Separation of Church and State

[ScottSA]

All the theocrats who like to trot this out as demonstrating Canada's non-secular nature have made the unsurprising error of failing to read it. It is constructed (quite deliberately) to have no operational meaning.

Which is supposed to have no operational meaning..."Supremacy of God" or "Rule of Law"?

The whole clause has no operational meaning. In particular, "founded on principles that recognize" has no directiveness to it.

So Canada has no operational recognition of the Rule of Law? I take it that this lack of "directiveness" therefore constitutionally allows the government of the day to dispense with rule of law and institute something like...say...rule by fiat, or rule by arbitrary decree? Sorry, I'm just trying to parse your argument here in order to better understand it.

[Figleaf]

All the theocrats who like to trot this out as demonstrating Canada's non-secular nature have made the unsurprising error of failing to read it. It is constructed (quite deliberately) to have no operational meaning.

Which is supposed to have no operational meaning..."Supremacy of God" or "Rule of Law"?

The whole clause has no operational meaning. In particular, "founded on principles that recognize" has no directiveness to it.

So Canada has no operational recognition of the Rule of Law?

Not from that clause.

Sorry, I'm just trying to parse your argument here in order to better understand it.

No problem. I trust I've made it clearer now?

[ScottSA]

So Canada has no operational recognition of the Rule of Law?

Not from that clause.

Really? I was always under the impression that the preamble set the parameters of the following in any document. Is there an over-riding clause in there somewhere that dismisses the preamble? If we treat the preamble as nothing more than a collection of irrelevant words, then we can discard all the definitions that follow as well, no? That's the way every other document of this type works, anyway...

It doesn't mean that God is going to descend and rule from the Peace Tower but it does, without the shadow of a doubt, set the premise of the document, as does "rule of law". The following text defines precisely what that rule of law is, but the preamble makes it relevant.

[Figleaf]

So Canada has no operational recognition of the Rule of Law?

Not from that clause.

Really? I was always under the impression that the preamble set the parameters of the following in any document.

Not according to the canons of statutory interpretation.

Is there an over-riding clause in there somewhere that dismisses the preamble?

Preambles generally have no operational clauses and are only one aspect that may be used in interpretations of gray areas. In the particular case of the clause in question, as I've noted, in addition to being in a preamble, it is deliberately constructed to have no significant interpretational value either.

In any event, we had moved on from there to talk about whether the 'inoperationality' of this clause left us without the rule of law. It does not. Our reliance on the rule of law is found in our unwritten constitution as well.

If we treat the preamble as nothing more than a collection of irrelevant words, then we can discard all the definitions that follow as well, no?

Not according to the canons of statutory interpretation.

[Posit]

The preamble does set the basis for the document and it could be easily argued that an "act of God's supremacy" could over-rule the "rule of law" in the event of a conflict. By including it in the preamble to the Charter of Rights and Freedoms we have committed ourselves to the concept that God's Law holds equal or better authority over us.

Until that preamble is removed from the Constitution, we are at the mercy of the non-secular argument in every rights issue. And of course it has adeptly been pointed out that our Christian God usurps the authority of Mohamed, Buddha or any other deity.

[ScottSA]

Not according to the canons of statutory interpretation.

Would you mind pointing me to the relevant canon? Not only do they not apply to the preamble of a document, but I can't find any that would specifically negate or alter the meaning of the preamble. In fact, I did find this:

"A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).

http://en.wikipedia.org/wiki/Statutory_interpretation

What do you suppose that means?

[Figleaf]

Not according to the canons of statutory interpretation.

Would you mind pointing me to the relevant canon?

This one you've already found...

Not only do they not apply to the preamble of a document,

...but I can't find any that would specifically negate or alter the meaning of the preamble.

Why were you looking for something that would do that?

"A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).

http://en.wikipedia.org/wiki/Statutory_interpretation

What do you suppose that means?

Nothing much different than what I've been saying, as you'll see if you look closely and read around the section you quoted. Preambles are not 'meaningless', rather they are not operational. When you interpret a statute you look at the parts that apply to your situation and ignore other parts -- You find that preambles are always among the other parts, except in rare cases where the legal challenge involves a fresh public policy interpretation.

Here is an interesting article on the subject...

http://www.journal.law.mcgill.ca/abs/vol47/1roach.pdf

[ScottSA]

Preambles are not 'meaningless', rather they are not operational. When you interpret a statute you look at the parts that apply to your situation and ignore other parts -- You find that preambles are always among the other parts, except in rare cases where the legal challenge involves a fresh public policy interpretation.

Here is an interesting article on the subject...

http://www.journal.law.mcgill.ca/abs/vol47/1roach.pdf

Good paper, although it tends not to draw any specific conclusions. Thanks.

Having said that, it is still clear to me that in this case, the preamble to the constitution act frames the constitution, and that is not operational ONLY to the extent that no one, to my knowledge, has yet appealed directly to it. As with most legalese and in particular with this disgrace of a Charter, the room for interpretation is incredibly huge, so I'm not sure one COULD appeal directly to it in anything short of an attempt to legislate atheism. But it still acts as a contextual frame, and the recognition of God is, quite obviously, as relevant as the recognition of rule of law...without which the following text would be meaningless.