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Implied bill of rights

This article is about a theory in Canadian jurisprudence. Not to be confused with Unenumerated rights or Fundamental rights.
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The implied bill of rights (French: déclaration des droits implicite) is a theory in Canadian jurisprudence which proposed that as a consequence of the British North America Act, certain important civil liberties could not be abrogated by the government.[1][2][3] The significance of an implied bill of rights has decreased since the adoption of the Canadian Charter of Rights and Freedoms, an entrenched written bill of rights, but remains important for understanding the evolution of Canadian human rights law and the Constitution of Canada.[4][5] In the 1938 decision of Reference Re Alberta Statutes, the Supreme Court of Canada first recognized an implied bill of rights.[6][7]

The rights and freedoms that are protected under the Charter, including the rights to freedom of speech, habeas corpus, and the presumption of innocence, have their roots in a set of Canadian laws and legal precedents related to "implied rights".[8] Although implemented in judiciary law and part of required reading in Canadian law schools,[9][10][11] the theory was never codified either in legislation or in the constitution by the majority in the Supreme Court of Canada.[12][1][13][14] Prior to the advent of the Canadian Bill of Rights in 1960 and its successor the Charter of Rights and Freedoms in 1982, the laws of Canada did not provide much in the way of civil rights and it was typically of limited concern to the courts.[15][16][7]

  1. ^ a b Mads Tønnesson Andenæs; Duncan Fairgrieve, eds. (2015). Courts and Comparative Law. Oxford University Press. pp. 381–. ISBN 978-0-19-873533-5. OCLC 1034568354.
  2. ^ Gibson 1966, p. 497.
  3. ^ MacLennan, C. (2003). Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960. McGill-Queen's University Press. p. 132. ISBN 978-0-7735-7100-6. Retrieved Sep 14, 2024.
  4. ^ "Canadian Wrongs: Jehovah's Witnesses and the Era of Rights · Canadian Law and Canadian Identity · Exhibits". Retrieved 2024-09-13.
  5. ^ Greene, I.; Russell, P.H. (1989). The Charter of Rights. Canadian issues series. James Lorimer Limited, Publishers. p. 20. ISBN 978-1-55028-185-9. Retrieved Sep 14, 2024.
  6. ^ "Unwritten Constitutional Principles: What is Going On?". Supreme Court of Canada. Sep 4, 2008. Retrieved Sep 14, 2024.
  7. ^ a b Charter., the (Apr 1, 2001). "Human Rights and the Courts in Canada (BP-279E)". Publications du gouvernement du Canada. Retrieved Sep 14, 2024.
  8. ^ Cite error: The named reference Bev was invoked but never defined (see the help page).
  9. ^ Jonathon W Penney, Ivan Rand's Ancient Constitutionalism, 2010 34-1&2 Manitoba Law Journal 43, 2010 CanLIIDocs 229, Even today, the judicial work of (Ivan Rand) “one of the greatest— if not the greatest— jurists in Canadian history” remains required reading in law schools; and many of his most important decisions retain a central place in the minds of judges and legal commentators. For example, his judgments in the so-called “implied bill of rights” cases were called the Supreme Court of Canada’s “most distinguished achievements,” “the ‘golden’ moments of the civil liberties decade” and the theory of implied rights described as “valuable”, “one of the most original and provocative contributions ever made to Canadian constitutional law
  10. ^ Eric H Cline et al, Case Comments: Whither the Implied Bill of Rights? - A.G. Canada and Dupond v. The City of Montreal, Saskatchewan Law Review 137, 1980 CanLIIDocs 227,Much of the concern has focused on the court's changing approach to the Bill of Rights, but the Bill or Rights is not the only protection for civil liberties which has been recognized by the Supreme Court. Switzmann v. Elbing, and Saumur v. Attorney General for Quebec, the leading civil liberties decisions of the 1950's, rested in part on a doctrine created by the court itself: the implied Bill of Rights.
  11. ^ Hirschl, R. (2009). Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Harvard University Press. p. 75. ISBN 978-0-674-03867-7. Retrieved Sep 14, 2024.
  12. ^ Kincaid, J.; Tarr, A. (2005). Constitutional Origins, Structure, and Change in Federal Countries. Global Dialogue on Federalism Booklet Series. McGill-Queen's University Press. p. 128. ISBN 978-0-7735-7255-3. Retrieved Sep 14, 2024.
  13. ^ Morton, F.L. (2002). Law, Politics and the Judicial Process in Canada. University of Calgary Press. p. 482. ISBN 978-1-55238-046-8. Retrieved Sep 14, 2024.
  14. ^ Clément, D. (2016). Human Rights in Canada: A History. Laurier Studies in Political Philosophy. Wilfrid Laurier University Press. p. 62. ISBN 978-1-77112-164-4. Retrieved Sep 14, 2024.
  15. ^ Joan Church; Christian Schulze; Hennie Strydom (2007). Human rights from a comparative and international law perspective. Unisa Press. p. 82. ISBN 978-1-86888-361-5.
  16. ^ "Canadian Wrongs: Jehovah's Witnesses and the Era of Rights · Canadian Law and Canadian identity". Trinity College, TRN 304Y "Law & Social Issues", University of Toronto Libraries. Retrieved Sep 10, 2024.

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Déclaration des droits implicite French Implied Bill of Rights Hungarian Подразумеваемые права Russian

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