Implied Bill of Rights

The Implied Bill of Rights (French: Déclaration des droits implicite) is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada.

The concept of an implied bill of rights develops out of Canadian federalism. 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.

Provinces cannot intrude in this area; if they do, such legislation is void and has no effect. 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.

Some constitutional scholars focus on the Preamble to the Constitution Act, 1867 as providing the underlying reasons for an implied bill of rights. The relevant part of the preamble reads:

Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom ...

Some authors have taken the view that the words "similar in principle" means that in Canada there must be a parliamentary system of government, acting under the influence of public opinion, of a free press, with free speech.[1] 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. This provides an additional underpinning for the claim of an implied bill of rights in Canada's Constitution.

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.