D. The Constitution Act, 1867 and Protection against Discrimination

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

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Another significant limitation of pre-Charter rights protection was the failure of the courts (and indeed, until the advent of human rights codes, discussed below, of the entire legal system) to protect minorities from discrimination. A series of cases coming before the Supreme Court and the Judicial Committee of the Privy Council (then Canada’s court of last resort) dealt with challenges to overtly racist legislation.17

It was argued that the federal power with respect to "naturalization and aliens" in section 91(25) of the Constitution Act, 1867 and Parliament’s residual power to ensure "peace, order and good government" under section 91 included authority to ensure the enjoyment of ordinary legal rights without discrimination on the basis of race and national origin. These challenges proved unsuccessful.

Union Colliery Co. of British Columbia Ltd v Bryden,18the first case to raise these issues at the highest level, involved a challenge to British Columbia legislation forbidding the employment of "Chinamen" below ground in a coal mine. The prohibition was but one of a shockingly long list of legislative measures introduced in British Columbia attempting to prevent or restrict the settlement of Chinese immigrants in the province. The province asserted that the law was designed to ensure safety in the mines. The Privy Council rejected this characterization of the law and found that the law was unconstitutional: "[T]he whole pith and substance of the enactments . . . consists in establishing a statutory prohibition which affects aliens or naturalized subjects, and therefore trench upon the exclusive authority of the Parliament of Canada."19Al-though written in a formalistic style, with virtually no explicit appeal to the concept of equality, the Privy Council’s opinion in Bryden gave some hope that, despite the absence of any explicit anti-discrimination provision in the constitution, the courts might be prepared to protect racial minorities on the basis of the division of powers. The opinion

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provided a possible ground for the elaboration of an important branch of federal legislative power to ensure the rights and privileges attached to Canadian citizenship.

That hope proved short-lived. Shortly after Bryden, a naturalized Japanese resident of British Columbia challenged the constitutional validity of the province’s electoral law, which denied the vote to all those of Japanese descent, whether naturalized or not. The...

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