The history of human rights protection in Canada has been permeated by the influence of the doctrine of parliamentary sovereignty. Since Confederation, the doctrine has hindered the effectiveness of various attempts to increase the security of human rights. If the Canadian Charter of Righrs and Freedoms' is to evoke a new era, it will be the ramifications of this traditional principle which will have to be inhibited.

Parliamentary Sovereignty and Human Rights in Canada: The Promise of the Canadian Charter of Rights and Freedoms

For its failure to entrench property rights, Canada’s constitution has rightly been called an outlier amongst liberal constitutions. This Article seeks to explain how that came to be the case, reexaming and reinterrogating old theories. The Article argues that the legal intellectual climate at the time of repatriation in 1982 ended up being signficant. It also examines the key role of a number of chance factors and of arguably mistaken assumptions about legal results that could ensue from a property rights clause. An important result is to clear the ground for present-day arguments for the entrenchment of property rights. The Article thus presents a narrative of how property rights came to be excluded from the Canadian constituition and why that contingent and time-bound choice as to their exclusion should not continue to control the debate.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2414637_code498974.pdf?abstractid=2414637&mirid=5

The Exclusion of Property Rights from the Charter: Correcting the Historical Record

The statutory entrenchment of the Canadian Charter of Rights and Freedoms marks a break with the common law practice of protecting civil liberties by means of socio-legal convention. This article argues that such a break with common law practice can be justified at a theoretical level through reference to Max Weber's liberal rationalist account of the effects of modernization on law and society and, at a practical level, points out parallels between Weber's position on modern law, the pre-entrenchment doctrine of the Supreme Court and Pierre Trudeau's advocacy of the Charter. However, the article argues that a Weberian account of modernity and law is based upon too narrow a conception of rationality to allow it to deal with the normative questions that are raised by the substantively democratic claims made by the Charter and with which the courts will have to deal in making judgements in Charter cases. The article concludes that in order for court interpretation to take the substantive sections of the Charter into account in a meaningful fashion, it will be forced to abandon what, until the entrenchment of the Charter, was a narrow, positivist interpretation of rights and democracy; and that this can be accomplished by means of a reconstruction of the democratic ethos that is nascent within the common law tradition but remains as yet undeveloped in a clear fashion.

A Disenchanted Charter? The Common Law Tradition and the Charter of Rights and Freedoms

One of the most contentious issues involved in the current dialogue over constitutional reform is the value of an entrenched bill of rights. The author presents a brief history of the debate and some of the arguments for each side. Relevant provisions of the proposed Char ter of Human Rights, government documents and independent papers give important in sight into the issue of entrenchment.

/pdf/the-entrenchment-of-a-bill-of-rights-94w4ax28a9.pdf

Douglas A. Schmeiser

Papers

The Entrenchment of a Bill of Rights