Church at odds with rights revolution as charter turns 25

By 
  • February 23, 2007
MONTREAL - Catholics played a key role in the development of  Canada’s Charter of Rights and Freedoms, yet increasingly the Catholic Church is seen at odds with the so-called rights revolution that in 2005 brought the legalization of same-sex marriage.

"I always think it's a bit odd to think of a tension between rights and Catholicism," said Daniel Cere, professor of religion, ethics and public policy at McGill University during a conference in Montreal Feb. 14-16 marking the Canadian Charter of Rights and Freedom's 25th anniversary.

Cere cited the influence of Catholic philosopher Jacques Maritain, who helped draft the 1948 Universal of Declaration Human Rights, and Pope John XXIII's call for every nation to entrench human rights. Both men had an impact on former prime minister Pierre Trudeau, who brought in the charter in 1982. Cere said in effect Trudeau was being "a good Catholic boy" following the pope.

At the Charter @ 25 conference, organized by the McGill Institute for the Study of Canada, distinctly Catholic conceptions of human dignity and rule of law seemed increasingly irrelevant to the conversation about rights. For example, the conference devoted no panel discussion to the charter's preamble: "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law."

The Canadian Conference of Catholic Bishops and the Evangelical Fellowship of Canada have often appealed to the preamble when before the courts or legislative committees on issues such as marriage. Their arguments have grounded conceptions of the rule of law in relationship to the supremacy of God, giving a historical context for the roots of both the common law and Quebec civil code in a Judeo-Christian moral tradition influenced by ancient Greek philosophy.

McGill professor and faculty of arts dean Chris Manfredi  said the preamble "has never had any legal force." He noted the preamble became part of the charter as the result of a political compromise because it was important to members of the Ontario Progressive Conservative caucus.

Manfredi, a Catholic, agreed that much of the discussion around the charter seemed to indicate it was grounded in an understanding of rights from the 18th-century Enlightenment, and not going back millennia.

Cere noted the court's responsibility for this understanding, pointing out that less than 10 years after the charter came in force, a B.C. judge, in the Sharpe decision on child pornography, declared the preamble "a dead letter" that could "only be resurrected by the Supreme Court of Canada."

Cere also said Trudeau himself had argued against the preamble, telling Liberal MPs he didn't believe that "God gives a damn" whether He's in the charter.

EFC legal counsel Don Hutchinson does not think the preamble is "dead."

"It's a clear indication from a political perspective that faith perspectives are and should continue to be welcomed," Hutchinson said.

Subsequent rulings in the Supreme Court that Canada is a "secular society" have indicated, Cere said, that the problem is not the nature of the charter, but the nature of the courts.

"They don't want any suggestion that there is any other power competing with their power," he said, noting that by effectively deleting "supremacy of God" they are making "the law the referee, not God."

Like Cere, Iain Benson, executive director of the Ottawa-based think tank the Centre for Cultural Renewal, is concerned about the tendency to see the law as all-encompassing and capable of making ultimate judgments about reality that are properly the purview of religions.   He said, however, the preamble does not provide the protection found in the charter's substantive sections.

Not only is freedom of religion and conscience protected in section 2 of the charter, religion is also in section 15, in the equality provisions. 

Benson warned against a "one-size fits all" or "convergence" liberalism that he believes has become the "unexamined default position" of the majority of the legal, academic and judicial experts who attended the conference and many politicians in Ottawa. This view sees toleration of various points of view as a step towards a new consensus.

Benson disagreed that the law must be used to advance an egalitarian society or to force everyone to accept the agenda of gay rights activists, for example.  He was one of several panelists who objected to the use of litigation and court cases to effect political change and advance the causes of human rights. He noted that many of Canada's major social movements have had a religious dimension and have not needed the courts to help the cause of the disadvantaged or to bring in medicare, for example. 

Despite the Christian majority in Canada, the evolving consensus Benson warns against is secularism. Secularists would banish public displays of religious faith. Retired Supreme Court Justice Charles Gonthier, a Catholic, said he does not believe convergence liberalism is possible.

"There are some things upon which reasonable people will reasonably differ. That is sort of the soul of democracy."  Many court decisions, for example, show deep divisions among the judges, with crucial rulings on rights based on a one-vote difference.


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