Introduction

• Author: Hamish Stewart
• Pages: 1-21

1

CHAPTER 1

INTRODUCTION

A. INTRODUCTION

Section 7 of the Canadian Charter of Rights and Freedoms read s as follows:

Everyone has the right to life, liberty and security of the person and

the right not to be deprived thereof except in accordance with the

principles of f undamental justice.

Chacun a droit à la vie, à l a liberté et à la sécurité de sa pe rsonne; il ne

peut être porté atteinte à ce droit qu’en conformité avec le s principes

de justice fonda mentale.

The subject of this book is the interpretat ion and application of section 7.

In this introductory chapter, I place section 7 in the context of the Con-

stitution of Canada as a whole, part icularly in the context of the Charter

itself, and I brief‌ly consider its relationship to other rights-protecting

instruments.

B. THE

CHARTER

IN ITS CONSTITUTIONAL

CONTEXT

The Constitution of Canada consists of a number of texts as well as a

number of principles, practices, and conventions that are not expressly

FUNDAMENTAL JUSTICE2

stated in the texts.1 The two central constitutional texts are the Consti-

tution Act, 1867 (better known to students of histor y as the British North

America Act, 1867) and the Constitution Act, 1982.2 Both are statutes of the

Parliament of the United Kingdom. The history of the Constitution Act,

1867 is well beyond the scope of this book. The political process lead-

ing up to the enactment of the Constitution Act, 1982 —the negotiations

between federal and provincial governments, the questions referred to

the Supreme Court of Canada, the federal/provincial compromise of

November 1981 reached without the participation of the government of

Quebec, and the legislative process in the United Kingdom— has been

described elsewhere and will not be reviewed here.3

The purpose of the Constitution Act, 1982 was twofold, and both

purposes were equally important to the federal government of the day.

The f‌irst was to provide an amending formula for the Constitution of

Canada so th at further constitutional change would not require a statute

of the United Kingdom enacted in response to a petition to Her Majesty

but could be done in Canada in accordance with the constitution itself.

To this end, section 2 of the Canada Act 1982 provided that “No Act of

the Parliament of the United Kingdom passed after the Constitution Act,

1982 comes into force shall extend to Canada as pa rt of its law.” It might

be argued that since Parliament cannot bind itself, section 2 cannot pre-

vent Parliament from continuing to amend the Constitution of Canada.

But the better view is that any such attempt to amend t he Constitution of

Canada, regardless of its validity as a matter of UK law and regardless

of section 2, would not be valid Canadian law because Canadian pol-

itical and legal actors, including Canadian courts, would not recognize

or give effect to such enactments.4 Thus, when Queen Elizabeth II gave

royal assent to the Canada Act 1982 on 17 April 1982, the Constitution

1 Reference re Secession of Q uebec, [1998] 2 SCR 217 at paras 49–52. The principle s

not expressly st ated in the constitutiona l texts are sometimes ca lled “unwritten”

(pa ra 52).

2 Constitution Act, 1982, being Schedule B to Can ada Act 1982 (UK), 1982, c 11.

3 See, for instance , Peter H Russell, Constitutional Odysse y, 3d ed (Toronto: Uni-

versity of Toronto Press, 20 04) ch 8; Edward McWhinney, Canad a and the Con-

stit ution 1979–1982 (Toronto: University of Toronto Pres s, 1982); Roy Romanow

et al, Canada –Notw ithstanding (Toronto: Carswell /Methuen, 1984). The main

source texts a re assembled in Anne Bayef sky, ed, Canada’s Constit ution Act 1982

& Amendmen ts: A Documentary Histor y, 2 vols (Toronto: McGraw-Hill Ryerson,

1989).

4 See, among others, Peter W Hog g, Constitutional Law of Cana da, 5th ed supple-

mented (Scarborough, ON: Thomson Ca rswell, 2007) (loose-leaf r evision 2017-1)

ch 3.5(e); Brian Slatte ry, “The Independence of Canada” (1983) 5 Supreme Cour t

Law Review 3 69.