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As John Diefenbaker grew up and then
practiced law, he always felt that their was an
uncertainty concerning basic human rights in Canada. One
of his cherished dreams was to establish a basic set of
rights that all Canadians could appeal to when dealing
with the law.
when he was elected as Prime Minister in 1957 and again
in 1958 he made it a priority to bring in some sort of
legal mechanism that would protect some basic rights of
all Canadians.
By 1960 he was able to pass the Bill of Rights, which is
listed below, but not without some glaring weaknesses.
The Bill was only applicable to those areas of the law
which was within Federal jurisdiction as per section 91
of the 1867 BNA act. It also was in conflict with other
legislation such as the War Measures Act and was
therefore subject to judicial review. Diefenbaker was
not able to have the provinces unite in their acceptance
of the Bill as a constitutional amendment so it was only
a dream partially realized.
With the passing of the Charter of Rights
and Freedoms in 1982, many of the reasons for the Bill
of Rights were superseded but it is still on the books
and continues to be used today in many legal cases.
Canadian Bill of Rights
An Act for the Recognition and
Protection of Human Rights and Fundamental Freedoms
[S.C. 1960, c.44]
Preamble
The Parliament of Canada, affirming
that the Canadian Nation is founded upon principles that
acknowledge the supremacy of God, the dignity and worth
of the human person and the position of the family in a
society of free men and free institutions;
Affirming also that men and
institutions remain free only when freedom is founded
upon respect for moral and spiritual values and the rule
of law;
And being desirous of enshrining these
principles and the human rights and fundamental freedoms
derived from them, in a Bill of Rights which shall
reflect the respect of Parliament for its constitutional
authority and which shall ensure the protection of these
rights and freedoms in Canada:
Therefore, Her Majesty, by and with
the advice and consent of the Senate and House of
Commons of Canada, enacts as follows:
PART I
BILL OF RIGHTS
1. It is
hereby recognized and declared that in Canada there have
existed and shall continue to exist without
discrimination by reason of race, national origin,
colour, religion or sex, the following human rights and
fundamental freedoms, namely,
- (a)
the right of the individual to life, liberty,
security of the person and enjoyment of property and
the right not to be deprived thereof except by due
process of law;
- (b)
the right of the individual to equality before the
law and the protection of the law;
- (c)
freedom of religion;
- (d)
freedom of speech;
- (e)
freedom of assembly and of association; and
- (f)
freedom of the press.
2. Every
law of Canada shall, unless it is expressly declared by
an Act of 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, and in particular, no law of
Canada shall be construed or applied so as to
- (a)
authorize or effect the arbitrary detention,
imprisonment or exile of a person;
- (b)
impose or authorize the imposition of cruel and
unusual treatment or punishment;
- (c)
deprive a person who has been arrested or detained
- (i)
of the right to be informed promptly of the
reason for his arrest or detention,
- (ii)
of the right to retain and instruct counsel
without delay, or
- (iii)
of the remedy by way of habeas corpus for
the determination of the validity of his
detention and for his release if the detention
is not lawful;
- (d)
authorize a court, tribunal, commission, board or
other authority to compel a person to give evidence
if he is denied counsel, protection against
self-crimination or other constitutional safeguards;
- (e)
deprive a person of the right to a fair hearing in
accordance to the principles of fundamental justice
for the determination of his rights and obligations;
- (f)
deprive a person charged with a criminal offence of
the right to be presumed innocent until proved
guilty according to the law in a fair and public
hearing by an independent and impartial tribunal, or
of the right to reasonable bail without just cause;
and
- (g)
deprive a person of the right to the assistance to
an interpreter in any proceedings in which he is
involved or in which he is a party or a witness,
before a court, commission, board or other tribunal,
if he does not understand or speak the language in
which such proceedings are conducted.
3. (1)
Subject to subsection (2), the Minister of Justice
shall, in accordance with such regulations as may be
prescribed by the Governor General 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.
4. The
provisions of this Part shall be known as the
Canadian Bill of Rights.
PART II
5. (1)
Nothing in Part I shall be construed as to abrogate or
abridge any human right or fundamental freedom not
enumerated therein that may have exist in Canada at the
commencement of this Act.
(2) The
expression "law of Canada" in Part I means an Act of the
Parliament of Canada enacted before or after the coming
into force of this Act, any order, rule or regulation
thereunder, and any law in force in Canada or in any
part of Canada at the commencement of this Act that that
is subject to be repealed, abolished or altered by the
Parliament of Canada.
(3) The
provisions of Part I shall be construed as extending
only to matters coming within the legislative authority
of the Parliament of Canada.
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