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Getting Started: The Charter of Rights and Freedoms

A guide to help form a basic understanding of the legislative pathway the Canadian Charter of Rights and Freedoms underwent to be enacted as well as to help locate and identify legislative intent.

The Charter

The enactment of the Canadian Charter of Rights and Freedoms does not follow the usual path of Canadian legislation. Tracing its evolution involves research in two jurisdictions – Canada and the UK - since the power to change our Constitution and incorporate new constitutional measures such as the Charter did not lie in our hands but rather with the Crown.

We pick up on the Charter's legislative journey with the proposed resolution to enable the amendment and patriation of the Constitution of Canada and the 1980-81 debates of the Special Joint Committee on the Constitution. We end with the UK Parliament passing the Canada Act 1982. The Charter is part of this UK statute and is officially cited as Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

The Charter in Canada

Though making the changes necessary to obtain autonomy over its Constitution had already been a debate decades in the making, it could be said that the last and successful attempt officially began with the 1980 “Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada”. This document set out to bring clarity and order to the constitutional proposals being made at the time as well as to outline the “various formal measures necessary to bring about the amendment and ‘patriation’ of the Constitution of Canada.”

The Proposed Resolution was considered and reported upon by the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada . Making 67 amendments to the Proposed Resolution—58 which were advanced by the Canadian Government—the Special Joint Committee was instrumental in helping to draft the legislative documents that would inform the legal make-up of the 1982 Constitution Act, and thereby the Charter. 

Once reported back to the Senate and the House of Commons, further amendments were made to the Proposed Resolution which were eventually adopted. After the decision of the Supreme Court of Canada was delivered in Reference re Amendment of the Constitution of Canada, [1981] 1 SCR 753 and an agreement was made between the Government of Canada and all provincial governments, with the exception of Quebec, concerning patriation and the amendment of the Constitution, a new Proposed Resolution that was in accordance with said agreement was moved in Parliament. The final amendments were then made to the new Proposed Resolution and adopted by the House of Commons and the Senate. With the joint address of the Senate and House of Commons to the United Kingdom Parliament, the progression of the passing of the 1982 Constitute Act shifted from Canadian to British hands. [1]

 

[1] Laskin, J. & Greenspan, E. (2005). The Canadian Charter of Rights Annotated (Vol 1). Canada Law Book Inc.

The Charter in the United Kingdom

Once the joint address was given, the Proposed Resolution was presented to the House of Commons and House of Lords as Bill 43, “An Act to Give Effect to a Request by the Senate and House of Commons of Canada" or “Canada Bill” for short. Thankfully, the Hansards surrounding the Bill in British parliament are far less extensive than their Canadian counterparts. This can be attributed to the fact that the British parliament felt it important to pass the Bill in the form in which it was received and not comment on legislation “which has no application in this country and for which we shall have no responsibility when it has been enacted." [2]

And with that, the 1982 Constitution Act being schedule B of the 1982 Canada Act was enacted and assented to on March 29, 1982. The Constitution Act, of which the Canadian Charter of Rights and Freedoms forms its first part, was proclaimed into force on April 17, 1982. 

 

[2] “Bill 43, An Act to Give Effect to a Request by the Senate and House of Commons of Canada", 2nd reading, House of Lords Debates (UK), 48-4, vol 428 (18 March 1982) at 759 (Lord Carrington)