Canadian Bill of Rights

Infobox document
document_name = Canadian Bill of Rights


image_width = 200px
image_caption = John Diefenbaker holds the Bill of Rights
date_created = 1960
date_ratified = 1960
location_of_document =
writer =
signatories =
purpose = A Bill of Rights for CanadaThe "Canadian Bill of Rights" is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutionalJoseph E. Magnet, [http://www.constitutional-law.net/chartersample.html "Constitutional Law of Canada", 8th ed., Part VI, Chapter 1] , Juriliber, Edmonton (2001). URL accessed on March 18, 2006.] rights 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. The "Canadian Bill of Rights" remains in effect, but its widely acknowledged ineffectiveness was the main reason that the "Canadian Charter of Rights and Freedoms" was adopted in 1982.

Background

In order to obtain religious freedom the Jehovah's Witnesses popularized the idea of a Canadian Bill of Rights and established numerous libertarian precedents before Canada's highest courts (see Human rights).

In 1949, the Jehovah's Witnesses launched a national campaign for the enactment of a Bill of Rights. On June 9, 1947, they presented a petition to Parliament with 625,510 signatures. John Diefenbaker, who later became Canada's Prime Minister (1957-1963), became an advocate of the Canadian Bill of Rights.

In 1960, as Prime Minister, Diefenbaker introduced the Canadian Bill of Rights, the precursor of the Canadian Charter of Rights and Freedoms.

In 1947, Saskatchewan passed into law a bill of rights which was, and continues to be, unique. The Saskatchewan Bill of Rights covered both fundamental freedoms and equality rights. This was seen as the forerunner for Diefenbaker, who was from Prince Albert, Saskatchewan, to introduce Canadian Bill of Rights, thirteen years later, in 1960.

Features

The "Canadian Bill of Rights" protects numerous rights, most of which were later included in the "Charter". Examples include:
*Freedom of speech and freedom of religion (now in Section 2 of the "Charter")
*Limited equality rights (more complete rights are contained in Section 15 of the "Charter")
*The right to life, liberty and security of the person, and in another section, rights to fundamental justice (the "Charter" combines those rights in Section 7)
*The right to enjoyment of property, which is not enshrined in the "Charter"
*The right to counsel (now in Section 10 of the "Charter").

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 only considered quasi-constitutional because of its nature as a statute (as opposed to superstatute), 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 1960 Bill of Rights has mostly centred on its limited effect.

It did 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 practise 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".

Since the "Bill of Rights" was not a constitutional amendment, there was some debate as to whether it was binding on future Parliaments. However, 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 doing so.

Another criticism of the 1960 Act is that its authority is limited to matters set out in Section 91 of the "BNA Act" (the "Constitution Act, 1867"), "i.e." powers of the federal government, and not those of the provincial governments.

However, one of the features of the 1960 Act is that it protects some rights (property rights for instance) not mentioned in the newer "Charter of Rights and Freedoms" (but permitted to exist under section 26 of the "Charter"). For this and other reasons, the 1960 Act continues in force and is regularly cited in court decisions today.

Another impact of the 1960 Act, including the problems experienced in enforcing its intent (see above), is that it formed part of the "res gestae" that served to elevate the 1982 "Charter of Rights and Freedoms" to an entrenched and therefore pre-eminent part of the law. The ineffectiveness of the Bill of Rights was the main reason that it was thought necessary to adopt a Canadian Charter of Rights entrenched in the constitution.

Footnotes

See also

* Canadian Human Rights Act of 1977
* Constitution of Canada
* Canadian Charter of Rights and Freedoms
* Veterans' Bill of Rights
* New Zealand Bill of Rights Act
* Saskatchewan Bill of Rights
* Human rights in Canada

External links

* [http://laws.justice.gc.ca/en/C-12.3/index.html Canadian Bill of Rights (full text)]
* [http://canadianprisonlaw.com/misc/billofrights.htm annotated bill of rights]
* [http://www.lexum.umontreal.ca/csc-scc/cgi-bin/srch.pl?database=en%2Fjug&query=%22bill%22+%22of%22+%22rights%22+1960&language=en&x=0&y=0&method=all Supreme Court cases which use the 1960 Bill of Rights]