Implied Bill of Rights
The Implied Bill of Rights is a judicial theory in
Canadianjurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada. Invoked more often before the Canadian Charter of Rights and Freedomswas enacted it is nonetheless important when questions of parliamentary supremacyand the override power come into play. It played a part in the reasons given in the " Reference re Secession of Quebec"  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 Canadaby 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
preambleof 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. [Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 686.] 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"  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 "
Reference re Secession of Quebec",  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.
Wikimedia Foundation. 2010.
Look at other dictionaries:
Bill of rights — A Bill of Rights is a list or summary of rights that are considered important and essential by a group of people. The purpose of these bills is to protect those rights against infringement by the government and others. The term bill of rights… … Wikipedia
Canadian Bill of Rights — Infobox document document name = Canadian Bill of Rights image width = 200px image caption = John Diefenbaker holds the Bill of Rights date created = 1960 date ratified = 1960 location of document = writer = signatories = purpose = A Bill of… … Wikipedia
bill — n 1: a draft of a law presented to a legislature for enactment; also: the law itself the GI bill ap·pro·pri·a·tions bill /ə ˌprō prē ā shənz /: a bill providing money for government expenses and programs ◇ Appropriations bills originate in the… … Law dictionary
implied acceptance — An acceptance understood from acts and cirpumstances where not expressly stated. The acceptance of an offer implied from acts or conduct, including performance by the offeree of his undertaking. Cole McIntyre Norfleet Co. v Holloway, 141 Tenn 679 … Ballentine's law dictionary
Human rights in Canada — Since signing the Universal Declaration of Human Rights in 1948, the Canadian government has attempted to make universal human rights a part of Canadian law. There are currently four key mechanisms in Canada to protect human rights: the Canadian… … Wikipedia
Canadian Charter of Rights and Freedoms — Canada This article is part of the series: Politics and government of Canada … Wikipedia
Section Two of the Canadian Charter of Rights and Freedoms — is the section of the Constitution of Canada s Charter of Rights that lists what the Charter calls fundamental freedoms theoretically belonging to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or… … Wikipedia
Civil rights law in Canada — concerns the private rights and power of people within Canada. This typically has broad meaning, covering all human rights protected under the law outside of the criminal law context. Civil rights primarily gravitates around issues such as… … Wikipedia
Natural and legal rights — Inalienable redirects here. For the 2008 film, see InAlienable. For the concept of alienation in property law, see Alienation (property law). Rights Theoretical distinctions … Wikipedia
Human rights in the United States — In 1776, Thomas Jefferson proposed a philosophy of human rights inherent to all people in the Declaration of Independence, asserting that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that… … Wikipedia