Implied bill of rights

The implied bill of rights is a special idea in Canadian law. It suggested that some important freedoms could not be taken away by the government because of the British North America Act. This idea helped shape how Canada protects people's rights today.

Before the Canadian Charter of Rights and Freedoms was created in 1982, Canada did not have strong laws to protect civil rights. The idea of an implied bill of rights was first mentioned in a court decision in 1938 by the Supreme Court of Canada. Even though it was never written into law, it helped influence later important rights like freedom of speech and habeas corpus.

Today, the Charter of Rights and Freedoms is the main law that protects these rights, but the idea of an implied bill of rights is still studied in law schools and helps us understand how Canada's laws about human rights developed over time. It shows how important it is to protect basic freedoms for everyone.

Theory

The idea of an implied bill of rights grew alongside Canadian federalism. Before laws and the Canadian Charter of Rights and Freedoms protected people’s rights, courts in Canada used this idea to guard important freedoms like speaking openly and gathering together. This helped make sure that everyone could share ideas and opinions in a fair way.

When local laws tried to control basic freedoms like speaking, believing, meeting, or gathering, courts said these laws were not allowed. Only the national government could make such laws. This showed that there were important rights built into Canada’s rules, even if they were not written down. Some experts look at the introduction to Canada’s big rule book from 1867 to find reasons for these rights. They believe it means Canada should have a system where people can speak freely and share ideas, just like in the United Kingdom. Even though we now have the Charter, this idea still matters when deciding how powerful laws can be.

History

Further information: Human rights in Canada

Jurisprudence before 1982

In Canadian law, the idea of rights that are understood to be part of the country's rules but not clearly written down came from many court decisions over time.

One important decision was Reference Re Alberta Statutes. In this case, a judge explained that the main rules for protecting the country's system come from the whole British North America Act. Because these rules are not just for one part of the country, they belong to the national government.

Another judge agreed, saying that for a country to work well, people must be able to share ideas and talk about important matters openly, as long as they follow the law. He said that while local governments can handle local matters, they cannot stop people from speaking about national issues or their rights as citizens.

Later, another decision said that even the national government must follow these same rules when discussing and debating important topics.

More decisions added to these ideas. For example, one said that people are free to move and live in any part of the country they choose. Another said that public leaders must follow the rules fairly and cannot ignore them or act beyond their powers.

Post-Charter

After a clear set of rights called the Charter was added to Canada’s rules, the highest court looked again at the idea of unwritten rights. In one case, the court said that these unwritten rights help explain and support the rules that are clearly written down. However, the court mainly used the Charter to make its decision.

One leader of the court talked about how the beginning words of the 1867 rules show important ideas that guide all the written rules. These ideas can help fill in any gaps in the written rules and can sometimes create new rules that both courts and governments must follow.

Two big cases helped grow the use of these unwritten rules. The rules from 1867 and the Charter are now seen together as one whole. The written rules explain deeper ideas that are part of Canada’s system. These deeper ideas can support legal arguments and, in some cases, create new rules that everyone must follow.

In another case, the court said that these unwritten ideas cannot, by themselves, cancel out laws passed by the government.

Notes and references