The Legacy of the Supreme Court of Canada's Approach to the Canadian Bill of Rights: Prospects for the Charter

The Legacy of the Supreme Court of Canada’s Approach to the

Canadian Bill of Rights: Prospects for the Charter

Berend Hovius*

The recent entrenchment of the Canadian
Charter ofRights and Freedoms has promp-
ted speculation that the judiciary may be
entering an era in which it seeks to protect
aggressively the civil liberties of individuals
from infringement by legislatures and gov-
ernment officials. Such speculation may be
premature, the author argues, because any
attempt to discern the effect of the Charter
must contemplate the approach taken by the
Supreme Court of Canada to the Canadian
Bill of Rights. The author undertakes to
analyse many of the roughly thirty cases
decided under the Bill of Rights and he con-
cludes that the Court has adopted a position
of judicial restraint. That position was not
dictated by either the status or the wording of
the Bill, but resulted from the Court’s unwil-
lingness to undertake the balancing of policy
considerations and its desire to promote col-
lective goals such as administrative efficien-
cy and law and order, rather than individual
rights. The new Charter cannot prescribe a
change in judicial perspectives and the au-
thor suggests that the Court’s attitude ofjudi-
cial restraint may persist.

L’enchfssement r6cent de la Charte cana-
dienne des droits et libertds fait penser que le
pouvoir judiciaire pourra etre engag6 sous
peu dans une nouvelle politique plus aggres-
sive visant prot6ger les individus des abus
des 16gislateurs et organismes gouvernemen-
taux. L’auteur croit ce sentiment pr6matur6,
compte tenu de la n6cessit6 d’analyser tout
d’abord l’approche qu’a prise la Cour su-
preme du Canada vis-a-vis la Diclaration
canadienne des droits et libertds. Analysant
une trentaine de jugements traitant de la D-
claration, l’auteur conclut que la Cour a
r6gulirement pr6f6r6 l’interpr6ter stricte-
ment. Selon lui, cette approche n’aurait pas
6t6 justifi6e, que ce soit par rapport au statut
l6gal ou a ]a r6daction de la Difclaration. I1
semblerait que la Cour n’aurait pas 6t6 dispo-
s6e A examiner et peser les nombreuses ques-
tions de politique judiciaire qui se pr6sen-
taient et ce, au profit de l’avancement d’ob-
jectifs collectifs tels le fonctionnement effi-
cace des organes administratifs, ainsi que
rordre et la justice. L’auteur souligne une
forte possibilit6 que l’attitude restreinte prise
par la Cour ne changera pas; la nouvelle
Charte ne provoquera pas n6cessairement
une modification de cette perspective judi-
ciaire fermement ancr6e.

* Of the Faculty of Law, The University of Western Ontario. The author expresses his
thanks to Professor Bob Solomon, who commented on an earlier draft, and to David Nadeau,
who diligently researched the case law and literature. The funding provided by the Ontario Law
Foundation,’which permitted the author to hire a research assistant, it also gratefully acknow-
ledged.

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Synopsis

Introduction
I.

H.

Status

Inoperability in the Face of the Bill of Rights

Judicial Restraint Illustrated
A. The Bill of Rights as a Guide to Interpretation
B.
The Status and Wording of the Bill as Justification for the Sup-
reme Court’s Narrow Interpretation
A.
B. Wording

MI. Reasons for Judicial Restraint
Conclusion

Introduction

The constitutional entrenchment of the Canadian Charter of Rights and
Freedoms I has been hailed by many as presaging an era in which the judiciary
aggressively protects civil liberties from infringement by legislatures and
government officials. Whether this view proves to be correct will be deter-
mined ultimately by the judiciary itself; primarily, by the interpretation that
the Supreme Court of Canada gives to the Charter’s provisions. Predicting
the Court’s approach to the Charter is obviously a highly speculative venture.
What must be kept in mind, however, is that for over two decades the Court
has been interpreting and applying a bill of rights which had overriding effect
at the central level of government. Any attempt to discern the effects of the
Charter must take into account the approach adopted by the Supreme Court of
Canada to the Canadian Bill of Rights.2

Analysis of the Court’s decisions involving the Bill suggests that the
proponents of the Charter’s entrenchment may be disappointed. The Sup-
reme Court of Canada has heard approximately thirty cases in which the
interpretation and application of the Canadian Bill of Rights was a key issue.
The general approach exhibited in these cases, evidenced not only by the
results but also by the reasons given, was one of judicial restraint. Only once
did the Court actually hold that a provision in a federal statute was rendered

‘Part 1 of Schedule B, Canada Act 1982, 1982, c. 11 (U.K.).
2R.S.C. 1970, Appendix III.

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PROSPECTS FOR THE CHARTER

inoperative by the Bill. 3 Moreover, even when using the Bill as a rule of
interpretation or as a guide to the judicial review of administrative action, the
Court refused to protect creatively and vigorously individual rights and
freedoms. This cautious approach was not dictated by either the status or
wording of the Bill. Rather, it was the result of an underlying philosophy of
government adopted by a majority of the judges on the Court, a philosophy
which holds that an elected legislature is the only appropriate forum for policy
formation. To the extent that the judges continue to accept that philosophy,
the case law on the Bill may foreshadow the Court’s interpretation and
application of the Charter. Only a radical change in the Court’s view of its
role in society, perhaps brought about as new appointments are made, will
ensure that the entrenchment of the Charter is indeed a significant step toward
the protection of civil liberties.

The first section of this paper outlines the approach taken by the Supreme
Court of Canada to the Canadian Bill of Rights. In the second, I examine the
extent to which the status and wording of the Bill influenced this approach.
The third section attempts-to identify other reasons which may have motivated
the Court, and I conclude by discussing implications for the interpretation and
application of the Charter.

I.

Judicial Restraint Illustrated

The Canadian Bill ofRights, which was enacted as an ordinary statute by
the Parliament of Canada in 1960,’ did not provide explicitly that laws of
Canada which conflicted with the rights and freedoms recognized in the Bill
were invalid or inoperative. Rather, it provided that “every law of Canada
shall, unless it is expressly declared by an Act of the Parliament of Canada
that it shall operate notwithstanding the Canadian Bill of Rights, be so
construed and applied as not to abrogate, abridge or infringe or to authorize
the abrogation, abridgement or infringement of any of the rights or freedoms
herein recognized and declared”. These words indicated that the Bill was
intended at least to provide a guide for the interpretation of federal statutes and
to authorize the courts to review administrative action taken pursuant to the
laws of Canada in light of the fundamental freedoms therein recognized and
declared. The Supreme Court of Canada has acknowledged consistently these

3R. v. Drybones [1970] S.C.R. 282, (1970) 9 D.L.R. (3d) 473 [hereinafter cited to S.C.R.].
” For a detailed account of the passage of the Bill, see W. Tarnopolsky, The Canadian.Bill of
Rights, 2d rev. ed. (1975) 11-4. This treatise also contains a detailed analysis of the case law up
.to 31 December 1973.

5R.S.C. 1970, Appendix III, s. 2.

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functions of the Bill.’ But, in R. v. Drybones,7 the Court held that the Bill had
an even more significant effect: it rendered inoperative any prior law validly
passed by the Parliament of Canada which could not be construed or applied
so as not to infringe the rights and freedoms recognized and declared in the
Bill. Not only was that principle accepted consistently in later cases but the
Court also indicated repeatedly that the Bill overrode statutes enacted by the
Parliament of Canada after 1960 which could not be interpreted or applied so
as to comply with the Bill.8

The Supreme Court of Canada, therefore, recognized that the Bill had
three distinct functions. First, it stipulated the principles or values that the

6 See, e.g., Leiba v. Minister of Manpower andImmigration [1972] S.C.R. 660, (1972)23
D.L.R. (3d) 476; Brownridge v. The Queen [1972] S.C.R. 926, (1972) 28 D.L.R. (3d) 1
[hereinafter cited to S.C.R.]; Lowry andLepper v. The Queen [1974] S.C.R. 195, (1972) 26
D.L.R. (3d) 224; R. v. Burnshine [1975] 1 S.C.R. 693, 714, (1974) 44 D.L.R. (3d) 584 per
Laskin J. dissenting [hereinafter cited to S.C.R.]; A.-G. Ontario v. Reale [1975] 2 S.C.R.
624, (1974) 58 D.L.R. (3d) 560; Mitchell v. The Queen [1976] 2 S.C.R. 570, (1975) 61
D.L.R. (3d) 77 [hereinafter cited to S.C.R.]; Jumaga v. The Queen [1977] 1 S.C.R. 486,
(1976) 68 D.L.R. (3d) 639 [hereinafter cited to S.C.R.]; Chromiak v. The Queen [1980] 1
S.C.R. 471, (1979) 102 D.L.R. (3d) 368 [hereinafter cited to S.C.R.]; andR. v. Shelley (1981)
123 D.L.R. (3d) 748, (1981) 37 N.R. 320 (S.C.C.).

7Supra, note 3. Cartwright C.J.C., Pigeon and Abbott JJ. dissented on this point.
I In R. v. Drybones, supra, note 3, 301, Mr Justice Pigeon noted in dissent that “different
considerations may conceivably apply in the case of subsequent statutes”. This statement has
been the only recognition by the Supreme Court of Canada that the overriding effect of the
Canadian Bill of Rights on subsequent statutes may present special constitutional problems.
Despite the views which he held as a law professor (see An Inquiry Into the Diefenbaker Bill of
Rights (1959) 37 Can. Bar Rev. 77, 132), Laskin C.J.C. has stated often that subsequent laws
enacted by Parliament may be sterilized or rendered inoperative by the Canadian Bill ofRights.
See Curr v. The Queen [1972] S.C.R. 889, 892-3, 900 and 903, (1972) 26 D.L.R. (3d) 603
[hereinafter cited to S.C.R.], Abbott, Hall, Spence, Pigeon, Martland and Judson JJ. concur-
ring, although the latter two Justices reserved expressly for future decision the meaning of the
phrase “due process of law” which was also discussed in these reasons. See also A.-G. Canada
v. Lavell [1974] S.C.R. 1349, 1388, (1973) 38 D.L.R. (3d) 481 [hereinafter cited to S.C.R.],
Hall and Spence JJ. concurring; and Miller and Cockriell v. The Queen [1977] 2 S.C.R. 680,
686, (1976) 70 D.L.R. (3d) 324 [hereinafter cited to S.C.R.], Dickson and Spence JJ.
concurring. The cases of R. v. Appleby [1972] S.C.R. 303; Curry. The Queen [1972] S.C.R.
889; Duke v. The Queen [1972] S.C.R. 917, (1972) 28 D.L.R. (3d) 129; Brownridge v. The
Queen, supra, note 6; Hogan v. The Queen [1975] 2 S.C.R. 574, (1976) 66 D.L.R. (3d) 571
[hereinafter cited to S.C.R.]; and Bliss v. A.-G. Canada [1979] 1 S.C.R. 183, (1978) 92
D.L.R. (3d) 417 [hereinafter cited to S.C.R.] all involved legislation enacted after 1960. Yet,
in none of the cases did any of theJustices suggest that legislation enacted subsequent to theBill
should be treated differently from that enacted before 1960. In Bliss, for example, the Court, at
185, simply stated the legal issue as follows: “Is s. 46 of the Unemployment Insurance Act,
S.C. 1971, as amended, rendered inoperative by the Canadian Bill of Rights, R.S.C. 1970,
Appendix III, as amended?” It has been suggested that the Billis binding on future Parliaments
as a law which specifies the manner and form by which law-making power will be exercised.
See Tarnopolsky, supra, note 4, 143 and P. Hogg, Constitutional Law of Canada (1977)
437-8.

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PROSPECTS FOR THE CHARTER

courts should strive to protect in interpreting ambiguous or open-ended
federal legislation. Second, it authorized the courts to review administrative
acts taken pursuant to federal statutes in order to ensure that certain procedural
safeguards had been complied with even if the statutes themselves did not
specify such safeguards. Third, it empowered the courts to rule that laws of
Canada were inoperative where such laws conflicted with the rights and
freedoms set out in the Bill. The first two functions did not require the courts
to step outside of their traditional role. Courts have always been required to
interpret legislation and they have developed many rules of interpretation in
order to protect traditional civil liberties. 9 Courts have also been accustomed
to reviewing administrative action to ensure that it was authorized by statute
and in doing so, have imposed frequently procedures which accorded with the
rules of natural justice. The Canadian Bill of Rights could be viewed simply
as a statutory recognition and extension of judicially created rules which had
developed, in theory at least, to help the courts discover the true intent of
Parliament. One might have expected the Supreme Court of Canada, there-
fore, to embrace the Canadian Bill ofRights enthusiastically as a guide for the
interpretation of federal legislation and for the review of federal administra-
tive action.

A.

The Bill of Rights as a Guide to Interpretation

Indeed, the five cases, other than Drybones, in which the Court applied
the Bill so as to protect an individual’s civil liberties all did involve the use of
the Bill as a canon of construction or as a means of buttressing the imposition
of the rules of natural justice in the application of the law. InLeiba v. Minister
of Manpower and Immigration 10 the Court held unanimously that a deporta-
tion order was invalid on the ground, inter alia, that the failure to provide, at
the initial hearing, an interpreter who spoke any of the languages understood
by Leiba had deprived him of a fair hearing as guaranteed by s. 2(g) of the
Canadian Bill of Rights. In the second case, Brownridge v. The Queen, I1 it
was held that a police officer’s denial of the appellant’s request to speak to his

9 For example, it is presumed that, in the absence of express words or necessary implication,
Parliament did not intend to create a criminal offence which operates retrospectively or which
does not require mens rea. Similarly, the courts presume that the legislature did not intend to
authorize a statutory body to levy taxes, interfere with property rights without payment of
compensation, make regulations that have retrospective effect, or delegate its decision-making
powers. The principle upon which these rules of interpretation are based is that “statutes which
encroach on the rights of the subject, whether as regards person or property, are subject to
‘strict’ construction”. A.-G. Canada v. Hallet and Carey [1952] A.C. 427, 450 (P.C.).

‘Supra, note 6.
“Supra, note 6. Abbott, Judson and Pigeon JJ. dissented.

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lawyer, in the circumstances of that case, deprived him of his right to retain
and instruct counsel without delay as set out in s. 2(c)(ii) of the Bill and,
therefore, constituted “reasonable excuse” for the appellant’s refusal to pro-
vide a breath sample for the purposes of a breathalyzer test. As s. 223(2) [now
s. 235(2)] of the Criminal Code provided expressly that it was only an offence
to refuse to comply without reasonable excuse, the appellant’s conviction was
overturned. Subsequently, the Supreme Court held unanimously in Lowry
and Lepper v. The Queen 12 that the power of a Court of Appeal to impose
sentence after allowing an appeal by the Crown from an acquittal could be
exercised only after a fair hearing in accordance with s. 2(e) of the Bill. The
case was remitted to the Manitoba Court of Appeal to permit the appellants to
make submissions before a sentence was imposed. In A.-G. Ontario v.
Reale,13 s. 577 of the Criminal Code, which provided that “an accused other
than a corporation shall be present in court during the whole of his trial”, was
interpreted, in the light of s. 2(g) of the Bill, to require translation of the
judge’s charge to the jury in order that the accused might understand it.
Finally, the Court ruled four to three in R. v. Shelley 4 that, taking into
account s. 2(f) of the Canadian Bill of Rights, the reverse onus clause
contained in s. 248(1) of the Customs Act 15 applied only after the Crown
established not merely the possession of imported goods having a dutiable
value of $200 or more, but also some knowledge, or means of knowledge, of
the circumstances of importation on the part of the accused.

Although the same results might have been achieved through the use of
judicially created rules of interpretation and the doctrine of natural justice,
these cases illustrate the potential effectiveness of the Bill as a guide for the
interpretation of statutes or the judicial review of administrative action.
However, even in this context, the Court did not use the Bill in other cases to
protect aggressively individuals’ rights and freedoms.

Most notably, the Court refused in several cases to use s. 2 of the Bill to
impose minimum procedural safeguards in the exercise of administrative
power under federal statutes. In Guay v. Lafleur, 6 it was held that an
individual did not have the right to be present or to be represented by counsel
during an inquiry by an official of the Department of National Revenue under
s. 126 of the Income Tax Act. 7 Section 2(e) of the Canadian Bill ofRights was

2Supra, note 6.
“Supra, note 6.
“Supra, note 6. Dickson, Estey and McIntyre JJ. concurred in the judgment given by

Laskin C.J.C.; Ritchie, Martland and Chouinard JJ. dissented.

“R.S.C. 1970, c. C-40.
“6[1965] S.C.R. 12, (1964) 47 D.L.R. (2d) 226 [hereinafter cited to S.C.R.I.
“1R.S.C. 1952, c. 148 as am. S.C. 1956, c. 39, s. 28, adding s. 126A.

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PROSPECTS FOR THE CHARTER

said to be inapplicable because “no rights and obligations are determined by
the person appointed to conduct the investigation” 18 in as much as the official
merely reported his findings to the Deputy Minister. Noting that nothing in
the Act precluded the official from making recommendations, Hall J., in
dissent, stated: “One cannot ignore the reality of the situation that in such
cases the decision is made by the subordinate but put in the name of the
Deputy Minister.” 19 The Supreme Court of Canada again interpreted s. 2(e)
narrowly in R. v. Randolph 2 holding unanimously that it did not apply to
interim orders even if they affected the rights of an individual. Accordingly,
no hearing of any kind was required before the issuance of a prohibitory order
under s. 7 of the Post Office Act 21 which had the effect of precluding the
respondents’ use of the mail service on an interim basis. Finally, in Mitchell
v. The Queen,2 the Court ruled six to three that s. 2(e) did not apply to the
suspension or revocation of parole by the National Parole Board. The major-
ity concluded that such action did not affect the rights of the parolee even
though revocation caused the forfeiture of statutory and earned remission
standing to his credit at the time of the parole.

The narrow interpretation of rights and freedoms evidenced in these
cases was also adopted in most of the cases where the Court was asked to use
the Canadian Bill of Rights to construe open-ended or ambiguous provisions
in federal statutes in such a way that the civil liberties of the individual
received maximum protection. This restrictiveness was most obvious in the

1 Guay v. Lafleur, supra, note 16, 16 per Abbott J., Taschereau C.J.C., Fauteux, Mart-
land, Judson, and Ritchie JJ. concurring. Cartwright and Spence JJ. also concurred in the
result. Mr Justice Hall dissented.

‘ 9 bid., 20.
:[1966] S.C.R. 260, (1965) 56 D.L.R. (2d) 283.
21R.S.C. 1952, c. 212.
aSupra, note 6. Although Ritchie J., with Judson, Pigeon and Beetz JJ. concurring,
decided the case on a procedural point, at 593 he expressed agreement with Mr Justice
Martland’s views on s. 2(c)(i) and s. 2(e) of the Bill. De Grandpr6 J. concurred in the reasons
given by Martland J.; Laskin C.J.C., Spence and Dickson JJ. dissented.

2In addition to the cases discussed in the body of the paper, see R. v. Appleby, supra, note 8,
where the Court unanimously interpreted s. 224A(1)(a) of the Criminal Code to require that the
accused had to prove, on a balance of probabilities, that he did not enter the vehicle for the
purpose of setting it in motion once the Crown established that he was found in the driver’s seat;
R. v. Burnshine, supra, note 6, 718, where Laskin J., dissenting, with Spence and Dickson JJ.
concurring, would have interpreted s. 150 of the Prisons and Reformatories Act, R.S.C. 1970,
c. P-21 so that the combined fixed and indeterminate sentences imposed under that Act had to
be limited in their totality to the maximum term of imprisonment prescribed by the Criminal
Code or any other federal enactment creating the offence and prescribing its punishment; and
A.-G. Canada v. Canard [1976] 1 S.C.R. 170, 185, (1975) 52 D.L.R. (3d) 548, where
Laskin C.J.C., dissenting, with Spence J. concurring, would have declared that s. 43 of the
Indian Act, R.S.C. 1970, c. 1-6 had to be applied so as to be consistent with s. 1(b) of the Bill.

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subsequent refinements placed upon the Court’s holding in the Brownridge
case.24 In Hogan v. The Queen,’ all nine members of the Court recognized
that the accused, who was charged under s. 236 of the Criminal Code for
being in control of a motor vehicle while having a blood alcohol level greater
than .08 per cent, would have had a “reasonable excuse” for refusing to
provide a breath sample on the basis of the Brownridge decision. But seven
members rejected the argument that the breath sample was inadmissible
because it was obtained in violation of s. 2(c)(ii) of the Canadian Bill of
Rights.26

Then, in Jumaga v. The Queen,27 it was held that the appellant had not
been deprived of his rights under s. 2(c)(ii) when the only opportunity
afforded to and exercised by him to contact his lawyer was by use of the
telephone in the main room of the police station while officers stood by and
took notes. Accordingly, he did not have a “reasonable excuse” for his later
refusal to provide a breath sample. In Mr Justice Pigeon’s opinion, the
appellant could not be considered to have been deprived of a right when he
failed to demand it initially.” Mr Justice Pigeon also indicated that s. 2(c)(ii)
could not be interpreted to require the consultation with a lawyer in private in
these circumstances because

there would be serious difficulties in allowing persons in the situation of the accused to
have free use, unsupervised for any length of time, of a private room such as a sergeant’s
office. It would also be a serious matter to require the provision of safe and adequate
facilities for private communication with legal counsel wherever [a] breathalyzer test is to
be performed, failing which everyone would have a reasonable excuse for refusing it.”

The dissenting reasons of Laskin C.J.C.3 0 illustrated a rather different

approach to the interpretation of s. 2(c)(ii). In particular, he concluded:

Once an accused has requested that he be permitted to consult counsel, that should carry
with it, to the knowledge of the police, a right to have the consultation in private, so far as
the circumstances permit. The right to counsel is diluted if it can only be secured by adding
request to request. I would not put the police in an adversary position on this question; they
are better placed than the ordinary person (who has been detained or arrested and is in

‘Supra, note 6.
‘Supra, note 8.
‘Ritchie J. gave the reasons for the majority. Fauteux C.J.C., Abbott, Martland, Judson,
and Dickson JJ. concurred in these reasons. Mr Justice Pigeon gave separate, concurring
reasons, while Laskin and Spence JJ. dissented.

“Supra, note 6. Laskin C.J.C., Spence, Dickson, and Beetz JJ. dissented.
‘Ibid., 497. Justices Martland and Judson concurred with the reasons given by Mr Justice
Pigeon. Ritchie J., with de Grandpr6 J. concurring, gave separate reasons in which he
expressed agreement with the reasons of Mr Justice Pigeon.

Ibid., 497-8.

“Ibid., 488. Spence, Dickson and Beetz JJ. concurred in these reasons.

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PROSPECTS FOR THE CHARTER

police custody) to recognize what the right to counsel imports, and they should be alert to
protect that right as an important element in the administration of justice through law, for
which they are as much accountable as any others involved in the judicial process. 3

1

Chromiak v. The Queen 32 again dealt with the relationship between s.
2(c)(ii) of the Canadian Bill ofRights and “reasonable excuse” for the refusal
to provide a breath sample. The accused was stopped by the police, who
suggested that he might be driving while impaired, and who asked him to
perform certain sobriety tests. A police officer requested subsequently that
Chromiak submit to a road-side breathalyzer test. The accused continued to
ask questions and refused to provide a breath sample, stating that he wanted
his lawyer to be present before he took the test. An appearance notice was then
issued for impaired driving and for refusal, without reasonable excuse, to
comply with a police officer’s demand to provide a breath sample for the
purposes of a road-side test contrary to s. 234.1(2) of the Criminal Code.
Holding that the accused had never been arrested or detained, the Supreme
Court of Canada ruled unanimously that s. 2(c)(ii) of the Bill was inapplic-
able.

B.

Inoperability in the Face of the Bill of Rights

The restrictive interpretation given to the rights and freedoms recognized
and declared in the Canadian Bill of Rights was even more obvious in those
cases where the Supreme Court of Canada was asked to find that a law was
inoperative because it conflicted with the Bill. In all of these cases, except
Drybones, the Court concluded that the laws in question did not abrogate,
abridge or infringe any of the rights or freedoms listed. For example, the
Court refused to hold that s. 12(l)(b) of the Indian Act3 3 or s. 46 of the
Unemployment Insurance Act, 1971,1 were rendered inoperative as denying
equality before the law to women.35 The former statutory provision specified
that Indian women, unlike their male counterparts, who married non-Indians
lost their status as Indians. The latter precluded a woman from collecting
regular unemployment insurance benefits during a period commencing eight
weeks before the week in which her confinement for pregnancy was expected
and six weeks after the week in which her confinement occurred even though

31Ibid., 495.
32Supra, note 6.
33R.S.C. 1970, c. 1-6.
-‘S.C. 1970-71-72, c. 48.
351n A.-G. Canada v. Lavell, supra, note 8, and Bliss v. A.-G. Canada, supra, note 8

respectively.

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she might be available for work and otherwise eligible for the benefit. These
results were achieved largely by adopting a relentlessly restrictive interpreta-
tion of the basic guarantees.

As noted earlier, the reasoning in many of the cases is even more
illustrative of the adoption of a position of judicial restraint than the result
reached. Of particular significance in this regard is the application of a
principle of interpretation which Professor Tarnopolsky has labelled aptly the
“frozen concepts” principle. 6 The first expression of this principle can be
found in the following statement by Mr Justice Ritchie in Robertson and
Rosetanni v. The Queen:

It is to be noted at the outset that the Canadian Bill ofRights is not concerned with “human
rights and freedoms” in any abstract sense, but rather with such “rights and freedoms” as
they existed in Canada immediately before the statute was enacted. It is therefore the
“religious freedom” then existing in this country that is safe-guarded by the provisions of
s. 2… .13

This view caused him to examine the concept of religious freedom recognized
in Canada before the enactment of the Canadian Bill of Rights and after the
enactment of the impugned statute, the Lord’s Day Act.3″ He concluded that
the Act did not affect religious freedom as so defined because it did not affect
the religious thought or practice of any citizen.

The “frozen concepts” principle of interpretation did not require the
Court to conclude that the rights declared in the Bill were circumscribed and
subject to the Canadian statutes in force at the date of its enactment. 9 This was
made explicit in the Drybones case,1 where the Court held that s. 94(b) of the
Indian Act,41 which was passed prior to 1960, was rendered inoperative
because it conflicted with the right to equality before the law contained in s.
l(b) of the Canadian Bill of Rights. Nevertheless, by focusing the Court’s
attention upon the legislation in force in 1960 and the case law decided before

6Tamopolsky, “A New Bill of Rights in the Light of the Interpretation of the Present One by
the Supreme Court of Canada” in The Constitution and the Future of Canada [1978] L.S.U.C.
Special Lectures 161, 181-91.

3′[1963] S.C.R. 651, 654, (1963) 43 D.L.R. (2d) 485 [hereinafter cited to S.C.R.].
Taschereau, Fauteux and Abbott JJ. concurred in the reasons given by Mr Justice Ritchie.
Cartwright J. dissented.

-‘R.S.C. 1952, c. 171.
39 Although the language used by Mr Justice Ritchie, with Martland, Judson, Pigeon, and de
Grandpr6 JJ. concurring, in Miller and Cockriell v. The Queen, supra, note 8, 703-4 comes
very close to stating this position. This view was, in fact, put forward by Mr Justice Pigeon, in
dissent, in R. v. Drybones, supra, note 3, 302.

4 Ibid., 296, per Mr Justice Ritchie with Fauteux, Martland, Judson, and Spence JJ.

concurring.

41R.S.C. 1952, c. 149.

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PROSPECTS FOR THE CHARTER

that date in order to determine the accepted meaning at that time of the rights
and freedoms recognized and declared in the Bill, the “frozen concepts”
principle of interpretation frequently caused the Court to give such a narrow
interpretation to those rights and freedoms that it became virtually impossible
to conclude that a law, whether enacted before or after 1960, conflicted with
them. For example, in Curr v. The Queen,42 Mr Justice Ritchie relied upon his
“understanding that the meaning to be given to the language employed in the
Bill of Rights is the meaning which it bore at the time the Bill was enacted” to
conclude that “the phrase ‘due process of law’ as used in s. l(a) is to be
construed as meaning ‘according to the legal processes recognized by Parlia-
ment and the courts in Canada’ “.14 This principle of interpretation also led Mr
Justice Ritchie to find that s. l(b) did not contain the “equalitarian concept
exemplified by the 14th Amendment of the U.S. Constitution as interpreted
by the courts of that country” but simply required “equality in the administra-
tion or application of the law by the law enforcement authorities and the
ordinary courts of the land”.”

The influence of the “frozen concepts” principle of interpretation was

not limited to s. 1 of the Bill. In R. v. Burnshine, Martland J. stated:

Section 1 of the Bill declared that six defined human rights and freedoms “have existed”
and that they should “continue to exist”. All of them had existed and were protected under
the common law. The Bill did not purport to define new rights and freedoms. What it did
was to declare their existence in a statute, and, further, by s. 2, to protect them from
infringement by any federal statute …. Section 2 did not create new rights. Its purpose
was to prevent infringement of existing rights. It did particularize, in paras. (a) to (g),
certain rights which were a part of the rights declared in s. 1…. .1

Ritchie J. referred specifically to these statements in Miller and Cockriell v.
The Queen to buttress his view that the words “cruel and unusual punishment”
in s. 2(b) could not have been intended to exclude the penalty of death for
murder. He noted:

4
1Supra,
4
1Ibid.,

note 8.
916. Fauteux C.J.C. concurred in the reasons given by Mr Justice Ritchie. Las-
kin J., with Abbott, Hall, Spence, and Pigeon JJ. concurring, gave separate reasons concur-
ring in the result. He noted at 897: “It is obvious that to read ‘due process of law’ as meaning
simply that there must be some legal authority to qualify or impair security of the person would
be to see it as declaratory only”. Martland J., with Mr Justice Judson’s concurrence, expressed
agreement with both the reasons of Mr Justice Ritchie and Mr Justice Laskin. He added at 914:
“[I]n so doing, I do not adopt, as final, any specific definition of the phrase ‘due process of
law’, as used in s. l(a)”.

4″A.-G. Canada v. Lavell, supra, note 8, 1365-6, Fauteux C.J.C., Martland and Judson JJ.
concurred in these reasons. Laskin, Abbott, Hall, and Spence JJ. dissented. Mr Justice Pigeon
gave separate reasons agreeing with the result reached by Mr Justice Ritchie. This definition of
“equality before the law” has been referred to in R. v. Burnshine, supra, note 6, 703-4 and Bliss
v. A.-G. Canada, supra, note 8, 192.

41Supra, note 6, 702 and 705. Fauteux C.J.C., Abbott and Judson JJ. concurred in these

reasons.

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The declaration of the right of the individual not to be deprived of life which is contained in
s. l(a) is clearly qualified by the words “except by due process of law”, which appear to
me to contemplate a process whereby an individual may be deprived of life. At the time the
Bill of Rights was enacted there did not exist and had never existed in Canada the right not
to be deprived of life in the case of an individual who had been convicted of “murder
punishable by death” by the duly recorded verdict of a properly instructed jury and, in my
view, the “existing right” guaranteed by s. 1 (a) can only relate to individuals who have not
undergone the process of such a trial and conviction.
Accepting as I do the proposition that s. 2 did not create new rights, it cannot be that
Parliament intended to create anew the absolute right not to be deprived of life under any
circumstances by providing that no law of Canada was to be applied so as “to impose or
authorize the imposition of cruel and unusual treatment or punishment.” If so construed
the section would prevent the infringement of a right which had never existed and would
thus run contrary to the purpose for which it was enacted.’6

In this case, Mr Justice Ritchie also made reference to the fact that
Parliament had amended the provisions of the Criminal Code defining the
types of culpable homicide which were punishable by death on three occa-
sions since 1960. Noting that none of these amendments contained a declara-
tion providing that they were to operate notwithstanding the Canadian Bill of
Rights, he observed that since Parliament “saw fit to retain the death penalty
as part of the Criminal Code after the enactment of the Bill of Rights”, this
constituted “strong evidence of the fact that it had never been intended that the
word ‘punishment’ as employed in paragraph 2(b) should preclude punish-
ment by death”.47

The logical conclusion which flowed from the reasoning of Mr Justice
Ritchie in Miller and Cockriell was that the Canadian Bill of Rights could
never be violated by a federal statute. If the statute pre-dated the Bill, then it
could not infringe any of the rights and freedoms specified because the Bill
only recognized “existing rights”. If the statute was passed after the enact-
ment of the Bill, then it created a presumption that Parliament had always
intended the rights and freedoms listed in the Bill to be interpreted in such a
way that the statute did not infringe them. The fact that the reasoning in other
cases and the result in Drybones contradicted this analysis was not addressed
by Mr Justice Ritchie.

‘Supra, note 8, 704. Martland, Judson, Pigeon, and de Grandpr6 JJ. concurred. Las-
kin C.J.C., Spence and Dickson JJ. concurring, wrote separate reasons which concurred in the
result. He noted at 686-7 that “it is s. 2 of the Canadian Bill ofRights which gives force to s. 1
and hence, especially since the prescriptions of s. 2 are stated to be effective ‘in particular’, I
would not diminish their import by reference to what is more generally prescribed in s. 1″. Mr
Justice Beetz also concurred in the result, adding at 714-5:'”I do not find it necessary, for the
purposes of this case, to express any view as to whether or not s. 2 of the Canadian Bill ofRights
creates new rights or as to whether or not it is subordinate to s. 1. However, I do agree with Mr
Justice Ritchie that s. 1 throws some light on s. 2”.

47Ibid., 705.

1982]

PROSPECTS FOR THE CHARTER

The Court used other reasoning techniques in addition to the “frozen
concepts” principle of interpretation to ensure that federal legislation did not
conflict with the Bill. These techniques were evident particularly in the cases
where individuals challenged federal legislation on the basis that it violated
“equality before the law”. The Court held that discrimination on the basis of
one of the categories listed in s. 1 of the Bill did not, without more, infringe
equality before the law.48 Even so, the Court was extremely reluctant to
acknowledge that a law did, either directly 4 9 or indirectly,” discriminate in
this way. It also seemed to take the view that s. 1 (b) of the Bill did not apply if
the law in question could be characterized as granting a benefit to a particular
group or individual. 5 Again, s. l(b) was treated as inapplicable where the
legislation in question simply granted a discretion to an administrative official
and it was alleged that this gave rise to at least the possibility that this
discretion might be exercised in such a way as to infringe equality before the
law.52 Finally, the Supreme Court of Canada indicated on several occasions
that, in order to establish that a law conflicted with s. l(b) of the Bill, the
individual challenging the law had to satisfy the Court that the Parliament of
Canada was not seeking to achieve a valid federal objective in enacting the
law. 53 This placed the individual in the difficult position of proving a negative

4 A.-G. Canada v. Lavell, supra, note 8, 1363 and 1364, per Mr Justice Ritchie.
Fauteux C.J.C., Martland and Judson JJ. concurred in these reasons. Laskin, Abbott, Hall,
and Spence JJ. dissented. Mr Justice Pigeon gave separate reasons agreeing with the result
reached by Mr Justice Ritchie.

49
1n A.-G. Canada v. Canard, supra, note 23, 189, Mr Justice Martland, with Judson J.
concurring, held that s. 43 of the Indian Act, R.S.C. 1970, c. 1-6, which related only to the
administration of estates of Indians ordinarily resident on reserves, could not be considered to
discriminate on the basis of race.

50InBliss v. A.-G. Canada, supra, note 8, the impugned legislation (s. 46 of the Unemploy-
ment Insurance Act, 1971, S.C. 1970-71-72, c. 48) precluded a woman from collecting regular
unemployment insurance benefits during a period commencing eight weeks before the week in
which the confinement for pregnancy was expected and six weeks after the week in which her
confinement occurred even though she might be available for work and otherwise eligible for
the benefit. Mr Justice Ritchie, per curiam, concluded at 190 that”[a]ny inequality between the
sexes in this area is not created by legislation but by nature.”

51See R. v. Burnshine, supra, note 6, 707 per Martland J., with Fauteux C.J.C., Abbott,
Judson, Ritchie, and Pigeon JJ. concurring; and Bliss v. A.-G. Canada, supra, note 8, 191,per
Ritchie J., for the Court.

52See Smythe v. The Queen [1971] S.C.R. 680, (1971) 19 D.L.R. (3d) 480 [hereinafter cited

to S.C.R.].

“3SeeR. v. Burnshine, supra, note 6,707-8,perMarland J. with Fauteux C.J.C., Abbott,
Judson, Ritchie, and Pigeon JJ. concurring; Prata v. Minister of Manpower and Immigration
[1976] 1 S.C.R. 376, 382 (1975) 52 D.L.R. (3d) 383, per Martland J.; A.-G. Canada v.
Canard, supra, note 23, 188-9, per Martland J. with Judson J. concurring; Bliss v. A.-G.
Canada, supra, note 8, 186 and 194,perRitchie J.; andMacKay v. The Queen [1980] 2 S.C.R.
370, 393-4, (1980) 114 D.L.R. (3d) 393 per Ritchie J. with Martland, Pigeon, Beetz, and
Chouinard JJ. concurring. The concept of a valid federal objective might also explain the result

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and the Court’s apparent equation of a valid federal objective with any
purpose which brought the legislation within the power of Parliament under s.
91 of the Constitution Act, 1867 made it an impossible task.M

H.

A.

The Status and Wording of the Bill as Justification for the Sup-
reme Court’s Narrow Interpretation
Status

As noted earlier, the Canadian Bill of Rights was enacted as an ordinary
statute by the Parliament of Canada. Accordingly, it could be amended or
repealed by Parliament in the same way as any other statute. This caused the
Justices of the Supreme Court of Canada to refer to the Bill as a “statutory”
enactment55 or a “quasi-constitutional instrument” representing a “half-way
house between a purely common law regime and a constitutional one”. 6 On
several occasions, in an attempt to justify judicial restraint, the Court referred
explicitly to the fact that the Bill was not an entrenched part of the constitu-
tion. The following statement by Laskin J. in Curr v. The Queen was
particularly influential:

a point that did not directly arise in Regina v. Drybones –

Assuming that “except by due process of law” provides a means of controlling substantive
federal legislation –
compelling reasons ought to be advanced to justify the Court in this case to employ a
statutory (as contrasted with a constitutional) jurisdiction to deny operative effect to a
substantive measure duly enacted by a Parliament constitutionally competent to do so, and
exercising its powers in accordance with the tenets of responsible government, which
underlie the discharge of legislative authority under the British North America Act.”

in A.-G. Canada v. Lavell, supra, note 8. In this regard, see the reasons of Mr Justice Beetz in
A.-G. Canada v. Canard, supra, note 23.

“Compare

the application of the valid federal objective test by Mr Justice McIntyre,
Dickson J. concurring, in Mackay v. The Queen, ibid., with the way in which that concept is
used by MrJustice Ritchie with Martland, Pigeon, Beetz, and Chouinard JJ.concurring in the
same case.

55See, e.g., Currv. The Queen, supra, note 8, 899, per Laskin J.; A.-G. Canada v. Lavell,
supra, note 8, 1360,perRitchie J.; and Morgentalerv. The Queen [1976] 1 S.C.R. 616, 632,
(1975) 53 D.L.R. (3d) 161, per Laskin C.J.C., dissenting. The passage from the reasons of
Laskin J. in Curr where this characterization was made was quoted in R. v. Burnshine, supra,
note 6, 707, per Martland J.; Bliss v. A.-G. Canada, supra, note 8, 193, per Ritchie J.; and
MacKay v. The Queen, supra, note 53, 392-3, per Ritchie J.

“Hogan v. The Queen, supra, note 8, 597 per Laskin J., dissenting. See also Miller and
Cockriell v. The Queen, supra, note 8, 690, per Laskin C.J.C.; and Gay Alliance Toward
Equality v. The Vancouver Sun [1979] 2 S.C.R. 435, 467, (1979) 97 D.L.R. (3d) 577, per
Dickson

., dissenting, with Estey J. concurring.

“Supra, note 8, 899.

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PROSPECTS FOR THE CHARTER

Although originally made in the context of an analysis of the due process
clause as a basis for judicial interference with the substantive content of
legislation,58 this comment has been quoted in settings where the Court
construed other rights and freedoms declared and recognized in the Bill in a
narrow fashion.59

While obviously it cannot be denied that the Bill was enacted as an
ordinary statute and that the Court sometimes emphasized this fact, the
importance of the status of the Bill can easily be overstated in attempting to
explain the Court’s adoption of a position of restraint. In the first place, the
status of the Bill did not prevent members of the Court from concluding that it
should be accorded “paramountcy” I or “primacy to the guarantees of the
Canadian Bill of Rights by way of a positive suppressive effect on the
operation and application of federal legislation.” 6′ The Court indicated con-
sistently that the Bill overrode federal statutes, whether enacted before or after
1960, which could not be interpreted or applied so as to comply with the Bill.
Having accepted that an ordinary statute could have such a drastic effect on
other legislation, the Court could easily have gone on to give it a broad, liberal
interpretation.

Secondly, the refusal of the Court to characterize the Canadian Bill of
Rights as a constitutional document was itself indicative of judicial restraint.
The term “constitution” can be given a broad or narrow meaning. Used in a
broad sense, it refers to all of the important rules, whatever their source,
which establish, empower and regulate the principal institutions of govern-
ment in a country.62 The term has been used in this way by academics,63 by the
drafters of the recent constitutional reforms,’ and by the Supreme Court of
Canada itself,6 albeit in a different context. It could therefore be argued that
the Canadian Bill of Rights, though not part of the Constitution Act, 1867,
was as much a part of the Constitution of Canada as a great many other
statutes, both of the United Kingdom Parliament and the Canadian

m And repeated in this context in Morgentaler v. The Queen, supra, note 55, 632-3.
59R. v. Burnshine, supra, note 6, 707, per Martland J.; Bliss v. A.-G. Canada, supra, note

8, 193, per Ritchie J.; and MacKay v. The Queen, supra, note 53, 392-3, per Ritchie J.

Martland, Judson, and Dickson JJ. concurring.

6″Hogan v. The Queen, supra, note 8, 583, per Ritchie J. with Fauteux C.J.C., Abbott,
61 Ibid., 589-90, per Laskin J., dissenting, with Spence J. concurring.
6’See Hogg, supra, note 8, 2.
See, e.g., Hogg, ibid., and Tarnopolsky, The Supreme Court and the Canadian Bill of

Rights (1975) 53 Can. Bar Rev. 649, 672.

‘ASee s. 52(2) of the Constitution Act, 1982, being Schedule B, Canada Act 1982, 1982, c.

11 (U.K.).

61See Reference re Amendment of the Constitution of Canada (Nos. 1, 2 and 3) (1981) 125

D.L.R. (3d) 1, (1981) 39 N.R. 187 (S.C.C.) [hereinafter cited to D.L.R.].

McGILL LAW JOURNAL

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Parliament.’ To refer to the Canadian Bill of Rights as a non-constitutional,
or even quasi-constitutional, document in order to justify a narrow construc-
tion was result-oriented reasoning.

Thirdly, Justices of the Supreme Court of Canada occasionally indicated
explicitly that their reasoning and the results produced would not have
differed even if the Bill had been construed and applied as a constitutional
document. In Hogan v. The Queen, 67 Mr Justice Ritchie relied heavily on the
reasoning of the Privy Council in King v. The Queen,” to justify the admis-
sion of evidence obtained in violation of the Canadian Bill of Rights. In the
latter case, the Privy Council had to consider whether evidence, which had
been obtained in breach of the search and seizure provisions which were
entrenched in the Jamaican Constitution, was nevertheless admissible. In a
passage quoted by Mr Justice Ritchie in Hogan,69 Lord Hodson stated:

This constitutional right may or may not be enshrined in a written constitution, but it
seems to their Lordships that it matters not whether it depends on such enshrinement or
simply upon the common law as it could do in this country. In either event the discretion of
the court must be exercised and has not been taken away by the declaration of the right in
written form.7′

In concurring reasons in Hogan, Mr Justice Pigeon was even more explicit:
I agree with Ritchie J. that this appeal should be dismissed on the basis that, even if the
Canadian Bill of Rights is given the same effect as a constitutional instrument, this does
not mean that a rule of absolute exclusion, which is in derogation of the common law rule,
should govern the admissibility of evidence obtained wherever there has been a breach of
one of the provisions contained in that Bill.”

Finally, the constitutional status of the Canadian Bill ofRights was never
an issue in those cases where the Court was asked to use the Bill as a guide for
the interpretation of federal statutes or to review administrative actions taken
pursuant to the laws of Canada in light of the fundamental freedoms therein
recognized and declared. It has never been doubted that the Parliament of
Canada could enact, as ordinary legislation, a canon of construction or a guide
for the judicial review of administrative action. Nevertheless, even in this
context, the Supreme Court did not use the Bill to protect creatively and
vigorously individuals’ rights and freedoms.

66Regarding the latter, the majority in the Reference re Amendment of the Constitution of
Canada (Nos. 1, 2 and3), ibid., 81, described the Saskatchewan Act, S.C. 1905, c. 42 and the
Senate andHouse of CommonsAct, R.S.C. 1970, c. S-8, as “part of the rules of the Canadian
Constitution”.

67Supra, note 8.
– [1969] 1 A.C. 304, [1968] 2 All E.R. 610 [hereinafter cited to A.C.J.
69Supra, note 8, 584-5.
70King v. The Queen, supra, note 68, 319.
7’Hogan v. The Queen, supra, note 8, 585 [emphasis added].

1982]

PROSPECTS FOR THE CHARTER

In summary, the references in the cases to the status of the Canadian Bill
of Rights can best be viewed as attempts to justify an approach adopted for
other reasons. They may also be considered as the only explanation given,
albeit implicitly, for the out-of-hand rejection of American authorities as aids
to the interpretation of the Bill.72

B. Wording

The wording of the Canadian Bill of Rights, while perhaps unfortunate
and ambiguous in some respects, did not require the Court always to construe
the rights and freedoms listed in a restrictive fashion. In the Drybones case,73
the Court itself illustrated the extent to which judges could overcome any
ambiguities in the Bill which appeared to present obstacles for judicial review
of legislation. Although s. 2 read as if it were a canon of construction,74 a
majority of the Court concluded, by focusing upon the provision which
permitted the Parliament of Canada to avoid the effect of the Bill through a
non obstante clause, that the Bill was intended to override inconsistent federal
statutes. 75 Having effectively dealt with what was undoubtedly the most
important ambiguity in the Bill, the Court could have interpreted the rights

ISee, e.g., Smythe v. The Queen, supra, note 52, 687, per Fauteux C.J.C.; Hogan v. The
Queen, ibid., 583-4, per Ritchie J. with Fauteux C.J.C., Abbott, Martland, Judson, and
Dickson JJ. concurring; and Miller and Cockriell v. The Queen, supra, note 8. In the latter
case, at 706-7, Ritchie J., with Martland, Judson, Pigeon, and de Grandpr6 JJ. concurring,
asserted simply:

Although the phrase “cruel and unusual punishments” is to be found in the English Bill of
Rights of 1688 and the use of the words “cruel and unusual” in this context in both the
Canadian Bill ofRights and the United States Constitution no doubt owes its origin to that
source, I am nonetheless satisfied that these two latter documents differ so radically in
their purpose and content that judgments rendered in interpretation of one are of little
value in interpreting the other.

On one occasion, MrJustice Ritchie did adopt a dissenting opinion of an American Justice. See
Robertson and Rosentanni v. The Queen, supra, note 37, where he delivered the majority
reasons.

Chief Justice Laskin, on the other hand, has been quite willing to analyze the American
authorities to discover what light they might shed on the interpretation of theBill. See, e.g., R.
v. Appleby, supra, note 8, Hall J. concurring; Curry. The Queen, supra, note 8, Abbott, Hall,
Spence, and Pigeon JJ. concurring; Hogan v. The Queen, supra, note 8, 574, Spence J.
concurring in the dissent; Morgentaler v. The Queen, supra, note 55, Judson and Spence JJ.
concurring in the dissent; and Miller and Cockriell v. The Queen, supra, note 8, Spence and
Dickson JJ. concurring.

“Supra, note 3.
74This fact was stressed by Cartwright C.J.C., Pigeon and Abbott JJ., who dissented.
75Fauteux, Martland, Judson, Hall, and Spence JJ. concurred in the reasons given by Mr

Justice Ritchie.

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and freedoms broadly. It did not. It proceeded to construe the open-ended
language restrictively and to focus on every phrase or word which would
justify a narrow interpretation.

The Canadian Bill of Rights, as is true with most bills of rights, was
filled with phrases and expressions whose meaning was “largely unlimited
and undefined”. 6 Because of this characteristic of bills of rights, the attitude
of the courts, in particular of the ultimate appellate court, is much more
important than the actual wording of the bill in determining its effect. A court
which is prepared to engage actively in judicial review to protect civil rights
and fundamental freedoms will give the open-ended concepts an expanded
meaning; a court which is reluctant to act as the ultimate guardian of those
rights and freedoms will interpret those same concepts narrowly. A compari-
son of the majority and dissenting reasons given in some of the Supreme Court
of Canada decisions on the Canadian Bill of Rights illustrates this basic
observation. For example, in the Mitchell case,78 the Court ruled six to three
that s. 2(e) of the Bill did not apply to the suspension or revocation of parole
by the National Parole Board under the Parole Act. 79 Mr Justice Martland
explained the majority’s view succinctly:

The appellant had no right to parole. He was granted parole as a matter of discretion by the
Board. He had no right to remain on parole. His parole was subject to revocation at the
absolute discretion of the Parole Board.”

The majority also found that the requirements of s. 2(c)(i) of the Bill had been
met because the appellant was made aware of the fact that his apprehension
and subsequent detention occurred because of the suspension of parole and
the later revocation.8 ‘

In dissent, Laskin C.J.C. concluded that the suspension and revocation
of parole without reason or explanation violated both s. 2(c)(i) and s. 2(e) of

76Mr Justice Pigeon in dissent in R. v. Drybones, supra, note 3, 306.
Compare the reasons-of Mr Justice Ritchie with those of Mr Justice Laskin, who concurred
in the result, in R. v. Appleby, supra, note 8, regarding the interpretation of s. 2(f). Compare
also the reasons of MrJustice Laskin and MrJustice Ritchie, concurring in the result, in Curr v.
The Queen, supra, note 8, regarding the definition of the phrase “due process of law” used in s.
l(a), and those of Mr Justice Ritchie and Mr Justice Laskin in dissent in A.-G. Canada v.
Lavell, supra, note 8, regarding the meaning of “equality before the law” in the Bill.

“Supra, note 6.
79R.S.C. 1970, c. P-2.
“‘Mitchell, supra, note 6, 588. De Grandpr6 J. concurred in these reasons. Mr Justice
Ritchie, with Judson, Pigeon and Beetz JJ. concurring, decided the case on a procedural point,
but expressed agreement, at 593, with Mr Justice Martland’s views on s. 2(c)(i) and s. 2(e) of
the Bill.

“Ibid., 587 per Martland J.

1982]

PROSPECTS FOR THE CHARTER

the Bill. 2 Noting that the “uncontested facts on which the application was
based tend to shock from their mere narration”,83 he reasoned:

Counsel for the respondent urged that there was no violation of s. 2(c)(i) because the
appellant was made aware that his parole had been suspended, and this satisfied the
obligation to give a reason. This is rather serious because, if the Board has acted properly,
any arrest in the circumstances is an arrest upon a suspension, and hence it is the reason for
the suspension that must be provided if s. 2(c)(i) is to have more than an empty meaning. I
am of the opinion that the same objection must be maintained in respect of the continued
detention of the appellant following the revocation of parole. He was given no reason for
the suspension of parole, nor a reason for the revocation of parole. I would add that the
enforcement of s. 2(c)(i) would have the virtue of providing a basis for judicial review,
even if it be a limited one, so as to bring the National Parole Board to that extent into the
class of accountable statutory bodies. ‘

Regarding s. 2(e), he pointed out that the phrase “rights and obligations” had
particular significance in the context of a parole revocation and that a hearing
for the purposes of the Bill did not have to be a full-fledged adversarial
proceeding.Y

In this case, therefore, the Court was required to give meaning to the
terms “rights and obligations” and “reason for his arrest or detention”. These
terms were undefined in the Bill and it was open to the Court to adopt a narrow
or broad construction. By opting for the former, the Court held effectively
that the suspension or revocation of parole was completely unreviewable by
the courts.

The Court’s reliance on the wording of the opening paragraphs of ss 1
and 2 of the Bill to justify the application of the “frozen concepts” principle of
interpretation to the rights and freedoms listed therein can also be viewed as a
deliberate strategy by which the Court could avoid engaging actively in
judicial review to protect civil rights and fundamental freedoms. As explained
earlier, this principle was adopted in light of the fact that s. 1 of the Bill
specified that the enumerated human rights and freedoms “have existed and
shall continue to exist”. It was then extended to the rights listed in s. 2 because
the opening paragraph referred once again to “the rights and freedoms recog-
nized and declared”. The wording of the Bill may, therefore, have lent itself to
a technique of interpretation which was used to justify a narrow construction
of the rights and freedoms listed in both ss 1 and 2. Nevertheless, it would be a
mistake to conclude either that the Bill dictated the adoption of the “frozen

Ibid., 574, Dickson J. concurring. Although Spence J. gave separate dissenting reasons,
be expressed agreement with the Chief Justice’s views on the effect of the Canadian Bill of
Rights. Ibid., 598.

T Ibid., 575.
– Ibid., 583-4.
SIbid., 584-5.

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concepts” technique of interpretation or that that principle resulted necessari-
ly in a narrow interpretation of the rights and freedoms.

It is worth repeating that the Court itself held in the Drybones case 86 that
the rights and freedoms guaranteed in the Bill were not circumscribed by, or
subject to, Canadian law in force at the time of the Bill’s enactment. There-
fore, the “frozen concepts” principle of interpretation, properly understood,
simply allowed the Court to take into account the legislation in force in 1960
and the case law decided before that date in order to determine the accepted
meaning at that time of the rights and freedoms recognized and declared in the
Bill. To suggest, as did Mr Justice Ritchie in Miller and Cockriell v. The
Queen,’ that the wording of s. 1 required the Court to interpret the rights and
freedoms so that laws in existence in 1960 could not possibly violate the Bill,
was an unwarranted extension of the principle which contradicted a number of
majority judgments of the Supreme Court itself, most obviously that in
Drybones. It was also contrary to the text of the Bill, which indicated clearly
in s. 5 that laws in existence in 1960 were subject to the rights and freedoms
listed.

The use of even the more limited version of the “frozen concepts”
principle may be questioned. No doubt, it was quite proper for the Court to
examine the legal framework of contemporary Canadian society for guidance
in the interpretation of the open-ended concepts contained in the Bill. It is
probable that the Court would have done so even if s. 1 of the Bill had not
stipulated that the enumerated rights and freedoms “have existed and shall
continue to exist”. But to conclude that these words required the Court to
adopt the meaning of the concepts contained in the Bill which would have
been accepted in 1960 is, as Professor Tarnopolsky has pointed out,88 reminis-
cent of the approach taken by the Supreme Court of Canada in 1928 when it
decided that the word “persons” in s. 24 of the British North America Act,
1867, as it was then known, did not include women.89 When that case was
heard on appeal by the Judicial Committee of the Privy Council, 9 Lord
Sankey held that the Court had erred in attempting to discover what the word
could possibly have meant in 1867. Describing the British North America
Act, 1867 as a “living tree capable of growth and expansion within its natural
limits”, he suggested that it “should be on all occasions interpreted in a large,

16Supra, note 3.
I’Supra, note 8, 704.
8’Tamopolsky, supra, note 36, 184-5.
‘Reference re Meaning of the Word “Persons” in Section 24 of the British North America

Act, 1867 [1928] S.C.R. 276.

cited to A.C.].

‘Edwards v. A.-G. Canada [1930] A.C. 124, [1929] All E.R. Rep. 571 (P.C.) [hereinafter

1982]

PROSPECTS FOR THE CHARTER

liberal and comprehensive spirit, considering the magnitude of the subject
with which it purports to deal in a few words”.” A similar approach to the
Canadian Bill of Rights would have required the courts to give contemporary
meaning to the concepts contained in it.

Even if the Court was justified in attempting to discern the 1960 content
of Canadian rights and freedoms, this approach hardly explains why, on
occasion, it felt obliged to turn to nineteenth century authorities for guidance.
In A.-G. Canada v. Lavell,92 Mr Justice Ritchie noted that “the meaning to be
given to the language employed in the Bill of Rights is the meaning which it
bore in Canada at the time when the Bill was enacted, and it follows that the
phrase ‘equality before the law’ is to be construed in the light of the law
existing in Canada at that time”. He added:

In considering the meaning to be attached to “equality before the law” as those words
occur in section 1(b) of the Bill, I think it important to point out that in my opinion this
phrase is not effective to invoke the egalitarian concept exemplified by the 14th Amend-
. I think
ment of the U.S. Constitution as interpreted by the courts of that country…
rather that, having regard to the language employed in the second paragraph of the
preamble to the Bill of Rights, the phrase “equality before the law” as used in s. 1 is to be
read in its context as part of the “rule of law” to which overriding authority is accorded by
the terms of that paragraph. 3

Thereupon, he considered the definition of the phrase “rule of law” given in
Stephen’s Commentaries on the Laws of England,94 which, in turn, led him to
the definitions given to the phrases “rule of law” and “equality before the law”
by Dicey in 1885. He concluded that the latter concept involved simply
equality in “the administration or application of the law by the law enforce-
ment authorities and the ordinary courts of the land”. 9 This definition was
referred to in two subsequent cases 96 where the Court refused to find conflict
between a federal law and s. 1(b) of the Bill.

This definition is extremely difficult to justify, even if one accepts that
“equality before the law” should be interpreted as that concept was under-
stood in 1960. In the first place, it ignores the juxtaposition of the “equality
before the law” clause with the non-discrimination clause in the opening

91Ibid., 136.
‘2Supra, note 8, 1365. Fauteux C.J.C., Martland and Judson JJ. concurring. Mr Justice
Pigeon gave separate reasons agreeing with the result reached by Mr Justice Ritchie. Laskin,
Abbott, Hall, and Spence JJ. dissented.

93Ibid.
14L. Warmington, ed., Stephen’s Commentaries on the Laws of England, 21st ed. (1950).
95Lavell, supra, note 8, 1366.
96R. v. Burnshine, supra, note 6,703-4, and Bliss v. A.-G. Canada, supra, note 8, 192per

Ritchie J.

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paragraph of s. 1.91 Secondly, the interpretation suggested by Mr Justice
Ritchie ignored the fact that by 1960 Canada had signed the Universal
Declaration of Human Rights which indicated clearly that non-discrimination
was the core of the concept of equality before the law. Finally, even Mr
Justice Ritchie had applied an egalitarian concept in Drybones.9 The Court
never attempted to explain how the Diceyan definition, which appears to
focus upon the equal treatment of those to whom the law applies, is to be
reconciled with the Drybones case where the Court rejected explicitly the
proposition that equality before the law meant only equal treatment in the
application of the law. Indeed, in subsequent cases, the Court again struggled
to give meaning to the term “equality before the law” as an egalitarian
concept.

In essence, the Canadian Bill of Rights did not demand a narrow
construction of the open-ended concepts it contained. A court which favoured
judicial activism could have defined those concepts broadly. In particular, the
adoption of a “frozen concepts” principle of interpretation and the peculiar
way in which it was applied in some of the cases was not a natural result of the
wording of the Bill. Other reasons need to be discerned if the judicial restraint
exhibited by the Supreme Court of Canada is to be explained.

M. Reasons for Judicial Restraint

If the Supreme Court’s narrow construction of the rights and freedoms
recognized and declared in the Canadian Bill ofRights cannot be explained by
either the status or the wording of the Bill, then changes in the way those rights
and freedoms are expressed in the new Canadian Charter of Rights and
Freedoms and the entrenchment of the Charter in the Constitution Act, 1982 9

1In The Supreme Court and the Canadian Bill of Rights, supra, note 63, 671, Professor

Tamopolsky argues that

the majority views in the cases since the Drybones case, with their reference to 1960
definitions, merely camouflage the fact that the judges are giving their own interpretations
of the words used, instead of following the rules of statutory interpretation to see what
Parliament intended. If one follows the dictionary rule, one must include the non-
discrimination clause in the opening paragraph of section I as being plainly a part of the
definition. If one follows the “golden” rule, interpreting clauses not in isolation from
each other but in the context of the whole, one must again take note of the very direct
relationship between the opening paragraph and section I (b). If one applies the “mischief’
rule, then one cannot overlook the fact that the Parliament of Canada and the legislatures
of Canada, during the decade of the ‘fifties, were concerned with overcoming the
inequality which arises from discrimination. Therefore, even applying 1960 concepts,
one cannot exclude the modem twentieth-century notions of egalitarianism.

“Supra, note 3.
9Schedule B, Canada Act 1982, 1982, c. 11 (U.K.).

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PROSPECTS FOR THE CHARTER

will not necessarily cause a modification of the Court’s approach to civil
liberties issues. If there were other reasons for the adoption of a position of
judicial restraint in the cases involving the Canadian Bill of Rights, these
reasons might continue to influence the Court in the future. Any attempt to
discern such influences must, of necessity, be speculative because the Court
almost always referred to the status or wording of the Bill to justify a
restrictive interpretation.

It is submitted that two fundamental reasons can be discovered for the
tendency of the Court to read the Canadian Bill of Rights narrowly. The first
relates to the nature of the issues presented for judicial determination in those
cases where the Court was asked to find that a law of Canada conflicted with
the Bill. A broad, liberal construction of the Bill in those cases would have
required the Court to make policy decisions which involved determining the
priority that should be given to competing, but perhaps equally legitimate
social values. For reasons which remained largely unarticulated, a majority of
the Court appears to have concluded that such decisions are more appropriate-
ly made in our society by the legislature than by the judiciary. The dissenters
in the Drybones case expressed this view explicitly. 11 Appealing to tradition,
Mr Justice Pigeon focused upon the changed role of the courts under a bill of
rights which has overriding effect on inconsistent legislation:

[The judgments below hold in effect that Parliament in enacting the Bill has implicitly
repealed … the fundamental principle that the duty of the courts is to apply the law as
written and they are in no case authorized to fail to give effect to the clearly expressed will
of Parliament. It would be a radical departure from this basic British constitutional rule to
enact that henceforth the courts are to declare inoperative all enactments that are consi-
dered as not in conformity with some legal principles stated in very general language, or
rather merely enumerated without any definition.
The meaning of such expressions as “due process of law”, “equality before the law”,
“freedom of religion”, “freedom of speech”, is in truth largely unlimited and undefined.
According to individual views and the evolution of current ideas, the actual content of
such legal concepts is apt to expand and to vary as is strikingly apparent in other countries.
In the traditional British system that is our own by virtue of the B.N.A. Act, the
responsibility for updating statutes in this changing world rests exclusively upon
Parliament.”‘

Chief Justice Cartwright shared these concerns, noting that the new role
would be “imposed upon every justice of the peace, magistrate and judge of
any court in the country who is called upon to apply a statute of Canada or any
order, rule or regulation made thereunder.” 102 Mr Justice Abbott’s misgivings
regarding the majority’s interpretation of s. 2 of the Bill were expressed in

‘Supra, note 3.
“‘1Ibid., 305-6.
” I bid., 287-8.

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language which also alluded to the different functions performed by the courts
and the legislature in our system of government.0 3 Although he later accepted
that the Drybones case had established that the Canadian Bill of Rights
rendered inoperative any conflicting legislation, Mr Justice Abbott continued
to view this result as “undesirable”.'”

The majority in Drybones,”5 finding that the intent of Parliament was
clear, were compelled to hold that the Canadian Bill of Rights did have
overriding effect. This conclusion, therefore, was based itself on the doctrine
of Parliamentary sovereignty which required the Court to give effect to the
Bill as an expression of Parliament’s intention. Nevertheless, subsequent
decisions of the Court suggest that successive majorities shared the views of
the dissenters in Drybones on the desirability of a Bill of Rights which
empowered the judiciary to review legislation duly passed by Parliament.
Although the Court continued to pay lip-service to the principle that the Bill
overrode inconsistent legislation, a majority in each case interpreted the Bill
in such a way that Parliament retained the ultimate responsibility for the
protection of fundamental rights and freedoms. In one sense, this was a
refusal to adhere to the doctrine of Parliamentary sovereignty as, arguably,
the Court refused to construe the Bill in the manner and spirit intended by
Parliament. On the other hand, the Court’s approach ensured adherence to the
principle which might be said to underlie the doctrine of Parliamentary
sovereignty: namely, that it is the role of Parliament, not of the courts, to
weigh countervailing interests and values and then to make the final decision
of what the law of the land should be. 10 The Court’s reluctance to undertake
such a role was especially obvious when the cases involved such basic and
controversial matters as the loss of Indian status by Indian women who
married non-Indians 107 and the imposition of the death penalty for certain
crimes. 0 Regarding the latter, Mr Justice Ritchie stated explicitly that “the

‘3 Ibid., 299.
“A.-G. Canada v. Lavell, supra, note 8, 1374, dissenting.
105Supra, note 3. Fauteux, Martland, Judson, Hall, and Spence JJ. concurred in the reasons

given by Mr Justice Ritchie. Hall J. added some “observations”.

‘6It is, of course, true that if the Court had actively engaged in judicial review of
Parliament’s legislation, the Parliament of Canada could have responded by amending or
repealing the Bill or by inserting non obstante clauses into its legislation. However, as Mr
Justice Abbott observed when dissenting inA.-G. Canada v. Lavell, supra, note 8, 1374, such
a response was highly unlikely.

“3wA.-G. Canada v. Lavell, supra, note 8. In that case, Mr Justice Ritchie at 1358-63, with
Fauteux C.J.C., Martland and Judson JJ. concurring, also expressed grave concerns regarding
the possibility that a broad definition of “equality before the law” would eventually require the
Court to find the whole Indian Act inoperative.

‘Miller and Cockriell v. The Queen, supra, note 8.

1982]

PROSPECTS FOR THE CHARTER

abolition of the death penalty is a matter for Parliament”. 11 He rejected the
view that, in order to determine whether or not the death penalty could be
considered “cruel and unusual”, the Court should assess current community
standards of morality and the deterrent effect of the death penalty. Such an
assessment was said to raise only “questions of policy” which were “of
necessity considerations affecting the decision of Parliament as to whether or
not the death penalty should be retained”.”‘ As a retired Justice, Ronald
Martland was even more forthright. In a newspaper interview,”‘ he acknow-
ledged that he did not favour the entrenchment of a bill of rights because it
could potentially transfer enormous power to the courts. It would be better, in
his view, for the legislatures to pass specific enactments protecting rights and
freedoms in particular contexts.

The view that the legislature, not the judiciary, is the appropriate
institution to make ultimate policy choices and to work out the necessary
compromises between conflicting values is, of course, a controversial one. 2
Nevertheless, it is generally in keeping with the traditions of our legal system
and the history of Canada’s political structure.”13 Theoretical justifications can
also be put forward. Legislative bodies are better equipped to collect the
relevant economic and sociological data than the courts are. Perhaps most
important, legislators are democratically elected and hence accountable to the
people for their decisions, while judges are appointed and insulated from
political pressures by the doctrine of judicial independence and all that it
entails. Whether or not these concerns about judicial review under a Bill of
Rights are legitimate is largely irrelevant to the thesis advanced in this paper.
What is important is that a majority on the Supreme Court of Canada appears
to have been influenced by them.

The Court’s narrow interpretation of the rights and freedoms listed in the
Canadian Bill of Rights was evident not only in the policy-laden cases where

“9Ibid., 704. Justices Martland, Judson, Pigeon, and de Grandpr6 concurred in the reasons
given by Mr Justice Ritchie. Chief Justice Laskin, with Dickson and Spence JJ. concurring,
gave separate reasons concurring in the result.

“Ibid., 705-6 per Ritchie J.
M Charter a Poor Safeguard for Citizens, Ex-Justice Says, The [Toronto] Globe and Mail

(13 February 1982) 11, col. 1-2.

1,2For an analysis of the appropriate roles of the legislature and the judiciary which supports
this view, see D. Schmeiser, Civil Liberties in Canada (1964); Russell, A Democratic
Approach to Civil Liberties (1969) 19 U.T.L.J. 109; Willis, Foreign Borrowings (1970) 20
U.T.L.J. 274; Schmeiser, The Case Against Entrenchment of a Canadian Bill ofRights (1973)
1 Dal. L.J. 15; and Schmeiser, The Entrenchment of a Bill of Rights (1981) 19 Alta L. Rev.
375. For the arguments against this position, see the works of Tarnopolsky, supra, notes 4, 36
and 63; and P. Trudeau, Charte canadienne des Droits de l’homme (1968).

“See McWhinney, “Legal Theory and Philosophy of Law in Canada” in E. McWhinney,
ed., Canadian Jurisprudence !:] The Civil and Common Law in Canada (1958) 1; Weiler, Two
Models of Judicial Decision-Making (1968) 46 Can. Bar Rev. 406; P. Weiler, In the Last

REVUE DE DROIT DE McGILL

(Vol. 28

it was invited to hold legislation invalid, but also in the cases where it was
asked to use the Bill as a rule of interpretation or as a guide to judicial review
of administrative action. These latter cases did not raise the spectre of the
Court overruling legislative judgments regarding the relative merits of com-
peting values. Moreover, they usually involved the definition and application
of the legal rights set out in s. 2 of the Bill, a task for which the judiciary
appears eminently qualified. The concerns regarding judicial review of leg-
islation outlined above, therefore, were not present. Accordingly, there must
be at least one other underlying cause for the Court’s narrow construction of
the Bill. It is submitted that this second reason was simply the Court’s greater
concern for what Professor Schmeiser has called “the collective good of
society, whether expressed in terms of needs of the State, administrative
efficiency, or law and order” than for the protection of individual rights.”4 As
Schmeiser has demonstrated, this attitude of the Court was not confined to
cases involving the Canadian Bill of Rights.”‘ It was evident in the leading
cases in all areas of public law including administrative law,” 6 criminal law,” 7

Resort [ :]A Critical Study of the Supreme Court of Canada (1974); Leavy, “The Structure of
the Law of Human Rights” in R. MacDonald & J. Humphrey, eds, The Practice of Freedom
[:J] Canadian Essays on Human Rights and Fundamental Freedoms (1979) 53; McCarter, The
Decision-Making Process in Constitutional Decisions of the Supreme Court of Canada (1979)
37 U.T. Fac. L. Rev. 209; and Gold, EqualityBefore the Law in the Supreme Court of Canada:
A Case Study (1980) 18 Osgoode Hall L.J. 336.

In the 1950’s, the Supreme Court of Canada did strive actively to uphold civil liberties
and, in effect, substituted its policy for that which underlay provincial legislation. For an
analysis of this approach, which appears now to have been a relatively short-lived aberration,
see McWhinney, Federal Supreme Courts and Constitutional Review (1967) 45 Can. Bar Rev.
578; Gibson, -And One Step Backward: The Supreme Court and Constitutional Law in the
Sixties (1975) 53 Can. Bar Rev. 620; and Berger, The Supreme Court and Fundamental
Freedoms: The Renunciation of the Legacy of Mr. Justice Rand (1980) 1 Supreme Court L.R.
460.

114 Schmeiser, The Role of the Court in Shaping the Relationship of the Individual to the State

[:1 The Canadian Supreme Court (1980) 3 Can.-U.S. L.J. 67, 67.

” 5Ibid., passim. See also Gibson, supra, note 113; Maloney, The Supreme Court and Civil
Liberties (1975) 18 Crim. L. Q. 202; Grant, The Supreme Court of Canada and the Police:
1970-76 (1977) 20 Crim. L.Q. 152; and MacPherson, Developments in Constitutional Law:
The 1978-79 Term (1980) 1 Supreme Court L.R. 77.

6 See, e.g., Harelkin v. The University of Regina [1979] 2 S.C.R. 561, (1979) 96 D.L.R.

1

(3d) 14.

“7 See, e.g., R. v. Carker [1967] S.C.R. 114, [1967] 2 C.C.C. 190; Lemieux v. The Queen
[1967] S.C.R. 492, (1967) 63 D.L.R. (2d) 75; R. v. Stenning [1970] S.C.R. 631, (1970) 10
D.L.R. (3d) 221; Knowlton v. The Queen [1974] S.C.R. 433, (1973) 33 D.L.R. (3d) 755;R. v.
Biron [1976] 2 S.C.R. 56, (1975) 59 D.L.R. (3d) 409; R. v. Kundeus [1976] 2 S.C.R. 272,
(1975) 61 D.L.R. (3d) 145; Schwartz v. The Queen [1977] 1 S.C.R. 673, (1976) 67 D.L.R.
(3d) 716; Leary v. The Queen [1978] 1 S.C.R. 29, (1977) 74 D.L.R. (3d) 103; Rourke v. The
Queen [1978] 1 S.C.R. 1021, (1977) 76 D.L.R. (3d) 193; Moore v. The Queen [1979] 1

1982]

PROSPECTS FOR THE CHARTER

and evidence. ” Again, one may not agree with the Court’s tendency to favour
the common good over individual rights, but it must be taken into account if
one is to explain the Court’s approach to the Canadian Bill of Rights. This
general attitude must also be considered in any speculation regarding the
Court’s future performance in civil liberties cases.

Conclusion

The Supreme Court of Canada attempted to explain its narrow construc-
tion of the Canadian Bill of Rights by references to the Bill’s status and
wording. The entrenchment of the Canadian Charter ofRights and Freedoms
and the drafting of its substantive provisions largely will preclude the Court
from relying on these reasons to justify a restrictive approach to the Charter.
The constitutional status of the Charter and its overriding effect is spelled out
explicitly in ss 52(1) and (2) of the Constitution Act, 1982.119 Unlike the Bill,
the Charter specifically empowers the courts to fashion any remedy consi-
dered “appropriate and just in the circumstances” for an infringement or
denial of the rights and freedoms guaranteed in it.”2 More particularly, s.
24(2) provides a modified version of the American exclusion of evidence rule
which was rejected in the Hogan case. 2 ‘ The rationale for the “frozen
concepts” technique of interpretation has also disappeared because the rights
and freedoms in the Charter are expressed in the present tense only. 2 2 By
joining the non-discrimination clause and the “equality before the law”
guarantee,”
the Charter attempts to ensure that the meaning given to that
guarantee cannot be confined as it was by Mr Justice Ritchie in Lavell. ‘ 4
Finally, s. 15(1) refers to the “equal benefit of the law without discrimination”
thereby suggesting that the courts can no longer simply dismiss the “equality

S.C.R. 195, (1978) 90 D.L.R. (3d) 112; andR. v. Guimond [1979] 1 S.C.R. 960. Exceptions
to the trend are: Kienapple v. The Queen [1975] 1 S.C.R. 729, (1974) 44 D.L.R. (3d) 351; R.
v. Corp. of the City ofSaultSteMarie [1978] 2 S.C.R. 1299, (1978) 85 D.L.R. (3d) 161;R. v.
Prue [1979] 2 S.C.R. 547, (1979) 96 D.L.R. (3d) 577; and Chartier v. A.-G. Qudbec [1979] 2
S.C.R. 474, (1979) 104 D.L.R. (3d) 321.

“,8 See, e.g., De Clercq v. The Queen [1968] S.C.R. 902, (1968) 70 D.L.R.(2d) 530; R. v.
Wray [1971] S.C.R. 272, (1970) 11 D.L.R. (3d) 673; Faber v. The Queen, [1976] 2 S.C.R. 9,
(1975) 65 D.L.R. (3d) 423;Morris v. The Queen [1979] 1 S.C.R. 405, (1978) 91 D.L.R. (3d)
161; and Rothman v. The Queen [1981] 1 S.C.R. 640, (1981) 121 D.L.R. (3d) 578.

119 Schedule B, Canada Act 1982, 1982, c. 11 (U.K.).
110Part I of Schedule B, Canada Act 1982, 1982, c.II (U.K.), s. 24(1).
“Supra, note 8.
‘”See, e.g., s. 2 which begins with these words: “Everyone has the following fundamental

freedoms”.

‘Part I of Schedule B, Canada Act 1982, 1982, c.11 (U.K.), s. 15(1).
124Supra, note 8.

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before the law” argument whenever the legislation in question can be char-
acterized as conferring a benefit.

Nevertheless, the Charter does not, and indeed could not, prescribe a
judicial attitude to its administration. The operating ideals of the judges,
especially at the level of the Supreme Court of Canada, will continue to play
an important role. The entrenched provisions, containing largely undefined
concepts which are sometimes subject expressly to open-ended
qualification,’21 will still have to be given specific meaning in particular
contexts by the judiciary. Furthermore, s. 1 provides plenty of scope for
judicial discretion in the application of the Charter. It specifies that the
“Canadian Charter of Rights and Freedoms guarantees the.rights and free-
doms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society”. If a majority
on the Supreme Court of Canada continues to favour judicial restraint, it can
either define the rights guaranteed by the Charter narrowly or conclude that s.
1 permits considerable infringement of the rights.

Therefore, the fate of the new Charter will turn ultimately on the
judiciary and the particular philosophy that the judges on the Supreme Court
of Canada adopt regarding its provisions. The Court’s record in relation to the
Canadian Bill of Rights suggests that its philosophy will be one of judicial
restraint. That attitude may change as new appointees take their places on the
Court. Indeed, to some extent, a change in approach could already be
discerned in the most recent Canadian Bill ofRights cases heard by the Court.
In MacKay v. The Queen,’26 Mr Justice McIntyre indicated a willingness to
assess the merits of federal laws in his use of the “valid federal objective” test
in order to determine if the “equality before the law” guarantee was violated.
7 used the Canadian Bill of Rights to
A majority of the Court in R. v. Shelley 1
interpret a federal law in a way which protected the rights of the accused. The
contrast between that case and earlier cases dealing with similar legal rights is
striking. If a change in philosophy does, in fact, occur, the Court will have
little difficulty in distinguishing the earlier Canadian Bill of Rights cases
because the reasons in those cases, whatever the underlying rationale, fo-
cused simply upon the status of the Bill and its wording to justify a narrow
construction.

“‘In the Canadian Charter ofRights andFreedoms, Part I of Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), see, e.g.: “unreasonable search and seizure” in s. 8; “arbitrarily detained
or imprisoned” in s. 9; and “unreasonable delay” in s. 11 [emphasis added].

“Supra, note 53. Mr Justice Dickson concurred in the reasons given by Mr Justice
McIntyre. The Chief Justice’s dissent, Estey J. concurring, illustrates an even greater willing-
ness to examine the wisdom of the legislation. The majority reasons given by Mr Justice
Ritchie, with Martland, Pigeon, Beetz, and Chouinard JJ. concurring, continue to exhibit great
deference to Parliament’s judgment in these matters.

‘nSupra, note 6. Laskin C.J.C., with Dickson, Estey and McIntyre JJ. concurring, gave

the majority reasons. Ritchie J., with Martland and Chouinard JJ. concurring, dissented.