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Overview of church/state
separation in Canada

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Canada's constitution

Section 1 & 2 of The Canadian Charter of Rights and Freedoms states that certain freedoms are guaranteed and are subject "only to such reasonable limits that prescribed by law as can be demonstrably justified in a free and democratic society." Among these freedoms is are "freedom of conscience and religion..." These sections are vaguely similar to the free exercise clause of the 1st Amendment of the U.S. Constitution. 

The infamous "Not Withstanding" clause:

Much of the Canadian Charter is not worth the paper that it is printed on, because of Clause 33, the "not withstanding" section. It allows the Federal or any Provincial government to opt-out of any portion of the Canadian Charter of Rights and Freedoms which deals with:

bulletfundamental freedoms of religion, speech, the press, free assembly and association
bulletguarantees of equality

To our knowledge, this loophole is unique in the world. The Charter basically says that every person is guaranteed equality and freedom, but that the Government of Canada or of any of the provinces can withdraw them at any time by simply passing restrictive legislation. They would have to declare that the legislation is in direct conflict with the charter, and they would have to renew the legislation every five years. When the Charter was introduced in the early 1980's, former Prime Minister, Pierre Trudeau called the "not withstanding" clause a tainted compromise. Former Prime Minister Brian Mulroney said that it reduced the worth of the Charter to that of a piece of scrap paper. 

There have been a number of implementations and suggested implementations of the not withstanding clause:

bulletQuebec: The provincial government passed the Charter of the French Language in 1977. Bill 101 stated that French was to be the only language allowed on commercial signs in the province. (French is the dominant language in Quebec, but many citizens speak English.) When the Supreme Court ruled in 1988 that Bill 101 was unconstitutional. Premier Robert Bourassa introduced Bill 178. It used the "not withstanding" clause to override the Canadian Charter's guarantee of freedom of speech. The bill required that all commercial exterior signs be in French only; English signs were allowed inside the stores. 
bulletAlberta: The provincial government passed a Sexual Sterilization Act in 1928 (5 years before Germany). From 1929-OCT to 1972-FEB, 2,832 sterilization procedures were performed in the province. "Some of the people considered "unfit" to bear children were new immigrants, alcoholics, epileptics, unwed mothers, the poor and native people."1 By 1998-MAR, almost 750 victims had initiated suits against the government. On 1998-MAR-10, the Alberta legislature introduced Bill 26 which would have used the "not withstanding" clause to override the Charter of Rights and Freedoms and prevent the victims from suing the government. Massive outcries from an enraged public and media motivated the government to withdraw the bill the next day.
bulletAlberta: In 1998-APR, the Supreme Court of Canada ruled on a case involving a gay lab instructor who was fired by his employer because he was gay. He worked for a college run by the Christian Reformed Church. The court decided that the Alberta Individual Rights Protection Act violated the federal Charter of Rights and Freedoms. They "read into" the existing law a clause giving equal rights for persons of all sexual orientations: heterosexual, homosexual and bisexual.

The Government of Alberta was pressured to pass legislation using the "not withstanding" clause to strip homosexuals of equal rights. At the time, Premier Klein decided to abide by the Supreme Court ruling. However, he announced that if the Federal courts extend equal marriage rights to gays and lesbians, that he would invoke the "not withstanding" clause. It was an empty threat, because the provinces and territories cannot define who can marry and who cannot. That is up to the federal government. The Feds legalized same-sex marriage in 2005-JUL.

Establishment clause:

Canada has no equivalent to the establishment clause in the 1st Amendment of the U.S. Constitution.  

Related essay:

bulletReligious intolerance in Canada

References:

  1. James Hörner, "Sterilization and eugenics," at: http://www.syntac.net/

Copyright © 1999 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 1999-DEC-16
Latest update: 2009-JAN-10
Author: B.A. Robinson

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