Common use has determined that a right is some sort of an advantage to which one is entitled and that cannot be denied. It often implies a corresponding duty on the part of another individual. However, this common definition has no legal standing in Canada. In a country with British Parliamentary institutions, such as Canada, a right, to exist, must have some legal foundation. The source of this precept is found in the principle of the
Supremacy of Parliament that states that Parliament has unrestrained powers and that it can exercise them at will. Thus, it alone can create a right and none exists that has not been proclaimed as such by a legislative body. Consequently, "natural rights" are not recognised by the courts in Canada, unless they have been written into law. When a legislature has not pronounced on a question, advantages enjoyed by individuals are called privileges, freedoms or liberties.
In Canada, there exists two types of legal rights: some are statutory and others are constitutional rights. Statutory rights are those that are enacted as a matter of course and by the ordinary process of legislation: a legislative body (federal or provincial) decrees that some sort of an advantage is be bestowed on an individual or a category of individual: (ex. right to vote at age 18, right not to retire at age 65, right not to be discriminated against by reason of sex, age, religion, etc.). Often, there has been a tendency to group such rights in a single document so as to give them, seemingly, more force and prestige. In Canada, for example, a Canadian Bill of Rights was issued in 1959 and provincial Charters of Rights have been enacted in every province, including a very extensive one issued in Quebec in 1974. Statutory rights are advantageous, as they are easy to create and consequently are numerous. However, they are just as easily amended and consequently may easily be removed.
Constitutional rights are those that are written in the Constitution and they must be created, or altered, through the process of constitutional amendment, a process that is always complex and difficult but, otherwise, provides ironclad guarantees for the protected rights. Thus there are relatively few such rights; they are inevitably those that have very broad support among the people and often constitute the foundations of a modern democratic state (freedom of speech, freedom of the press, right to council, to a jury etc.).
The original Canadian constitution contained some recognition of linguistic and school rights in ss. 133 and 93. However, to a large extent, the country functioned with the principle of Supremacy of Parliament until the adoption of the Canadian Charter of Rights and Freedoms in 1982. Because this enactment was in contradiction with the tradition of "laissez-faire" regarding rights from the Canadian past, because of the uncertainty in the application of such rights in the future and the lack of consensus among the premiers as to which rights should be protected in 1982, because of remnants of attachment to the British principle of Supremacy of Parliament and because several provinces already had similar provisions in their charter of rights, the Canadian Charter of Rights was saddled with a number of restrictions that are most extraordinary: all the rights listed in the Charter are subjected to possible limits that are acceptable in a free and democratic society (art. 1) and the rights listed in ss 2, 7-14 and 15 are subjected to a nothwithstanding clause and may thus be suspended by Parliament or a Legislature for a period of five years.
In Quebec, the provincial Charter of Rights is one of the most extensive in North America. It has also been somewhat put beyond the grasp of the legislators as it requires the support of at least 60% of the legislators to be amended.
© 1998 Claude
Bélanger, Marianopolis College