Part 8: The Charter of Rights
The Constitutional supremacy means that the Constitution is supreme over the
parliament and that the parliament can exercise its function being only within the bounds
of the Constitution. Constitutional supremacy is possible only when the constitution is
written and rigid.
The constitutional supremacy is also called judiciary supremacy in the sense that the
judiciary the highest court of the land is supreme over the legislature.
In 1982, with the adoption of the Charter of Rights and Freedoms, part of the
Constitution Act, 1982, the Charter essentially replaced the Bill of Rights, using much of
its language in the sections on fundamental freedoms and legal rights, but going beyond it
to include democratic, linguistic, mobility, egalitarian, and limitedAboriginal rights.
Trudeau wanted to remedy the deficiencies in the Bill of Rights.
But he was also determined to entrench official bilingualism, as well as official minority-
language education rights across the country, in an effort to undercut Quebecs claim that
it represented French Canada.
Moreover, Trudeau hoped to counter centrifugal forces throughout the land and pressures
for general decentralization to the provinces by creating an instrument that the courts
could use to cut down self-serving provincial laws.
As a national symbol, the Charter would also serve to increase the allegiance of all
citizens to the national government.
The Charter is generally a much stronger document than its predecessor.
Besides being broader in scope, the Charter applies equally to both federal and provincial
governments, and being entrenched into the Constitution, it is difficult to amend.
It sates very clearly that the courts are to invalidate any government actions or legislation
that they feel are in conflict with the provisions of the Charter.
Bill of Rights (Canada): an act of Canadian Parliament passed in 1960 that outlined
the basic civil liberties of Canadians but whose defects caused judicial confusion and
limited the bills effectiveness.
Violations of civil liberties that did not also offend the division of powers or rule of law
gave the courts little discretion.
For example, in 1903 case that concerned denial of the vote toAsian in British Columbia
provincial elections, the courts ruled that such electoral matters were entirely within the
jurisdiction of provincial politicians.
Neither did Canadian Blacks find any satisfaction in the courts when they challenged
Although the federal government was generally more sensitive to rights and freedoms
than the provinces were, its record left much to be desired, especially in the case of Aboriginals, women, radical speech, and minorities of various kinds, including its
treatment of citizens of certain ethnocultural origins during the two world wars.
Ottawas internment of Canadian citizens of Japanese extraction during the Second World
War proved both that the federal government was not above reproach and that the courts
could do nothing about it.
Thus, before 1960, both federal and provincial politicians were guilty of violating civil
This fact and the realization that the courts could rarely be counted on to invalidate such
actions persuaded John Diefenbaker to enact the Canadian Bill of Rights in 1960.
He was also influenced, as wee many other states about the same time, by the United
Nationsadoption of Universal Declaration on Human Rights.
The Bill of Rights therefore inaugurated the second era in the protection of rights and
freedoms in Canada.
The documents apparent aim was to allow the courts to invalidate legislation that they
found to conflict with the Bill of Rights, but if so, this aim was not clearly articulated.
The courts were never completely certain if they had been given this power or not.
Other serious gaps in the bill were that is applied only the federal government, not to
provinces; that it allowed legislation to be passed that overrode the bill, as long as this
was acknowledged (not withstanding clause); that as an ordinary piece of legislation, the
bill could be amended when it might be needed most.
Not surprisingly, the courts made limited use of the Bill of Rights.
Only once, the Drybones case of 1970, did they decide that a clause of an act violated the
Bill of Rights and was therefore inoperative.
The Bill was more useful in clarifying legal rights and was referred to in several cases to
fill in gaps in such definitions as what was meant by the right to counsel, the rights to
an interpreter, and the right to a fair hearing.
Several other cases arose regarding violations of rights and freedoms within federal
jurisdiction, but in each case the Court found a way around applying the Bill of Rights.
Provinces occasionally violated civil liberties in the post-1960 period, too but the Bill of
Rights was of even less assistance in these cases.
R.v. Drybones [1970 ] S.C.R. 282
Drybones, a native, was found intoxicated in Yellowknife, while being away from the
In the area of the Northwest Territories he was in, there were no reserves.
He was convicted for this offence, by s.94 of the Indian Act. It held that the fact that there
were no reserves was irrelevant.
Drybones entered a guilty plea when he was first arraigned, though given he spoke no
English, the territorial court, on appeal, decided to allow him to withdraw such a plea, as
he probably could not fully understand what he was doing.
So the appeal proceeded as a trial with a plea of not guilty. Drybones argued that s.94 of the Indian Act infringes the right to equality before the law,
because it makes him guilty of an offence for conduct that would not be punishable if
committed by a non-Indian.
Drybones was than acquitted by the territorial court, which raised the issue that s.94 of
the Indian Act had been deemed inoperative because of the Bill of Rights.
Bliss v. Canada (AG) [1979 ] 1S.C.R. 183
Stella Bliss had to leave her work due pregnancy four days before giving birth.
Due to her situation, under the Unemployment Insurance Act she was not entitle to full
benefits under s.30 of theAct, but rather she was subjected to s.46 which denied her
benefits for a period of six weeks after childbirth.
Bliss challenged the limitation of benefits under s.46 as a violation of s.1 (b) of the Bill of
Rights which protected against discrimination based on sex and ensures the right of the
individual to equality before the law and the protection of the law.
Bliss claimed that the law violated her right to equality before the law.
The employment tribunal rejected her claim; however on appeal to the Supreme Court of
Canada she succeeded, but at the Federal Court ofAppeals the decision was overturned.
The Judge at the Supreme Court of Canada held that the Unemployment Insurance Act
was valid and did not violate the Bill of Rights equality provision.
The Judge said that Unemployment InsuranceAct was a complete code that took into
account the interests of women, also the Bill of Rights guards against sex discrimination;
in this case the discrimination was not against women but pregnant people.
The Judge rejected the argument that s.46 denied equality before the law and found that
the Unemployment InsuranceAct was perfectly valid.
Victoria Charter of 1971 (Fails): The Victoria Charter was a set of proposed
amendments to the Constitution of Canada in 1971. This document represented a failed
attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add
rights and freedoms to it and entrench English and French as Canada's official languages;
he later succeeded in all these objectives in 1982 with the enactment of the Constitution
Goal # 1: Patriate Constitution
Goal # 2: Entrenchment of Bill of Rights
Recognizing the limitations and ambiguities of the Canadian Bill of Rights, and wanting
to incorporate new kind of rights into the Constitution, several politicians, most notably
Pierre Trudeau, attempted to improve it.
Ironically, the midst of this quest, Trudeau invoked the War MeasuresAct in 1970 and
used it not only to fight the terrorist FLQ but also to encroach on the freedom of speech
of innocent, nonviolent Quebec separatists.
Finally, in 1982, with the adoption of the Charter of Rights and Freedom, part of the
Constitution Act, 1982, he accomplished his objective.
The charter essentially replaced the Bill of Rights, using much of its language in the
sections on fundamental freedoms and legal rights, but going beyond it to include
democratic, linguistic, mobility, egalitarian, and limitedAboriginal rights,