The Canadian Bill of Rights

Ottawa, November 2, 1959

186000-8

I. Introduction

There is a general criticism of the present Bill of Rights proposal that it is fundamentally defective in not providing for the Bill of Rights being placed in the Constitution.

This means I think that:

  1. The sovereign legislative authority of Parliament or the legislatures, or both, should be curtailed so that any law that encroached on a human right or fundamental freedom would be a nullity; and
  2. The power, if any, to amend or override the Bill of Rights would be outside Parliament and the legislatures – the repository of all sovereign legislative authority in Canada.

In other words what is proposed by the critics is that the Bill of Rights be so “entrenched” in our Constitution that there can be no alteration to it, or departure from it, by way of any exercise of sovereign legislative authority in Canada.

There are two questions in this connection that, as far as I know, have not been sufficiently considered by the advocates of “entrenchment”. These are

  1. What are the advantages and disadvantages of “entrenchment” and where does the balance lie?
  2. Can “entrenchment”  be effected under our constitutional set-up, and, if so, how?

II. Merits of Entrenchment

The hypothesis on which the Bill of Rights is based, as I understand it, is that there are, under our philosophy, certain rights and liberties of the individual that are so fundamental to our way of life that no law and no force should be allowed to encroach on them.

The Bill of Rights is the instrument to make that hypothesis a reality.

If the Bill of Rights in operation is completely successful in achieving its objective, entrenchment would undoubtedly be desirable.

If the Bill of Rights in operation does nothing but restrain the legislature from encroaching on the essential rights and freedoms, nothing but an alien or an evil agency would have any reason for overriding it and it would be far better that that were impossible.

However, the Bill of Rights has been drafted by men and will be applied and interpreted by men who, notwithstanding their high offices in the executive and judicial branches of government, are human beings and therefore subject to error when judged by fundamental standards. In particular

  1. The Bill may, in the light of subsequent world developments, appear to have overlooked fundamental considerations;
  2. The Bill, as ultimately interpreted by the Supreme Court of Canada, may appear, in one or more respects, not to have been so worded as to achieve the desired results.

It must be assumed, therefore, that there is real possibility that the Bill may be so interpreted in a particular case of general importance as to be injurious to the individual rather than a protection to him. (For example, it might be held to have the effect of requiring children charged with offences to be tried in the full glare of newspaper publicity rather than in a more suitable setting.)

The question of entrenchment must be considered in the light of that possibility. Is a government, faced with a judgement of the Supreme Court of Canada which it is convinced is going to have terrible social consequences and which it is convinced is abhorrent to the vast preponderance of right-thinking people, going to have to say that the country must resign itself to such consequences because nine judges (or three out of five) felt constrained by words which taken literally appeared to dictate such an unforeseen and calamitous result?

The position is therefore that, if we have entrenchment, alien or evil agencies will not be able legally to overthrow or cut down the rights and liberties guaranteed by the Bill; and, if we do not have entrenchment, a government will be able, in a sufficiently clear

Case, to cause Parliament to correct unforeseen harmful results of the Bill.

In considering which state is preferable, two factors may be relevant –

  1. No matter how you look at it, entrenchment is abandoning, or transferring to some outside agency, some part of Canadian sovereignty; and
  2. Under the proposed scheme, while there would be no entrenchment, there can be no interference with the results obtained from the Supreme Court of Canada unless a Government is so clearly satisfied that the result is abhorrent to right-thinking people that it is prepared to meet Parliament and the country on a proposal to pass a law “notwithstanding the Bill of Rights”.

III. Means of Accomplishing “Entrenchment”

Assuming that the proposal is to be restricted to limiting the powers of Parliament, the two obvious ways of placing the Bill of Rights in the Constitution are

  1. An amendment to the British North America Act by the Imperial Parliament request by the Government of Canada after a resolution has been passed by the two Houses of the Canada Parliament; and
  2. An amendment to the “Constitution of Canada” by the Parliament of Canada under s. 91 (1) of the British North America Acts, 1867 to 1949.

Upon analysis, it would not appear that either of such methods would result in entrenchment. As far as a s. 91 (1) amendment is concerned, any subsequent amendment would be made in exactly the same way as an amendment to the present Bill of Rights, if it is proceeded with. As far as an Imperial amendment is concerned, just as the original amendment can be obtained with less fuss and debate in the Canadian Parliament, so, as a practical matter, any subsequent change could be obtained with less trouble than would be involved in amending the proposed Bill of Rights.

Handwritten note: “Because an Adden. to this in Parlt. invokes only a “one-stage” debate, whereas an amending Bill would involve 3 Readings, etc. – J.”

What then is necessary for entrenchment? My answer is that, under our present constitutional law and conventions an Imperial statute imposing a fetter on Parliament alone can only be passed at the request of the Canadian Government and would have to be repealed upon a similar request and, indeed, since the Statute of Westminster could probably be repealed by Parliament.

The situation would be more complicated if an Imperial statue were passed, at the request of the Canadian Government, concurred in by all the provincial governments, imposing a Bill of Rights as a limitation on Canadian sovereign legislative power. It might then be said that, until all eleven governments agreed, there could be no change in the constitutional limitation. While it is not so clear, I think there is good ground for saying that, under the Statute of Westminster, Parliament and each of the legislatures could repeal such a law so far as its own legislative authority is concerned.

W.R. J.


Copy of the Canadian Bill of Rights
Canadian Bill of Rights

Media and Document Gallery

Images

Canadian Bill of Rights
John Diefenbaker in Cornwall, Ontario
John and Olive Diefenbaker with a group of Polish children
John Diefenbaker at a Chinese Youth Services banquet
John Diefenbaker in House of Commons office
John Diefenbaker and a delegate to the Progressive Conservative General Meeting – 16

Audio

Speech by John Diefenbaker at the Young Progressive Conservative Convention, Ottawa

Creator: Progressive Conservative Party of Canada

Subject: Canada – Head of Government | Canada – Human Rights | Canada Bill of Rights

Description: John Diefenbaker affirms his lifelong championing of human rights and calls upon the youth of the party to take on responsibility for leading Canada into the future

Date Created: 30 November1959

Identifier:MG01/XVIII/T163-PAC23

Speech by John Diefenbaker to the Progressive Conservative Women’s Association, Ottawa

Creator: Progressive Conservative Party of Canada

Subject: Canada – Head of Government | Canada – Human Rights | Canada – Bill of Rights

Description: John Diefenbaker declares his desire to have a Bill of Rights voted on by Parliament in the coming session

Date Created: 30 November1959

Identifier:MG01/XVIII/T187-PAC39

Speech by John Diefenbaker to a Progressive Conservative banquet, Ottawa

Creator: Progressive Conservative Party of Canada

Subject: Canada – Head of Government | Canada – Human Rights | Canada – Census

Description: John Diefenbaker advocates for a Canadianism which will find expression in the coming census when citizens will, for the first time, be asked whether they are a Canadian

Date Created: 17 March1961

Identifier:MG01/XVIII/T203-PAC50

Documents

186000-8 Re: Bill of Rights – Amendment to Constitution

Creator: Department of Justice

Subject: Canada – Government | Canada – Human Rights | Canada – Bill of Rights | Canada – Amendment to Constitution

Description: Describes the merit and means of accomplishing the entrenchment of the Bill of Rights through a constitutional amendment

Date Created: 2 November1959

Identifier:MG01/XIV/E/41 Volume 12

Supplementary and Consolidated Suggestions Concerning the Proposed Bill of Rights

Creator: Victor LaRochelle

Subject: Canada – Head of Government | Canada – Human Rights | Canada – Bill of Rights

Description: Victor LaRochelle sends a list of suggestions concerning the basic principles of a proposed Bill of Rights to Diefenbaker

Date Created: 12 August1958

Identifier:MG01/VI/413.1 Volume 365 (285025 – 285027)

Confidential copy of Bill C - An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms

Creator: Queen’s Printer

Subject: Canada – Human Rights | Canada – Bill of Rights

Description: Copy of the first iteration of a proposed Canadian Bill of Rights, for first reading, House of Commons

Date Created: 28 May1958

Identifier:MG01/VI/413.1 Volume 365 (285069 – 285075)

The Bill of Rights of Wrong

Creator: Guy Kroft, The Manitoban

Subject: Canada – Head of Government | Canada – Human Rights | Canada – Bill of Rights

Description: Outlines the author’s contention that the proposed Bill of Rights would be ineffective

Date Created: 28 September1958

Identifier:MG01/VI/413.1 Volume 365 (285298)

Letter from T.C. Douglas to John Diefenbaker

Creator: T.C. Douglas

Subject: Canada – Head of Government | Canada – Human Rights | Canada – Bill of Rights | Canada – Amendment to Constitution | Saskatchewan – Premier

Description: T.C. Douglas, Premier of Saskatchewan, outlines his support for John Diefenbaker’s efforts to enact a federal declaration of Canadian civil rights; he also includes a proposed amendment to the British North America Act to protect Canadians’ fundamental rights and freedoms

Date Created: 19 January1959

Identifier:MG01/XIV/E/41 Volume 12

The PM’s Bill of Rights Freedom’s Advocate

Creator: Robert Moon, Saskatoon Star Phoenix

Subject: Canada – Head of Government | Canada – Human Rights | Canada – Bill of Rights

Description: Outlines the history of John Diefenbaker’s stance on human rights and notes that the proposed Bill of Rights legislation is a modified version of Diefenbaker’s human rights goals

Date Created: 24 May1958

Identifier:MG01/VI/413.1 Volume 365 (285089 – 285090)

Letter from Davie Fulton to John Diefenbaker

Creator: Davie Fulton

Subject: Canada – Head of Government | Canada – Human Rights | Canada – Bill of Rights | Canada – Amendment to Constitution | Canada – Minister of Justice

Description: Davie Fulton, Minister of Justice, outlines proposed changes to the bill of rights legislation based on feedback received from various sources

Date Created: 11 May1959

Identifier:MG01/XIV/E/41 Volume 12

Orders-in-Council Threaten Your Citizenship

Creator: Vancouver Consultative Council

Subject: Canada – Government | Canada – Orders-in-Council | Canada – Japanese-Canadians

Description: Examines and decries the Government of Canada’s use of Orders-in-Council and attempted use of legislative initiatives to deport Japanese Canadians and strip them of their citizenship

Date Created:1945

Identifier:MG01/III/719 Volume 59 (047074-A – 047074-D)

Our Bill of Rights

Creator: Financial Post

Subject: Canada – Head of Government | Canada – Human Rights | Canada – Bill of Rights

Description: Editorial which declares only a constitutional amendment could fully and legally establish Canadian civil rights, and that there is unlikely to be the unanimous provincial support required for such an amendment

Date Created:no date

Identifier:MG01/VI/413.1 Volume 365 (285059)

Provincial Bill of Rights Statutes – Alberta, Saskatchewan and Manitoba

Creator: Compiled by The Social and Economic Research Committee, Canadian Jewish Congress

Subject: Canada – Human Rights | Canada – Provincial Statutes

Description: Analyses of human rights legislation of the provinces of Alberta, Saskatchewan and Manitoba

Date Created:no date

Identifier:MG01/III/29.1 Volume 2 (001162 – 001164)

Letter from Byrne Hope Sanders to John Diefenbaker

Creator: Byrne Hope Sanders

Subject: Canada – Human Rights | Canada – Parliamentarians |Canada – Opinion Polling

Description: Byrne Hope Sanders, Co-Director, Canadian Institute of Public Opinion, writes to Diefenbaker regarding the institute’s first of three news releases on its recent polling on civil liberties, which he includes

Date Created: 29 January1957

Identifier:MG01/IV/413.1 Volume 22 (15379 – 15381)

Should Canada have a Bill of Rights?

Creator: Peterborough Examiner

Subject: Canada – Human Rights | Canada – Bill of Rights | United States – Human Rights | Britain – Human Rights

Description: A selection of Peterborough-area citizens provide their views on whether Canada should have a Bill of Rights

Date Created: 17 May1958

Identifier:MG01/VI/413.1 Volume 365 (285101 – 285102)

What About the Japanese Canadians?

Creator: Howard Norman and The Consultative Council

Subject: Canada – Government | Canada – Human Rights | Canada – Japanese Canadians

Description: Criticizes various untruths used to justify mistreatment of Japanese Canadians during the Second World War; itemizes government actions taken against Japanese Canadians

Date Created: 1 May1945

Identifier:MG01/XIII/163 Volume 20