IV.

Origins

The Canadian Charter of Rights and Freedoms was enacted as part of the Constitution Act of 1982. Prior to the charter’s implementation, Canadians had few constitutionally guaranteed rights. The British tradition of parliamentary sovereignty allowed parliament to pass almost any law it deemed appropriate. Canada’s legislatures were not compelled by law to respect individual or group liberties.

The charter was preceded by several pieces of legislation that granted limited civil liberties to Canadians. The Constitution Act of 1867 provided some protection for minority language rights. In 1960 the federal government passed a Bill of Rights, but because it was an ordinary statute without constitutional status it could be overridden by other legislation. In a series of cases during the 1960s and 1970s, the Supreme Court of Canada did little to promote the Bill of Rights.

The idea of a constitutionally entrenched charter emerged as a response to the failings of the Bill of Rights and as part of negotiations between the federal government led by Prime Minister Pierre Elliot Trudeau and the provinces to revise the Canadian constitution. Trudeau wanted to remove long-standing provisions that required Canada to get British approval before making changes to its constitution. This effort to patriate the Canadian constitution was opposed by some provincial leaders because they feared an expansion of federal power. Others opposed the charter because it departed from the tradition of parliamentary sovereignty and because it would give substantial power to unelected judges. Trudeau believed that the charter would help to get the general public to support him against the provincial premiers. In the 1970s and early 1980s, women, aboriginal peoples, and minorities worked to shape the proposed charter. As a result, the charter explicitly acknowledges their rights and equality.