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CONSTITUTIONAL LAW

31 RIGHTS: ANTECEDENTS OF THE CHARTERShigenori Matsui

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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?

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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

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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

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Roncarelli v. Duplessis [1959]

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“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.”

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“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..”

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Limits of giving protection as a common law right

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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.

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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]

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“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.”

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“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.”

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Yet, the Privy Council denied that possibility in subsequent cases.

Cunningham v. Tomey Homma [1903]

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“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.”

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“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.”

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Quong Wing v. The King, 49 SCR 440 (1914)

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“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.””

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“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.”

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Co-operative Committee on Japanese Canadians v. AG Canada [1947]

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“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. ”

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“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. ”

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“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.”

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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?

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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.

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Reference re Alberta Statutes [1938]

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“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 counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals. ”

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“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.”

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Saumur v. City of Quebec [1953]

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“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.”

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Switzman v. Elbling [1957]

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“…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....”

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“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.”

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Yet, the Supreme Court of Canada later came to deny the implied bill of rights doctrine.

Dupond v. City of Montreal [1978]

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“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…”

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“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.”

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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?

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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.

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“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 (f) freedom of the press.”

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“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…”

R. v. Drybones [1970]

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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?

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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?