He also thought it would make Canada more like the United States. Parliamentary committees investigated a national bill of rights three times between and ; they rejected it each time. It protected freedoms of conscience, expression, association, freedom from arbitrary detention, and rights to elections , employment, education and property.
Its goal was to prevent a return to the mass killings and destruction of the Second World War. The declaration said every person is entitled to the rights and freedoms and cannot be excluded on grounds of race, colour, sex, language, religion, political beliefs or place of birth. It banned enslavement, torture, and arbitrary arrest and detention. It also enshrined the right to be presumed innocent, and the right to work, among others.
Canada and most other UN members adopted the declaration in December He began drafting a bill of rights in as the leader of the Saskatchewan Conservative Party. Diefenbaker pointed to the UN declaration and to all the democratic countries that had since adopted similar bills. He argued that Canada needed a bill of rights to keep people from becoming second-class citizens due to colour, creed or racial origin. Diefenbaker became prime minister when his Progressive Conservative Party won the federal election on 10 June Enacting the Canadian Bill of Rights in became one of his central accomplishments.
The Bill, still in effect, applies only to federal laws and government actions. This is because the requisite provincial consent was not obtained. The Bill recognizes the rights of individuals to life, liberty, personal security, and enjoyment of property. The Bill protects rights to equality before the law and ensures protection of the law.
It protects the freedoms of religion , speech, the press, and of assembly and association. It also guarantees legal rights such as the rights to counsel and a fair hearing. Laws are to be constructed and applied so as not to detract from these rights and freedoms.
Before that, Indigenous people had to give up their Indian status to vote federally, a trade many were not willing to make. The case was about an Indigenous man who was arrested in Yellowknife for violating a section of the Indian Act prohibiting Indigenous people from being intoxicated off their reserves.
He and his lawyers argued that violated the Bill of Rights , as a non-Indigenous person could not have faced the same charge. The Supreme Court ultimately agreed, citing the Bill of Rights ban on punishing people on the grounds of race. Parliament later repealed that section of the Indian Act. However, this success was not the norm for challenges based on the Bill of Rights. The Bill was cited 35 times in court cases between and ; thirty were rejected.
The Drybones case was the only one to change a law. The Bill of Rights applies only to federal laws and government actions, because provincial consent was not obtained. That decision was overruled in Katz v. Oklahotha, U. Most forms of governmental regulation involve limitations on the free- dom of individuals and corporations to do as they like with themselves and their property. This is true of highway speed limits, drug laws, abortion regulations, minimum-wage requirements, industrial safety rules, ad infini- tum.
These laws may be completely fair in the procedural sense; prescribed legislative procedures may have been followed scrupulously and judicial enforcement mechanisms may incorporate the full panoply of procedural rights and protections required by ss 7 to 14 of the Charter. Nevertheless, such laws are sometimes thought to be substantively unreasonable — that is to restrict individual liberty without a sufficiently strong public justification for so doing.
Where the specific individual liberty interest involved is given express constitutional recognition — as is true, for example, with respect to the interests in free expression, religion and mobility under the Charter — that recognition undoubtedly provides a basis for examining the substantive reasonableness of the regulation in light of the asserted governmental justifications.
At one time, application of this doctrine was especially active in relation to government regulations of business and com- merce. The role and meaning of s. In the s, the U. Supreme Court changed its attitude regarding the application of substantive due process principles to the broad range of econo- mic and social regulations enacted by state and federal legislatures during the period of the Great Depression. The day is gone when this Court uses the Due Process Clause… to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvi- dent, or out of harmony with a particular school of thought.
From time to time, moreover, the Court still engages in what appears to be more than a toothless version of rationality scrlutiny of laws regulating activities that do not fall within any specific constitutional protection. Kansas, U. Palmer Bros Co. Liebmann, U. Society of Sisters, U. Nebraska, U. Lee Optical Co. Skrupa, U. Parrish, U. Slayton, U. This development began with Griswold v. The text of the Canadian Charter appears to be much more hospitable than the U.
Baird, U. Redhail, U. LaFleur, U. Georgia, U. City of East Cleveland, U. Wade, supra, note See also Doe v. Bolton, U. Danforth, U. Franklin, U. The Supreme Court reaffirmed theRoe abortion decision in City ofAkron v.
Akron Center for Reproduction Health, Inc. Roe, supra, note But see California Bankers Assn v. Shultz, U. Johnson, U.
McCrary, U. Boraas, U. This hypothesis seems especially true because s. Such a level of required justification may seem unreasonably formid- able when applied to all modern economic regulation, much of which is of an experimental and somewhat speculative nature. If these predictions about general approaches under the Charter prove accurate, the crucial question will be whether Canadian courts, like the U.
Wade, supra, note 25, the U. Ninth Amend- ment. Connecticut, ibid. Both the Charter and the U. Constitution contain textual provisions dealing explicitly with equality rights.
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimina- tion based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. United States equal protection doctrine is awesomely complex. The Canadian Charter contains a similar provision in s.
The prevailing U. Section U. If the Ninth Amendment or s. Indeed, substantive due process when that was a practically significant doctrine in the U. No similar provision appears in the U. See infra, text accompanying notes and Originally, this branch was applied to hostile discriminations toward blacks, for whose protection the amendment was primarily designed.
West Virginia, U. Virginia, supra, note ; and Brown v. Hopkins, supra, note 64;. Boren, U. Lalli, U. Virginia Board of Elections, U.
See also Griffin v. Illinois, U. Discriminatory effects, as noted infra, text accompanying notes to , are not within the U. Thus, while poor people undoubtedly could not be deliberately segregated by law in public schools from more affluent people, a neighborhood school policy that achieves the same result would probably be upheld.
Wilson, U. Board of Education, supra, note Murgia, U. See also. See Korematsu v. United States, supra, note Classifications adopted for the purpose of harming minorities, however, as well as classifications that reflect the view that the minority group is inferior or that are based upon stereotypical attitudes toward traditional victims of societal discrimination, are probably unconstitu- tional in all situations. The suspect classification branch of the U. Board of Education.
See Loving v. Virginia, supra, note See Craig v. Boren, supra, note Goldberg, U. United States, ibid.
Hogan, S. Bakke, U. Ferguson, U. If this be so, it is not by reason of anything found in the act [requiring racial segregation on railways], but solely because the colored race chooses to put that construction on it.
Im See, e. Gender segregation has not been treated as strictly. See Vorchheimer v. School District of Philadelphia, U. But, more recently, see Mississippi University for Women v.
Constitu- tion only if they find that they were adopted for racially discriminatory purposes. The second branch of the U. Im This doctrine has had a history similar to the rise and fall of the substantive rationality doctrine that has been developed under the due process clauses.
Davis, supra, note Supreme Court has even held, in Geduldig v. Aiello, U. PersonnelAdministrator of Massachusetts v. Feeney, supra, note However, modem federal civil rights statutes in the U. Duke Power Co. Ellis, U. Doud, U. This case was, however, overruled in City of New Orleans v. Dukes, U.
See also Baxstrom v. Herold, U. Moreno, U. Reed, U. The third branch of United States equal protection doctrine is the most recent in origin. The law is concerned here with discriminations against groups that have historically been subjected to hostile, stereotyped or irrational prejudices or attitudes. But inequalities of treatment may also be particularly harmful, whether or not any such group is victimized, if the subject matter of the discrimination — the benefit withheld or penalty inflicted on an unequal basis is an especially important one.
Arbitrary administration of capital punish- — ment to convicted murderers, for example, appears a great deal more harmful than equally arbitrary imposition of fines upon parking offenders. This third limb of U. Thus, differential treatment in the allocation of free expression rights bears a heavy burden of justification under the U. Agriculture v. Murry, U. Williams, S.
Reed, which is cited immediately above, for example, involved gender discrimination. Recent business regulation cases, where rationality arguments were rejected but nevertheless seriously discus- sed, include U. Railroad Retirement Board v. Fritz, U. Clover Leaf Creamery Co. See also Schiveiker v. Wilson, supra, note welfare benefits classification adversely affecting mental patients. Supreme Court held that the administration of capital punishment was unconstitutional unless guided by standards designed to eliminate arbitrariness.
Mosley, U. Many of the cases discussed in this paragraph could alternatively have been decided under specific substantive constitutional guarantees, rather than equal protection principles, where the inequality in- volved could have been seen as a burden on a substantive right, such as that of free expression. Thompson, supra, note 19, The equality rights provision of the Canadian Charter seems to incorpo- rate a doctrine similar in outline to the U. The Charter, on the other hand, omits alienage and poverty classifications from its list.
That list, however, is apparently not. LaFleur, supra, note Reynolds v. Sims, U. Unlike the Canadian Charter s. Constitu- tion contains no affirmative right to vote see supra, note 19 , thus necessitating the use of equal protection principles in the voting cases. The same need may arise in Canada, should denial of voting rights be challenged in elections in which the Charter creates no affirmative right to vote. The Kramer case cited immediately above, for example, concerned an election for a local school board.
Doe, U. See also San Antonio School District v. Roe, supra, note 28 state exclusion of abortions from medical assistance program for indigents held constitutional. See also, e. Williams, U. For example, classifications that discriminate against the very poor would seem a possible candidate for inclusion. The Charter is also similar to U. However, this Charter provision seems somewhat broader in its permissive scope than is U.
Under the leading U. Bakke,1 6 a program is not only required to be intended to remedy the conditions of the disadvantaged, it must also be tailored carefully and re- latively narrowly to achieve that objective. As in the United States, the answer in Canada should turn perhaps on whether such segregation, in the light of history and current societal attitudes, seems to reflect or encourage attitudes of presumed inferiority vis-d-vis one of the segregated groups.
Thus, segregation in access to public facilities affecting minority racial or ethnic groups would likely constitute discrimination, while gender segregation in public washrooms could be viewed as non- discriminatory in either purpose or impact. Most importantly, do Charter. Justice Powell, the fifth Justice addressing the constitutional issue in Bakke, ibid.
The four remaining Justices in Bakke did not address the constitutional issue. A subsequent plurality opinion, in a somewhat different context, stated again more restrictively than does subs. Fullilove v. Klutznick, supra, note , The difficulties in proving purpose and motivation may provide a strong incentive to Canadian courts not to make those factors determinative of constitutional rights.
The same words that give rise to these requirements in the U. Much of the fundamental rights-equal protection jurisprudence that has evolved in the United States could be derived in Canada from Charter provisions other than s.
Thus, classifications that burden or penalize mobility or free expression rights can be examined under those provisions directly. Similarly, denial of equal access to public primary and secondary school education can perhaps be dealt with under the strong implication in Charter s.
If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons. Mobility rights are placed prominently in the text of the Charter. Although there is no closely equivalent text in the U. Thus, U. Massachusetts Board of Retirement v. Murgia, supra, note , See also his dissents in Dandridge v.
Williams, supra, note ,; and San Antonio School District v. Rodriguez, supra, note 19, Dulles, U. Haig v. Agee, U. Government welfare benefits may also be withheld for periods during which the recipient is out of the U. Califano v. Aznavorian, U. Under the cruel and.
Where travel within the U. Moreover, subs. The most difficult mobility rights problems in the United States have involved indirect negative effects upon mobility or migration caused by residence and similar requirements for governmental benefits or employ- ment.
In a long line of cases, U. See Trop v. Nevada, 6 Wall. See also Shapiro v. Maricopa County, supra, note 70; and King v. Maricopa County, supra, note On the other hand, a brief durational residency requirement fifty days for voting was upheld in Marston v. Lewis, U. See Starns v. On the other hand, it -may be that that provision is designed only to authorize reasonable means of determining bona fide residency, and not to authorize any minimum durational residency requirements, once residency is established.
What of other requirements that discriminate against non-residents or persons who have recently become residents of a province? Sup- reme Court has upheld local requirements that municipal employees, such as police, teachers or firefighters, be residents of the city where they are employed. Ct, Dist. Iowa, U. Helms, U. Philadelphia Civil Service Commission, U. Orbeck, U. But see White v. Massachusetts Council of Construction Employers, Inc. Ct forthcoming employment preference for city residents on city construction projects upheld.
Witsell, U. The Court has, however, upheld the imposition of higher recreational hunting fees on non-residents than on residents.
Baldwin v. Fish and Game Commission, U. Williams, supra, note This Charter right, however, is modified by subs. These rights are with one or two notable exceptions described in s. United States case law is, indeed, elaborate rivaling perhaps only U. The main textual differences between the Charter and the U. Fish and Game Commission, supra, note This attitude has a textual constitutional basis in art. IV, 2 of the U. Corfield v. Coryell, 6 Fed. The main textual are differences — discussed in the text.
Barnette, U. The prohibition has been expanded, however, into one against not only an established church, but also against a broad range of affirmative governmental methods of support for particular religions or religion generally. In recent years, most litigation has concerned either government funding and support for parochial and religious schools, or the institution of prayer or Bible reading requirements or opportunities in public schools.
Others may perhaps violate the freedom of religion clause of Charter subs. In subs. This distinction may or may not represent a significant enlargement of rights compared to U. See Everson v. Board of Education, ibid. Regan, U. Allen, S. Ct forthcoming the most recent in a tangled line of cases upholding some forms of financial support for religious schools and rejecting others. See also McGowan v. Tax Commission, U. Vitale, U. Schempp, U. But see Widmar v. Vincent, S. Ct establishment clause does not prohibit a state university from making facilities available to student prayer group for religious worship ; and Marsh v.
Chambers, S. And see Epperson v. Arkansas, U. Even though students were not required to participate in prayers led by teachers, their choice of either participating or conspicuously not participating might be deemed coercive upon the free exercise rights of children and parents. Indeed, an official state religion might also possibly be considered to be an impingement on individual freedom. With regard to the meaning of the free expression and association provisions of Charter subss 2 b to 2 d , United States law suggests the following basic issues among others as ones that may well be likely to arise in the course of future Canadian judicial interpretations:.
Barnette, supra, note , the Court held unconstitutional regulations requiring children to salute the flag in public schools. See the quotation from this opinion, supra, note See also Wooley v. Maynard, U. On the other hand, even clear and sincere religious opposition to compliance with legal requirements may not always overcome sufficiently powerful state justifications.
Supreme Court has, for example, held that compulsory school attendance laws may not be applied to a particular religious group whose principles they violate see Wisconsin v. Yoder, supra, note 65 , it has also upheld a federal law making bigamy a crime, even though the law was challenged by a Mormon who claimed that polygamy was part of his religious duty.
See Reynolds v. United States, 98 U. See also Jacobson v. Massachusetts, U. Constitution may not confer a general freedom of conscience not grounded in religion or rights of free expression or silence, U. Seeger, U. But see Gillette v. Most of these definitional exceptions have been eliminated in recent years. Supreme Court in by the margin of only a single vote. New Hampshire, U. See also Valentine v. Chrestensen, U. Sullivan, U.
Robert Welch, Inc. With regard to commercial advertisements, see Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, U. Profanity on radio and television is, however, subject to regulation. See Federal Communications Commission v. Pacifica Foundation, U. Sullivan, supra, note See Gertz v. The extent to which non-defamatory invasions of individual privacy by the media or others are constitutionally protected in the U. See Time, Inc. Hill, U. Cohn, U. Protection of copyright and similar property interests has been constitu- tionally reconciled with free speech guarantees in the U.
In the end, therefore, all Canadian governments have legislated restraint of themselves from interfering with individual freedoms and they have extended similar basic human rights. They all have also restricted the private sector from discriminating against individuals on the basis of enumerated attributes. Two jurisdictions federal and Alberta continue to separate these public and private dimensions by maintaining both a Bill and an Act. The other jurisdictions combine them in one piece of human rights legislation, variably called an Act, Code or Charter.
The Canadian Bill of Rights was almost entirely reproduced in similar or broader language in the Canadian Charter of Rights and Freedoms. Section 6 Charter mobility rights replace protections from arbitrary exile. The federal and Alberta Bills of Rights continue in force alongside the Charter.
Their continuing value, therefore, is that they add to Charter rights in these limited ways. Ironically, the Supreme Court of Canada seems to have breathed more life into the Canadian Bill of Rights after the Charter than it granted before For example, in the case of Singh v.
There are several other instances of the Canadian and Alberta Bills and the Quebec Charter being held to grant more rights than the Canadian Charter. However, the lack of such limitation in the Canadian Bill of Rights , in conjunction with its lack of status as regular non-entrenched legislation, has resulted in a conservative approach to interpreting them. All other jurisdictions combine this self-limiting legislation with equality rights enforceable against the private sector in broader human rights Acts or Codes Charter in Quebec.
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