When Canada was created in 1867 it was a part of the British Empire and inherited the British system of rights and freedoms guaranteed by tradition and interpreted through legal decision. The British North America Act, the country's first constitution, had no listing of the rights and freedoms of Canadian citizens. The Fathers of Confederation assumed that Canadian courts, like British courts, would take into account the long British common law tradition. Judges would make appropriate decisions about rights and freedoms by reviewing legal precedent set in court cases over a period of almost 800 years. If a judge made a poor decision, then the government or the individual could appeal to a higher court. That appeal could take a person all the way to the Judicial Committee of the Privy Council in the United Kingdom, the final court of appeal for Canadians until 1949. In that year, Canada abolished appeals beyond the Canadian Supreme Court. Henceforth, decisions about Canadian rights and freedoms would be based on Canadian issues, although still influenced by British traditions.
"'Getting a Big Boy Now' or Young Canada Learning to Walk."
British traditional rights emphasized freedoms to own property, freedom of speech, and freedom from unreasonable arrest or interference from the government. In practice, these rights were far more limited than in the present day, since the courts accepted many limitations on individual rights in favour of collective rights -- the right of the government, police, and courts to make decisions for the common good.
Nevertheless, the fundamental principles that underlie the constitutions of Canada, the United States, Australia, and many other countries all grew out of British tradition.
Gradually, the courts moved towards more restrictions on collective rights, tipping the balance in favour of individuals. But many Canadians believed that the government could still take these individual rights away because they were not embodied in legal statute. (Statute law is the body of written law that has been passed by the government.)
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In 1960, the Government of Canada, led by the Prime Minister, John G. Diefenbaker, passed the Canadian Bill of Rights. It formally recognized the rights already held by Canadians under common law.
While Canadians generally applauded the passage of the Bill of Rights, many argued that it was insufficient and that it was diluted by later court decisions. The Bill of Rights was a piece of legislation and could be changed at any time by the Canadian government. Thus, the rights of Canadians were not secure.
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Pierre Elliott Trudeau, the Prime Minister of Canada from 1968 to 1979 and again from 1980 to 1984, held this view. He argued that the rights of Canadians should be given special protection by being included or entrenched in the constitution of the country. When the Charter of Rights and Freedoms was made law in 1982, it became the set of rules to which all politicians referred when creating laws and all judges, when deciding what those laws meant. As part of the Canadian constitution, the Charter could only be changed, or amended, if the federal government and seven of the provinces agreed. Provinces, however, retained the right to override the Charter under certain circumstances. Thus, changing the Charter would be very difficult.
The Supreme Court of Canada has taken the lead in defining what the Charter says about the protection of the rights and freedoms of our citizens, especially legal rights and equality rights, and in determining what those rights mean to Canadians in everyday life.
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