The Implied Bill of Rights () is a judicial theory in
Canadian
Canadians (french: Canadiens) are people identified with the country of Canada. This connection may be residential, legal, historical or cultural. For most Canadians, many (or all) of these connections exist and are collectively the source of ...
jurisprudence that recognizes that certain basic principles are underlying the
Constitution of Canada
The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
.
The concept of an implied bill of rights develops out of
Canadian federalism
Canadian federalism () involves the current nature and historical development of the federal system in Canada.
Canada is a federation with eleven components: the national Government of Canada and ten provincial governments. All eleven ...
. When provincial legislation intrudes deeply into fundamental freedoms of
speech,
religion
Religion is usually defined as a social- cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relates humanity to supernatural, ...
,
association
Association may refer to:
*Club (organization), an association of two or more people united by a common interest or goal
*Trade association, an organization founded and funded by businesses that operate in a specific industry
*Voluntary associatio ...
or
assembly
Assembly may refer to:
Organisations and meetings
* Deliberative assembly, a gathering of members who use parliamentary procedure for making decisions
* General assembly, an official meeting of the members of an organization or of their representa ...
, 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
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
''.
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.
Some constitutional scholars focus on the
Preamble to the Constitution Act, 1867
The Preamble to the ''Constitution Act, 1867'' (french: Préambule de la Loi constitutionnelle de 1867) is a provision of the Constitution of Canada, setting out some of the general goals and principles of the Act. Although not itself a substa ...
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.
Invoked more often before the ''
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...
'' was enacted, it is nonetheless important when questions of
parliamentary supremacy
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
and the override power come into play.
History
Jurisprudence before 1982
The principal cases describing the extent of the rights are considered to include:
* ''
Reference Re Alberta Statutes
''Reference Re Alberta Statutes'', also known as the Alberta Press case and the Alberta Press Act Reference, is a landmark reference of the Supreme Court of Canada where several provincial laws, including one restricting the press, were struck dow ...
''
[, affirming ]
* ''
Boucher v the King''
* ''
Winner v SMT (Eastern) Ltd''
[, affirming ]
* ''
Saumur v Quebec''
* ''
Chaput v Romain Chaput is a surname of French origin. It may refer to:
*Charles J. Chaput, Roman Catholic archbishop emeritus of Philadelphia
*Henri Chaput, French surgeon
*Jean Chaput, French World War I flying ace
* Jean Marc Chaput, Canadian politician
*Marcel ...
''
* ''
Switzman v Elbling''
* ''
Roncarelli v Duplessis
''Roncarelli v. Duplessis'', 959S.C.R. 121, was a landmark constitutional decision of the Supreme Court of Canada. The court held that in 1946 Maurice Duplessis, both Premier and Attorney General of Quebec, had overstepped his authority by o ...
''
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."
The concept was expanded in ''Winner'', which held that citizens were free to move across provincial borders and live wherever they chose to. ''Roncarelli'' later held that public officials were subject to the
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
, 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
The ''Reference re Remuneration of Judges of the Provincial Court (P.E.I.)'' 9973 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of pro ...
''.
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. 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. The Court fell short of using the preamble to state new constitutional obligations or limitations.
Lamer CJ's extensive ''
obiter
''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "other things said",''Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, a remark in a legal opinion that is "said in passing" by any judge or arbi ...
'' 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
''Reference Re Secession of Quebec'', 9982 SCR 217 is a landmark judgment of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada.
Both the Quebec governme ...
''.
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."
In
Toronto (City) v Ontario (Attorney General)
''Toronto (City) v Ontario (Attorney General)'', 2021 SCC 34, is a landmark decision of the Supreme Court of Canada on freedom of expression and unwritten constitutional principles. By a 5–4 majority, the court held that the Government of Ontari ...
, the Supreme Court held that unwritten constitutional principles could not serve as an independent basis to strike down legislation.
Notes and references
Notes
Notable cases
References
Further reading
*
*
*
{{Constitution of Canada, interpretation
Constitution of Canada
National human rights instruments