Antecedents of the Charter: Civil Rights

Justine Cabrera
September 30, 2006
Graded Paper: A

Historically, the Canadian government was known for passing several discriminatory
laws against certain racial groups: the Chinese and the Japanese, to name a few. Even though
these groups had access to litigation, this was not a sufficient guarantee of their basic freedom
due to the differing social and governmental relations that had existed in the pre-Charter period.
It is therefore, important to understand the existing B.N.A Act of 1867 and the cases that pertain
to the overlapping of governmental power to see the impact of the Charter in judicial decision-
making. With this in mind, the Charter helped shift the attention of courtrooms from
jurisdictional issues towards the real social inequality issues in the mainstream Canadian
societies.
The Bryden case is a good example to show that before the creation of the Charter, the
courts focused mainly on issues about the division of powers between the provincial and federal
government. By focusing on jurisdictional issues, they have indeed shifted their attention away
from the real issue at hand, which are racial discrimination and gender-based issues. To illustrate,
Lord Watson indicated that the real effect or the pith and substance of s. 4 of the Coal Mines
Regulation Act was really to discriminate against a racial group (the “Chinamen”), rendering this
Act illegal (or ultra vires) to the Provincial Legislature of British Columbia because anything that
affects a certain race falls under the jurisdiction of the Parliament according to s. 91 (25) “Aliens
and Naturalized subjects” of the B.N.A Act 1867. Although the term “discrimination” was
mentioned or at least analyzed briefly does not mean that the court’s dispositions were based on
the discourse of individual rights, but rather it was, without a doubt aimed to shed light on the
enumerated powers of each government.
In light of the previous case, the idea of federalism is a good check against tyranny in
both levels of government. By having a federal state, it would avoid the excessive use of power
by the two levels of government because it is possible for both governments to challenge each
other in court. As seen in the Bryden case, the Provincial legislature of British Columbia could
not continue to discriminate against the Chinese labour workers because they did not have the
jurisdiction to enact s. 4 of their Coal Mines Regulation Act. Due to the power of the Parliament,
discrimination against the Chinese in the workplace (coal mines) was discontinued on the basis of

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incorrect jurisdiction. Indeed, having a federal state allow both levels of government to have a
say in the order and structure of society.
To further emphasize the issue of jurisdiction in the courtroom, Cunningham v. Tomey
Homma is another exemplary case, in which the discourse on individual rights is ignored. This
means that regardless of the utopian goal of federalism, it is still impossible to predict the cause
of both governments due to the lack of a Charter-based discussion. For example, if a written
social contract, such as the Charter had been created around this time, the focus of the deciding
judge in Tomey Homma would have been based on the rights of individuals. But what had
happened was the Lord Chancellor’s decisions were based on the implications of the s. 91 (25) of
the B.N.A Act 1867, which he concludes to give only “ordinary rights” to naturalized subjects,
such as the right to work or reside in any Canadian province. Therefore, the Japanese, whether
naturalized or not did not have the right to vote (the right to franchise) as this was not considered
an inherent right at the time.
To conclude, the enactment of the Charter moved the spotlight away from the problems
of provincial and/or federal jurisdictions to the issues of fundamental rights and freedoms. It has
indeed increased the scope of the judicial function in resolving social and human rights questions
in the courtrooms through Charter-based discussions. With the rights guaranteed in the Charter,
the “court party”, such as the minorities, disadvantaged or the powerful and organized groups, are
able to claim their rights in the courts by arguing that the government’s actions or decisions
violate their Charter right or freedom. On the whole, the Charter brought forward many changes
in the Canadian legal system by placing limitations on the exercise of government’s powers,
thereby allowing citizens to exercise their fundamental rights over what used to be called
“ordinary rights”.

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