Implied bill of rights explained

The implied bill of rights is a theory in Canadian jurisprudence which proposed that as a consequence of the British North America Act, certain important civil liberties could not be abrogated by the government.[1] [2] The significance of an implied bill of rights has decreased since the adoption of the Canadian Charter of Rights and Freedoms, an entrenched written bill of rights, but remains important for understanding the evolution of Canadian human rights law and the Constitution of Canada.[3] [4] In the 1938 decision of Reference Re Alberta Statutes, the Supreme Court of Canada first recognized an implied bill of rights.[5] [6]

The rights and freedoms that are protected under the Charter, including the rights to freedom of speech, habeas corpus, and the presumption of innocence, have their roots in a set of Canadian laws and legal precedents related to "implied rights". Although implemented in judiciary law and part of required reading in Canadian law schools,[7] [8] [9] the theory was never codified either in legislation or in the constitution by the majority in the Supreme Court of Canada.[10] [11] [12] Prior to the advent of the Canadian Bill of Rights in 1960 and its successor the Charter of Rights and Freedoms in 1982, the laws of Canada did not provide much in the way of civil rights and it was typically of limited concern to the courts.[13] [14] [6]

Theory

The concept of an implied bill of rights developed alongside Canadian federalism.[15]

Beverley McLachlin the 17th chief justice of Canada stated:[16] When provincial legislation intrudes deeply into fundamental freedoms of speech, religion, association or assembly, the provincial legislature is creating criminal legislation, which under the distribution of powers is reserved exclusively to the Parliament of Canada by section 91(27) of the Constitution Act, 1867.

Provinces cannot intrude in this area; if they do, such legislation is void and has no effect. Since provincial prohibitions 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.[17]

Some constitutional scholars focus on the Preamble to the Constitution Act, 1867 as providing the underlying reasons for an implied bill of rights. The relevant part of the preamble reads:

Some authors have taken the view that the words "similar in principle" means that in Canada there must be a parliamentary system of government, acting under the influence of public opinion, of a free press, with free speech. Thus, legislation which destroyed the citizen's ability to debate, to assemble or to associate freely would be contrary to Canada's democratic parliamentary system of government. This provides an additional underpinning for the claim of an implied bill of rights in Canada's Constitution.[18]

Invoked more often before the Canadian Charter of Rights and Freedoms was enacted, it is nonetheless important when questions of parliamentary supremacy and the override power come into play.

History

See also: Human rights in Canada.

Jurisprudence before 1982

In Canadian law, the concept of an implied bill of rights has emerged through various judicial decisions over the years.

In Alberta Statutes, Duff CJ held that:

Cannon J agreed, and also stated:

While Duff's and Cannon's dicta focused on the competence of the provincial legislatures, Abbott J later stated in Switzman that the same restrictions applied to the Parliament of Canada as well, declaring that "Parliament itself could not abrogate this right of discussion and debate."[26]

The concept was expanded in Winner, which held that citizens were free to move across provincial borders and live wherever they chose to.[27] Roncarelli later held that public officials were subject to the rule of law, and therefore could neither suspend nor dispense it arbitrarily, but must act within their official powers.

Post-Charter

The Supreme Court revisited the implied bill of rights theory in the Provincial Judges Reference.[28] 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 the proper function of the implied bill of rights after the adoption of the Charter is to "fill in the gaps" in the express terms of the constitutional texts.[29] However, while 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.[30] The Court fell short of using the preamble to state new constitutional obligations or limitations. Lamer CJ's extensive obiter did return Canadian constitutional theory to the classical model of rights implicit in the Constitution which was first developed in Alberta Press, Saumur and Switzman, noting:

The ideas outlined in Provincial Judges were developed further in the Reference re Secession of Quebec.[31] Together these two cases have been interpreted to expand the reach of unwritten constitutional principles. The 1867 preamble and the Canadian Constitution (including its newer addition, the Charter) are read as a unified whole. The express provisions of the Constitution elaborate underlying, organizing principles. 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."[32]

In Toronto (City) v Ontario (Attorney General), the Supreme Court held that unwritten constitutional principles could not serve as an independent basis to strike down legislation.[33]

Notes and references

References

Further reading

Notes and References

  1. Book: Mads Tønnesson Andenæs . Duncan Fairgrieve . 2015 . Courts and Comparative Law . Oxford University Press . 381– . 978-0-19-873533-5 . 1034568354 .
  2. Book: MacLennan, C. . Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960 . McGill-Queen's University Press . 2003 . 978-0-7735-7100-6 . Sep 14, 2024 . 132.
  3. Web site: Canadian Wrongs: Jehovah's Witnesses and the Era of Rights · Canadian Law and Canadian Identity · Exhibits. 2024-09-13.
  4. Book: Greene . I. . Russell . P.H. . The Charter of Rights . James Lorimer Limited, Publishers . Canadian issues series . 1989 . 978-1-55028-185-9 . Sep 14, 2024 . 20.
  5. Web site: Unwritten Constitutional Principles: What is Going On? . Supreme Court of Canada . Sep 4, 2008 . Sep 14, 2024.
  6. Web site: Charter. . the . Human Rights and the Courts in Canada (BP-279E) . Publications du gouvernement du Canada . Apr 1, 2001 . Sep 14, 2024.
  7. Jonathon W Penney, Ivan Rand's Ancient Constitutionalism, 2010 34-1&2 Manitoba Law Journal 43, 2010 CanLIIDocs 229, Even today, the judicial work of (Ivan Rand) “one of the greatest— if not the greatest— jurists in Canadian history” remains required reading in law schools; and many of his most important decisions retain a central place in the minds of judges and legal commentators. For example, his judgments in the so-called “implied bill of rights” cases were called the Supreme Court of Canada’s “most distinguished achievements,” “the ‘golden’ moments of the civil liberties decade” and the theory of implied rights described as “valuable”, “one of the most original and provocative contributions ever made to Canadian constitutional law
  8. Eric H Cline et al, Case Comments: Whither the Implied Bill of Rights? - A.G. Canada and Dupond v. The City of Montreal, Saskatchewan Law Review 137, 1980 CanLIIDocs 227,Much of the concern has focused on the court's changing approach to the Bill of Rights, but the Bill or Rights is not the only protection for civil liberties which has been recognized by the Supreme Court. Switzmann v. Elbing, and Saumur v. Attorney General for Quebec, the leading civil liberties decisions of the 1950's, rested in part on a doctrine created by the court itself: the implied Bill of Rights.
  9. Book: Hirschl, R. . Towards Juristocracy: The Origins and Consequences of the New Constitutionalism . Harvard University Press . 2009 . 978-0-674-03867-7 . Sep 14, 2024 . 75.
  10. Book: Kincaid . J. . Tarr . A. . Constitutional Origins, Structure, and Change in Federal Countries . McGill-Queen's University Press . Global Dialogue on Federalism Booklet Series . 2005 . 978-0-7735-7255-3 . Sep 14, 2024 . 128.
  11. Book: Morton, F.L. . Law, Politics and the Judicial Process in Canada . University of Calgary Press . 2002 . 978-1-55238-046-8 . Sep 14, 2024 . 482.
  12. Book: Clément, D. . Human Rights in Canada: A History . Wilfrid Laurier University Press . Laurier Studies in Political Philosophy . 2016 . 978-1-77112-164-4 . Sep 14, 2024 . 62.
  13. Book: Joan Church. Christian Schulze. Hennie Strydom. Human rights from a comparative and international law perspective. 2007. Unisa Press. 978-1-86888-361-5. 82.
  14. Web site: Canadian Wrongs: Jehovah's Witnesses and the Era of Rights · Canadian Law and Canadian identity. Sep 10, 2024. Trinity College, TRN 304Y "Law & Social Issues", University of Toronto Libraries.
  15. Adams . Eric M. . Judging the Limits of Cooperative Federalism . The Supreme Court Law Review: Osgoode's Annual Constitutional Cases Conference . 76 . 1 . 2016-01-01 . 2563-8505 . 10.60082/2563-8505.1327 . free .
  16. Web site: McLachlin . Beverly . Beverley McLachlin. Human Rights Protection in Canada . " Osgoode Hall Review of Law and Policy . Jun 30, 2014 .
  17. Book: Tarnopolsky, W.S. . The Canadian Bill of Rights . McGill-Queen's University Press . Carleton Library Series . 1975 . 978-0-7735-9543-9 . ixx.
  18. Book: David M. Beatty . 15 December 1995 . Constitutional Law in Theory and Practice . University of Toronto Press . 978-1-4426-5517-1 . 1055585997 .
  19. Attorney General of Alberta v Attorney General of Canada. UKPC. 1938. 46. 1. 14 July 1938. P.C.., affirming Reference Re Alberta Statutes - The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurante News and Information Act. 1938. scc. 1. canlii. [1938] SCR 100. 4 March 1938. auto.
  20. Boucher v the King. R v Boucher. 1950. scc. 2. canlii. [1951] SCR 265. 1950-12-18. auto.
  21. Israel Winner (doing business under the name and style of Mackenzie Coach Lines) and others v SMT (Eastern) Limited and others. UKPC. 1954. 8. 22 February 1954. P.C.. 1., affirming Winner v SMT (Eastern) Ltd. 1951. scc. 2. canlii. [1951] SCR 887. 22 October 1951. auto.
  22. Saumur v City of Quebec. Saumur v Quebec (City of). 1953. scc. 3. canlii. [1953] 2 SCR 299. 1953-10-06. auto.
  23. Chaput v Romain. Chaput v Romain. 1955. scc. 74. canlii. [1955] SCR 834. 1955-11-15. auto.
  24. Switzman v Elbling and Attorney-General of Quebec. Switzman v Elbling. 1957. scc. 2. canlii. [1957] SCR 285. 1957-03-08. auto.
  25. Roncarelli v Duplessis. Roncarelli v Duplessis. 1959. scc. 50. canlii. [1959] SCR 121. 1959-01-27. auto.
  26. Switzman, p. 328
  27. Winner (SCC), pp. 919-920
  28. Reference re Remuneration of Judges of the Provincial Court of PEI; Reference re Independence and Impartiality of Judges of the Provincial Court of PEI. Provincial Judges Reference. 1997. scc. 317. canlii. [1997] 3 SCR 3. 1997-09-18. auto.
  29. Provincial Judges, par. 104
  30. Provincial Judges, par. 107
  31. Reference re Secession of Quebec. Reference re Secession of Quebec. 1998. scc. 793. canlii. [1998] 2 SCR 217. 1998-08-20. auto.
  32. Secession Reference, par. 50-54.
  33. News: Loriggio. Paola. 2021-10-02. Supreme Court rules Doug Ford's slashing of Toronto city council in 2018 was constitutional. en. National Post. 2022-01-06.

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