Historical Context

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 4-24

CHAP TER 1

HISTOR ICA L CONTEXT

A. THE PRE1982 CANADIA N CONSTITUTION

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

Canada’s evolving constitution. While t he Charte r now occupies centre

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

1982 did not mark the beginning of r ights protection in Canad ian law.

This introductory chapter w ill attempt to place the Charter in its proper

constitutional context and w ill 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 i-

ca Act, 1867 (rena med th e 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 parliamentary s ystem

of government modelled upon the principle s of Briti sh parliamentar y de-

mocracy. The preamble to the Constitution Act, 1867, states t hat Can ada

is to have “a Constitut ion simi lar in P rinciple t o that of t he United K ing-

dom.” Apart from th is very general re ference, the basic pr inciples of Briti sh

constitutionalism a re not spelled out in the written constitution. They are

to be found in conventions, traditions, and pr actices that evolved over time

and that continue to govern the str ucture of Canadian government.

4

Historical Context 5

The central concept of the British constitution is the supremacy of

Parliament . The elected represent atives of the people, a ssembled in Par-

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

is limited to deciding c ases 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 proces s of Parliament. The one thing — per-

haps the only thing — Parliament cannot do is to bind it s successors.

Whatever one Parliament has laid down as the law can be ch anged by

the next.

The fundamental rights a nd freedoms of a liberal democrac y (that

is, freedom of expression, relig ion, association, and as sembly) as well

as basic legal rights (fair trial, freedom from arbitrary ar rest, the pre-

sumption of innocence, and right to a jury t rial) are, however, very

much a part of our British parli amentary heritage. That tradition clear-

ly recognizes and re spects the import ance of fundamental r ights and

freedoms but holds that Parlia ment is the proper instit ution to decide

upon their meaning and scope. Courts are entitled to take t hese prin-

ciples into account when deciding c ases a nd interpret ing statutes, par-

ticularly where there is any ambiguity in the law, but the primar y and

final responsibility for achieving a n appropriate balance bet ween the

rights of the individua l and the general public interest remains with the

elected repre sentative s of the people sitting i n Parliament.

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

tal rig hts and fre edoms was st rongly influenced by the pr inciple of the

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

exercise the power of judicia l review in some case s 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 const itution is feder-

alism, that i s, the d ivi sion of legi slative power s between the Parliament

of Canada and the ten prov incial legislatures. This division of pow-

ers is contained in Canada’s original constitution, the Constitution Act,

1867. Canada i s geographically, culturally, and linguistically d iverse.

The division of legislative power between a central national Parliament

and ten provincial legislatures, defini ng the areas in which e ach level

of government is entitled to act, represents a n attempt to accommodate

that dive rsity.