Canadian declaration of the rights

The Canadian Déclaration of the rights is a Canadian federal law adopted by the government of the Prime Minister John Diefenbaker the August 10th 1960. It grants to the unquestionable Canadians law quasi-constitutional in relation to other federal laws. It is about the first law of the Droits of the person at the federal level in Canada, although a “ charter of the rights implicite ” had already been recognized by the courts. The Canadian Déclaration of the rights remains in force, but its largely recognized inefficiency was the primary reason behind the adoption of the Canadian Charte of the rights and freedoms in 1982.

Projecting points

The Canadian Déclaration of the rights protects from many rights, whose majority were subsequently included in the Charte . Examples:

the Freedom of speech and the Freedom of religion (maintaining with section 2 Charter )
Of the rights to the equality limited (of the wider rights are now enchased with section 15 of the Charte )
right to the life, freedom and safety of the person, and in another section, right to fundamental justice (the Charte joins together these rights to section 7)
right to a lawyer (maintaining with section 10 Charte ).

Section 2 of the Déclaration of the rights starts as follows:

Any law of Canada, unless a law of the Parlement of Canada does not declare expressly that it will apply notwithstanding the Canadian Declaration of the rights, must be interpreted and apply so as not to remove, restrict or enfreindre any of the rights or freedoms recognized and declared to present…

The wording notwithstanding of section 2 was the precursor of the derogatory clause of the Charte .

Although the Déclaration of the rights is only quasi-constitutional because of its statute of simple law, it contains a single provision which is often forgotten by those which underestimate the importance of the document. This section is read as follows:

3. (1) Subject to the paragraph (2), the Minister for Justice must, in conformity of payments prescribed by the governor in council, to examine any payment transmitted to the clerk of the Council deprived for recording, pursuant to the Law on the statutory texts, like any project or private bill submitted or presented to the House of Commons by a federal minister in order to seek if any of its provisions is incompatible with the ends and provisions of this Part, and it must announce very similar incompatibility to the House of Commons as soon as it of to the occasion.
(2) It is not necessary to carry out the examination envisaged by the paragraph (1) if the draft Regulation were the subject of the examination envisaged in article 3 of the Law on the statutory texts and intended to check its compatibility with the ends and the provisions of this part. | Canadian Declaration of the rights

Criticisms and supports with the Canadian Declaration of the rights

The critics aiming at the Déclaration of the rights of 1960 concentrate mainly on its limited effect.

It explicitly amended laws with which it entered in conflict, neither to eliminate the conflicts nor to insert explicit exemptions so that the laws continue to be applied notwithstanding the Déclaration of the rights . When one asked the courts to apply conflict laws, the courts typically sought to interpret a later law in order to create a minimal disturbance with the law of origin. In practice, that wanted to say that the courts trusted the Parliament to revoke or amend any contrary law with the Déclaration of the rights . The several which wanted that the courts apply vigorous rights of way were disappointed.

Since the Déclaration of the rights was not an constitutional amendment, there was a certain debate as for its force on future legislatures. However, section 3 obliges the Minister for Justice to inform the Parliament which a law suggested denies a protected right. The intention of this section was to discourage from the Parliament doing it.

Another criticism of the Déclaration of 1960 was that its authority was limited to the questions which raise of section 91 of the AANB (the constitutional Loi of 1867 ), i.e. the powers of the federal government and not those of the provinces.

However, one of the benefits of the Déclaration of 1960 was that it protects certain rights (right to the property, for example) not mentioned in the news Charte of the rights and freedoms (but which can exist according to section 26 of the Charte ). For this reason and others, the Déclaration of 1960 remains in force and is regularly quoted in decisions of the courts today.

See too

Canadian Law on the rights of the person (1977)
Constitution of Canada
Canadian Charter of the rights and freedoms

External bond

Text of the law
Files of Radio-Canada on Diefenbaker and the rights

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