The legal protection of fundamental rights and freedoms does not rest entirely upon the explicit provisions of the constitution nor upon the Charter of Rights and Freedoms. Concern for civil liberties has always been an important feature of Canadian law. Throughout our history, judicial decisions have played an important role in the protection of
fundamental rights,2and while Parliament may be supreme, our political culture has demanded that it pay heed to the basic rights of all citizens.
Most of our most important civil rights, such as habeas corpus, trial by jury, and the presumption of innocence, were creations of the common law. These rights are founded upon judicial decisions extending far back in the Anglo-American legal tradition. They are judge-made rights, often supplemented or bolstered by statutes, which formed an essential aspect of our legal system long before 1982 and the Charter.
Another important part of our legal tradition has been judicial review of administrative action. Judicial commitment to the rule of law has resulted in the nullification of decisions by officials or administrative tribunals when they have acted without jurisdiction, while the rules of natural justice have ensured fairness in administrative procedures. One of the most famous pre-Charter cases held that the Premier of Quebec could not arbitrarily revoke a person’s liquor licence for reasons unrelated to the purpose of the legislation.3In addition, in the interest of protecting liberal values, courts have imported certain presumptions when interpreting statutes.4For example, it is presumed that the state would not expropriate property without compensation. If property is taken, compensation must be given absent a clear signal from a legislature that it does not intend to provide it. Similarly, the courts presumed that criminal laws would only punish people who were at fault in the absence of a clear signal from the legislature. These presumptions played a role both in protecting fundamental values and requiring democratic debate and accountability for departures from those values.
Other rights and freedoms now enshrined in the Charter never crystallized as specific rights in the common law but did have force as basic principles that underlay the whole structure of the law, informing both political debate in Parliament and legal decision making in the courts. As the Supreme Court of Canada has said, rights and freedoms did not spring...