2 October

The Canadian Bill of Rights

By: W. Calvin Rosemond

The 1960 Canadian Bill of Rights[1] is the country’s first federal law defending human rights and individual freedoms. A precursor to the 1982 Canadian Charter of Rights and Freedoms, The Bill of Rights continues to inform the rule of law. The quasi-constitutional statute protects individuals’ rights to life, liberty, personal security and enjoyment of property, however, it falls short of recognizing ‘possession of property’, a matter of provincial jurisdiction. Further, The Bill explicitly guarantees freedom of religion, expression, assembly and association; as well as, enshrining legal rights such as the right to counsel and a fair hearing. Canada’s first Bill of Rights was cemented in Saskatchewan by Premier Tommy Douglas; 13-years before John Diefenbaker’s Parliament introduced the Federal Bill. Before being elected, Diefenbaker internalized discrimination against Natives, French-Canadians and Immigrants. His experience as a criminal defence lawyer allowed him to advocate for civil liberties.[2] On March 16, 1950 Diefenbaker argued about the importance of deterring threats to individual freedom through a formal Bill of Rights and take a “forthright stand against discrimination based on colour, creed or racial origin”.[3]

Although The Charter reigns supreme at Canada’s highest court[4], Canada’s top judges continue to explicitly invoke The Bill of Rights. Regarded as a mere tool of statutory interpretation, section 2 allows Parliament to override The Bill by invoking a “notwithstanding” clause.[5] Despite being criticized as ineffective both before and after The Charter, The Bill informs and underlies our most powerful decisions and distinctions.

Post Charter use of The Bill of Rights at Supreme Court of Canada

Writing for the majority in in R v. Oakes[6] Dickson C.J. found that “important lessons” are be learned from the Canadian Bill of Rights jurisprudence despite the new “binding” constitutional authority of The Charter (see para. 38).

R. v. Smith, [1987] 1 S.C.R 1045 held against minimum sentences pursuant to the Narcotic Control Act after consideration of Section 2(a) & (b) of The Bill which deal with arbitrary detention[7] & cruel and unusual punishment[8] (also see: R. v. Lyons, [1987] 2 S.C.R. 309 para. 38 for The Bill on cruel and unusual punishment).

The Bill underlies our s. 10(b) Charter rights ensuring police inform any detainee of their rights, 2(c) maintains:

“The right to retain and instruct counsel without delay can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate contact with counsel. This means allowing him upon his request to use a telephone for that purpose if one is available”[9]

This right explicitly extends in R v. Bryges, [1990] 1 S.C.R. 190, where Lamer J. finds the right to retain and instruct counsel remains unfettered for those who cannot afford private retainer, specifically citing Legal Aid at para. 23. R v. Tran, [1994] 2 S.C.R. 951 summons s. 2(g) of The Bill to rule on the significance of interpreter assistance while conducting a fair trial.[10]

R. v. Hufsky, [1988] 1 S.C.R. 621 maintains the certainty of Canadians’ right to “equality before the law” as recognized by s. 1(b) of The Bill.[11] However, Le Dain J., writing for the majority, found that random vehicle stops and ‘spot-checks’ did not infringe on one’s equality rights as provided by s.1(b) of The Bill, but did infringe on The Charter s. 9 right, protecting against arbitrary detention[12].

R. v. Mack, [1988] 2 S.C.R. 903 calls on The Bill to articulate ‘the principals of fundamental justice’ (see para. 73.), including, The Presumption of Innocence as found in R. v. Whyte, [1988] 2 S.C.R. 3 para. 4 and R v. Noble, [1997] 1 S.C.R. 874 at para. 32, citing s. 2(f). In R. v. Duguay The S.C.C. found that The Bill supported the right against self-incrimination, but, was limited to involuntary testimonial evidence.

The Bill of Rights emboldens Youth Criminal Law provisions post-Charter as interpreted in R v. Hill, [1986] 1 S.C.R. 313 (see para. 75). C.J. McLaughlin highlighted the importance of The Bill when interpreting Youth Justice protections in R. v. M (S.H.) [S.H.M.], [1989] 2 S.C.R. 446 see para. 8, emphasizing the long-standing right of youth to be involved in the legal processes that affect them. R. v. M. (J.J.M.], [1993] 2 S.C.R. 421 later engages with The Bill in para. 11 when conveying the “flexibility in the disposition imposed on young offenders”.

Moral blameworthiness, in the context of first degree murder, and fair trials are discussed in R. v. Luxton, [1990] 2 S.C.R., where the constitutionality of Criminal Code Provisions are weighed against provisions of both The Charter and s. 2(e) of The Bill.[13]

R. v. Swain, [1991] 1 S.C.R. 933 cites The Bill to produce a timeless definition of “dignity and worth of the human person” in paragraph 34, further R. v. Butler, [1992] 1 S.C.R. 452 found that The Bill protects “the basic freedoms of vital importance to all Canadians”.[14] R v. Keegstra, [1990] 3 S.C.R. 697 takes appreciation of Parliament’s temporal intent for affirming The Bill, citing the palpable significance of protecting identifiable groups through law in paras. 8 & 9.

R. v. Demers, [2004] 2 S.C.R. 489, harkens back to The Bill to inform judgement and further, to, an ‘implied bill of rights’ birthed in the Constitution Act, 1867 in paras. 80-84. Although The Bill maintains as law, its modern application is questioned, as seen in R. v. Kapp, [2008] 2 S.C.R. 463.

Whether or not its stand-alone power has diminished, little can be taken away from The Canadian Bill of Rights, as it compels and informs both statute, common law and the Canadian way of life, long-after it was conceived.

Further reading

Driedger, Elmer. “The Meaning and Effect of the Canadian Bill of Rights: A Draftsman’s Viewpoint” (1977), 9 Ottawa L.R. 303.

Berger, Stan. “The Application of the Cruel and Unusual Punishment Clause Under the Canadian Bill of Rights” (1978), 24 McGill L.J. 161.

Roach, Kent. “Common Law Bill of Rights as Dialogue Between Courts and Legislatures” (2005). 55 U.T.L.J. 733.

End Notes

[1] S.C. 1960, c. 44 (Assented to 1960-08-10)

[2] John Diefenbaker for the Defence (http://www.cbc.ca/archives/entry/john-diefenbaker-for-the-defence)

[3] John Diefenbaker, public forum (March 16, 1950)

[4] The Charter is unambiguously the Constitution – the highest law of the land

[5] See 1970 October Crisis

[6] R. v. Oakes, [1986] 1 S.C.R. 103

[7] See also R. v. Simmons, [1988] 2 S.C.R. 495 para. 14 for The Bill’s continued definitional capacity on the word ‘detention’

[8] See paras. 12, 27, 33, 37, 46 & 90

[9] R. v. Manninen, [1987] 1 S.C.R. 1233, Citing Brownridge v. The Queen, [1972] S.C.R. 926. Also see: R v. Cornell, [1988] 1 S.C.R. 461

[10] See paras. 27 & 69

[11] For further analysis: see R v. Turpin, [1989] 1 S.C.R. 1296 paras. 37-39

[12] See Hufsky para. 24, also see: R v. Stevens, [1988] 1 S.C.R. 1153 para. 33 & R. v. Morgentaller, [1988] 1 S.C.R. 30 para. 188

[13] See para. 16

[14] See para. 89


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