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Charter of Rights and Freedoms

Canadians had been debating the viability of a constitutional bill of rights long before the entrenchment of the Charter of Rights and Freedoms in 1982. In 1867, the newly formed Dominion of Canada had virtually no rights built into the Constitution except for a few references to language and denominational education. The fathers of Confederation had little stomach for the constitutional rights favoured by their southern neighbours, and the decision to avoid entrenching a bill of rights was perfectly consistent with the British tradition of parliamentary supremacy. In 1945, Alistair Stewart, recently elected member of the Co-operative Commonwealth Federation (CCF), presented before Parliament the first resolution to create a Canadian bill of rights. In the Regina Manifesto, the CCF’s founding document in 1933, the organization had called for amendments to the Constitution to protect racial and religious minorities, and to offer greater protection for freedom of speech and of association. Only a year before Stewart introduced his motion, the civil liberties subcommittee of the Canadian Bar Association had recommended entrenching certain rights in the Constitution.

Opponents of a bill of rights appealed to notions of Parliamentary supremacy. In the British tradition, Parliament was supreme and could not be overruled by the courts. Unlike England, Canada had a written constitution that was enforced by the courts, but without a bill of rights in the constitution, the primary role of the courts on constitutional matters was to determine jurisdiction (did a particular issue fall within provincial or federal jurisdiction). In other words, when the federal government challenged a 1937 Alberta law that placed restrictions on banking and the press (see Alberta Social Credit Act), the court's responsibility was not to state whether or not the law violated free speech or the right to a free press, but if the law fell under provincial or federal jurisdiction (the court determined that it fell within federal jurisdiction, and therefore declared the provincial law inoperative). Thus, in defending the actions of his government in suspending habeas corpus and other civil liberties in 1946 (see Gouzenko), Minister of Justice J.L. Ilsley claimed that “those principles resulting from Magna Carta, from the Petition of Rights, the Bill of Settlement and Habeas Corpus Act, are great and glorious privileges; but they are privileges which can be and which unfortunately sometimes have to be interfered with by the actions of Parliament or actions under the authority of Parliament." A bill of rights intended to limit Parliamentary supremacy, in Ilsley’s view, threatened to Americanize the Canadian political system. No less than three federal investigations were initiated between 1948 and 1950 to consider the viability of a national bill of rights. In each case, the committees rejected a constitutional amendment.

Over the next few decades opposition to a bill of rights would erode. Alberta attempted
to pass a bill of rights in 1946, but it was struck down by the Supreme Court of Canada. A breakthrough occurred in Saskatchewan in 1947 when the CCF, led by Tommy Douglas, introduced the country’s first Bill of Rights. The Canadian Congress of Labour began advocating for a national bill of rights as early as 1947, and the Trades and Labour Congress followed suit in 1948. Among the few active civil liberties associations in Canada, support for a bill of rights was virtually unanimous. At a December 1946 conference in Toronto to discuss common strategies, civil liberties groups from Ottawa, Montreal, and Toronto all expressed their support for a constitutionally entrenched bill of rights.

The movement for a bill of rights was an important step in acknowledging the compatibility of constitutional rights with the Canadian political system. By 1960, as the Conservative government prepared to enact its own bill of rights, the notion of parliamentary supremacy was waning. Davie Fulton, Diefenbaker’s minister of justice, was not opposed to a constitutional amendment and, in fact, favoured a bill of rights binding on the provinces. In his presentation to the parliamentary committee considering the government’s proposed legislation, Fulton did not resort to appeals to parliamentary supremacy to explain his government’s decision to introduce a statute instead of a proposed constitutional amendment; rather, he discussed the legal and political obstacles to amending the British North America Act. Specifically, Fulton was concerned with the lack of an amending formula and the implications of having Britain amend the Constitution for Canada, which was moving itself out from the shadow of the British Empire. The 1960 federal Bill of RIghts, which purported to empower judges to veto legislation that violated fundamental freedoms such as free speech or due process, was a radical departure from a political tradition in which the courts did not challenge legislation passed by Parliament unless it was beyond the government's jurisdiction. However, the bill proved to be a lame duck, and was weakly enforced by the courts. Frank Scott, perhaps the country's most notable constitutional scholar in the period, disdained the Law: "That pretentious piece of legislation has proven as ineffective as many of us predicted."

In 1970, a Special Committee on the Constitution concluded that “parliamentary sovereignty is no more sacrosanct a principle than is the respect for human liberty which is reflected in a Bill of Rights." The Liberal Party's opposition to a bill of rights shifted in the 1960s, and under Pierre Elliot Trudeau the party actively promoted a constitutional bill of rights. In a speech before a conference of Federal-Provincial First Ministers in 1968, Trudeau called for a constitutionally entrenched bill of rights to “identify clearly the various rights to be protected, and remove them henceforth from governmental interference." In 1982, after extensive negotiations between the federal and provincial governments, and a widespread consultation with Canadians (see Special Joint Committee on the Constitution), the constitution was patriated with an entrenched Charter of Rights and Freedoms.

 

Further Reading

Adams, Eric M. "Building a Law of Human Rights: Roncarelli V Duplessis in Canadian Constitutional Culture." McGill Law Journal 55 (2010): 437-60.

Ajzenstat, Janet. The Canadian Founding: John Locke and Parliament. Montreal: McGill-Queen's University Press, 2007.

Clément, Dominique. Canada’s Rights Revolution: Social Movements and Social Change, 1937-1982. Vancouver: UBC Press, 2008.

James, Matt. Misrecognized Materialists: Social Movements in Canadian Constitutional Politics. Vancouver: UBC Press, 2006.

James B. Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers' Intent (Vancouver: UBC Press, 2005).

Christopher MacLennan, Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960 (Montreal: McGill-Queen’s University Press, 2003).

 

 

 
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©Dominique Clément