Historical Context

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

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Chapter 1

HISTORICAL 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 the Charter now occupies centre

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

1982 did not mark the beginning of right s protection in Canadian l aw.

This introductory chapter will attempt to place the Charter in its proper

constitutional context and wi ll provide a brief survey of the protection

of fundamental right s and freedoms in Can adian law before 1982.

Canada’s primary constitutional document, the British North Ame r-

ica Act, 1867 (renamed the Constitution Act, 1867 in 1982) contained two

major features: a parliamentar y system of government and federali sm.

1) Parliamentary Supremacy

The f‌irst feature of our pre-1982 constitution was a parliament ary 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 f rom this very general reference, the basic

principles of British constitutionalism are not spelled out in the written

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

tices th at evolved over ti me and t hat continue to govern the structure

of Canadian government.

Historica l Context 5

The central concept of the British constitution is the supremacy of

Parliament. The elected represent atives of the p eople, assembled i n 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 Parlia-

ment or as de f‌ined by the com mon law. I n part icula r, judges do not ha ve

the authority to invalidate laws that have been duly enacted through

the democratic process of Parliament. The one thing — perhaps the only

thing — Parliament can not do is to bind its 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 democracy (that

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

as basic legal rights (fair tr ial, f reedom from arbitrary arrest, the pre-

sumption of innocence, and right to a jury trial) are, however, ver y

much a part of our British parliamentar y heritage. That tradition clear-

ly recogni zes and re spects the importance of f undamental rights and

freedoms but holds that Parliament is the proper institution to decide

upon their meaning and scope. Courts are entitled to take fundamental

rights into account when deciding cases and interpreting statutes, par-

ticularly where there is any ambig uity in t he law, but the primar y and

f‌inal responsibility for achieving an appropriate balance between the

rights of the individual 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 freedoms was st rongly 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 really exceptions rather than the

rule. Canada’s wr itten constitution offered relatively little by way of

rights protection until 1982.

2) Federalism

The second funda mental element of the Canad ian constitution is feder al-

ism, that is, the division of legislative powers between the Parliament of

Ca nada and the t en pr ovin cia l leg isl atur es. T his divi sion of po wers is co n-

tained in Canada’s original constitution, t he Constitut ion Act, 1867. Can-

ada is geographically, culturally, and linguistically diverse. The division

of legislative power between a central national Parliament and ten prov-

inci al leg islatu res, de f‌ining the are as in w hich ea ch level of govern ment is

entitled to act, represents an attempt to accommodate that diversity.

The federal structure itself contains a form of rights protection.

When an ethnic or religious minority is concentrated in a geograph-