Joseph E. Magnet
Constitutional Law of Canada, 8th ed. (2001)
Part VI -- Canadian Charter of Rights and Freedoms
Chapter 1.   Introduction
(a)  The Charter: Origins And Expectations

      Canada has a written Constitution which acknowledges a similarity in principle to the English system. Prior to the patriation of the Canadian Constitution in 1982, the Canadian Constitution consisted of a number of British statutes. Most important was the British North America Act, 1867 and its various amendments.

      The Canadian Constitution represents a marriage of parliamentarism and federalism. Parliamentary government implies that complete legislative power vests in Parliament (parliamentary sovereignty). Federalism implies a distribution of legislative powers between the federal and provincial governments. Parliamentary sovereignty resides between two "sovereign-like" orders of government.

      Prior to 1982, Canadian courts reviewed the exercise of lawmaking power by federal and provincial legislative bodies by the doctrine of legal federalism. Legal federalism concerns conflicts as to whether a challenged law falls within provincial or federal jurisdiction, the implication being that invasion of federal jurisdiction by a province is illegal or unconstitutional, and vice versa.

      [A list of Canada's most important Constitutional Acts which remain in force can be found in the QL database CAC.]

19th Century Race Cases

      Prior to the Proclamation of the Canadian Charter of Rights and Freedoms, the law of civil liberties in Canada was not disciplined by a constitutionally entrenched Charter of Rights. Nevertheless, Canadian courts still encountered legislation that imposed disabilities on different groups. In the 19th century, attitudes to what we now know as racism and discrimination were very different. So it is perhaps not remarkable that in 1899, the Privy Council had to consider a British Columbia statute, the Coal Mines Regulation Act, which prohibited the employment of "Chinamen" in mines regulated by the statute. Or that in 1903, the Privy Council had to consider provincial legislation which disentitled a Japanese person, whether naturalized or not, from having his name placed on the register of voters or from being entitled to vote. Or again, that in 1914, the Supreme Court of Canada had to consider provincial legislation prohibiting "Chinamen" from employing white females. The response of the Court was cast in federalist terms: the courts asked whether the legislation affected exclusive federal power in relation to naturalization and aliens. In Union Colliery v. Bryden, [1899] A.C. 580, the court found that the Coal Mines Act was in relation to exclusive federal jurisdiction concerning naturalization and aliens, and that the provincial legislation was, for that reason, invalid. In Cunningham v. Tomey Homma, [1903] A.C. 151 and Quong Wing v. The Queen, [1914] 49 S.C.R. 440, the response of the court was different. The B.C. legislation which took away voting rights from Japanese-Canadians was held to be within provincial power and suffered from no constitutional objection; so too, provincial legislation singling out "Chinamen" from the ability to employ white female Canadians was found to be unobjectionable as not being aimed at federal jurisdiction over naturalization and aliens.

      These cases seem strange to the modern legal imagination, conditioned as it is by concepts of non-discrimination and equality. It is perhaps for that reason that Canadian courts, academic writers, and Constitution makers became increasingly uncomfortable with the legal position of civil liberties and non-discrimination rights throughout the 20th century.

The "Implied Bill of Rights"

      Serious questions about civil liberties arose again in the 1930's when Alberta legislation interfered with press freedoms.  This legislation attracted the condemnation of the court in Reference Re Alberta Statutes, [1938] S.C.R. 100. The legacy of this case was an important line of jurisprudence which the constitutional writers later called the "implied bill of rights".  The most important cases are Reference Re Alberta Statutes, supra, Switzman v. Elbling, [1957] S.C.R. 285 and Saumur v. The City of Quebec, [1953] 2 S.C.R. 299. The impact of these cases, particularly an obiter statement of Cannon J. in the Alberta Press case, suggested that there are certain civil liberties implicit in Canada's Constitution - a package of freedoms somewhat similar to that of the later Canadian Bill of Rights and the Canadian Charter of Rights of Freedoms.

      The concept of an implied bill of rights grew from a tradition of legal federalism; when provincial legislation intrudes deeply into fundamental freedoms of speech, religion, association or assembly, the provincial legislature is creating criminal legislation, which under the federal distribution of powers is reserved exclusively to the Parliament of Canada by s.91:27 of the Constitution Act, 1867.

The provinces cannot enter this area; if they do, their legislation is void and of no effect.  Because provincial prohibition touching on the fundamental freedoms of speech, religion, assembly and association were declared unconstitutional by the courts, and in light of the expansive obiters in the leading cases, the writers were able to claim that there was a bill of rights implicit in the Constitution.

      Some of the writers, like the Courts, also drew attention to the preamble of the Constitution Act, 1867 as providing justification for an implied bill of rights in the British North America Act, 1867.  The relevant part of the preamble reads:

      Preambular statements can become very muscular when interpreted by the courts.  That is what the writers claimed happened in this instance.  They took the view, following the lead of certain courts, that the words "similar in principle" meant that there was to be a parliamentary system of government, acting under the influence of public opinion, of a free press, and of free speech; legislation which destroyed the citizen's ability to debate freely, to assemble freely, to associate freely would be contrary to Canada's democratic parliamentary system of government.  This suggestion provided an additional underpinning for the claim of an implied bill of rights in Canada's Constitution.

      On the other side of this debate, a direct protection of the fundamental freedoms inherited through the preamble to the Constitution Act, 1867 was clearly rejected by a split Court in Canada (A.G.) v. City of Montreal, [1978] 2 S.C.R. 770. Beetz J. there curtailed any application of unwritten constitutional norms when he stated that:

      The controversy about the implied bill of rights has continued since enactment of the Canadian Charter of Rights and Freedoms.  Proclamation of the Charter may make less urgent the debate about the implied bill of rights theory because the Charter subjects federal and provincial legislation to constitutional limits which protect fundamental freedoms of speech, religion, assembly and association.

      Nevertheless, the Supreme Court revisited the implied bill of rights theory in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] 3 S.C.R. 3 [Provincial Judges Reference].  The Court referred to both the Charter and the implied bill of rights theory to rule that governments may not compromise judicial independence.  As outlined by the majority in this case, the proper function of the implied bill of rights post-Charter is to 'fill in the gaps' in the express terms of the constitutional text. Although the Court stated that the theory was able to fill in the details of judicial independence, the Court actually relied on the Charter to do so.

      The ideas cast in the Provincial Judges Reference were developed further in the Secession Reference, [1998] 2 S.C.R. 217.  Together these cases appear to expand the reach of unwritten constitutional principles beyond mere interpretative guides.  The 1867 preamble and the Canadian Constitution (including its newer addition, the Charter) are to be read as a unified whole. The express provisions of the Constitution elaborate underlying, organizing principles implicit in the preamble.  These unwritten principles can shape "a constitutional argument that culminates  in the filling of gaps in the express terms of the constitutional text" and that in "certain circumstances give rise to substantive legal obligations" that "are binding upon both courts and governments;" (Secession Reference, supra., paras. 50-4).  In the Provincial Judges Reference the Court fell short of using the  preamble to state new constitutional obligations or limitations.  Nevertheless,  Lamer C.J.'s extensive obiter on this subject did return Canadian constitutional theory to the classical model of rights implicit in the Constitution which was first developed in the Alberta Press, Saumur and Switzman cases.  By this model, "important legal effects" including constitutional obligations and limits, may be produced by the Bill of Rights implied into the Constitution by the Courts, quite apart from the application of written constitutional texts.

      In partial dissent, La Forest J. took issue with the Chief Justice's opinion about the implied bill of rights.  Mr. Justice  La Forest questioned the legitimacy of spinning constitutional doctrines out of the preamble.  The power to expound constitutional doctrine is grounded in the interpretation of express constitutional texts, not in "a dubious theory of an implicit constitutional structure;" (para 319).  Justice La Forest emphasized:

      The opinions of Lamer C.J. and La Forest J. relating to this issue are reproduced in Vol. I.

The Canadian Bill of Rights

      The Canadian Bill of Rights is a federal statute enacted in 1960. It is no more than a statute in the sense that it is not constitutionally entrenched. It was enacted through the ordinary legislative process by the Parliament of Canada. It was not enacted or proclaimed by any constitutional amendment process.

      The Canadian Bill of Rights applies only to federal jurisdiction; it does not apply to legislation of the provinces.

      The Canadian Bill of Rights is said to be a "quasi-constitutional" document: See Winnipeg School Division No.1 v. Craton and Insurance Corp. of B.C. v. Heerspink. This is interesting language. To call the document quasi-constitutional means that conflicts between the Canadian Bill of Rights and other federal statutes are treated in ways that are unique. Whereas, in constitutional law, conflicts between the Constitution and an ordinary statute render the ordinary statute void to the extent of the inconsistency, such is not the case where two ordinary statutes conflict with each other. The rules of statutory interpretation govern conflicts between ordinary statutes. By its terms, the Canadian Bill of Rights provides for special rules of statutory interpretation to govern conflicts between itself and ordinary statutes. The Bill of Rights provides that the ordinary statute shall not be "construed or applied" so as to create conflict with the Canadian Bill of Rights. The construction rule is clear: if the statute can be construed in two ways, one of which does not conflict with the Canadian Bill of Rights, the Canadian Bill of Rights directs the courts to adopt that construction. The application rule is more interesting: if the statute cannot be applied such that a conflict with the Canadian Bill of Rights can be avoided, then the application rule directs the courts not to apply the statute. Since the Canadian Bill of Rights is not a constitutional statute in the sense that it renders the conflicting statute void and of no effect, the significance of the statement that the court shall not apply the conflicting statute affects the doctrine of implied repeal.

      Normally, under the rules of statutory interpretation, when a later specific statute conflicts with an earlier general statute, the earlier general statute is impliedly repealed to the extent of the inconsistency. However, the "quasi-constitutional" status of the Canadian Bill of Rights reverses this rule: where the later specific statute conflicts with the Canadian Bill of Rights, it is the later specific statute which is impliedly repealed; it "shall not be applied". In short, to say that the Canadian Bill of Rights is a quasi-constitutional document means, through a specialized mechanism of statutory interpretation, that it exerts a sterilizing force on later specific statutes which conflict with it through a specially created doctrine of statutory interpretation.

Patriation of the Constitution and the Charter

      The Canadian Bill of Rights having been enacted in 1960, the courts had some twenty years of experience with it (before the proclamation of the Charter of Rights). The constitutional writers observed that the courts did not do a particularly good job with this document. It cannot be denied that only one statute was rendered inoperative under this doctrine (see Tarnopolsky, W.S, The Canadian Bill of Rights (Toronto: McClelland and Stewart, 2nd ed. 1975): Because of this anaemic impact many commentators contended that the Canadian Bill of Rights was largely ineffective. This was, in fact, frankly acknowledged by the Supreme Court in Singh, [1985] 1 S.C.R. 177.

      Because civil liberties continued to be imperfectly protected in Canada's constitutional system, many writers and politicians advocated adoption of a constitutionally entrenched Charter of Rights. Prime Minister Trudeau was among the foremost proponents, and efforts in this direction were vigorously made in 1972 at the Victoria Conference, in 1978 with Bill C-60 and at various First Ministers' Conferences in the late 1970s and early 1980s, which led to Patriation in 1982. The question of the entrenchment of a Charter of Rights became a very serious issue in the debate between Ottawa and Quebec. The momentum towards a constitutionally entrenched Charter of Rights became seriously entangled with other constitutional issues concerning attempts to patriate the Canadian Constitution and the ultimate scope of the Canadian Charter of Rights. The Charter was affected by this history, as rights were designed not only in contemplation of an intelligent civil liberties system, but also bargained off against various demands by provincial premiers.