In this post, I’d like to explain the essential difference between the USA and Canada in the conception of their founding which affects their approach to law and to authority.

First of all, the American Declaration of Independence says, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights…” From this conception come the rights enshrined in the American Bill of Rights by way of the first ten amendments to the USA constitution. The first amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting a free exercise thereof …” Included in this amendment is the right of the people to “peaceably assemble.” The basic concept on which America rests is the notion of unalienable rights held by each citizen. The Bill of Rights limits government action. Recent cases in the Supreme Court ruled in favor of churches and against the attempts at state governors at closing them down during the Covid-19 crisis. This is one example of many that show the freedom and liberty individual Americans have in consequence of their conception of government. As an outsider, I have to say the American Constitution is one of the noblest documents created in the history of civilization. Its ideas have empowered the American nation like no other nation in the history of the world.

On the other hand, Canada’s foundation rests on an entirely different principle. The provinces of Canada joined in a federal union under the Crown (at the time of Canada’s founding, the Crown was that of Queen Victoria). By a royal decree, Queen Victoria brought into being the nation of Canada. The constitution states, “The Executive Government and Authority of and over Canada is declared to continue and be vested in the Queen.” Now, although the Queen’s authority is more symbolic than real, the important point to note is the difference between the two nations. In the USA, the nation’s foundation is its citizens with unalienable rights consenting to a government that administers the nation. In Canada, the nation’s foundation is the authority of the Queen who subsequently grants rights and freedoms to her citizens.

Canada added its Charter of Rights and freedoms to the Canadian Constitution in 1982. The Charter illustrates what I mean by rights and freedoms granted to the citizens by the Crown. The second clause of the Charter contains these words: “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion … (c) freedom of peaceful assembly …”

So far, so good. We are grateful for this document. But hold on! Don’t forget the first clause of the Charter: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” [Emphasis added.] The freedoms in the Canadian Charter are not absolute, nor do they derive from the unalienable rights of citizens. The Crown guarantees them, but can limit them by law when, in the judgement of the Crown (i.e. the government), they “can be demonstrably justified”.

What this means is that if the government decides to limit a freedom in the Charter, the only way citizens can overturn the decision is by forcing the government to justify its position in the courts. This is much harder to do in a country where freedoms are granted, and rights are not unalienable. “Demonstrably justified” is a relative term, not a clear-cut and absolute term.

In the Covid-19 crisis, the Canadian governments (federal as well as provincial) are limiting our freedoms in various ways, due to the state of emergency presented by the pandemic. Hardly anyone denies that the pandemic presents a justification for some modification of our freedoms. The only hope churches have on the legal front in Canada is to show that the restrictions on religion are unreasonable in the circumstances, or compared to the way other freedoms are restricted (like the freedom to peacefully shop at Costco or the local marijuana shop!).

On the outside, looking at how the responses to the pandemic are playing out in various US states and Canadian provinces, the varied rules, shut downs, masks/no masks, etc. look the same in application. The authority of the governments, however rest on entirely different foundations, which affects how successful appeals to the courts might be in different jurisdictions.

Canada is a “top-down” country: the authority is at the top, the freedoms trickle down (if we are in the good graces of the Crown). The USA is a “bottom-up” country: the authority is at the bottom [citizens] who grant to their governments limited authority.