Legal History

Lecture 6

Professor John Allen

Learning Objectives
● This Lecture - Patriation and The Canadian Charter of Rights, 1982

● Course themes - Three Founding Nations - First half of course:

○ How were First Nations interests accommodated, if at all?
○ How were French interests accommodated, if at all?
○ How were English commercial interests accommodated?
○ How are these conflicts reflected in Canada’s constitution?

● Midterm exam - It will be an online, Blackboard, essay question. You will have three
hours to write the test. You can choose any three-hour time slot between 1:30 p.m. on
Tuesday, October 17th, to 11:59 pm on Thursday, October 19th.
Canada’s Implied Bill of Rights
● Constitution of 1867 states in preamble that Canada is to have a Constitution
similar in principle to that of the United Kingdom.
● Magna Carta (1215)
○ King John losing war in France - Running out of money
○ Needed agreement with the Barons to collect taxes for war
○ Barons would only collect taxes from their lands if certain rights were
guaranteed by King
○ Collection of taxes - must be approved by Parliament of Barons
○ Due process - presumption of innocence, habeas corpus, public trial
English Bill of Rights (1689)
● After the English Civil War (1642–1651) and English debates about rights...
● Parliament allowed William and Mary to be rulers, only if they agreed to limits
on Royal powers as set out in the Bill of Rights declared by Parliament.
● Included: regular Parliaments, free elections, and freedom of speech in
Parliament.
● Rights of individuals including the prohibition against cruel and unusual
punishment and the right of Protestants to bear arms for their defence within
the rule of law.
Canadian Bill of Rights, 1960
● John Diefenbaker - Conservative Prime Minister
● Formerly, a criminal defence lawyer in Saskatchewan
● The right… to life, liberty, security of the person and enjoyment of property,
and the right not to be deprived thereof except by due process of law
● Freedom of religion, speech, assembly, press
● Section 2 - has a “notwithstanding” clause
● It is a federal statute, it only applies to federal law, and it can be overruled by
a later federal law. [link]
War Measures Act - 1970s
● The Parti Quebecois was gaining popularity, but had not yet won election.
● In 1970, members of the Front de libération du Québec (FLQ) kidnapped
British diplomat James Cross, and Quebec provincial cabinet minister Pierre
Laporte who was later murdered. link
● The “October Crisis” raised fears in Canada of a militant faction rising up
against the government.
● Oct 16, 1970 - Pierre Trudeau used provisions of the War Measures Act and
called in the army. Suspended legal rights and allowed police to arrest on
mere suspicion. Justification
Quebec separation
● Quebec Quiet Revolution started in the early 1960s, as an urban reaction to
the conservative Catholic Church and rural standards
● Rene Levesque and PQ won election in 1976 - secular ideas - separatist
● Levesque said that War Measures Act was a federal take-over of Quebec
● First Quebec referendum in 1980 - 40.44% said “yes” to independence.

● Debate: Should Quebec be allowed to regulate religious symbols on public

officials?
Competing federal case against separation
● Pierre Trudeau wanted Quebec to stay within Canada - needed a competing
story that Quebecers could advance their culture within Canada
● Trudeau - patriate the constitution from Britain, so Canada would not be a
colony, and make French and English both federal official languages
throughout Canada
● The French would be “at home” anywhere in Canada, not “just” in Quebec
Charter of Rights, 1982
● “Whereas Canada is founded upon principles that recognize the supremacy of
God and the rule of law” Optics for Quebecois at signing?
● Guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.
● Many of the rights themselves are subject to “reasonable” limits
● Section 7. Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the principles of
fundamental justice.
Charter of Rights, 1982
● Some rights are to everyone, some are to persons, some are to citizens
● Language rights are prominent
● No property rights - compare with:
○ right to enjoyment of property in 1960 Canadian Bill of Rights
○ Article 7 of the American Bill of Rights: “...nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for
public use, without just compensation.”
● But see section 26. The guarantee in this Charter of certain rights and
freedoms shall not be construed as denying the existence of any other rights
or freedoms that exist in Canada.
The Notwithstanding clause
● 33. (1) Parliament or the legislature of a province may expressly declare in an
Act of Parliament or of the legislature, as the case may be, that the Act or a
provision thereof shall operate notwithstanding a provision included in section
2 or sections 7 to 15 of this Charter.
● (3) A declaration made under subsection (1) shall cease to have effect five
years after it comes into force or on such earlier date as may be specified in
the declaration.
Tense negotiations
● 1973 Supreme Court - Nisga case
○ In 1913 the Nishga'a sent a Petition to the British Privy Council in London
requesting that their land claims be addressed by the King.
○ In response, the Canadian government passed a law making it illegal for
First Nations to "retain counsel to pursue land claims." [link]
○ In 1973, the Nisga'a Nation Tribal Council won the landmark case, in
which the Supreme Court of Canada (SCC) ruled for the first time, that
aboriginal title to land existed prior to the colonization of North America,
based on the Royal Proclamation. link
Tense Negotiations leading up to 1982 Charter
● Indigenous sent representatives to the British Parliament protesting any
patriation without their involvement, based on the 1763 Royal Proclamation
● Thus, section 25 was included in the Charter, to include rights or freedoms
that have been recognized by the Royal Proclamation of 1763; and any rights
or freedoms that now exist by way of land claims agreements or may be so
acquired.
Quebec rejects the Charter
● The separatist Québec government refused, in 1982, to accept the new
Constitution patriated from Britain by Pierre Trudeau.
● Quebec view - that the federal Charter of Rights was imposed on Quebec,
which already had its own Charter. Considered to be federal court control over
Quebec and its language and culture laws
● Quebec uses the Notwithstanding clause to regulate language and culture
Meech Lake Accord - 1987
● PM Brian Mulroney opened constitutional discussions with all the provinces,
during which Québec made a series of proposals that, if accepted, would
have led to its acceptance of the Charter.
● The June 1987 Meech Lake Accord was designed to address Quebec’s
concerns by constitutionally recognizing it as a “distinct society.”
● At the same time, it recognized as fundamental characteristics of Canada
both the anglophone minority in Québec, and the francophone minority
elsewhere.
● The accord would also provide new powers to the provinces.
● The accord had to be ratified or approved by Parliament and each provincial
legislature before June 23, 1990.
Elijah Harper

● BNA 1867 Act did not include reference to Indigenous peoples

● Nor did the Meech Lake Accord include negotiations with Indigenous

● A Cree member of the Manitoba Legislative Assembly — Elijah Harper —

filibustered against it, because it failed to provide for consultation link
● The Meech Accord expired in June 1990 and its failure contributed heavily to
the close vote in the Quebec referendum of 1995. The Charlottetown accord
of 1992 also failed in a national referendum.
● Lessons learned? All three founding nations should be included in future
constitutional negotiations?
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