Bill of Rights

July 4, 2019

What is the Canadian Bill of Rights?

The Bill of Rights became law in 1960 to protect the fundamental rights and freedoms of individuals against federal laws and government actions authorized by those laws.[1]

At the time of the Bill’s creation, people in Canada and around the world were concerned about the protection of their individual rights and freedoms.[2] Shortly after World War II, the United Nations adopted a Universal Declaration of Human Rights which encouraged many countries, including Canada, to introduce protections for the rights and freedoms of their own citizens.[3]

The Bill of Rights continues to survive as law today, even after the inclusion of the Charter of Rights and Freedoms in Canada’s Constitution in 1982.[4]

What does the Bill of Rights protect?

The Bill of Rights guarantees several rights and freedoms, including freedom of religion, freedom of speech, freedom of the press, and the right to equality, to legal counsel, and the presumption of innocence.[5] Unlike the Charter, the Bill also protects the enjoyment of property and the right to a fair hearing when an individual’s rights and obligations are to be determined.[6]

Where a federal law conflicts with the rights and freedoms protected in the Bill, the courts will refuse to apply that law. [7] In this context, a law that a court refuses to apply because it violates the Bill is called “inoperative.”[8]

Unsuccessful attempts at using the Bill of Rights

Individuals in Canada have rarely been successful in relying on the Bill to protect their rights and freedoms.[9]

In Bliss v Canada (AG), a pregnant woman claimed that a law that denied her unemployment benefits violated her equality guarantee in the Bill of Rights.[10] The unemployment benefits were available to men and non-pregnant women.[11] Despite the differential standard, the Supreme Court of Canada found no violation of the Bill’s equality guarantee because the law had a non-discriminatory purpose (it set out the requirements for different groups to receive unemployment benefits) and it treated all pregnant women the same way.[12]

Similarly, a majority of the Supreme Court decided in Canada (AG) v Lavell that a section of the Indian Act that denied Indian band status to Aboriginal women, but not Aboriginal men, who married non-Aboriginals did not offend the Bill’s equality guarantee.[13] The Court said that the law did not violate equality rights because it had a valid objective (controlling the use and benefit of Indian reserves).[14]

Successful examples of the Bill of Rights

Although the Bill of Rights is rarely used, a few court decisions have shown that the Bill can indeed protect rights and freedoms of Canadians.[15]

One success was in The Queen v Drybones, where the Supreme Court said that a section of the Indian Act that made it an offence for “an Indian” to be intoxicated off of a reserve affected Mr. Drybones’ right to equality before the law.[16] Members of other racial groups did not face punishment for the same conduct on account of their race.[17]

Another successful outcome was in the 1985 Federal Court of Appeal case of MacBain v Lederman, where the Court considered whether parts of the federal Human Rights Act violated the right to a fair hearing.[18] In that case, Mr. MacBain faced a discrimination complaint brought against him by one of his employees.[19] However, the procedures outlined in the Act allowed the same people who prosecuted the complaint against Mr. MacBain to select the decision makers in the hearing process.[20] The Court found that those sections of the Act that defined how decision makers were appointed were inoperative because they violated Mr. MacBain’s right to a fair hearing in section 2(e) of the Bill of Rights.[21]

More recently, the Federal Court in Hassouna v Minister of Citizenship and Immigration Canada found that parts of the Citizenship Act were inconsistent with the right to a fair hearing, and declared those sections inoperative.[22] The Court said that allowing a federal minister to revoke citizenship without giving individuals the opportunity for a hearing was contrary to the protections in the Bill of Rights.[23]

Interestingly, in Hassouna, the arguments made to the Court relied on both the Charter (section 7 right to liberty and security of the person) and the Bill of Rights.[24] The Court’s decision focused on the violation of the right to a fair hearing – a right that is explicitly listed in the Bill of Rights, but not in the Charter.[25]

This keyword was written by Coleman Brinker.

[1] Canadian Bill of Rights, SC 1960, c 44, s 5(2) ; Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed (Toronto: Thomson Reuters, 2007) at 35.1-35.2.

[2] Walter Surman Tarnopolsky, The Canadian Bill of Rights, 2nd ed (Toronto: McClelland and Stewart, 1975) at 3-6.

[3]Ibid; Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71.

[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ; Singh v Minister of Employment and Immigration, [1985] 1 SCR 177 at 224, Beetz J .

[5] Bill of Rightssupra note 1, ss 1(b)-(e), 2(c),(f).

[6] Ibid, ss 1(a), 2(e); Authorson v Canada (Attorney General), 2003 SCC 39 at para 34 .

[7] The Queen v Drybones, [1970] SCR 282 at 293-295 Ritchie J ; Authorson, ibid at paras 10, 32.

[8] Drybones, ibid; Authorson, ibid.

[9] Hogg, supra note 1 at 35.5, 36.1; Robert J Sharpe & Kent Roach, The Charter of Rights and Freedoms, 5th ed (Toronto: Irwin Law, 2013) at 332-334.

[10] [1979] 1 SCR 183.

[11] Ibid.

[12] Ibid at at 186, 192-194. See also Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 167-168.

[13] [1974] SCR 1349.

[14] Ibid at 1359-1360, 1372-1373.

[15] See e.g. Drybones, supra note 7; Singh, supra note 4; MacBain v Lederman, [1985] 1 FCR 856 (CA) ; Hassouna v Minister of Citizenship and Immigration Canada, 2017 FC 473 .

[16] Drybones, ibid at 297.

[17] Ibid.

[18] MacBain, supra note 15; Bill of Rightssupra note 1, s 2(e).

[19] MacBain, ibid at 121.

[20] Ibid at 122-125, 126.

[21] Ibid at 140-141.

[22] Hassouna, supra note 15.

[23]Ibid at paras 2, 17-18, 68-70, 125-126.

[24] Ibid at para 127.

[25] Ibid at paras 66, 154-157, 161; supra note 1, s 2(e).

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