Origins of Rights-Consciousness in Canada
•Political theory of liberalism
•European Renaissance of 15th century
•Glorious Revolution (England: 1688)
•John Locke: Second Treatise on Gov’t 1690
•rule of law “one rule for the Rich and Poor,
for the Favourite at Court and the Country Man at Plough”
•common law protections for individual freedom:
•strict attention to rule of law: Entick v.
•crown must prove case beyond reasonable doubt
•confessions must be made only freely
•can’t be forced to self-incriminate
•prerogative writs (eg. habeas corpus)
•Development of democratic values
•growth of franchise
•U.S. Bill of Rights
•Jefferson (declaration of independence):
“…all men are created equal [and] endowed by their Creator with certain
unalienable rights [including]
Life, Liberty and the pursuit
of Happiness.” (1776)
•To get 1787 constitution ratified, state leaders
insisted on a Bill of Rights; added in 1789 as first 10 amendments to 1787
•freedom of speech, press,
assembly & religion
no unreasonable search or seizure, right not to testify against self, can’t
be punished twice for same offence, due process safeguards,
no cruel or unusual punishment
•positive legal rights:
speedy trial, jury trial for serious cases, reasonable bail, to bear arms,
and to refuse accommodation to soldiers
•Canada’s bilingual and bireligious heritage
•demands in 1864 for guarantees of minority language
and minority religious education rights prior to Confederation in 1867
•“small bill of rights”:
•S. 133 of BNA Act:
Eng or Fr in Parl, Quebec leg., and Can & fed courts; similar guarantees
in Manitoba in 1870, & AB and Sask in 1905
•S. 93: safeguards
existing denominational school rights
•Preamble to BNA Act: Canada’s constitution
“similar in principle” to that of the U.K.
•legislative supremacy one aspect of U.K. constitution:
seems to contradict idea of a constitutional bill of rights
•A.V. Dicey: Introduction to the Study of
the Law of the Constitution (1885)
•human rights protected
by common law
•written constitution is
too rigid; trust legislature
Civil Liberty Cases prior to Can Bill of Rts
•B.C.: discriminatory legislation against Orientals in late 1800s,
•1899: JCPC stuck
down law restricting employment of Orientals as ultra vires prov. Jurisdiction
•1902: JCPC upheld denial of vote to Orientals - leg sup
•Private suits by Blacks against pte disc: some succeeded, most
didn’t because cts emphasized private right to contract
•Sask: disc leg ag Orientals: upheld by SCC, 1914
•“Persons” case: 1930: JCPC expanded definition of "persons"
to include women.
•Alberta Press Case (1938)
•impugned: package of Social Credit legislation:
unanimously struck down
•“Duff doctrine”: because Can. const is “similar
in principle” to that of U.K., courts can strike down legislation violating
trad. human rights.
Also, Canada is a democracy:
H of C is representative. “Free public discussion … is the breath
of life for parliamentary institutions”
•Treatment of Japanese Canadians during WWII: courts did not
•“Gouzenko affair” in 1945: secret trials of 26 under War Measures
Act without usual procedural protections. Led to establishment of
Can Civ Liberties
Association, currently one of
the most frequent interveners in Charter of Rights cases.
•Saumur, 1953: SCC struck down Que City bylaw
about littering, but aimed at Jehovah’s Witnesses. The 5-4 majority
cited different reasons for finding the
two cited the Duff Doctrine.
•Switzman v. Elbling, 1957: SCC struck down
Padlock Law because it trenched on Parl’s crim law jurisdiction.
Three judges cited the Duff Doctrine.
•Roncarelli v. Duplessis, 1959: Roncarelli
posted bail for JWs, and Duplessis cancelled his restaurant liquor license.
Roncarelli sued Duplessis for violation of
rule of law (Frank Scott
represented Ron.), and won.
The Canadian Bill of Rights
•Spearheaded by PM John Diefenbaker, who had been a well-known defence
lawyer in Saskatchewan and considered common law safeguards of human rights
inadequate. The bill was enacted in 1960, and covered only federal
legislation. Diefenbaker had wanted a constitutional bill of rights
that covered federal and provincial legislation, but was not able to get
the agreement of the provincial premiers, most of whom worried about the
erosion of legislative supremacy.
•S. 1: rights to life, liberty, security of person, enjoyment
of property, equality before law, freedom of religion, speech, assembly,
association and press have existed and continue to exist without discrimination
by reason of race, national origin, colour, religion or sex.
•S. 2: lists traditional common law legal rights: habeas
corpus, no arbitrary detention or imprisonment, no cruel or unusual
punishment, no arrest without lawful reason, right to retain lawyer without
delay, right not to be forced to incriminate self, innocent until proven
guilty, ind and imp tribunal, reasonable bail, interpreter. Right
to a fair hearing in accord with fundamental justice to determine rights
•“notwithstanding clause”. Parliament may insert a clause into
any piece of federal legislation that states that the legislation will
operate "notwithstanding" the Canadian Bill of Rights. This preserved
legislative supremacy, and paradoxically, also invited courts to strike
down legislation contrary to the Bill. This is because the courts
could deem that if Parliament had wanted the Bill not to apply, it would
have asserted a "notwithstanding" clause into that bill. Otherwise,
according to the rules of construction, the courts could not give priority
to the Bill of Rights over other ordinary legislation.
Cases decided under the Canadian Bill of Rights:
•Robertson and Rosetanni v. the Queen, 1963
•impugned: fed. Lord’s Day Act. Robertson
and Rosetanni wanted to operate a bowling alley in Hamilton on Sundays,
contrary to the fed. Lord's Day Act.
•Ritchie (for majority): Freedom of religion
“has existed;” therefore no violation of Bill by the Lord's Day Act.
Canada has always had freedom of religion,
according to the Bill.
•Freedom of Rel means an absence of disabilities,
but govt’s can promote religious practices if they wish to.
•Although Act as a religious purpose, the effect
is purely secular
•Cartwright dissented: both purpose &
effect of Act compel, under penal sanction, observance of a particular
religious holy day
•Courts can strike down
laws under Bill of Rights; otherwise the “notwithstanding” clause would
not be necessary
•impugned: section of Indian Act that made
it an offence for an Indian to be intoxicated off a reservation.
No reservations in NWT.
•Drybones claimed equality before the law violated
•Ritchie (for majority): Where it is “an offence…on
account of race…to do something which all Canadians who are not members
of that race may do…”
there is a violation of
•Ritchie adopts Cartwright’s reasoning from Rosetanni
that notwithstanding clause means Bill of Rights is more than a rule of
•Cartwright dissented. Said he’d changed his
mind since Rosetanni. It would be dangerous for the courts to usurp
legislature’s role by deciding what statutes
violate Bill of Rights.
•Lavell & Bedard (1974)
•impugned: part of Indian Act that states
that if an Indian man marries a non-Indian, he retains status and his children
inherit it, but if an Indian
woman marries a non-Indian,
she forfeits her status, as do her children.
•Ritchie for majority (5-4): equality before
the law, according to Dicey, means equality in the administration of the
•If all Indian women are treated equally, there’s
no necessary discrimination. (Indian women aren’t compelled by law
to marry non-Indians).
•impugned: part of Unemployment Insurance
Act that stipulated longer qualifying period for work absence due to pregnancy.
SCC: no discrimination,
as the provision applies to everyone who is pregnant.
•Oil, Chem and Atomic Workers case (1963):
•SCC says it’s OK for BC gov’t to prohibit union
political contributions if received from check-off.
•1969: SCC upholds Alberta discriminatory legislation against
•SCC upholds a Montreal by-law that allowed Council
to ban all demonstrations for 30-day periods.
•Beetz: Demonstrations are not “speech in
action,” therefore no violation of freedom of speech
•Beetz dismissed the Duff Doctrine. A majority
agreed with him. This was the final "nail in the coffin" (Peter Russell)
of the Duff Doctrine, at the time.
Duff Doctrine was revived -- by Beetz -- after the Charter of Rights became
part of the constitution.
•Laskin: strong dissent
The SCC’s relative poor record of promoting human rights under the
Bill of Rights led to support for idea of a constitutional Charter of Rights.
However, would a constitutional bill of rights encourage judges to
defend civil liberties, or would they be as timid under a constitutional
document as they were with the Bill of Rights? I assumed the latter
back in 1981, but I was wrong.