Constitutional Amendment and the Implied Bill of Rights
Dale Gibson *
One of the most original and provocative contributions ever made
to Canadian constitutional law was the dictum of Chief Justice
Sir Lyman Duff in the Alberta Press case ‘ that the British North
America Act impliedly prohibits abrogation by provincial legislatures
of certain important civil liberties. He stated that since the British
North America Act requires the establishment of “One Parliament”
for Canada;2 and since the term “Parliament”. means, when in-
terpreted in the light of the Preamble’s reference to “a Constitution
similar in Principle to that of the United Kingdom”, a democratic
legislative body elected and functioning in an atmosphere of free
speech; legislation abrogating freedom of speech in a particular
province would be an interference with the character of the federal
Parliament, and therefore ultra vires of the provincial legislature.
That the Duff dictum logically involves a restriction of the powers
of the federal Parliament as well was pointed out first by Mr. Justice
Abbott in the Padlock Law case.3 He expressed the view that “Parlia-
ment itself could not abrogate this right of discussion and debate”.
Since the provisions of the British North America Act are as binding
on Parliament as on the provincial legislatures, this does seem to
follow from Chief Justice Duff’s dictum.
This idea is sometimes described as an “implied bill of rights”.
This is perhaps a little exaggerated, since the theory does not affect
all the matters normally included in a written bill of rights. It
purports only to protect those communicative freedoms which are
essential to the existence of a democratic Parliament. Moreover,
while it would prohibit complete “abrogation” of those rights, its
effect on less severe restrictions is not clear. However, if these
qualifications are kept in mind, the term “implied bill of rights”
can be useful.
So radical a concept was bound to be controversial. It has never
been accepted by a majority of the members of the Supreme Court
* Associate Professor, Manitoba Law School.
1 Reference Re Alberta Statutes, [1938] S.C.R. 100, at p. 132.
230 & 31 Vict., c. 3, s. 17.
3 Switzman v. Elbling, et al., [1957] S.C.R. 285, at p. 328.
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of Canada, or of any other court, for that matter. On the other hand,
it has commanded the allegiance of an impressive number of Su-
preme Court judges, and it has never been decisively rejected. It
was raised in argument before the Supreme Court on a couple of
recent occasions, but most of the judges were careful to sidestep it.4
The scholars are equally divided. 5 This is not an appropriate place
to deal fully with the debate, but it is necessary to review some of
the principal arguments briefly.
Some critics have attacked the idea on the ground that it is
based on the Preamble, which does not have legislative force. This
is fallacious, however. The basis of both the Duff and Abbott argu-
ments is section 17 of the Act. They simply used the Preamble for
the perfectly legitimate purpose of assisting them to interpret the
word “Parliament” in that section.
The most frequent objection to the idea that a hidden bill of
rights lurks in the language of the British North America Act is
that it is not consistent with the doctrine of parliamentary sover-
eignty.7 It is said that if our constitution is really similar in principle
to that of Great Britain, it must include the concept of legislative
supremacy, which is the root principle of British constitutional law.
Therefore, it is argued, no subject can be beyond the legislative
competence of both Parliament and the provincial legislatures. This
argument overlooks two facts. First, complete legislative supremacy
is impossible in any system of federal government, because there
must always be a constitutional document that distributes legislative
jurisdiction and is immune from alteration by either level of legis-
lature. Second, the British North America Act contains several pro-
visions which restrict the sovereignty of both Parliament and the
provincial legislatures, even within their own jurisdictions. For ex-
4
1n Oil, Chemical and Atomic Workers International Union v. Imperial Oil Ltd.
(1964) 41 D.L.R. 2d 1 (S.C.C.), Abbott, J., dissenting, reiterated his views in the
Padlock Law case, and Martland, J., for the majority, held that the Duff dictum
was distinguishable, while the rest of the Court avoided the issue altogether. In
McKay v. The Queen (1966) 53 D.L.R. 2d 532 (S.C.C.) Martland, J., this time
in dissent, was the only judge to deal with the Duff dictum, which he again
distinguished.
5 Professor Scott supports the idea: Civil Liberties and Canadian Federalism,
1959, p. 18, ff., as does Professor Schmeiser; Civil Liberties In Canada, 1964,
p. 198, ff. Professor (now Mr. Justice) Laskin seems to oppose it (or at least the
Abbott extension): “An Inquiry Into the Diefenbaker Bill of Rights”,
(1959)
37 Can. Bar Rev. 77, at p. 100, ff.
6Laskin, Canadian Constitutional Law, 2nd ed., 1960, p. 940.
7 Laskin, “An Inquiry Into the Diefenbaker Bill of Rights”, (1959) 37 Can.
Bar Rev. 77, at p. 102.
No. 4] CONSTITUTIONAL AMENDMENT – BILL OF RIGHTS 499
ample, section 133 guarantees the right to use either the English
or French language in Parliament and in any federal court, section
20 provides for an annual session of Parliament, and section 92(1)
prohibits interference with the office of Lieutenant-Governor. Un-
like the British Parliament, our legislatures are all bound by these
and other provisions of our written constitution. The Duff and Abbott
dicta do not, therefore, involve any radical departure; they merely
seek to subject Parliament and the provincial legislatures to implied
as well as to express constitutional restrictions.
Another objection is that the drafters of the British North Ameri-
ca Act almost certainly had no intention of including the type of
protection from legislative excesses that Chief Justice Duff and Mr.
Justice Abbott have “discovered” in it.8 This is true, but irrelevant.
If there is one thing that most constitutional authorities agree upon,
it is that the courts must be allowed to exercise a substantial degree
of creativity in interpreting the constitution.
A somewhat more plausible argument is that the Duff and Abbott
dicta exceeded the limits of permissible judicial creativity; that a
decision to place new restrictions on legislative powers is so important
that it should be made by legislators, not judges. This is one of those
questions of degree, about which there can be a wide range of opinion.
My view is that where an issue as vital as the protection of civil
liberties is concerned, and where the legislators have demonstrated
their inability to provide adequate safeguards, the courts are entirely
justified (perhaps even morally obliged)
in employing all the in-
genuity and imagination at their command to preserve individual
rights.
The purpose of this note is to examine how the implied bill of
rights would be affected by the Fulton-Favreau proposal for con-
stitutional amendment.
The existing amendment powers of Parliament and the provincial
legislatures present no challenge to the concept. The provincial amend-
ing provision, section 92(1), obviously has no bearing on it, since
it can not justify any interference with Parliament, a federal insti-
tution. It might be argued that the federal amendment power, be-
stowed in 1949 by section 91 (1), endangers the implied bill of rights
by enabling Parliament to change any of the federal features of the
constitution, including the meaning of “Parliament” in section 17.
It is unlikely that an express amendment, declaring Parliament to
‘be no longer democratic, would ever be passed, but could not an
8 Ibid.
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oppressive Act of Parliament simply be treated as an implied amend-
ment of section 17 ? If so, the Duff dictum lost its force in 1949.
Fortunately, there are several exceptions to the federal amending
power, two of which, it is submitted, shield the implied bill of rights
from amendment.
The more obvious of these is the stipulation that Parliament may
not amend the constitution “as regards the requirements that there
shall be a session of the Parliament of Canada at least once each
year…” If the word “Parliament” is given the same interpretation
here that Chief Justice Duff gave it in section 17, this provision
clearly entrenches the implied bill of rights.
The other relevant exception to the federal amendment power
relates to “rights or privileges by this or any other Constitutional
Act granted or secured to the Legislature or the Government of a
province.” It could be argued that this also prevents any federal
amendment that would abrogate freedom of speech. If “Parliament”
means a representative body working under the influence of free
public opinion, as Chief Justice Duff asserted, the same mean-
ing must certainly be ascribed to the words “Legislature” and “Legis-
lative Assembly”, by which the British North America Act refers
to the provincial law-making bodies.9 Therefore, if it is unconsti-
tutional for the provincial legislatures to destroy the atmosphere of
free speech that is essential to the existence of “Parliament”, the
converse is also true. Or, to put it another way, abrogation of free
speech by Parliament would be an improper interference with the
“right”, granted to provincial legislatures by use of the term “Legis-
lature” in the British North America Act, to function in an environ-
ment of freedom, and would therefore be beyond Parliament’s powers.
What would be the fate of the implied bill of rights if the Fulton-
Favreau formula were adopted ? This depends on how the exceptions
to the rule of amendment by unanimity are interpreted. Section 2
of the formula provides that a constitutional amendment affecting
“… the rights or privileges granted or secured by the Constitution
of Canada to the legislature or the government of a province…”
may only be made with the unanimous consent of Parliament and
the provincial legislatures. So if the preceding paragraph is correct
in regarding freedom of speech as such a provincial “right”, the
implied bill of rights would be about as firmly entrenched under the
proposed scheme as at present.
9 An example is section 69: “There shall be a Legislature for Ontario consisting
of the Lieutenant-Governor and of one House, styled the Legislative Assembly
of Ontario”.
No. 4] CONSTITUTIONAL AMENDMENT – BILL OF RIGHTS 5b.
However, the combined effect of sections 5, 6 and 8 of the Fulton-
Favreau proposal is that amendment of “the requirements of the
Constitution of Canada respecting a yearly session of Parliament”
may be accomplished by Parliament and the legislatures of two-thirds
of the provinces, representing fifty percent of the Canadian popu-
lation. If this were regarded as the only constitutional safeguard
of free speech, the implied bill of rights would be somewhat more
vulnerable to attack by federal amendment than it is now.10
Let me summarize by means of an example. If the federal Parlia-
ment were to pass an Act making it a serious criminal offense to
publish statements in support of some unpopular ideology, such as
communism, I believe that as our constitution now stands the courts
could declare the Act ultra vires on the basis of the Duff-Abbott
doctrine. If the courts took such a step, it could only be nullified
by a constitutional amendment, which in my view would require an
Act of the British Parliament. If the Fulton-Favreau scheme were
in operation, the result would be the same, except that the Act would
have the effect of a constitutional amendment if ratified by the
legislatures of either all or two-thirds (depending on the factors
discussed above) of the provinces.
So while the Fulton-Favreau formula might confuse the issue a
bit, it would not present a serious obstacle to a court determined
to invoke the implied bill of rights. Whether the courts will display
such determination is, of course, another question.
10 [As section 91: 1 of the B.N.A. Act would be repealed by s. 12 of the Formula,
s. 17, foundation of the Duff dictum, would be as much excluded from amend-
ment by simple federal statute as it was before the B.N.A. Act, 1949 put section
17 at the mercy of a simple federal Act. The new federal power given in com-
pensation is narrower, a federal statute being now restricted to dealing with
only the branches: i.e., Executive government, Senate, Commons. The difference
may be material to the implied Bill of Rights, since s. 17, its foundation, refers
also to Parliament. But semble s. 17 is amendable, like the yearly session rule,
by the two-thirds procedure, as the author suggests. – Editor]
