Historical Context

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

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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. 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 oered 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 eort to accommodate

that diversity.