Historical Context
Author | Robert J. Sharpe; Kent Roach |
Pages | 4-28 |
4
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. Although the Charter now occupies cen-
tre 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 focuses on placing the Charter in its proper
constitutional context and provides 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 Constitutio n 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 parliamentary sys-
tem of government modelled upon the principles of British parliament-
ary democracy. The preamble to the Constitution Act, 1867 states that
Canada is to have “a Constitution similar in Principle to that of the
United Kingdom.” Apart from this very general reference, the basic pr in-
ciples of British constitutionalism are not spelled out in the written
constitution. They are to be found in conventions, traditions, and prac-
tices that evolved over time and that continue to govern the structure
of Canadian 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 bind its successors. Whatever
Parliament lays down as the law can be changed by the next newly
elected Parliament.
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 trial, freedom from arbitrary arrest, presump-
tion of innocence, and trial by jury) are, however, very much a part of
our British parliamentary heritage. That tradition clearly recognizes
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 indiv idual 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 exceptions rather than the rule.
Canada’s written constitution oered relatively little by way of rights
protection until 1982.
2) Federalism
The second fundamental element of the Canadian Constitution is fed-
eralism — that is, the division of legislative powers between the Par-
liament 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 central national Parliament
and ten provincial legislatures, defining the areas in which each level
of government is entitled to act, represents an eort to accommodate
that diversity.
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeUnlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
