Canadian Bill of Rights

Canadian Bill of Rights
An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms
Citation S.C. 1960, c. 44
Enacted by Parliament of Canada
Date assented to 10 August 1960

The Canadian Bill of Rights[1] (French: Déclaration canadienne des droits) is a federal statute and bill of rights enacted by Parliament of Canada on August 10, 1960. It provides Canadians with certain quasi-constitutional[2] rights at Canadian federal law in relation to other federal statutes. It was the earliest expression of human rights law at the federal level in Canada, though an Implied Bill of Rights had already been recognized in the Canadian Common Law.[2] The Canadian Bill of Rights remains in effect, but its widely acknowledged ineffectiveness arises in large part to its character as a federal statute only—although as to Canadian federal law, the Bill of Rights has subsequently acquired through judicial interpretation a quasi-constitutional status through the paramountcy doctrine.[3] These legal and constitutional shortcomings were a significant reason that the Canadian Charter of Rights and Freedoms was established as an unambiguously-constitutional-level Bill of Rights for all Canadians, governing the application of both federal and provincial law in Canada, with the patriation of the Constitution of Canada in 1982. Since patriation, its usefulness at federal law in Canada is mostly limited to issues pertaining to the enjoyment of property, as set forth in its section 1(a)—a slightly-broader "life, liberty, and security of the person" right than is recognized in Section Seven of the Canadian Charter of Rights and Freedoms.

Background

Saskatchewan's Bill of Rights

In 1947, Saskatchewan passed into law a bill of rights which was (and remains) unique. The Saskatchewan Bill of Rights covered both fundamental freedoms and equality rights. Saskatchewan's Bill of Rights is considered to have had formative influence on John Diefenbaker, who was from Prince Albert, Saskatchewan. Thirteen years later, Diefenbaker successfully introduced the Canadian Bill of Rights, in 1960.[4]

John Diefenbaker and a National Bill of Rights

John G. Diefenbaker, M.P., speaking in the House of Commons, Ottawa, Canada.

In 1936, four years before being elected to Parliament, John Diefenbaker began drafting his Bill of Rights. As a young boy, he saw injustice first-hand in the form of discrimination against French-Canadians, natives, Metis and European immigrants.[5] As a lawyer, he would have been aware of the Jehovah's Witnesses' cases being tried in the courts.

On March 16, 1950, a decade before the Canadian Bill of Rights became law, Diefenbaker, then a Saskatchewan MP, told a public forum why such a law was needed. Individuals' freedoms of religion, press, speech and association are threatened by the state, he said. A Bill of Rights was needed to take a "forthright stand against discrimination based on colour, creed or racial origin." [6]

In 1960, as prime minister, Diefenbaker successfully introduced the Canadian Bill of Rights, the precursor of the Canadian Charter of Rights and Freedoms.

Features

The Canadian Bill of Rights protects numerous rights, most of which were later included in the Charter. Examples include:

Section 2 of the Bill of Rights begins as follows:

2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared...

The notwithstanding wording of Section 2 is a precursor to the notwithstanding clause of the Charter.

While the Bill of Rights is considered only quasi-constitutional because it was enacted as an ordinary Act of the Parliament of Canada, it contains a unique provision that is often forgotten by many who dismiss the importance of the document. This section reads as follows:

3. (1) Subject to subsection (2), the Minister of Justice shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity.
(2) A regulation need not be examined in accordance with subsection (1) if prior to being made it was examined as a proposed regulation in accordance with section 3 of the Statutory Instruments Act to ensure that it was not inconsistent with the purposes and provisions of this Part.

Criticism and support of the Canadian Bill of Rights

Criticism of the Bill of Rights has mostly centered on its limited effect. The ineffectiveness of the Bill of Rights in achieving its stated aim was the main reason that, two decades later, it was thought necessary[3] to adopt a constitutionally-entrenched charter.

The Bill of Rights was (and is) limited in several ways.

First, it does not explicitly amend any conflicting statutes, either to remove conflicts or to insert explicit allowances for the statutes to operate notwithstanding the Bill of Rights. When called upon to apply conflicting laws, the courts typically sought to interpret a later statute as creating a minimal disturbance of earlier law. In practice this meant that the courts relied on Parliament to repeal or amend any laws contrary to the Bill of Rights. Disappointments for those who wanted courts to enforce rights vigorously included Bliss v. Canada and Attorney General of Canada v. Lavell. A notable exception was R. v. Drybones.

Second, since the Bill of Rights was not a constitutional amendment, there was some debate as to whether it was binding on future Parliaments. On the one hand, section 3 requires the Minister of Justice to notify Parliament that a proposed law (nominally) denies protected rights. The intent of this provision was presumably to discourage Parliament from enacting such a law. However, in 2011 Gerry Ritz (Agriculture Minister in the Harper Government) intentionally ignored the Canadian Wheat Board Act when he introduced legislation abolishing the Canadian Wheat Board monopoly notwithstanding a provision in said Act explicitly forbidding the Minister from doing so. Legal challenges were rejected by the courts as being non-justicable - it was determined that only the Speaker of the House of Commons had the ability to rule the bill related to the Wheat Board as being out of order. It is therefore unclear whether the courts would be able to strike down a law even if they determined the Minister of Justice failed to perform the duties expected of him or her in Section 3 of the Bill of Rights.

Third, because it is an ordinary statute, the authority of the Bill of Rights is limited to matters set out in Section 91 of the Constitution Act, 1867 as being under the legislative authority of the Parliament of Canada.

However, the 1960 Act does enumerate some rights (property rights and specific legal rights, for example) not protected under the Canadian Charter of Rights and Freedoms. For this and other reasons, the 1960 Act is regularly referenced in court decisions today.

See also

References

  1. ↑ Canadian Bill of Rights, S.C. 1960, c. 44.
  2. 1 2 Joseph E. Magnet, Constitutional Law of Canada, 8th ed., Part VI, Chapter 1, Juriliber, Edmonton (2001). URL accessed on March 18, 2006.
  3. 1 2 , Kasoff, Mark J.; James, Patrick (2013). Canadian Studies in the New Millennium, Second Edition (Google eBook). Toronto, Ontario, Canada: University of Toronto Press. ISBN 978-1-4426-4693-3.
  4. ↑ Greene, Ian (1989). The Charter of Rights. Toronto, James Lorimer and Company, p. 23
  5. ↑ CBC Digital Archives. The Canadian Bill of Rights
  6. ↑ Radio Clip: John Diefenbaker: Dief the Chief. The Canadian Bill of Rights.

External links

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