Canadian Bill of Rights
Encyclopedia
The 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-constitutional 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.
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.
actively fought for their religious liberty. Between 1938 and 1955, they were involved in forty-five United States Supreme Court
cases. They won thirty-six of them. The Jehovah's Witness leadership urged their members to fight every legal battle they confronted. They instructed them on how to behave under arrest and during trials. Canadian Jehovah's Witnesses followed this assertive attitude.
In 1948, within a period of only two months, fifteen thousand Witnesses from across Canada gathered a petition of 625,510 names. Early in 1949, they presented it to the Canadian Parliament. It was a petition for a written Bill of Rights. By this petition and other related activities Jehovah's Witnesses
popularized the idea of a Canadian Bill of Rights. They also helped establish several human rights precedents before Canada's highest court.
The Boucher Case
Aimé Boucher
was an exemplary citizen , a farmer of Beauce, Québec
, and a Jehovah's Witness. In 1946, he was arrested while distributing pamphlets entitled "Québec's Burning Hate for God and Christ and Freedom Is the Shame of all Canada." The pamphlets charged that the Québec government, the police, the judges and the Roman Catholic Church had conspired together against Jehovah's Witnesses. The pamphlet said, in part:
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."
In 1960, as Prime Minister, Diefenbaker successfully introduced the Canadian Bill of Rights, the precursor of the Canadian Charter of Rights and Freedoms
.
Section 2 of the Bill of Rights begins as follows:
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:
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. 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.
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 federal government, and places no limits on the powers of the provincial governments.
However, the 1960 Act does enumerate some rights (property rights for instance) not protected under the Canadian Charter of Rights and Freedoms. For this and other reasons, the 1960 Act is regularly cited in court decisions today.
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
enacted by Prime Minister
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
John Diefenbaker
John Diefenbaker
John George Diefenbaker, PC, CH, QC was the 13th Prime Minister of Canada, serving from June 21, 1957, to April 22, 1963...
's government on August 10, 1960. It provides Canadians with certain quasi-constitutional 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
Implied Bill of Rights
The Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada...
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
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
was adopted in 1982.
Saskatchewan's Bill of Rights
In 1947, SaskatchewanSaskatchewan
Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
passed into law a bill of rights which was (and remains) unique. The Saskatchewan Bill of Rights
Saskatchewan Bill of Rights
In 1947, a year before the United Nations General Assembly adopted the Universal Declaration of Human Rights, Saskatchewan passed into law a bill of rights which was, and continues to be, unique.-Features of the Bill:...
covered both fundamental freedoms and equality rights. Saskatchewan's Bill of Rights is considered to have had formative influence on John Diefenbaker
John Diefenbaker
John George Diefenbaker, PC, CH, QC was the 13th Prime Minister of Canada, serving from June 21, 1957, to April 22, 1963...
, who was from Prince Albert, Saskatchewan
Prince Albert, Saskatchewan
Prince Albert is the third-largest city in Saskatchewan, Canada. It is situated in the centre of the province on the banks of the North Saskatchewan River. The city is known as the "Gateway to the North" because it is the last major centre along the route to the resources of northern Saskatchewan...
. Thirteen years later, Diefenbaker successfully introduced the Canadian Bill of Rights, in 1960.
Jehovah's Witnesses
In the United States, Jehovah's WitnessesJehovah's Witnesses
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The religion reports worldwide membership of over 7 million adherents involved in evangelism, convention attendance of over 12 million, and annual...
actively fought for their religious liberty. Between 1938 and 1955, they were involved in forty-five United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
cases. They won thirty-six of them. The Jehovah's Witness leadership urged their members to fight every legal battle they confronted. They instructed them on how to behave under arrest and during trials. Canadian Jehovah's Witnesses followed this assertive attitude.
In 1948, within a period of only two months, fifteen thousand Witnesses from across Canada gathered a petition of 625,510 names. Early in 1949, they presented it to the Canadian Parliament. It was a petition for a written Bill of Rights. By this petition and other related activities Jehovah's Witnesses
Persecution of Jehovah's Witnesses in Canada
Jehovah's Witnesses experienced religious persecution in Canada during both world wars because of their evangelical fervour, conspicuous abstinence from patriotic exercises and conscientious objection to military service....
popularized the idea of a Canadian Bill of Rights. They also helped establish several human rights precedents before Canada's highest court.
The Boucher Case
Aimé Boucher
R. v. Boucher
R. v. Boucher [1951] S.C.R. 265 is a famous Supreme Court of Canada decision where the Court overturned a conviction for seditious libel on the grounds that criticizing the government was a valid form of protest.-Background:...
was an exemplary citizen , a farmer of Beauce, Québec
Beauce, Quebec
Beauce is a historical and traditional region of Quebec located south of Quebec City. It corresponds approximately to the regional county municipalities of Beauce-Sartigan, Robert-Cliche and La Nouvelle-Beauce, and its major communities are Saint-Georges, Sainte-Marie, Beauceville,...
, and a Jehovah's Witness. In 1946, he was arrested while distributing pamphlets entitled "Québec's Burning Hate for God and Christ and Freedom Is the Shame of all Canada." The pamphlets charged that the Québec government, the police, the judges and the Roman Catholic Church had conspired together against Jehovah's Witnesses. The pamphlet said, in part:
... the lawless arrests of Jehovah's witnesses continue almost daily in Montreal and district, and in the Recorder's Courts they are subjected to abusive tirades. For example, in June of 1946 Recorder Leonce Plante denounced the witnesses as a "bunch of crazy nuts," set cash bail as high as $200 and threatened that if some witnesses came before him again bail would be $1,000. At present, 1946, there are about 800 charges stacked up against Jehovah's witnesses in Greater Montreal, with property bail now involved being $100,000 and cash bail more than $2,000. Court cases are adjourned time after time, to inconvenience and increase expense for Jehovah's witnesses. To have their cases heard, during one short period the witnesses had to appear on 38 different occasions...."
Boucher was charged for seditious libel, i.e. for endeavouring to promote public disorder, under section 133(2) of the Criminal Code of CanadaCriminal Code of CanadaThe Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
. In 1951, the Supreme Court of Canada overturned the lower court's conviction on the grounds that criticizing the government was a valid form of protest.
The Saumur Case
Mr. Saumur had been arrested 103 times for distribution of Witness literature before he decided to challenge the legality of his arrests. The case reached the Supreme Court in 1953. In Saumur v. The City of QuebecSaumur v. The City of QuebecSaumur v. The City of Quebec [1953] 2 S.C.R. 299 is a famous constitutional decision of the Supreme Court of Canada which struck down a municipal by-law prohibiting the distribution of literature to the public....
, the Supreme Court of Canada held that only the federal government could enforce criminal matters related to "speech" or "religion". The Quebec City law, according to the majority of justices, created an effect where the chief of police would have to act in the role of a censor, deciding whether the literature was objectionable. The result, they observed, would be that unpopular groups such as the Jehovah's Witnesses would be censored.
The Chaput Case
In September, 1949, acting on orders from their superior, Edmond Romain, Linden Young and Roger Chartrand, members of the provincial police, broke up an orderly religious meeting conducted by Mr. Gotthold, a minister of Jehovah's Witnesses in Esymier Chaput's house. They seized a Bible, some hymn books and a number of booklets on religious subjects, and ordered those present to disperse. The entry and the seizure were made without a warrant. No charge was at any time laid against any of the participants including Mr. Chaput. The items seized were not returned. The forty listeners rose and quietly left the house. There was no disorder, no demonstration. As for Gotthold, the police brought him by car to Desjardinsville so he could take the ferry to get to Pembroke and back to Ontario.
The owner of the house, Mr. Chaput, took action against the three police officers for damages and for the value of the articles seized. Both the trial judge and the Court of Appeal dismissed the action. The Supreme Court of Canada allowed the appeal, decided in favour of Chaput and awarded damages assessed at $2,000. Justice Taschereau wrote, "In our country there is no state religion. Nobody is obliged to adhere to any belief. All religions are equal, and all Catholics as well as all Protestants, Jews and other adherents of various religious denominations, the most complete freedom to think as they wish."
The Roncarelli Case
In Roncarelli v. DuplessisRoncarelli v. DuplessisRoncarelli v. Duplessis, [1959] S.C.R. 121, was a landmark constitutional decision of the Supreme Court of Canada where the Court held that Maurice Duplessis, the premier of Quebec, had overstepped his authority by revoking the liquor licence of a Jehovah's Witness...
the Supreme Court of Canada held that Maurice Duplessis, the premier of Quebec, had overstepped his authority by revoking the liquor licence of a Jehovah's Witness. Mr. Roncarelli helped his fellow Jehovah's Witnesses with their bail needs after arrest. The premier persuaded the liquor licensing board that Mr. Roncarelli was not meeting the requirements of good citizenship necessary to operate a licensed establishment.
John Diefenbaker and a National Bill of Rights
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 . 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."
In 1960, as Prime Minister, Diefenbaker successfully introduced the Canadian Bill of Rights, the precursor of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
Features
The Canadian Bill of Rights protects numerous rights, most of which were later included in the Charter. Examples include:- Freedom of speechFreedom of speechFreedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and freedom of religionFreedom of religionFreedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
(now in Section 2Section Two of the Canadian Charter of Rights and FreedomsSection Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Charter) - Limited equality rightsSocial equalitySocial equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the...
(more complete rights are contained in Section 15Section Fifteen of the Canadian Charter of Rights and FreedomsSection Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
of the Charter) - The right to lifeRight to lifeRight to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
, libertyLibertyLiberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
and security of the person, and in another section, rights to fundamental justiceFundamental justiceFundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
(the Charter combines those rights in Section 7Section Seven of the Canadian Charter of Rights and FreedomsSection Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
) - The right to enjoyment of property, which is not enshrined in the Charter
- The right to counsel (now in Section 10Section Ten of the Canadian Charter of Rights and FreedomsSection Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...
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
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
of the Charter.
While the Bill of Rights is considered only quasi-constitutional
Quasi-constitutionality
In Canada, the term quasi-constitutional is used for laws which contain a provision causing them to override any subsequent laws which might contradict them. At the federal level, such laws include the Canadian Bill of Rights and the Official Languages Act...
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 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
Attorney General of Canada v. Lavell
Attorney General of Canada v. Lavell; Isaac v. Bédard, [1973] S.C.R. 1349, was a landmark 5-4 Supreme Court of Canada decision holding that Section 12 of the Indian Act did not violate the respondents' right to "equality before the law" under Section 1 of the Canadian Bill of Rights...
. A notable exception was R. v. Drybones
R. v. Drybones
R. v. Drybones, [1970] S.C.R. 282, is a landmark 6-3 Supreme Court of Canada decision holding that the Canadian Bill of Rights "empowered the courts to strike down federal legislation which offended its dictates." Accordingly, the Supreme Court of Canada held that section 94 of the Indian Act is...
.
Second, 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.
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
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
as being under the legislative authority of the federal government, and places no limits on the powers of the provincial governments.
However, the 1960 Act does enumerate some rights (property rights for instance) not protected under the Canadian Charter of Rights and Freedoms. For this and other reasons, the 1960 Act is regularly cited in court decisions today.
See also
- Canadian Human Rights ActCanadian Human Rights ActThe Canadian Human Rights Act is a statute originally passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set prohibited grounds such as gender, disability, or...
of 1977 - Constitution of CanadaConstitution of CanadaThe Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
- Canadian Charter of Rights and FreedomsCanadian Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
- Veterans' Bill of RightsVeterans' Bill of RightsThe Veterans' Bill of Rights is a bill of rights in Canada for veterans of the Canadian Forces and Royal Canadian Mounted Police. It was enacted by the federal government in 2007...
- New Zealand Bill of Rights ActNew Zealand Bill of Rights ActThe New Zealand Bill of Rights Act 1990 is a statute of the New Zealand Parliament setting out the rights and fundamental freedoms of the citizens of New Zealand as a Bill of rights...
- Saskatchewan Bill of RightsSaskatchewan Bill of RightsIn 1947, a year before the United Nations General Assembly adopted the Universal Declaration of Human Rights, Saskatchewan passed into law a bill of rights which was, and continues to be, unique.-Features of the Bill:...
- Human rights in CanadaHuman rights in CanadaSince signing the Universal Declaration of Human Rights in 1948, the Canadian government has attempted to make universal human rights a part of Canadian law...