C. The Constitution Act, 1867 and the Protection of Fundamental Rights

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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While the scope for judicial review under the 1867 constitution was essentially limited to questions of legislative jurisdiction as between the provinces and the federal Parliament, the courts did establish an element of rights protection through judicial review.

First, the Constitution Act, 1867 contains certain specific minority rights enforceable through the courts. The right to use English and French in Parliament, in the legislature of Quebec, and in the courts established by the federal Parliament (that is, the Supreme Court of Canada, the Federal Court, and the Tax Court) and by the province of Quebec is guaranteed by section 133.8Minority-religion education rights were secured for the Roman Catholic minority in Ontario and the Protestant minority in Quebec by section 93, and similar rights were accorded by the terms admitting some new provinces after 1867. Provisions relating to the appointment and tenure of judges (sections 96-100) have been interpreted to guarantee an independent judiciary and to secure the role of the courts as overseers of the legality of administrative and executive action. Although probably not judicially enforceable, the 1867 constitution also secures certain democratic rights relating to the length (section 50) and regularity (section 20) of ses-

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sions of Parliament.9As noted above, federalism itself may be seen as a form of minority-rights protection, particularly in the case of Quebec and the preservation of French language and culture and the civil law tradition.

Second, despite the limited nature of explicit rights protection under the 1867 constitution, civil liberties were protected in a number of cases through federalism review. The Supreme Court of Canada found that certain laws that limited fundamental rights could be attacked in the courts on the ground that authority to enact the law fell outside the scope of the powers accorded the enacting provincial legislature by the Constitution Act, 1867.

Perhaps the most notable example was the 1938 decision, Reference Re Alberta Legislation,10striking down Alberta legislation that interfered with the right of newspapers to report freely on the economic policies of the government. The law at issue was part of the package of measures put forth by the newly elected Social Credit government, which asserted that its economic and monetary policies would be effective only if media coverage was "accurate." While provinces normally have extensive authority to regulate businesses operating within the province, the Supreme Court of Canada held that the Alberta...

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