Implied bill of rights
Template:Short description Template:About-distinguish Template:Constitutional history of Canada The implied bill of rights (Template:Langx) 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.<ref name="AndenæsFairgrieve2015">Template:Cite book</ref>Template:Sfn<ref name="t584">Template:Cite book</ref> 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.<ref name="s860">Template:Cite web</ref><ref name="f930">Template:Cite book</ref> In the 1938 decision of Reference Re Alberta Statutes, a concurring opinion of the Supreme Court of Canada first proposed an implied bill of rights.<ref name="r426">Template:Cite web</ref><ref name="q412">Template:Cite web</ref>
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".<ref name=Bev/> Although implemented in judiciary law and part of required reading in Canadian law schools,<ref>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</ref><ref>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.</ref><ref name="l873">Template:Cite book</ref> the theory was never codified either in legislation or in the constitution by the majority in the Supreme Court of Canada.<ref name="k841">Template:Cite book</ref><ref name="AndenæsFairgrieve2015" /><ref name="x927">Template:Cite book</ref><ref name="g069">Template:Cite book</ref> 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.<ref name="ChurchSchulze2007">Template:Cite book</ref><ref name="l648">Template:Cite web</ref><ref name="q412"/>
Theory
The concept of an implied bill of rights developed alongside Canadian federalism.<ref name="i684">Template:Cite journal</ref>
Beverley McLachlin, the 17th chief justice of Canada, stated:<ref name=Bev>Template:Cite web</ref> Template:Quotation 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.<ref name="Tarnopolsky 1975 p. ">Template:Cite book</ref>
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.Template:Sfn 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.<ref name="Beatty1995">Template:Cite book</ref>
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
Jurisprudence before 1982
In Canadian law, the concept of an implied bill of rights has emerged through various judicial decisions over the years.
- Reference Re Alberta Statutes<ref group="a">Template:Cite BAILII, affirming Template:Cite CanLII</ref>
- Boucher v the King<ref group="a">Template:Cite CanLII</ref>
- Winner v SMT (Eastern) Ltd<ref group="a">Template:Cite BAILII, affirming Template:Cite CanLII</ref>
- Saumur v Quebec<ref group="a">Template:Cite CanLII</ref>
- Chaput v Romain<ref group="a">Template:Cite CanLII</ref>
- Switzman v Elbling<ref group="a">Template:Cite CanLII</ref>
- Roncarelli v Duplessis<ref group="a">Template:Cite CanLII</ref>
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,Template:Sfn declaring that "Parliament itself could not abrogate this right of discussion and debate."<ref>Switzman, p. 328</ref>
The concept was expanded in Winner, which held that citizens were free to move across provincial borders and live wherever they chose to.<ref>Winner (SCC), pp. 919-920</ref> 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.<ref group="a">Template:Cite CanLII</ref> 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.<ref>Provincial Judges, par. 104</ref> 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.<ref>Provincial Judges, par. 107</ref> 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.<ref group="a">Template:Cite CanLII</ref> 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".<ref>Secession Reference, par. 50-54.</ref>
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.<ref>Template:Cite news</ref>