Implied bill of rights

The implied bill of rights (déclaration des droits implicite) is a theory in Canadian jurisprudence which proposed that as a consequence of the British North America Act, certain important civil liberties could not be abrogated by the government. The theory was never adopted in a majority decision of the Supreme Court of Canada, and was rejected by the court in 1978. The enactment and interpretation of the statutory Bill of Rights, and later the constitutional Charter of Rights and Freedoms, provided alternative formulations of the limits applicable to civil liberties.

Theory
The concept of an implied bill of rights develops out of Canadian federalism. When provincial legislation intrudes deeply into fundamental freedoms of speech, religion, association or assembly, the provincial legislature is creating criminal legislation, which under the distribution of powers is reserved exclusively to the Parliament of Canada by section 91(27) of the Constitution Act, 1867.

Provinces cannot intrude in this area; if they do, such legislation is void and has no effect. Since provincial prohibitions touching on the fundamental freedoms of speech, religion, assembly and association were declared unconstitutional by the courts, and in light of the expansive obiters in the leading cases, the writers were able to claim that there was a bill of rights implicit in the Constitution.

Some constitutional scholars focus on the Preamble to the Constitution Act, 1867 as providing the underlying reasons for an implied bill of rights. The relevant part of the preamble reads:

"Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom ..."

Some authors have taken the view that the words "similar in principle" means that in Canada there must be a parliamentary system of government, acting under the influence of public opinion, of a free press, with free speech. Thus, legislation which destroyed the citizen's ability to debate, to assemble or to associate freely would be contrary to Canada's democratic parliamentary system of government. This provides an additional underpinning for the claim of an implied bill of rights in Canada's Constitution.

Invoked more often before the Canadian Charter of Rights and Freedoms was enacted, it is nonetheless important when questions of parliamentary supremacy and the override power come into play.

Jurisprudence before 1982
The principal cases describing the extent of the rights are considered to include:


 * Reference Re Alberta Statutes
 * Boucher v the King
 * Winner v SMT (Eastern) Ltd
 * Saumur v Quebec
 * Chaput v Romain
 * Switzman v Elbling
 * Roncarelli v Duplessis

In Alberta Statutes, Duff CJ held that:

the principle that the powers requisite for the protection of the constitution itself arise by necessary implication from The British North America Act as a whole; and since the subject-matter in relation to which the power is exercised is not exclusively a provincial matter, it is necessarily vested in Parliament.

Cannon J agreed, and also stated:

Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law. Every inhabitant in Alberta is also a citizen of the Dominion. The province may deal with his property and civil rights of a local and private nature within the province; but the province cannot interfere with his status as a Canadian citizen and his fundamental right to express freely his untrammelled opinion about government policies and discuss matters of public concern.

While Duff's and Cannon's dicta focused on the competence of the provincial legislatures, Abbott J later stated in Switzman that the same restrictions applied to the Parliament of Canada as well, declaring that "Parliament itself could not abrogate this right of discussion and debate."

The concept was expanded in Winner, which held that citizens were free to move across provincial borders and live wherever they chose to. Roncarelli later held that public officials were subject to the rule of law, and therefore could neither suspend nor dispense it arbitrarily, but must act within their official powers.

Post-Charter
The Supreme Court revisited the implied bill of rights theory in the Provincial Judges Reference. The Court referred to both the Charter and the implied bill of rights theory to rule that governments may not compromise judicial independence. As outlined by the majority the proper function of the implied bill of rights after the adoption of the Charter is to "fill in the gaps" in the express terms of the constitutional texts. However, while the Court stated that the theory was able to fill in the details of judicial independence, the Court actually relied on the Charter to do so. The Court fell short of using the preamble to state new constitutional obligations or limitations. Lamer CJ's extensive obiter did return Canadian constitutional theory to the classical model of rights implicit in the Constitution which was first developed in Alberta Press, Saumur and Switzman, noting:

95. But the preamble does have important legal effects. Under normal circumstances, preambles can be used to identify the purpose of a statute, and also as an aid to construing ambiguous statutory language... The preamble to the Constitution Act, 1867, certainly operates in this fashion. However, in my view, it goes even further. In the words of Rand J, the preamble articulates "the political theory which the Act embodies"... It recognizes and affirms the basic principles which are the very source of the substantive provisions of the Constitution Act, 1867. As I have said above, those provisions merely elaborate those organizing principles in the institutional apparatus they create or contemplate. As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. It is the means by which the underlying logic of the Act can be given the force of law.

The ideas outlined in Provincial Judges were developed further in the Reference re Secession of Quebec. Together these two cases have been interpreted to expand the reach of unwritten constitutional principles. The 1867 preamble and the Canadian Constitution (including its newer addition, the Charter) are read as a unified whole. The express provisions of the Constitution elaborate underlying, organizing principles. These unwritten principles can shape "a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text" and that in "certain circumstances give rise to substantive legal obligations" that "are binding upon both courts and governments."

In Toronto (City) v Ontario (Attorney General), the Supreme Court held that unwritten constitutional principles could not serve as an independent basis to strike down legislation.