Introduction

• Author: Hamish Stewart
• Profession: Faculty of Law, University of Toronto
• Pages: 1-20

1

CHA PTER 1

INTRODUCTION

A. INT RODUC TION

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

Everyone has the r ight to life, liberty and s ecurity of the pers on and

the right not to be deprived t hereof except in accordance with t he

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 dr oit qu’en conformité avec les principes

de justice fonda mentale.

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

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

Constitution of Canada as a whole, and particularly in the context of

the Charter it self, and I brief‌ly consider its relationship to other r ights-

protecting instruments.

B. THE

CHA RTER

IN ITS CONSTITUTIONAL

CONTE XT

The Constitution of Canada consist s of a number of texts as well as a

number of principles, practices, and conventions that are not ex pressly

FUNDAMENTAL JUSTICE

2

stated in the texts.1 The two central const itutional texts are the Con-

stitution Act, 1867 (better known to students of history as the British

North America Act, 1867) and the Constitution Act, 1982.2 Both are stat-

utes of the Parliament of the United Kingdom. The history of the Co n-

stitution Act, 1867 is well beyond the scope of this book. The political

process leading up to the enact ment of the Constitution Act, 1982 — the

negotiations between federal and provinci al governments, the ques-

tions 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 proces s in the United

Kingdom — has been describ ed elsewhere and will not be reviewed

here.3

The purpose of the Constitution Act, 1982 was two-fold, 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 respons e to a petition to Her Majesty,

but could be done in Canada in accordance with t he 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 Constitutio n

Act, 1982 comes into force shall extend to Canada as part of it s law.”

It might be argued that since Parlia ment cannot bind itself, section 2

cannot prevent Parliament from continuing to amend the Const itution

of Canada. But the better view is that any such attempt to amend the

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

and regardless of section 2, would not be valid Can adian law because

Canadian political and legal actors, including Canadian courts, would

not recognize or give effect to such enactments.4 Thus, when Queen

Elizabeth II gave royal as sent to the Canada Act 1982 on 17 April 1982,

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

not expressly st ated in the constitutiona l texts are sometimes c alled “unwritten”

(ibid at para 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 Odyssey, 3d ed (Toronto: Uni-

versity of Toronto Press, 20 04) ch 8; Edward McWhinney, Canada 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, Canad a’s Constitut ion Act 1982

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

198 9).

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

mented, loose-lea f (Scarborough: Thom son Carswell, 2007) ch 3.5(e); Brian

Slattery, “The Independence of C anada” (1983) 5 Sup Ct L Rev 369.