Reception Through the Charter and Other Human Rights Laws

AuthorMark Freeman, Gibran Van Ert
As a country with a constitution “similar in principle to that of the
United Kingdom,”1Canada originally had no constitutional or statuto-
ry instruments guaranteeing human rights. Under the English consti-
tutional model of the nineteenth century, Parliament was sovereign to
enact any law and no court could question the validity of Parliament’s
enactments. The prevailing conception of human rights in this legal
tradition was, by contemporary standards, somewhat narrow. Yet its
historical influence can hardly be overstated. It consisted of civil liber-
ties such as freedom of speech and religion, habeas corpus, the right to
a fair hearing or trial, freedom from trespass to the person or property,
and the right to a remedy from an independent judiciary for violation
of these and other rights. Civil liberties occasionally received recogni-
tion in legislation, but for the most part they were common law doc-
trines elaborated and protected by the courts. The only guarantees of
the continuance of these rights lay in the forbearance of the legislature
and the vigilance of the judiciary.
In the minds of some, that was the way it should be — even the way
it had to be. As the leader of the opposition, Lester Pearson, observed
while speaking against the federal government’s proposed Bill of Rights,
[F]reedoms are not guaranteed by words, even words in a constitu-
tion, let alone by words in an ordinary, normal act of parliament. . . .
chapter 9
1Constitution Act 1867, 30 & 31 Vict. c. 3, preamble.
Reception Through the Charter and Other Human Rights Laws 187
Incorruptible and respected courts enforcing laws made by free men
in parliament assembled and dealing with specific matters, with spe-
cific sanctions to enforce their observance; these are the best guaran-
tees of our rights and liberties. This is the tried and tested British way,
and this is a better course to follow than the mere pious affirmation
of general principles, to which some political societies are addicted.2
But this view rapidly lost ground in Canada as the twentieth century
wore on. The change in attitude was driven in no small part by the rise
of international human rights law, as the prime minister of the day, Mr
Diefenbaker, made clear in his speech in support of the draft Bill:
We have today, in effect, although never adopted by Canada, a univer-
sal declaration of human rights which was passed by the United
Nations. It contains 30 articles. Its preamble sets forth clearly and
unmistakably, as does the preamble of the United Nations Charter, the
greatness of human rights and the determinant that the preservation
of human rights is on the peace of the world. . . . This measure that I
introduce is the first step on the part of Canada to carry out the accept-
ance either of the international declaration of human rights or of the
principles that actuated those who produced that noble document.3
The feeling that human rights required explicit legislative protection
continued to attract support, resulting in the enactment of anti-dis-
crimination laws and statutory bills of rights throughout the country
and culminating in the constitutional entrenchment of human rights
protection in the Canadian Charter of Rights and Freedoms.
A. The
Canadian Charter of Rights
and Freedoms
1) International Law Origins
Though one would hardly know it by reading the leading cases, the
Charter’s roots in international human rights law run deep. Impetus for
the enactment of constitutionally-protected rights came in large part
2 Mr Pearson, House of Commons Debates (4 July 1960) at 5661. As prime minis-
ter, Mr Pearson changed his view and supported Pierre Trudeau’s proposal of an
entrenched human rights charter.
3 Mr Diefenbaker, House of Commons Debates (1 July 1960) at 5644–45. By “never
adopted,” Mr Diefenbaker may have meant that the UDHR had never been
explicitly implemented by statute.

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