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 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.

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.

Jehovah's Witnesses

In the United States, Jehovah's Witnesses 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:

... 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 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 Canada. 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 Quebec, 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. Duplessis 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.

Features

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

• Freedom of speech in Canada and freedom of religion in Canada (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 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.^{[citation needed]} 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. 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 referenced in court decisions today.

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

• Canadian Bill of Rights (full text)
• annotated bill of rights
• Supreme Court cases which use the 1960 Bill of Rights
• Canada's Need for a Written Bill of Rights. Watch Tower Bible and Tract Society. About 1949.
• Canada's Human Rights History