democracy in Canada is imperiled by religious groups. Secularists claim the only defense against what they perceive as religious conservatism is a progressive liberalism protected by rules stipulating the separation of religion from government. I believe that the assertion that this so called principle of separation of powers is guaranteed by the Charter is a miscarriage of justice and poses a greater threat to the Canadian social fabric than the overstated fears secularists express.

In fact, the public, including many Christian activists, remain misinformed on our Canadian constitution and the fundamental principles of Canadian democracy and its historical and common law traditions which have shaped our modern society. This situation has no doubt been strongly influenced by the proximity to our neighbours in the United States, the self-proclaimed defenders of democracy in the world. American tradition has diverged from and differs greatly from the Canadian experience. The American expression of democracy is not necessarily the best example of democratic government. Thank goodness Canada is a distinct society but we have become inured to the pervasiveness of American media, lifestyle and social commentary. Even the church in Canada is prone to mimic American institutions. Some mainstream Canadian religious denominations are proud of their secular social agenda.

proponents of censorship…
Secularists seek to perpetuate a mythical separation of church and state in Canada. By opposing anyone who professes a religious belief and a right to voice the same in a free society, they seek to establish, as if by fiat, the separation of church and state. They would deny people of faith the right to pursue issues of conscience in shaping public policy. These self-proclaimed arbiters of the public conscience seem to advocate the disenfranchisement of citizens based solely on religious affiliation. They do not realize it, but they are just as bigoted as any fundamental extremist. In their attacks against the manifestation of religious beliefs, secularists employ inflammatory language, make sweeping generalizations and display a carefully constructed “us-and-them” mentality. They say religions only promote regressive policies and claim that our religious leaders are too active and vocal in public. Does their principle of separation of church and state prohibit religious leaders from partaking in national debates? Who then are the greater proponents of censorship?

Secularists contend that religious leaders take advantage of ordinary people. I hear echoes of that old communist dogma that religion is the opiate of the masses when secularists claim that marginalized peoples, such as immigrants or visible minorities, find religious fundamentalism more appealing. Such demeaning rhetoric is in itself discriminatory. We are told our religion is merely a crutch for our own weakness as if we were incapable of being intelligent and discerning people. Actually, Christianity has laid the foundation for democracy and the freedom to exercise our beliefs is a pillar of modern society. It is in fact, from within the ranks of the disadvantaged and oppressed (many of those for their religious convictions), that have come so many tenets of our modern democratic institutions. Secularists have a superior view of themselves and show disdain for the public. According to them, we are the uneducated masses incapable of making wise choices in regards to our own welfare. Progressive secularists, they claim, are the only ones qualified to protect the public interest. So you can see how secularism embraces the philosophy of intellectual elitism.

As avowed secularists, they expend a seemingly inordinate amount of time judging and measuring “holiness” on behalf of religions as well the merits of sacred beliefs held by others. This they call political correctness, but it is only another form of self-righteousness. Despite a social sensitivity in Canada to avoid discrimination against certain faiths, Judaism or Islam for instance, there is almost no limit to attacks against Christianity in particular. No newspaper would lightly publish articles which ridiculed any facet of the Jewish faith or practice. Neither would a television network produce a documentary reporting to debunk the Buddhist sevenfold path to enlightenment. However, the Canadian (and American) media feels free to assault Christianity, even the person of Christ, with impunity. The Charter of Rights and Freedoms is not reserved for minorities, it applies equally to the majority.

77% of all Canadians claim to be Christians…
Even a cursory review of the most recent Statistics Canada data shows slightly more than 83% of all Canadians claim identification within a recognized religion, while only 16 % do not claim any religious affiliation. ( 77% of all Canadians claim to be Christians ). While some, like Prof. Rahnema, would hold that the 16% hold a secular view of the world, that small demographic is a combination of many differing world views including pagans and atheists. Although atheism and secularism are often seen as synonymous, atheism can’t strictly be called a “belief system”, because it is by definition the negation of a belief. Logic dictates that one can not posit a negative. Rather a belief is “in” something. To be against something is inherently biased. Indeed the rallying cry of secularists could be seen as “Vive la polarisation!”. The secular view ignores the simple statistic that the majority of Canadians, 25 million people of faith, have the right under the same Charter to which secularists claim exclusive ownership, to a free and democratic expression of their moral convictions throughout the public sphere and to energetically lobby for and influence the establishment of Canadian laws to reflect the same values.

The modern Canadian political, legal and moral tradition is the result of a long historical process shaped by the articulations of ordinary people who have sought a place for their families to live together in peace, harmony and freedom. Moreover, our Canadian founders chose a peaceful and orderly process upon which to build our national identity as opposed to the violent and revolutionary conflicts of our American neighbours and French libertarians in the 18th century. That does not mean our freedom has less value. Instead, a peaceful genesis has rendered it even more precious and fruitful.

Most don’t understand, for Christians in particular, how dear freedom is. Our faith makes us free – that freedom was purchased with a price paid once for all. Our bible says “if the son [Jesus Christ] sets you free, you will be free indeed” ESV, NIV. We are not bound by any ancient tradition of do’s and don’ts. We live by the grace of God which is not withheld from any person. Grace could be defined as the ultimate gift of freedom. It is not by accident then that our society has evolved to protect the human rights and basic freedoms of all people. It has certainly not done so in the absence of religion, but in partnership between a growing democratic tradition and a religious moral ethic of freedom, justice and equality. The fact that Canada’s pluralistic, multicultural mosaic is flourishing shows that our historic traditions were sound.

Secularists do not often offer any evidence by which modern values have evolved separately from faith other than vague references to humanist philosophies and the supposed infallibility of the scientific method. What is the moral engine which drives the secular sensibility? What fuels any notion of right or wrong?

Why is it that even the media, staunch defenders of the freedom of speech, so strongly support such a limited world view? It is because of the misguided elevation of the status of separation of church and state to an almost mythical level in Canada.

Canadian legal tradition…
Is there a Canadian legal tradition, rule-of-law, or statute that enshrines a principle of the separation of church and state? NO. The term itself is nowhere to be found in any of Canada’s constitutional documents or common law which were the foundation for our current constitution. In the Federal Court case of Grant v. Canada (1994), Justice Reed remarked that –

” it is obvious that the Canadian Constitution does not contain an explicit textual requirement that there be separation of church and state as exists in the anti-establishment clause of the Constitution of the United States…”

To the contrary, refer to a tradition of statute law dating back to the British Magna Carta of 1215, wherein the church is declared free,

“and shall have its rights undiminished, and its liberties unimpaired”.

The Magna Carta ( Latin for the Great Charter) contains in one place the first comprehensive statute record of an abundance of the basic human rights we take for granted today:

* rulers and the government are not above the law,
* due process of law, speedy trials,
* fair representation,
* taxation by representation,
* fines and punishment to be in proportion to seriousness of offenses,
* rules for widows’ rights, (the seeds of suffrage and equality for women)
* rules for intestate inheritance
* standard weights and measures,
* freedom of movement,
* freedom of commerce and de-regulated trade rules

Furthermore it states:

“Wherefore we will and firmly decree that the English church shall be free, and that the subjects of our realm shall have and hold all the aforesaid liberties, rights and concessions, duly and in peace, freely and quietly, fully and entirely, for themselves and their heirs from us and our heirs, in all matters and in all places, forever“. (emphasis mine)

The Magna Carta is recognized worldwide as a breakthrough in human rights and a fundamental source of inspiration for modern democratic constitutions everywhere. The author and chief negotiator was Stephen Langton, the Archbishop of Canterbury of the Catholic church in England. Not only was Langton a great humanitarian, he revised the Christian bible of his day to include chapter and verse notation to make it more accessible and easily referred to as a repository of wisdom, truth and spiritual values. Without him, Christians (and the TV audience of the World Series) would not have “John 3:16”. Of course his great inspiration to seek basic human rights was founded in his faith in the truth and freedom contained in the good news proclaimed in the bible.

Another historical religious leader who influenced our political as well as spiritual traditions was John Wycliffe, responsible for the first English translation of the bible (from the Latin Vulgate) to make it accessible to ordinary folk. Referred to as the “morning star” of the Christian protestant reformation, his theological work spread beyond Britain to Europe and passed down to Martin Luther. His original preface to the translation of 1382 read :

” The Bible is for the government of the people, by the people, and for the people“. [emphasis mine]

Sound familiar? It should – the phrase “government of the people, by the people, and for the people” was most famously quoted by U.S. President Abraham Lincoln. He used it to conclude his Gettysburg Address delivered Nov.19th., 1863, during a civil war to end slavery. He borrowed the phrase from Wycliffe’s bible in a speech to commemorate fallen soldiers and affirm the American commitment to universal equality pronouncing “all men are created equal”. Most Americans do not know that Lincoln was quoting the Wycliffe bible here. Even the anti-establishment clause of the U.S. Constitution, much touted by secularists like the ACLU, simply states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Note the balance between limiting government and the free exercise of beliefs. Their own Declaration of Independence cites “laws of nature and of nature’s God” and claims that all inalienable human rights extend from the Creator.

Make reference also to the Bill of Rights (Britain), 1689. The idea and exercise of basic human rights so clearly established by Magna Carta and ensuing legislation had become so ingrained in the British people that, when the King and Roman Catholic church under the Pope at that time severely abrogated those rights, we had protestant Christian leaders championing the cause of a strong state government to reestablish basic rights for subjects. It begins –

” An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown:

“Whereas the Lords Spiritual and Temporal and Commons assembled at Westminster, lawfully, fully and freely representing all the estates of the people of this realm…Whereas the late King James the Second, by the assistance of divers evil counselors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom…in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance [to James II and the papal authority]; and the said crown and government shall from time to time descend to and be enjoyed by such person or persons being Protestants…” [emphasis mine]

This does, sadly, represent the separation or schism within the Christian church similar, I imagine, to the Sunni and Shiite Muslims and other religious sectarian disagreements. It is not a separation of church and state. Rather it recognized the important role of spiritual authority in assisting secular authority. Those “Lords Spiritual” referred to in the above text still exist today, just as they did at the time of Canada’s confederation and first constitution. They are cited as authority in the preamble to almost all important Canadian and preceding British law including – the London Resolutions 1866, the British North America (Constitution) Act 1867, the Parliament of Canada Act 1875, The Statute of Westminster (Britain) 1931, the Canadian Human Rights Act, 1977 and the Canada Act (Britain) 1982, which gave legal effect to our modern Canadian Constitution. The Lords Spiritual are 26 senior clerics of the Church of England (Anglican), permanent members of the House of Lords of the British parliament. While the modern British House of Commons (since 1911) may pass laws without the immediate and express consent of the House of Lords (similar to our senate), that is still being challenged constitutionally before the courts in Britain.

no revolution…
That basic legal form of government, a union of church and state, passed on to ours in our Constitution of 1867. There was no “revolution” as in the U.S. with a complete rewriting of statutory authority. There was an orderly, carefully legal and fundamental transfer of statute law and common law tradition. You may be tempted to say there were no “Lord’s Spiritual”, but the office of the Governor General of Canada extended the monarch’s role as head of state including head of the church and defender of the faith. This role included the power to appoint Marriage Commissioners, interestingly enough. Charters for the various diocese of the Anglican Church in Canada were routinely granted by the Canadian Senate.

Even prior to confederation in Canada the example of this union of church and state upholding equality can be found in the Quebec Act of 1774 which protected the primarily French Catholics in religious institutions and education from discrimination and persecution by a protestant state and also interestingly provides for the government to make provision for the welfare of a protestant minority. Not even secularists deny the importance of this document to modern Canadian law and policies, especially with respect to religious rights and freedoms.

Finally, the Constitution Act, 1982, our supreme Canadian law which encompasses the Canadian Charter of Rights and Freedoms, recognizes first and foremost in the preamble-

“the supremacy of God and the rule of law”. [emphasis mine]

These legal constitutional principles affirm, rather than separate or repeal, the equality of both a spiritual and secular morality in the exercise of law in our uniquely Canadian democracy. The Charter itself is contained within, and subject to, the Constitution. That is to say, not even the Charter is above the law.

freedom of conscience and religion…
There is also much Canadian case law which has not upheld the notion of separation of church and state as a principle above the general provisions of the Canadian Constitution and Charter of Rights and Freedoms. As mentioned previously, in Grant v. Canada [1994] the court ruled:

“Not all legislation with a religious purpose infringes paragraph 2(a) of the Charter [of Rights and Freedoms, which states – Everyone has the following fundamental freedoms: a) freedom of conscience and religion…].”

The court ruled against the plaintiffs, a group of citizens including RCMP veterans, who opposed the right of the Commissioner of the RCMP to allow the incorporation into the RCMP uniform of certain religious [Sikh] headgear and emblems which the plaintiffs claimed infringed upon their Charter rights. Justice Reed’s written response given as reason for the ruling includes the following –

” evidence asserts that there is nothing inherently contradictory in a liberal democracy giving some support for one or more religious traditions….there has not been, in Canada, a long tradition of having an expressly articulated constitutional principle which requires the drawing of a line between religious authorities and state authorities, as has been the case, for example, in the United States. “

In citing one constitutional history expert, Dr. Bercusson, Justice Reed wrote –

that Canada has not adopted and does not adhere to a political ideology which insists on the actual separation of religion and the state. [Bercusson] states that in matters religious, in Canada, the relationship between the state and its citizens has always been one, which has not been resolved in any abstract sense or on the basis of principle, but pragmatically on a case-by-case basis. [Bercusson] also agreed, however, that the Canadian people would be surprised to hear his view that there were no constraints, as a matter of principle, to prevent the government from favouring one or more religions, that there was no principle of state neutrality in religious matters…
[emphasis mine]

Dr. Beyer, a professor in the Department for the Study of Religion at the University of Toronto is also cited –

“[Beyer] referred to the doctrine of the separation of church and state which developed in the late 18th century prior to the time of the French and          American revolutions. In his opinion it is always difficult for states to remain separate from all religious connections. This is so because modern states          legislate in areas over which religions also claim competence.[emphasis mine]

Another expert cited, Dr. Gualtieri, a professor in philosophy and religion at Carleton University, was quoted as defining

” what he calls present day secular modernity, … as the modern secular religion…[emphasis mine].

I think it is safe to agree with this assertion that most secularists, at least those quoted in the media, seem to display some of the worst characteristics of intolerance and discrimination that they accuse religions of.

In numerous cases regarding religious rights and freedoms or discrimination under Section 2(a) of the Charter, the courts have consistently sought balance between the rights of individuals and the necessity of legislation and law to encompass various religious values. They have never established a precedent which would validate the separation of church and state. In the court case R  v. Big M Drug Mart Ltd. (1985), which was also cited in Grant v. Canada, it says :

Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices“.

Justice Muldoon, in O’Sullivan v. M.N.R.(1992), specifically addressed the preamble to the Constitution, and the phrase “the supremacy of God”. He ruled in the case before him that the preamble did not apply in the circumstances and he said,

“this recognition of the supremacy of God means that, unless or until the Constitution be amended–the best of the alternatives imaginable– Canada cannot become an officially atheistic State. . . ” [emphasis mine].

We can see here that, although Justice Muldoon obviously supports secularist sentiments, legally he rejects the notion of Canada as a secular nation.

The Canadian Bill of Rights 1960 affirmed the following fundamental principle –

Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law“.

no legal principle…
So you can see that there is no legal principle upholding a separate secular supremacy in Canada. This is not to deny that case law and legislation in general adheres to what the courts term “a convention of neutrality” and that, in a pluralistic society, a degree of neutrality is necessary to guarantee the fair and impartial application of the Charter. However, a convention is neither a prohibition nor a license. Additionally, neutrality is not an appropriate condition for the Canadian parliamentary process by which we create new laws or amend existing ones. It is an adversarial and multi-partisan environment often dealing with absolutes – contentious issues that affect human inter-relationships at the most basic level. It is also important to stress that the Canadian Constitution may only be amended by the Canadian people, through elected representatives dutifully exercising the democratic mandate given to them, not the courts.

There have been many examples in world history of secular leaders who have attempted to separate church from state in a unilateral and undemocratic manner, through repression and persecution. Stalin comes to mind, as does Hitler (the Jewish people were not the only ones to suffer under them). It often ends in genocide which still occurs today in certain regions of the world. For many years China has outlawed the free expression of religions such as Falun Gong and Christianity (except for a muzzled, but marginally sanctioned “Three Self [trinity] Church”). Surprisingly, the persecuted and outlawed underground church flourishes. When many of those repressive secular regimes have crumbled, the religious leaders and people of faith join with newly revived democratic institutions to the benefit of all. In Central and South America, where many are suffering under repressive military and secular regimes, it is often priests and pastors in small rural parishes who are the only defenders of human rights and freedoms, opposing corrupt officially “elected” governments, extremist revolutionaries, U.S. “observers” and criminal warlords. Who is really taking advantage of the marginalized?

secularism is not is above the law…
In Canada, the separation of church and state is not a legal constitutional principle. It is not “guaranteed” by the Charter of Rights and Freedoms. It has no force of law in directing our activities. It is merely one, rather narrow, world view – it is a doctrine or a matter of conscience that has no more authority over ordinary citizens or government, than does any other belief system, religious, political or otherwise. People who follow a secular philosophy have every right to that belief. It is protected by the same Constitution and Charter of Rights and Freedoms that applies also to people of faith. Many politicians and lawmakers believe in the benefits of a secular state. They are free to do so – so long as it does not infringe on the guaranteed rights and freedoms of others. What secularism is not is above the law. Secularism is no more free to declare itself superior to religion, than is one race over another. It is time to expose modern secular humanism for what it truly is – inflexible, authoritarian, judgmental, intolerant and discriminatory. Secularists are not free to discriminate against people of faith. Section 2(a) of the Charter is not some “Catch 22” provision which bans religion from the Canadian political arena – rather it ensures that, within the Canadian national context, religious values are a valid expression of the will of the people.

I think it is important for Christians to publicly articulate gospel values without undue fear of persecution and to know that the same Charter constraints apply to secularists as to all people. The next time you hear the phrase “separation of church and state” in a public forum, or feel discriminated against by secular comments or attitudes, feel free to boldly oppose this insidious form of bigotry. Furthermore, we can be confident that our Christian values have as much right to be considered in legislative matters as an increasingly tolerant and elusive secular moral code. We should tell our elected officials so. There are people in Canada who advocate all kinds of reprehensible conduct they think should be legalized – they are free to believe that, but are subject to the law in manifesting it, thank God. Canadian Christians not only have the right to express their opinions but a duty, both secular and spiritual, to do so.

one heart…
The relationship between a secular and faith based world view is like that of conjoined twins, sharing only one heart with two fully functioning brains and nervous systems. If separation of the twins is to be attempted, a suitable donor or artificial heart will have to be found for one of the twins. Suitability or health of the replacement organ and chances for survival will have to be assessed prior to any transplant. Above all else, who determines whether the operation should be performed at all? How do you seek both patients’ permission if you can not guarantee the survival of either. Perhaps the twins are better to co-exist, even in their conjoined condition.

“But even if you should suffer for what is right, you are blessed. “Do not fear what they fear; do not be frightened.” But in your hearts set apart Christ as Lord. Always be prepared to give an answer to everyone who asks you to give the reason for the hope that you have. But do this with gentleness and respect, keeping a clear conscience, so that those who speak maliciously against your good behavior in Christ may be ashamed of their slander. 1Peter 3:14-16 NIV Separation of Church and State: Fact or Fiction ? ©2005 Andy Coats, Project417, Toronto, ON. 

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