Canadian Bill of Rights - Criticism and Support of The Canadian Bill of Rights

Criticism and Support of The Canadian Bill of Rights

Criticism of the Bill of Rights has mostly centered on its limited effect. The ineffectiveness of the Bill of Rights in achieving its stated aim was the main reason that, two decades later, it was thought necessary to adopt a constitutionally-entrenched charter.

The Bill of Rights was (and is) limited in several ways.

First, it does not explicitly amend any conflicting statutes, either to remove conflicts or to insert explicit allowances for the statutes to operate notwithstanding the Bill of Rights. When called upon to apply conflicting laws, the courts typically sought to interpret a later statute as creating a minimal disturbance of earlier law. In practice this meant that the courts relied on Parliament to repeal or amend any laws contrary to the Bill of Rights. Disappointments for those who wanted courts to enforce rights vigorously included Bliss v. Canada and Attorney General of Canada v. Lavell. A notable exception was R. v. Drybones.

Second, since the Bill of Rights was not a constitutional amendment, there was some debate as to whether it was binding on future Parliaments. However, Section 3 requires the Minister of Justice to notify Parliament that a proposed law (nominally) denies protected rights. The intent of this provision was presumably to discourage Parliament from enacting such a law.

Third, because it is an ordinary statute, the authority of the Bill of Rights is limited to matters set out in Section 91 of the Constitution Act, 1867 as being under the legislative authority of the Parliament of Canada.

However, the 1960 Act does enumerate some rights (property rights for instance) not protected under the Canadian Charter of Rights and Freedoms. For this and other reasons, the 1960 Act is regularly referenced in court decisions today.