|While the study was guided by the libertarian principles expounded
by Chief Justice Laskin, it also remained acutely aware of the historical evolution of
those rights and restrictions about which the judge wrote. That history has been a long
one; it dates back at least seven centuries. It also has been highlighted by displays of
incredible human courage in the face of unimaginable suffering and persecution. In other
words, the rights and freedoms enjoyed today have been highly refined through time and
human endeavor. Any government that contemplates action that might affect them should do
so only in the light of a clear awareness of how they have come down to us.
Perhaps, then, it is appropriate to consider briefly some of the historical landmarks in the evolution of our rights and freedoms.
The signing of the Magna Carta on June 15, 1215, is generally regarded as the seminal event in the development of Western libertarian principles. On that day, King John of England, succumbing to the protests of his barons, set his seal to a monumental charter of liberties. In essence, that charter gave the just rights of the individual as defined in law supremacy over the will of the king. Magna Carta affirmed the principle that monarchs were accountable for their actions. Ultimately, this responsibility shifted to the king's ministers, who held office at the will of a representative Parliament elected by the people.
Early human rights statutes in English history frequently sat side by side with discriminatory legislation. For example, the Marriage Act of 1753 required all persons other than Jews and Quakers to be married in the parish church according to the rites of the Church of England. The Conventicle Act of Charles II in 1664 made it an offence for more than five persons to meet for worship other than according to the rituals of the Church of England. Glen How, counsel for the Jehovah's Witnesses in Canada, reminds us that:
Over the ensuing centuries, however, the British Parliament enacted many legislative measures to safeguard basic freedoms and extend human rights. Ultimately, the enduring rectitude of early English human rights statutes had a decisive influence in Canada where federal and provincial Parliaments also introduced legislative protections for rights and freedoms.
Unlike the United States, where protection for rights and freedoms is guaranteed and provided for under the Constitution, we have relied largely on a series of legislative measures enacted from time to time by our Parliaments to protect our liberties in Canada. Furthermore, we have tended to believe that the best r hope for protection of our fundamental freedoms lies in the fair-mindedness of our parliamentary graditions. We do not have an entrenched Bill of Rights. Canada's constitution, the British North America Act, does provide some such protections in the area of freedom of religion and association, but they are few and indirect. The main protection at the federal level lies in the Criminal Code. Even at that, it lies not so much in what the Code does say as in what it does not say. Professor Scott explains this point in an article entitled, "Dominion Jurisdiction over Human Rights and Fundamental Freedoms":