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 founding fathers had rejected a bill of rights and the only real limits on governments were their jurisdiction of powers as defined by the constitution. In 1944 the Canadian Bar Association, the country's leading legal professional association, called on the federal government to entrench fundamental freedoms in the constitution. A year later, Alistair Stewart, recently elected member of the Cooperative Commonwealth Federation (CCF), presented before Parliament the first resolution to create a Canadian Bill of Rights. The CCF had been calling for entrenching certain rights in the constitution since its founding in 1933. No less than three federal investigations were initiated between 1948 and 1950 to investigate the viability of a national bill of rights. In each case, the committees rejected a constitutional amendment. Canada's constitution, the British North America Act, had been written in 1867 without an amending formula - any changes to the constitution had to be passed by the British Parliament in London. Many policy makers and political leaders felt that an amending formula should be developed before a bill of rights. Opponents of a bill of rights also 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 simply to determine jurisdiction. In other words, if the courts were faced with a law passed by Alberta that placed restrictions on the press (see Alberta Social Credit Act), the responsibility of the court 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 Alberta's jurisdiction under the constitution. 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

Over the next few decades opposition to a bill of rights would erode. In 1960, the federal government under John Diefenbaker passed a Bill of Rights, but as a statute and not a constitutional amendment. The bill proved to be a lame duck, and was weakly enforced by the courts. 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." Under the leadership of Pierre Elliot Trudeau, the Liberals’ position on a bill of rights shifted towards favouring a constitutional amendment. Trudeau’s campaign to lead the Liberals in patriating the constitution and entrenching a Charter of Rights and Freedoms began in 1968 with his first official speech on constitutional rights as Minister of Justice. In a speech before a conference of Federal-Provincial First Ministers in the year of the anniversary of the UDHR, 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 massive consultation with Canadians on the constitution (see Special Joint Committee on the Constitution), the federal government alongside 9 of the 10 provinces (except Quebec), called on the British Parliament to patriate the constitution to Canada. Simultaneously, an amending formula was added to the constitution and a Charter of Rights and Freedoms was also added to the constitution. Since 1982, the Charter has had an immense impact on the social and political life of Canada. It has become an icon for nationalists who use the document to define Canadian 'values', and the Courts have taken an important public-policy making function through decisions on issues such as gay marriage, health care, pay equity and trade union rights.

Further Reading

• Christopher MacLennan, Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960 (Montreal: McGill-Queen’s University Press, 2003).
• James B. Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers' Intent (Vancouver: UBC Press, 2005). (Note: Includes a chapter on the Special Joint Committee on the Constitution, 1980-1).