Common Law Bills of Rights as Dialogue between Courts and Legislatures

Bibliographic Data

ID19155366
AuthorsKent Roach (0000-0002-8738-8276, corresponding author)
Year2005
Volume55
Issue3
Pages733-766
Publication date2005-06-01
Peer ReviewedYes
Open AccessNo
TypeARTICLE
VenueUniversity of Toronto Law Journal (JOURNAL)
Journal identifiersISSN: 0042-0220 • E-ISSN: 1710-1174
PublisherUniversity of Toronto Press (PUBLISHER • CA)
DOI10.1353/tlj.2005.0027
OpenAlexW2060717998
LanguageEN
Citations received1
References cited7

Introduction Although much has been written about judicial review under the Canadian Charter of Rights and Freedoms as a dialogue between courts and legislatures, much less has been written about judge-made common law as an earlier and still relevant form of dialogue. My focus here will be on what John Willis identified as common law bills of rights that existed in Canada and Britain long before the enactment of formal bills of rights. In particular, I will examine judge-made presumptions of legislative intent, such as presumptions against the imposition of punishment without proof of fault. I will suggest that such common law presumptions were important precursors to the type of rights protection found in the Charter and other modern bills of rights that contemplate legitimate legislative limitation on and even derogation from rights as they have been interpreted by the courts. I will then examine how the Charter may improve on the vision of dialogic constitutionalism inherent in the common law presumptions. I will also suggest that the Supreme Court of Canada has undermined the dialogic structure of the Charter by attempting to disguise some of its acts of constitutional interpretation as mere statutory interpretation and by precluding the possibility of the government justifying limits on s. 7 rights under s. 1 of the Charter1 This development may also help explain why the Supreme Court has been reluctant to constitutionalize several important common law presumptions as they relate to the criminal law. An examination of common law presumptions of legislative intent as a form of dialogue between courts and legislatures is also appropriate because it provides us with insight into what Willis might have thought about the Charter2 In his justly famous article 'Statute Interpretation in [End Page 733] a Nutshell,3 published in 1938, Willis concluded that the common law presumptions of statutory interpretation formed 'a sort of common law "Bill of Rights."' Although 'English and Canadian judges have no power to declare Acts unconstitutional merely because they depart from the good old ways of thought; they can, however, use the presumptions to mould legislative innovation into some accord with the old notions. The presumptions are in short "an ideal constitution" for England and Canada.4 A year later, writing in the Harvard Law Review, Willis made the same point, concluding that although English and Canadian courts 'cannot declare the provisions of an act to be contrary to a due process clause they can still bring about much the same result by a process of spurious interpretation.'5 He added that a common law presumption is, 'in substance, a rule of constitutional law masquerading as a rule of construction.6 These statements reveal Willis's astute awareness of the connection between common law presumptions, rights protection, and constitutionalism – a connection that has only been more fully developed by others in recent years. Willis's insight about the common law presumptions, of course, did not mean that he was enthusiastic about the protection of rights or that he welcomed the procedures of constitutionalism. Willis was sceptical about most individual rights, and he was impatient with the need for legislative intervention after court decisions. He seemed to think it was best for courts to anticipate what the legislature and the civil service would want. Willis's views on these matters beg the question of what conceptions of rights and democracy motivate those who, unlike Willis, are champions of the judicial use of presumptions to require legislatures to make clear statements about the effect of state action on rights. The answers to such questions will also be relevant to the understandings of rights and democracy that may be implicit in modern bills of rights, which, like the common law presumptions, contemplate explicit limitation and derogation of rights by ordinary legislation. Willis was critical of common law presumptions in part because he saw them as a means by which lawyers and

Charter · Common law · Constitutional law · Fundamental rights · Human rights · Judicial review · Legislature · Political science · Supreme court · Judicial and Constitutional Studies · Law · Legal principles and applications · Multicultural Socio-Legal Studies

Tools

Open DOI