Reception Through the Charter and Other Human Rights Laws

• Author: Mark Freeman, Gibran Van Ert
• Pages: 186-214

186

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. . . .

RECEPTION THROUGH

THE

CHARTER

AND

OTHER HUMAN

RIGHTS LAWS

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.