Document Information

Date: 1978-09
By: British Columbia
Citation: British Columbia, British Columbia’s Constitutional Proposals, Paper No. 6 (Victoria: Queen’s Printer, 1978).
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British Columbia’s
Constitutional Proposals

Paper No. 6
A BILL OF RIGHTS AND
THE CONSTITUTION OF CANADA

Province of
British Columbia

INDEX
PAGE
I. Introduction 7
II. Classification of Rights and Freedoms and the Government of
Canada Proposals 9
III. Options for the Province 11
IV. Constitutional Entrenchment: Implications and Concerns 12
V. Conclusion 17

“. . . it should not be assumed that
the court of final resort, in substituting its
value preferences for those of the legisla-
ture, will necessarily be more enlightened
than elected representatives, or arrive at
sounder conclusions, in the process of seek-
ing the best balance or compromise between
the rights of one individual and those of
society as a whole.”

I. INTRODUCTION

According to the preamble to the British North America Act of
1867, Canada was to have a constitution “similar in principle to that
of the United Kingdom.” The central feature of the constitution of the
United Kingdom has been the supremacy of Parliament in the sense of
absence of legal restrictions on the scope of Parliament’s law—making
power.

The principle of parliamentary supremacy has applied as fully in the
area of fundamental rights and freedoms as it has in other areas of the
law. That has meant that protection for such rights and freedoms is to
be found in the ordinary law of the land, which includes the statutory law
enacted by Parliament and the common law principles which have been
gradually developed by the courts on a case-by-case basis over the years.
But whatever the source of a particular right or freedom—from the
Magna Carta of 1215, through the Bill of Rights Act of 1688, to the
most recent statute or court decision—Parliament has the legal power to
enact a new law broadening, restricting, suspending, or even abolishing,
any particular right or freedom as it sees ?t.

This principle of parliamentary supremacy has been adopted in
Canada in that the totality of legislative authority (with a few relatively
minor quali?cations imposed by the terms of the B.N.A. Act) rests with
the elected legislative bodies. Generally speaking, the relevant consti-
tutional question in Canada under our present system is not whether a
particular kind of law can be enacted, but simply whether the constitu-
tion has assigned legislative competence over that kind of law to the
Parliament of Canada or, alternatively, to the provincial legislatures.

In the United States, of course, the situation is different. There the
constitutionally entrenched Bill of Rights has provided the courts with
a mandate to decide that particular kinds of laws are beyond the legis-
lative competence of both the U.S. Congress and the States, by reason
of con?ict with the provisions of the Bill of Rights. When such a legis-
lative determination of unconstitutionality has been made by the U.S.
Supreme Court, legislative authority can only be restored to the legis-
lative branch of government in one of two ways, that is to say, either
by constitutional amendment or by the U.S. Supreme Court deciding in
a subsequent case to reverse its earlier decision. The Constitution of the
United States, therefore, provides an example of a constitutionally
“entrenched” bill of rights.

The Government of Canada has proposed that a charter of rights
and freedoms now be entrenched in the Canadian constitution. The bill
or charter of rights and freedoms, upon being entrenched, would be
binlding upon both the Parliament of Canada and provincial legislatures
arili could not be amended by either acting alone, but only pursuant to
t e constitutional amending procedure. To date a procedure for amend-
ing the Canadian constitution has not been agreed upon. (The proposals
of the Government of British Columbia on the subject of the amendment
of the constitution are contained in Paper No. 9.)

An alternative method of giving formal recognition to fundamental
rights and freedoms is by means of a non-entrenched statutory bill of
rights, applicable only to laws within the jurisdiction of the legislative
body which has enacted the bill of rights. Such a statutory bill of rights
can be amended from time to time, or even repealed, by the same legis-
lative body which has enacted it. Also, the enacting legislature may
provide that a speci?c law shall have effect irrespective of possible
con?ict with the provisions of the statutory bill of rights. At present,
statutory bills of rights are in force in several Canadian jurisdictions.

The Canadian Bill of Rights enacted in 1960, applies only to federal
law. A federal enactment judicially determined to be in con?ict with
the Canadian Bill of Rights is rendered “inoperative”. But Parliament
may immunize any of its enactments from such an attack by expressly
declaring that a particular enactment shall operate notwithstanding the
Canadian Bill of Rights.

Three provinces have enacted bills of rights applicable to their
respective provincial enactments—Saskatchewan, Alberta, and Quebec
—and in each case the bill of rights is subject to being overridden or
repealed by an ordinary provincial statute which speci?cally so provides.

II. CLASSIFICATION OF RIGHTS AND FREEDOMS AND
THE GOVERNMENT OF CANADA PROPOSALS

In the working papers put forward by the Government of Canada
at the time of the constitutional review of 1968-71, rights were grouped
into ?ve broad categories:

(i) Political rights: matters of belief and expression, such as the
freedoms of speech, conscience and religion and of assembly
and association;

(ii) Legal rights: relating to security of the person and of prop-
erty, rights of accused and arrested persons, the right to a
fair hearing, and the like;

(iii) Egalitarian rights: measures prohibiting discrimination on
the basis of criteria such as race, religion and sex;

(iv) Language rights: constitutional guarantees respecting use of
languages, extending the provisions concerning French and
English presently found in s. 133 of the B.N.A. Act, and
other constitutional enactments;

(v) Economic Rights: the conferral of certain economic rights
upon the individual involving positive action by the state,
such as a right to work, a right to protection against unem-
ployment, a right to an adequate standard of living, a right
to education, etc. (Cf. the Universal Declaration of Human
Rights and the United Nations Covenant on Economic,
Social and Cultural Rights).

There is some variety in terminology and in the categorization, of
rights and liberties employed by constitutional authorities. Thus, in
contrast with the sense in which “economic” rights are described in
paragraph (v) above, economic liberties are frequently understood to
include such guarantees as the right to own property, and not to be
deprived of it without due compensation, and freedom of contract.

Further, it may be noted that while most analyses of fundamental
rights and freedoms deal with political, legal, and egalitarian rights,
and with some form of economic rights, it is otherwise with respect to
language rights. This last mentioned category is generally regarded as
raising distinct considerations. Language rights are collective in nature,
and tend to re?ect the make-up of a particular society at a particular
time. Unlike the situation with the other categories of rights and
freedoms, English and American jurisprudence provides little guidance
with respect to the question of language rights. (The proposals of the
Government of British Columbia on language rights are set out in
Paper No. 7).

Federal Government Proposals for Entrenched Rights:

(a) Canadian Charter of Human Rights (1968):

As noted above, the Charter which was put forward in 1968
adopted a classi?cation of ?ve broad categories. It pro-
posed that categories (i) to (iv) be included in the Charter,
but that (v) (economic rights) be excluded due to antici-
pated dif?culty in reaching agreement on the rights to be
guaranteed and concern about feasibility of implementation.

(b) Victoria Charter (1971) :

The Victoria Charter dealt with political rights and lan-
guage rights only, except for the economic rights touched
upon in the context of regional disparities.

(c) Constitutional Amendment Bill (1978):

Part III (Sections 5-29), referred to as the Canadian
Charter of Rights and Freedoms deals with:

—political and legal rights and freedoms (sections 6 and
7), similar to those now found in the Canadian Bill of
Rights;

—new rights having to do with residence, employment and
acquisition and holding of property anywhere within
Canada (section 8);

—nondiscrimination on speci?ed grounds in employment of
the rights referred to above (section 9);

—democratic rights relating to elections, etc. (sections
10-12);

—language rights (sections 13-22).

In this paper no attempt is made to analyze the jurisprudence relat-
ing to the content or extent of speci?c rights or classes of rights, apart
from occasional references to legal developments for illustrative pur-
poses. The focus is on the implications of constitutional entrenchment.

III. OPTIONS FOR THE PROVINCE

The principal policy options which call for consideration are the
following:

(i) Status quo: In British Columbia’s case, that involves con-
tinuing without a provincial bill of rights and, of course,
with no bill of rights entrenched in the Canadian con-
stitution.

(ii) Parallel federal and provincial statutory bills of rights:
Ordinary federal and provincial enactments would be appli-
cable within their respective spheres, subject to being
amended or made inapplicable to another enactment by
Parliament or the provincial legislature, as the case may
be (i.e., no entrenchment). A British Columbia bill might
be modelled on the federal enactment, or one of the three
existing enactments of other provinces, or draw from other
sources.

(iii) Entrenchment of a bill of rights in a new Canadian consti-
tution: This envisages a Charter along the lines of Part III
of the Constitutional Amendment Bill being made applic-
able to both federal and provincial spheres of government,
subject to amendment by a procedure presumably to be set
out in a constitutional amending formula to be agreed upon.

(iv) Deferral of a decision pending further constitutional dis-
cussions: In the McRuer Report it was stated as a “?rm
conclusion” that Ontario ought not to consider agreeing
to any entrenchment of a national Bill of Rights binding
the legislative power of the Province in those ?elds com-
mitted to it until a satisfactory amending process had been
determined and agreed upon (Ontario Royal Commission:
Inquiry into Civil Rights, Report No. 2, Vol. 4 (1969),
at p. 1595). The linkage between this question of entrench-
ment and the amending formula obviously has to do with
the fact that a rigid amending formula may make it next to
impossible to secure a constitutional amendment to restore
a legislative power to Parliament or to a provincial legis-
lature, as the case may be, denied to it by a decision of the
Supreme Court of Canada.

IV. CONSTITUTIONAL ENTRENCHMENT: IMPLICATIONS
AND CONCERNS

As pointed out in the Introduction to this paper, there is a funda-
mental difference between the basic constitutional position in the United
Kingdom and Canada, on the other hand, as compared with that of the
United States on the other. In Canada, or in the United Kingdom,
protection of fundamental rights and freedoms has to date ultimately
rested upon a tradition of respect for civil liberties and reliance upon
the democratic character of our institutions, reinforced by an inde-
pendent judiciary. In the last analysis the principle of parliamentary
sovereignty, which we have inherited from the constitution of the United
Kingdom, means that as between the courts and the legislative bodies,
the latter retain ?nal authority.

It is otherwise in the United States where the courts, interpreting
the constitutionally entrenched Bill of Rights, have the power to declare
certain categories of subjects to lie entirely outside the sphere of possible
legislative action, at either federal or state levels. In that country it is
the courts which have the ?nal say, subject only to amendment of the
constitution. In brief, it is a system based on a sweeping degree of
judicial supremacy.

In that sense, the federal proposal for entrenching a charter of
fundamental rights in the Canadian constitution represents a rejection
of the British model, as heretofore applied in Canada, in favour of
adoption of the American model. The proposal involves a substitution
of judicial supremacy for parliamentary supremacy, and the choice
raises issues both of theory and of a practical nature. Following are
some of the implications and concerns raised by the entrenchment
proposal.

1. Judicial supremacy and democratic theory:

In the McRuer Report referred to above, the issue raised by pro-
posals for an entrenched charter of human rights was characterized as
being whether parliamentary supremacy or judicial supremacy should
prevail at the primary level of social policy decisions and law-making.
The conclusion reached was that normally Parliament should have the
power to overrule the courts and the theoretical question was addressed
in the follows terms (at p. 1568) :

“We do not think that it is consistent with a true concept
of democracy for a court of appointed judges to be able
to make a law with far-reaching effects touching the lives
of everyone in the country with no power in Parliament

to alter it. In the last analysis in such case the power
of ?nal decision may rest on one man casting the deciding
vote in the court of last resort.”

In terms of the McRuer analysis, the question is whether choices
based on value preferences are better made by elected and politically
accountable legislators, or by an appointed judiciary which is not
accountable to the electorate.

2. Judicial policy-making—the problem of in?exibility:

As noted earlier, the ?nding of a court of last resort that a particular
type of legislation is unconstitutional by reason of con?ict with the
provisions of an entrenched Bill of Rights removes that subject matter
from the sphere of possible legislative action unless and until either:

(1) the constitution is amended to restore the legislative authority; or
(2) the court reverses itself in a later case raising a similar issue.

As to the ?rst possibility, constitutional amendment is notoriously
difficult. Since Confederation there have been only three amendments
to the B.N.A. Act affecting the distribution of powers. (These trans-
ferred from the provinces to the Parliament of Canada legislative author-
ity over (i) unemployment insurance; (ii) old age pensions; and (iii)
bene?ts supplementary to pensions.)

With respect to the second possibility, the Supreme Court of Canada
does not have a tradition of reversing itself on constitutional questions
(or, indeed, on any other matter). The pattern has been quite different
insofar as the United States Supreme Court is concerned, that tribunal
having shown a willingness to reverse previous decisions, occasionally
within a relatively short period of time. Accordingly, the Canadian
tradition suggests that greater rigidity would result from judicial inter-
pretation of an entrenched Bill of Rights here than hasbeen experienced
in the United States.

3. Judicial Supremacy as a check on majority will:

The strongest argument in favour of an entrenched Bill of Rights
is that it would enable the courts to protect individuals’ rights by striking
down legislation—federal or provincial—that unduly restricted funda-
mental rights and freedoms. None of these freedoms, of course, are
absolute. Freedom of speech or expressions, for example, would be
included in any list of fundamental freedoms; but that would be quali?ed
by laws relating to libel and slander, sedition, hate literature, fraudulent
or misleading representations, and so on. The task of the law-maker—
whether legislator or judge—is one of weighing competing rights and

interests, of balancing the rights of one individual against those of
another, and against the collective interest of society as a whole. The
task of arriving at the optimal compromise or balance is not always
easy, and typically involves a mix of personal value preferences and an
assessment of social facts.

4. Judicial review: social and economic regulation limiting individual
freedom:

It ought not to be assumed that the court of ?nal appeal, in the
process of weighing competing interests, will be either more “liberal”
or more “conservative” than the legislature at any given time. In
applying broadly stated constitutional clauses dealing with fundamental
rights, the court is less constrained by strict legal guidelines than in other
kinds of litigation and, therefore, enjoys a greater discretion and latitude
for creative law-making. Because the personal philosophies of the
judges play a signi?cant part of the process, it is only to be expected
that the collective or majority opinion of a nine-person court—its centre
of gravity so to speak—will change over time as changes are made in
its personnel.

In this context, it is interesting to note that earlier in this century
the judicial “activism” of the Supreme Court of the United States was
attacked as vigorously by those of a progressive or liberal inclination
as it has been more recently by conservatives. Examples from an earlier
era illustrating the point include:

—the notorious Dred Scott case (1857), in which the Court
applied the due process clause of the Fifth Amendment, as a
guarantee of property rights, holding invalid an Act of Con-
gress excluding slavery from certain U.S. Territories.

—Lochner v. New York (1905), in which the Court struck
down a statute limiting hours of employment in bakeries to
60 hours a week and 10 hours a day, ?nding it to be an
interference with the freedom of contract protected by “due
process”.

—Hammer v. Dagenhart (1918), invalidating legislation aimed
at suppressing child labour in factories where children under
age 14 were employed.

—Adkins v. Children’s Hospital (1923), holding unconstitu-
tional federal legislation which attempted to establish mini-
mum wages for women in the District of Columbia.

Many other examples could be cited from the era extending into
the 1930’s when the Court’s role as defender of individual freedoms
and protector against the “tyranny of the majority” effectively frustrated
important social reforms.

On the other hand, more recently the “Warren Court” drew heavy
criticism from more conservative elements as being too “liberal” in its
approach to social engineering. The immediate point is simply that it
should not be assumed that the court of ?nal resort, in substituting its
value preferences for those of the legislature, will necessarily be more
enlightened than elected representatives, or arrive at sounder conclu-
sions, in the process of seeking the best balance or compromise between
the rights of one individual and those of other individuals and of society
as a whole.

5. Judges drawn into the arena in controversial social issues:

There is a risk of the judiciary, and particularly the court of ?nal
appeal, being subjected to strong criticism as a result of being called
upon to rule on current social issues involving value preferences, par-
ticularly when application of the broad standards of a bill of rights
obviously leaves considerable room for subjective judgment. The
contrast between the United States and Canadian traditions has, of
course, been marked in that respect. In Canada, as in the United
Kingdom, the judiciary up to and including the court of ?nal appeal has
largely been spared the type and degree of public criticism and political
attack that has been a feature of the American system. It is perhaps
not unreasonable to anticipate that the adoption of the U.S. model of
an entrenched bill of rights, with a correspondingly increased role for
the courts, would inevitably bring with it a different public perception
about the role of the judiciary, and the extent to which it can expect to
remain aloof from the political fray.

6. Effectiveness of the courts in social and economic policy-making:

A sound policy-making process obviously involves an assessment
of social facts. A consideration in comparing the respective roles of
legislative bodies and courts is that the former have available to them
greater resources for investigation and research. Legislators may
initiate investigations and conduct extensive research through legislative
committees and staff, and obtain the bene?t of information and analysis
from government departments and agencies, independent researchers,
and public inquiries. In contrast, the courts are largely dependent upon
the material put before them by litigants, and there is little in the
Canadian tradition or practice to encourage legal counsel to attempt to

secure and introduce extensive statistical or other data to illuminate
societal facts. As compared with legislative bodies, that is to say, the
courts typically operate under an informational handicap.

7. Entrenchment as encouraging or discouraging judicial activism:

Generally speaking, the stance of the Supreme Court of Canada
applying the Canadian Bill of Rights to federal legislation has been one
of judicial restraint. Since enactment of the Bill in 1960, there is only
one instance of the Court applying it to render a provision in a federal
enactment inoperative: Drybones (1969). (There have been a few
other cases where the Bill was applied affirming certain legal rights:
Lowry ( 1972) (hearing before sentencing); Brownridge (1972) (access
to counsel before breathalyzer test); Reale (1977) (interpreter for
charge to jury); Leiba (1972) (interpreter at immigration hearing).

It has been suggested that entrenchment of a Bill of Rights in the
constitution would encourage the courts to adopt a more activist
approach by testing other legislation more rigorously against the
standards of an entrenched Bill than they may have been inclined to
do with the statutory Canadian Bill of Rights. The reasoning is that
constitutionalizing the Bill, by enshrining it in the basic constitutional
document, would encourage the courts to take more seriously this type
of judicial review. This argument is open to question. It tends to
overlook the fact that although not part of the B.N.A. Act, the present
Canadian Bill of Rights is generally regarded as one of the documents
which, collectively, make up the Canadian constitution. But more
importantly, it is quite possible that entrenchment would tend to make
the Supreme Court of Canada even more inclined to exercise judicial
restraint (that is, adopt a less activist role) than has been the case with
respect to the Canadian Bill of Rights. At present the court is aware
that if the Parliament of Canada feels su?iciently strongly about the
importance of a particular measure, a judicial decision rendering it
inoperative can be reversed by a simple statutory declaration. With an
entrenched charter, however, the Court would necessarily be mindful
of the fact that the substitution of its value preferences for those of
Parliament could only be set aside by the cumbersome process of consti-
tutional amendment or by the Court reversing itself on a future occasion.
It is certainly possible that this additional rigidity would lead the Court
to be as cautious, if not more so, in invoking the provisions of an
entrenched charter than it has been with respect to the present Canadian
Bill of Rights.

V. CONCLUSION

It will be apparent that many of the concerns relating to entrench-
ment have to do with both theoretical and practical problems attendant
upon casting the members of the Supreme Court of Canada in the role
of super-legislators. A relevant consideration, but as yet an unknown
factor, has to do with the question of an amending formula for the
constitution. And from the provincial viewpoint, concerns have been
expressed that an activist Court might signi?cantly reduce the scope of
legislative action at present available to the provinces (e.g. McRuer
Report).

Many of these concerns and difficulties would be reduced, if not
entirely avoided, through the device of parallel federal and provincial
statutory enactments, that is to say, a federal Bill of Rights applying to
all federal laws (as is presently the case) supplemented by a provincial
Bill of Rights applying to provincial laws. Under such an arrangement
the “last word” remains with the elected members of legislative bodies.

At the same time, a number of the advantages offered by any bill
of rights would be attained. Such a statutory charter can serve an
educative function. It can operate upon the conscience of legislators,
and it is unlikel.y.that any government would take the political risk of
overriding a judicial ?nding of con?ict with a protected freedom without
having very compelling reasons for doing so. The courts would still
have an important role to play by publicly drawing attention to apparent
violations of fundamental rights.

In summary, while the government of British Columbia believes that
appropriate means should be taken to ensure the protection of the tra-
ditional individual rights and freedoms, it seeks the best method by
which this may be achieved. For the reasons stated in this Paper, it
has reservations about entrenching a charter of rights in the Constitution.
Instead it is the view that those rights can best be assured through
appropriate legislative action at both federal and provincial levels.