Implied bill of rights

Canada portal The implied bill of rights (French: déclaration des droits implicite) is a theory in Canadian jurisprudence which proposed that as a consequence of the British North America Act, certain important civil liberties could not be abrogated by the government.

[4][5] In the 1938 decision of Reference Re Alberta Statutes, a concurring opinion of the Supreme Court of Canada first proposed an implied bill of rights.

The theoretical foundation for these rights was the importance of free political speech and discussion in a democracy....But the protection of the implied bill of rights was limited and uncertain....It was applied in only a few cases.When provincial legislation intrudes deeply into fundamental freedoms of speech, religion, association or assembly, the provincial legislature is creating criminal legislation, which under the distribution of powers is reserved exclusively to the Parliament of Canada by section 91(27) of the Constitution Act, 1867.

Since provincial prohibitions touching on the fundamental freedoms of speech, religion, assembly and association were declared unconstitutional by the courts, and in light of the expansive obiters in the leading cases, the writers were able to claim that there was a bill of rights implicit in the Constitution.

[20] Thus, legislation which destroyed the citizen's ability to debate, to assemble or to associate freely would be contrary to Canada's democratic parliamentary system of government.

[21] Invoked more often before the Canadian Charter of Rights and Freedoms was enacted, it is nonetheless important when questions of parliamentary supremacy and the override power come into play.

As outlined by the majority the proper function of the implied bill of rights after the adoption of the Charter is to "fill in the gaps" in the express terms of the constitutional texts.

It is the means by which the underlying logic of the Act can be given the force of law.The ideas outlined in Provincial Judges were developed further in the Reference re Secession of Quebec.

"[28] In Toronto (City) v Ontario (Attorney General), the Supreme Court held that unwritten constitutional principles could not serve as an independent basis to strike down legislation.