Implied Bill of Rights

Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada. 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 it played a part in the reasons given in the Secession Reference [1998] 2 S.C.R. 217.

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. Because provincial prohibition 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 of the Constitution Act, 1867 as providing the underlying reasons for an implied bill of rights in the British North America Act, 1867. 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.

The Supreme Court revisited the implied bill of rights theory in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] 3 S.C.R. 3 (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 ideas outlined in the Provincial Judges Reference were developed further in the Secession Reference, [1998] 2 S.C.R. 217. 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;" (Secession Reference, supra., paras. 50-4). In the Provincial Judges Reference the Court fell short of using the preamble to state new constitutional obligations or limitations. Chief Justice Lamer's extensive obiter did return Canadian constitutional theory to the classical model of rights implicit in the Constitution which was first developed in the Alberta Press, Saumur and Switzman cases. By this model, "important legal effects" including constitutional obligations and limits, may be created by the Bill of Rights implied into the Constitution, quite apart from an application of the written constitution.