A. The Pre-1982 Canadian Constitution

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

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The Charter of Rights and Freedoms should be seen as one element in Canada’s evolving constitution. While the Charter now occupies centre stage and has become the focus of public attention, its enactment in 1982 did not mark the beginning of rights protection in Canadian law. This introductory chapter will focus on placing the Charter in its proper constitutional context and will provide a brief survey of the protection of fundamental rights and freedoms in Canadian law before 1982.

Canada’s primary constitutional document, the British North America Act, 1867 (renamed the Constitution Act, 1867 in 1982) contained two major features: a parliamentary system of government and federalism.

1) Parliamentary Supremacy

The first feature of our pre-1982 constitution was a parliamentary system of government modelled upon the principles of British parliamentary democracy. The preamble to the Constitution Act, 1867 states that Canada is to have "a Constitution similar in Principle to that of the United Kingdom." Apart from this very general reference, the basic principles of British constitutionalism are not spelled out in the written constitution. They are to be found in conventions, traditions, and practices that evolved over time and that continue to govern the structure of Canadian government.

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The central concept of the British constitution is the supremacy of Parliament. The elected representatives of the people, assembled in Parliament, have unlimited power to make the law. The role of the courts is limited to deciding cases by interpreting the law as laid down by Parliament or as defined by the common law. In particular, judges do not have the authority to invalidate laws that have been duly enacted through the democratic process of Parliament. The one thing - perhaps the only thing - Parliament cannot do is to bind its successors. Whatever one Parliament has laid down as the law can be changed by the next.

The fundamental rights and freedoms of a liberal democracy (that is, freedom of expression, religion, association, and assembly) as well as basic legal rights (fair trial, freedom from arbitrary arrest, the presumption of innocence, and right to a jury trial) are, however, very much a part of our British parliamentary heritage. That tradition clearly recognizes and respects the importance of fundamental rights and freedoms but holds that Parliament is the proper...

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