Canadian Bill of Rights: Difference between revisions
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:''(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.'' |
:''(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.'' |
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==Criticism and support of the Canadian Bill of Rights== |
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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<ref name = "Kasoff" /> to adopt a constitutionally-entrenched charter. |
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The ''Bill of Rights'' was (and is) limited in several ways. |
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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]]''. |
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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. |
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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. |
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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. |
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==See also== |
==See also== |
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Revision as of 19:47, 19 March 2014
 | This article needs additional citations for verification. (July 2010) |
| Canadian Bill of Rights | |
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| Parliament of Canada | |
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| Citation | S.C. 1960, c. 44 |
| Enacted by | Parliament of Canada |
| Assented to | 10 August 1960 |
The Canadian Bill of Rights[1] 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[2] 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.[2] The Canadian Bill of Rights remains in effect, but its widely acknowledged ineffectiveness[3] 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.[4]
Religious Institutional Influence
Many religious organizations helped establish several human rights precedents before Canada's highest court. One example of this is the "watch tower society of jehovah's witnesses.[5][6]
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.[7] 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." [8]
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.
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
References
- ^ Canadian Bill of Rights, S.C. 1960, c. 44.
- ^ a b Joseph E. Magnet, Constitutional Law of Canada, 8th ed., Part VI, Chapter 1, Juriliber, Edmonton (2001). URL accessed on March 18, 2006.
- ^ 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.
- ^ Greene, Ian (1989). The Charter of Rights. Toronto, James Lorimer and Company, p. 23
- ^ Penton, M. James. "Jehovah's Witnesses". The Canadian Encyclopedia. Historia-Dominion. Retrieved 2011-03-06.
- ^ Supreme Court of Canada. Boucher v. the King, S.C.R. 265. p. 315
- ^ CBC Digital Archives. The Canadian Bill of Rights
- ^ Radio Clip: John Diefenbaker: Dief the Chief. The Canadian Bill of Rights.