Канада Конституциялық Хартиясының кіріспе бөлімі

Introductory provision for the constitutional Charter

The preamble to the Canadian Charter of Rights and Freedoms is the introductory sentence to the Constitution of Canada's Charter of Rights and Constitution Act, 1982. In full, it reads, "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law".

Writing in 1982, when the Charter came into force, constitutional scholar Peter Hogg noted that these words, being a preamble are limited in some direct applications of the law but can help to determine how other sections of the Charter should be read and applied. In this particular case, however, Hogg expressed concern as to how much help this preamble could be, noting the term "rule of law" is "notoriously vague" and that the mention of the "supremacy of God" can be considered in some contexts as contrary to section 2 of the Charter, which protects freedom of conscience, which Hogg felt would include a right to atheism. In R v Morgentaler (1988), Justice Bertha Wilson defined freedom of conscience as protecting "conscientious beliefs which are not religiously motivated", and balanced the preamble out with the statement that "the values entrenched in the Charter are those which characterize a free and democratic society". In considering the legal implications of the preamble in the 1999 case R v Sharpe, the British Columbia Court of Appeal referred to it as a "dead letter" which the BC justices had "no authority to breathe life" into. The Supreme Court did consider the preamble's mention of the rule of law in Reference Re Manitoba Language Rights (1985), noting that striking down most of Manitoba's laws as unconstitutional (because they were not enacted in both languages as required by the Manitoba Act) might be a threat to the rule of law. This would render Manitoba nearly lawless, and the principle of the rule of law was defined as meaning no one is above the law and that laws must exist, as they uphold society's values. The court therefore confirmed the Charter preamble's importance by stating, "The constitutional status of the rule of law is beyond question." Consequently, some time was given before the unconstitutional laws would expire. In Re BC Motor Vehicle Act (1985), the Supreme Court also linked the rule of law to the principles of fundamental justice, as illustrated by sections 8 to 14 of the Charter. The court noted the importance of these rights to the justice system, stating that sections 8 to 14 "have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in 'the dignity and worth of the human person' (preamble to the Canadian Bill of Rights, R. S. C. 1970, App. III) and on "the rule of law" (preamble to the Canadian Charter of Rights and Freedoms)."

Some theologians and philosophers have questioned whether the preamble refers to a specific God (the Christian God or Jewish God) or to a more abstract concept that promotes civic virtue (i. e., civil religion). In R v Big M Drug Mart Ltd, a dissenting judge on the Alberta Court of Appeal, Justice Belzil, wrote that the preamble to the Charter indicated Canada had a Christian heritage and thus courts should not use the section 2 right to freedom of religion to eliminate traditions of this heritage.

After one version of the Charter drawn in June 1980 that lasted until September, which said in its preamble that Canadians "shall always be, with the help of God, a free and self governing people", the Charter was not going to have a preamble. The current preamble only first appeared in the April 1981 draft, which came relatively late in the process. It was included despite the fact there was no call for the Charter to have a preamble by the Special Joint Committee which was reviewing the Constitution, The proposal was controversial and the party responded by undermining Robinson's responsibilities and his position in the caucus.

The preamble has proved valuable to some groups and political parties. The Christian Heritage Party of Canada, for example, quoted the preamble on the main page of their website, and the party called itself "Canada's only pro Life, pro family federal political party, and the only federal party that endorses the principles of the Preamble to the Charter of Rights and Freedoms". The words "principles that recognize the supremacy of God and the rule of law" also appear in the party's official policies regarding what they feel all laws should be based upon, and the party states, "'Human rights' as expressed in the Canadian Charter of Rights and Freedoms can only, therefore, be legitimately interpreted in light of, or in conjunction with, the higher Moral Law of God."