Historical Context

• Author: Robert J. Sharpe; Kent Roach
• Pages: 4-26

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CHAPTER 1

HISTORICAL CONTEXT

A. THE PRE-1982 CANADIAN CONSTITUTION

The Charter of Rights and Freedoms should be seen as one element in

Canada’s evolving constitution. While the Charter now occupies centre

stage and has become the focus of public attention, its enactment in

1982 did not mark the beginning of rights protection in Canadian law.

This introductory chapter will focus on placing the Charter in its proper

constitutional context and will provide a brief survey of the protection

of fundamental rights and freedoms in Canadian law before 1982.

Canada’s primary constitutional document, the British North Amer-

ica Act, 1867 (renamed the Constitution Act, 1867 in 1982) contained two

major features: a parliamentar y system of government and federalism.

1) Parliamentary Supremacy

The f‌irst feature of our pre-1982 constitution was a parli amentary system

of government modelled upon the principles of British parliamentary

democracy. The preamble to the Constitution Act, 1867 states that Can-

ada is to have “a Constitution similar in Principle to that of the United

Kingdom.” Apart from this very general reference, the basic principles

of British constitutionalism are not spelled out in the written constitu-

tion. They are to be found in conventions, traditions, and practices t hat

evolved over time and that continue to govern the structure of Can-

adian government.

Historic al Context5

The central concept of the British constitution is the supremacy of

Parliament. The elected representatives of the people, assembled in Par-

liament, have unlimited power to make the law. The role of the courts

is limited to deciding cases by interpreting the law as laid down by

Parliament or as def‌ined by the common law. In particular, judges do

not have the authority to invalidate laws that have been duly enacted

through the democratic process of Parlia ment. The one thing — perhaps

the only thing — Parliament cannot do is to bind its successors. What-

ever one Parliament has laid down a s the law can be changed by the next.

The fundamental rights and freedoms of a liberal democracy (that

is, freedom of expression, religion, association, and assembly) as well as

basic legal rights (fair tr ial, freedom from arbitrary arrest , the presump-

tion of innocence, and right to a jury trial) are, however, very much a

part of our British parliamentary heritage. That tradition clearly recog-

nizes and respects the importance of fundamental rights and freedoms

but holds that Parliament is the proper institution to decide upon their

meaning and scope. Court s are entitled to take fundamental right s into

account when deciding cases and interpreting statutes, particularly

where there is any ambiguity in t he law. Nevertheless, the primary and

f‌inal responsibility for achieving an appropriate balance between the

rights of the individual and the general public interest remains with

the elected representatives of the people sitting in Parliament.

Until 1982, the Canadian approach to the protection of fundamen-

tal rights and freedoms was strongly inf‌luenced by the principle of the

supremacy of Parliament. As will be seen shortly, Canadian courts did

exercise the power of judicial review in some cases to protect funda-

mental rights, but these cases were really exceptions rather than the

rule. Canada’s written constitution offered relatively little by way of

rights protection until 1982.

2) Federalism

The second fundamental element of the Canadian constitution is feder-

alism, that is, t he division of legislative powers between the Parliament

of Canada and the ten provincial legislatures. This division of powers is

contained in Canada’s original constitution, the Constitution Act, 1867.

Canada is geographically, culturally, and linguistically diverse. The

division of legislative power between a cent ral national Parliament and

ten provincial legislatures, def‌ining the areas in which each level of

government is entitled to act, represents an effort to accommodate that

diversity.