You want to understand the Canadian Bill of Rights. Fine. It's a piece of legislation, enacted in 1960 by the Parliament of Canada. It was the first federal attempt at codifying certain rights and freedoms for Canadians, a precursor, if you will, to the more robust Canadian Charter of Rights and Freedoms. It’s a bit like an early draft of a manifesto – important for its time, but ultimately superseded.
Canadian Bill of Rights
The full title of this statute is rather grand: "An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms." Enacted by the Parliament of Canada and assented to on August 10, 1960, it’s a part of the broader tapestry of the Constitution of Canada. It’s important to distinguish this from the Canadian Charter of Rights and Freedoms, which is entrenched in the Constitution of Canada itself. Think of the Bill of Rights as a federal statute, a law passed by Parliament, whereas the Charter is on a different level entirely, a constitutional document.
Background
The seeds of the Canadian Bill of Rights were sown long before its 1960 enactment.
Saskatchewan's Bill of Rights
In 1947, the province of Saskatchewan took a significant step by enacting its own bill of rights, encompassing fundamental freedoms and equality rights. This provincial initiative was, in part, a response to earlier proposals for a federal bill of rights put forth by John Diefenbaker, then a Member of Parliament representing Prince Albert, Saskatchewan. It's rather fitting, then, that the Saskatchewan Bill of Rights is seen as having a formative influence on Diefenbaker himself, who would thirteen years later, in 1960, champion and successfully introduce the Canadian Bill of Rights.
United Nations
The global landscape was also shifting. In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. This landmark document resonated deeply within Canada, where civil rights activists had been actively campaigning for the eradication of discrimination based on sex, ethnicity, race, and religion. The Declaration amplified these calls, fueling an increasing demand for formal human rights protections across Canada.
John Diefenbaker and a National Bill of Rights
John G. Diefenbaker, M.P., speaking in the House of Commons, Ottawa, Ontario.
John Diefenbaker’s commitment to a bill of rights was not a sudden revelation. As early as 1936, four years before entering Parliament, he was already drafting his vision for such a law. His personal experiences as a young boy, witnessing firsthand the injustices and discrimination faced by French-Canadians, Indigenous peoples, Métis, and European immigrants, deeply shaped his convictions.
By March 16, 1950, a full decade before the Canadian Bill of Rights became law, Diefenbaker, then a Saskatchewan MP, articulated the necessity of such legislation at a public forum. He argued that individual freedoms – of religion, press, speech, and association – were vulnerable to state encroachment. A Bill of Rights, he contended, was essential to take a "forthright stand against discrimination based on colour, creed or racial origin." His advocacy continued, and he championed the adoption of a bill of rights during the 1957 federal election campaign. Upon becoming Prime Minister, Diefenbaker finally saw his vision realized when the Canadian Bill of Rights was enacted by Parliament in 1960.
Features
The Canadian Bill of Rights enumerates several rights, many of which would later find their way into the Canadian Charter of Rights and Freedoms. These include protections for:
- Freedom of speech in Canada and freedom of religion in Canada, which are now enshrined in Section 2 of the Charter.
- Equality rights, though the Charter provides more comprehensive protections in Section 15.
- The right to life, liberty, and security of the person. Additionally, rights related to fundamental justice are addressed, later consolidated in Section 7 of the Charter.
- The right to the enjoyment of property. This is a notable inclusion in the Bill of Rights that is not explicitly protected by the Charter.
- The right to counsel, now found in Section 10 of the Charter.
Section 2 of the Bill of Rights lays out its operational principle:
- 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, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to: (a) authorize or effect the arbitrary detention, imprisonment or exile of any person; (b) impose or authorize the imposition of cruel and unusual treatment or punishment; (c) deprive a person who has been arrested or detained (i) of the right to be informed promptly of the reason for his arrest or detention, (ii) of the right to retain and instruct counsel without delay, or (iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful; (d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self-crimination or other constitutional safeguards; (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; (f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or (g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunals, if he does not understand or speak the language in which such proceedings are conducted.
The phrase "notwithstanding" in section 2 is a direct precursor to the notwithstanding clause found in the Charter.
While the Bill of Rights is considered quasi-constitutional because it was enacted as a regular Act of Parliament rather than a constitutional amendment, it does include a provision for review:
- (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
The primary criticism leveled against the Canadian Bill of Rights has always been its limited impact. Its ineffectiveness in fully achieving its stated aims was a significant factor leading to the adoption of a constitutionally entrenched charter two decades later.
The Bill of Rights suffered from several key limitations:
Firstly, it did not explicitly amend existing statutes that conflicted with it, nor did it require explicit allowances for such statutes to operate "notwithstanding" the Bill of Rights. [16] When courts were faced with conflicting laws, they tended to interpret later statutes as causing minimal disturbance to earlier ones. [17] In essence, this placed the onus on Parliament to repeal or amend laws that contravened the Bill of Rights. [18] Cases like Bliss v Canada (AG) and Canada (AG) v Lavell were disappointments for those hoping for robust judicial enforcement of rights. However, R v Drybones stands as a notable exception where the Bill of Rights was effectively applied.
Second, as it was not a constitutional amendment, there was considerable debate regarding its binding authority on future parliaments. [ further explanation needed ] [ by whom? ]
Third, being an ordinary statute, the Bill of Rights' authority was confined to matters falling under the legislative authority of the Parliament of Canada, as defined by Section 91 of the Constitution Act, 1867.
Despite these limitations, the 1960 Act enumerates certain rights, such as property rights and specific legal protections, that are not explicitly protected by the Canadian Charter of Rights and Freedoms. For these reasons, and others, the 1960 Act continues to be referenced in court decisions from time to time. [19]