Historical Context

• Author: Robert J. Sharpe; Kent Roach
• Pages: 4-28

4

CHA PTER 1

HISTOR ICAL 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 Charte r now occupies cen-

tre 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 focuse s on placing the Charter in its proper

constitutional context and provides a br ief survey of the protection of

fundamental rights and freedoms in Canad ian law before 1982.

Canada’s primar y 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 t hat

Canada is to have “a Constitution similar in Pri nciple to that of the

United Kingdom.” Apart from this very general reference, the basic pr in-

ciples of British constitutionali sm 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 Context 5

The central concept of the British constitution is t he supremacy of

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

liament, have unlim ited 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 Parli ament.

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 t rial, freedom from arbitrar y 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 in stitution 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 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 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 rev iew in some cases to protect funda-

mental rights, but these c ases were exceptions rather than the rule.

Canada’s written constitution oered relatively little by way of rights

protection unt il 1982.

2) Federalism

The second fundamental element of the Canadian Constitution is fed-

eralism — that is, the division of legislative powers between t he Par-

liament of Canada and t he ten provincial legislature s. This division of

powers is contained in Can ada’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 eort to accommodate

that diversity.