Historical Context

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 4-26

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. While the Charter now occupies cent re

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 wi ll focus on placing the Charter i n its prop-

er constitutional context and will provide a brief survey of the protec-

tion of fundamental right s and freedoms in Canadi an law before 1982.

Canada’s primar y constitutional document, the Briti sh 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 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 writ-

ten constitution. They are to be found in conventions, traditions, and

practices that evolved over time and that continue to govern the struc-

ture of Canadian govern ment.

Historica l Context 5

The central concept of the British constitution is the 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 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 — per-

haps the only thing — Parli ament cannot do is to bind its successors.

Whatever one Parliament has laid down a s the law can be changed by

the next.

The fundamental rights and freedoms of a liberal democracy (that

is, freedom of expression, religion, as sociation, and assembly) as well as

basic legal rights (fair tr ial, freedom from arbitrary arrest, t he 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 fundamental 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, particul arly

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 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 Canadian constitution is feder-

alism, that is, t he division of legislative powers between the Parliament

of Canada and the ten provincial legislatures. This division of pow-

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

1867. Canada i s geographically, culturally, and linguistically diverse.

The divis ion of legislative power between a central nat ional Parliament

and ten provincial legislatures, def‌ining the area s in which each level

of government is entitled to act, represents an ef fort to accommodate

that diversity.