Historical Context

AuthorRobert J. Sharpe; Kent Roach
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 right s protection in Canadian law.
This introductory chapter will focus on placing the Charter i n its proper
constitutional context and will provide a brief survey of the protection
of fundamental right s and freedoms in Canadi an law before 1982.
Canada’s primar y 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 simil ar 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 Context 5
The central concept of the British constitution is t he supremacy of
Parliament. The elected representatives of the people, ass embled in Par-
liament, have unlim ited power to make the law. The role of the courts
is limited to deciding c ases by interpreting t he law as laid down by
Parliament or as def‌ined by the common law. In particula r, judges do
not have the authority to invalidate laws t hat have been duly enacted
through the democratic process of Parlia ment. The one thing — perhaps
the only thing — Parliament can not 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 right s 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 tr ial) are, however, very much a
part of our British parli amentary heritage. That tradition clearly recog-
nizes and respects the importance of fund amental rights and freedoms
but holds that Parliament is the proper inst itution to decide upon their
meaning and scope. Court s are entitled to take fundamental right s into
account when deciding cases and inter preting statutes, particularly
where there is any ambiguity in t he law. Nevertheless, the primary and
f‌inal responsibility for achieving an appropriate balance bet ween 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 funda men-
tal rights and f reedoms was strongly inf‌luenced by the principle of the
supremacy of Parliament. As will be seen shortly, Canadian courts d id
exercise the power of judicial review in some cases to protect funda-
mental rights, but these c ases were really exceptions rat her 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 Canad ian constitution is feder-
alism, that is, t he division of legislative powers between the Parliament
of Canada and the ten provincial legislatures. This d ivision 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 area s in which each level of
government is entitled to act, represents an effort to accommodate that
di ve rs it y.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT