CONSTITUTIONAL
LAW
31 RIGHTS:
ANTECEDENTS OF
THE CHARTER
Shigenori Matsui
1
INTRODUCTION
 The Charter of Rights and Freedoms was
enacted in 1982. Yet, it has not emerged
suddenly. There are antecedents to the
Charter.
 Why was there any need to enact the
Charter? Wasn’t there any other possibility of
protecting individual rights without the
Charter?
 What are the merits of having the Charter?
2
I COMMON LAW RIGHTS
 Even before the enactment of the Charter, the
courts have recognized common law rights
and sometimes gave protection against
arbitrary infringement.
 The concept of rule of law
3
 Dicey A.V.: 3 principles of rule of law
 1 no man is punishable or can be lawfully made to
suffer in body or goods except for a distinct breach of
law established in the ordinary legal manner before
the ordinary Courts of the land
 2 every man, whatever be his rank or condition, is
subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunal
 3 the general principles of the constitution are with us
the result of judicial decisions determining the rights
of private persons in particular cases brought before
the Courts
4
 Roncarelli v. Duplessis [1959]
5
 “It is a matter of vital importance that a public
administration that can refuse to allow a person to
enter or continue a calling which, in the absence of
regulation, would be free and legitimate, should be
conducted with complete impartiality and integrity;
and that the grounds for refusing or cancelling a
permit should unquestionably be such and such only
as are incompatible with the purposes envisaged by
the statute: the duty of a Commission is to serve
those purposes and those only. A decision to deny or
cancel such a privilege lies within the "discretion" of
the Commission; but that means that decision is to be
based upon a weighing of considerations pertinent to
the object of the administration.”
6
 “To deny or revoke a permit because a citizen
exercises an unchallengeable right totally irrelevant
to the sale of liquor in a restaurant is equally beyond
the scope of the discretion conferred. There was here
not only revocation of the existing permit but a
declaration of a future, definitive disqualification of
the appellant to obtain one: it was to be "forever".
This purports to divest his citizenship status of its
incident of membership in the class of those of the
public to whom such a privilege could be extended.
Under the statutory language here, that is not
competent to the Commission and a fortiori to the
government or the respondent..”
7
 Limits of giving protection as a common law
right
8
II FEDERALISM
 Federalism could be construed as a barrier
against arbitrary infringement of rights at least
by the provinces.
 In the U.S., there was no bill of rights in the
United States Constitution. The framers
believed that the bill of rights was
unnecessary and dangerous. They believed
that the federalism was the key to the
protection of individual rights.
9
 The Privy Council showed its willingness to
employ federalism principle as a barrier
against arbitrary infringement of rights by the
provinces.
 Union Colliery Co. v. Bryden [1899]
10
 “Every alien when naturalized in Canada becomes,
ipso facto, a Canadian subject of the Queen; and his
children are not aliens, requiring to be naturalized,
but are natural-born Canadians. It can hardly have
been intended to give the Dominion Parliament the
exclusive right to legislate for the latter class of
persons resident in Canada; but s. 91, sub-s. 25,
might possibly be construed as conferring that power
in the case of naturalized aliens after naturalization.
The subject of "naturalization" seems primâ facie to
include the power of enacting what shall be the
consequences of naturalization, or, in other words,
what shall be the rights and privileges pertaining to
residents in Canada after they have been
naturalized.”
11
 “Their Lordships see no reason to doubt that, by
virtue of s. 91, sub-s. 25, the legislature of the
Dominion is invested with exclusive authority in all
matters which directly concern the rights, privileges,
and disabilities of the class of Chinamen who are
resident in the provinces of Canada. They are also of
opinion that the whole pith and substance of the
enactments of s. 4 of the Coal Mines Regulation Act,
in so far as objected to by the appellant company,
consists in establishing a statutory prohibition which
affects aliens or naturalized subjects, and therefore
trench upon the exclusive authority of the Parliament
of Canada.”
12
 Yet, the Privy Council denied that possibility
in subsequent cases.
 Cunningham v. Tomey Homma [1903]
13
 “The first observation which arises is that the
enactment, supposed to be ultra vires and to be
impeached upon the ground of its dealing with
alienage and naturalization, has not necessarily
anything to do with either. A child of Japanese
parentage born in Vancouver City is a natural-born
subject of the King, and would be equally excluded
from the possession of the franchise.”

The truth is that the language of that section
does not purport to deal with the consequences of
either alienage or naturalization.”
14
 “This Board, dealing with the particular facts of that
case, came to the conclusion that the regulations
there impeached were not really aimed at the
regulation of coal mines at all, but were in truth
devised to deprive the Chinese, naturalized or not, of
the ordinary rights of the inhabitants of British
Columbia and, in effect, to prohibit their continued
residence in that province, since it prohibited their
earning their living in that province. It is obvious that
such a decision can have no relation to the question
whether any naturalized person has an inherent right
to the suffrage within the province in which he
resides.”
15
 Quong Wing v. The King, 49 SCR 440 (1914)
16
 “The legislation under review does not, in this view,
trespass upon the exclusive power of the Dominion
legislature. It does deal with the subject-matter of
"property and civil rights" within the province,
exclusively assigned to the provincial legislatures,
and so dealing cannot be held ultra vires, however
harshly it may bear upon Chinamen, naturalized or
not, residing in the province.. … Once it is decided
that the subject-matter of the employment of white
women is within the exclusive powers of the
provincial legislature and does not infringe upon any
of the enumerated subject-matters assigned to the
Dominion, then such provincial powers are plenary.””
17
 “The prohibition against the employment of
white women was not aimed at alien
Chinamen simply or at Chinamen having any
political affiliations. It was against "any
Chinaman" whether owing allegiance to the
rulers of the Chinese Empire, or the United
States Republic, or the British Crown. In other
words, it was not aimed at any class of
Chinamen, or at the political status of
Chinamen, but at Chinamen as men of a
particular race or blood, and whether aliens
or naturalized.”
18
 Co-operative Committee on Japanese
Canadians v. AG Canada [1947]
19
 “On certain general matters of principle there is not,
since the decision in Fort Frances Pulp & Power Co.
v. Manitoba Free Press Co., any room for dispute.
Under the British North America Act property and civil
rights in the several Provinces are committed to the
Provincial legislatures, but the Parliament of the
Dominion in a sufficiently great emergency, such as
that arising out of war, has power to deal adequately
with that emergency for the safety of the Dominion as
a whole. The interests of the Dominion are to be
protected and it rests with the Parliament of the
Dominion to protect them. What those interests are
the Parliament of the Dominion must be left with
considerable freedom to judge. ”
20
 “As a matter of language, their Lordships take the
view that "deportation" is not a word which is misused
when applied to persons not aliens. … In the present
case the Act is directed to dealing with emergencies;
throughout it is in sweeping terms, and the word is
found in the combination "arrest, detention, exclusion
and deportation." As regards the first three of these
words, nationality is obviously not a relevant
consideration. The general nature of the Act and the
collocation in which the word is found, establish, in
their Lordships' view, that in this statute the word
"deportation" is used in a general sense and as an
action applicable to all persons irrespective of
nationality. ”
21
 “There remains one further question of construction
of The War Measures Act, namely, whether it
authorized the making of an order which provided
that deported persons should cease to be either
British subjects or Canadian nationals. … They see
no reason for excluding from the scope of the matters
covered by the general power contained in s. 3 a
power to take from persons who have in fact under
an order for deportation left Canada their status
under the law of Canada as British subjects and
Canadian nationals.”
22
 To what extent the federalism principle could
be used against arbitrary infringement of
rights? Why did the Privy Council refuse to
give protection to Chinese and Japanese?
Was there any room for alternative
interpretation?
23
III IMPLIED BILL OF RIGHTS
 The Supreme Court of Canada in series of
cases held that provincial laws that interfered
with fundamental freedoms were ultra vires
and were invalid. This doctrine could be
called as the implied bill of right.
24
 Reference re Alberta Statutes [1938]
25
 “The statute contemplates a parliament
working under the influence of public opinion
and public discussion. There can be no
controversy that such institutions derive their
efficacy from the free public discussion of
affairs, from criticism and answer and
counter-criticism, from attack upon policy and
administration and defence and counterattack; from the freest and fullest analysis and
examination from every point of view of
political proposals. ”
26
 “Any attempt to abrogate this right of public debate or to
suppress the traditional forms of the exercise of the right
(in public meeting and through the press) would, in our
opinion, be incompetent to the legislatures of the
provinces, or to the legislature of any one of the
provinces, as repugnant to the provisions of The British
North America Act, by which the Parliament of Canada is
established as the legislative organ of the people of
Canada under the Crown, and Dominion legislation
enacted pursuant to the legislative authority given by
those provisions. The subject matter of such legislation
could not be described as a provincial matter purely; as in
substance exclusively a matter of property and civil rights
within the province, or a matter private or local within the
province.”
27
 Saumur v. City of Quebec [1953]
28
 “That legislation "in relation" to religion and its
profession is not a local or private matter
would seem to me to be self-evident: the
dimensions of this interest are nationwide; it
is even today embodied in the highest level of
the constitutionalism of Great Britain; it
appertains to a boundless field of ideas,
beliefs and faiths with the deepest roots and
loyalties; a religious incident reverberates
from one end of this country to the other, and
there is nothing to which the "body politic of
the Dominion" is more sensitive.”
29
 Switzman v. Elbling [1957]
30
 “…the political theory which the Act embodies
is that of parliamentary government, with all
its social implications, and the provisions of
the statute elaborate that principle in the
institutional apparatus which they create or
contemplate. Whatever the deficiencies in its
workings, Canadian government is in
substance the will of the majority expressed
directly or indirectly through popular
assemblies. This means ultimately
government by the free public opinion of an
open society....”
31
 “Under that government, the freedom of
discussion in Canada, as a subject-matter of
legislation, has a unity of interest and
significance extending equally to every part of
the Dominion. With such dimensions it is ipso
facto excluded from head 16 as a local
matter.
 Prohibition of any part of this activity as an
evil would be within the scope of criminal law,
as ss. 60, 61 and 62 of the Criminal Code
dealing with sedition exemplify.”
32
 Yet, the Supreme Court of Canada later came
to deny the implied bill of rights doctrine.
 Dupond v. City of Montreal [1978]
33
 “None of the freedoms referred to is so
enshrined in the Constitution as to be above
the reach of competent legislation.
 None of those freedoms is a single matter
coming within exclusive federal or provincial
competence. Each of them is an aggregate of
several matters which, depending on the
aspect, come within federal or provincial
competence…”
34
 “The holding of assemblies, parades or
gatherings on the public domain is a matter
which, depending on the aspect, comes
under federal or provincial competence and
falls to be governed by federal and provincial
legislation such as the Criminal Code, laws
relating to picketing, civil laws, municipal
regulations and the like including s. 5 of the
impugned By-law and the Ordinance passed
pursuant to it.”
35
 The High Court of Australia has developed
the doctrine of implied freedom of political
communication.
 Why was the Supreme Court of Canada
reluctant to admit the similar implied bill of
rights doctrine?
 To what extent such doctrine could be useful
to give protection to individual rights?
36
IV CANADIAN BILL OF RIGHTS
 The Canadian Bill of Rights was enacted in
1960. It was meant to give protection to
individual rights by an ordinary statute.
37
 “It is hereby recognized and declared that in
Canada there have existed and shall continue
to exist without discrimination by reason of
race, national origin, colour, religion or sex,
the following human rights and fundamental
freedoms, namely,






(a) the right of the individual to life, liberty, security of
the person and enjoyment of property and the right not
to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law
and the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and of association; and
38
(f) freedom of the press.”
 “Every law of Canada shall, unless it is
expressly declared by an Act of Parliament of
Canada that it shall operate notwithstanding
the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or
infringe or to authorize the abrogation,
abridgment or infringement of any of the
rights or freedoms herein recognized and
declared…”
39
 R. v. Drybones [1970]
 However, the Supreme Court of Canada was
not willing to enforce this statute vigorously,
to the disappointment of many supporters.
 What went wrong? Why it was not an
effective barrier against arbitrary
infringement?
41
 The Canadian Bill of Rights is still valid and
could be useful in limited circumstances.
 What are the merits of entrenching the
Charter and giving protection to individual
rights by the Constitution?
42