The 1960 Canadian bill of rights, which included prohibitions against gender discrimination, marked a first step toward the constitutional protection of women’s rights and civil liberties in Canada.
On July 1, 1960, the Canadian House of Commons began debate on a bill titled Act for the Recognition and Protection of Human Rights and Fundamental Freedoms. A little more than one month later, on August 4, the House of Commons unanimously approved the legislation. The Canadian bill of rights, as this piece of legislation came to be known, guaranteed Canadians fundamental freedoms regardless of race, national origin, color, religion, or sex (gender). Numbered among these freedoms were the rights to individual life, liberty, and security; the enjoyment of property; equality before the law; the protection of the law; freedom of religion; freedom of assembly and association; and freedom of the press. These rights and freedoms were far from unique to Canada; they were those commonly associated with advanced industrialized democracies. What made the Canadian bill of rights an important milestone in the history of human rights was its place in the evolution of formal legal protection for women and minorities.
To understand the bill’s significance—as well as its limitations—one must examine three aspects of Canadian political history. First, unlike either the U.S. Declaration of Independence or the U.S. Constitution, the Canadian constitution—the British North America (BNA) Act
“Political culture” refers to the way in which a country’s people think about politics. Political culture in the United States is characterized as liberal, while that of Canada is seen as conservative. Central to liberalism are a distrust of power, an emphasis on popular sovereignty, and individualism. Canadian conservatism emphasizes respect for and deference to power and a sense of collective responsibility for societal welfare. From a human rights perspective, therefore, the passage of the bill of rights marked a major modification in the long-standing political culture of Canada.
All constitutions set out the basic rules by which the game of politics is played within a state, but not all constitutions are alike in their form, structure, or distribution of powers. The polar extremes are represented by the British and U.S. constitutions. The British constitution
The U.S. Constitution,
In terms of structure, Canada is a parliamentary and a federal system. As in Great Britain, the parliament is supreme. Consequently, the Canadian judiciary was formerly limited, in its ability to protect human rights and civil liberties, to ruling whether a decision fell within the jurisdiction of the legislative body (provincial or federal) that passed the law. For the overwhelming part of Canadian history, any concerns that human rights and civil liberties might be trampled on by Parliament proved unfounded. In this sense, the Canadian constitution successfully incorporated the unwritten spirit of the British constitution into its core. The fact remained, however, that because of the unlimited nature of parliamentary powers and the grant of jurisdiction on civil rights matters to the provinces, human and civil rights in Canada lacked the type of legal protection associated with civil rights in the United States. The 1960 bill of rights was an important first step in the direction of placing human and civil rights off-limits to policy makers.
The full realization of civil and human rights in Canada, however, did not come until the passage of the Canada Act
The year 1960 was important in the political history of Quebec because it marked the province’s political awakening, as the province sought to protect and extend its provincial powers. The Quiet Revolution
An understanding between the two countries had been reached on how the amendment process should work: The British parliament would pass amending legislation only when asked to by Canada. The key question facing Canada was the proper role of the provinces in amending the constitution. Could the national government in Ottawa act unilaterally to amend the constitution, or must it have the consent of the provinces? If it needed the consent of the provinces, what voting formula should be used? It was in this context that the Progressive Conservative government of John G. Diefenbaker sought to pass a bill of rights.
As proposed, the bill of rights applied only on the federal level—one of the major arguments used against it. As noted, the central problem facing the Diefenbaker government was that the BNA Act had given the provinces jurisdiction over human and civil liberties. It was widely accepted that their approval was necessary before any changes could be made in these rights. Jean Lesage, who only recently had become the head of the Quebec government and who was a major force in the Quiet Revolution, was particularly concerned with protecting Quebec’s provincial rights. He responded to Diefenbaker’s initiative by calling for a provincial-federal conference to establish an amending formula for the constitution. Once this was settled, the question of what rights might be protected could be taken up. A meeting between Diefenbaker and provincial leaders was held in late July on the feasibility and desirability of holding such a conference.
Although no agreement was reached on an amending formula (and none would be for more than two decades), Diefenbaker announced that the conference had reached agreement on the bill of rights legislation. That accomplished, the Canadian House of Commons unanimously approved the legislation within one week.
Textbooks on Canadian politics no longer spend much time discussing the 1960 bill of rights but focus instead on the 1982 Charter of Rights and Freedoms. The latter document is considered to be part of the Canadian constitution and applies at both the provincial and federal levels. The limitations of the bill of rights were recognized at the time. It was passed as a normal piece of federal legislation and not as a constitutional amendment. It applied only to the federal level, and the War Measures Act took precedence over it, although the bill of rights did modify the procedure for invoking these emergency powers.
Given these considerations and the continued federal-provincial impasse over an amending formula, Canadian courts were reluctant to consider the bill of rights as the basis for decisions to overturn legislative or executive-branch decisions. The limited impact of the Canadian bill of rights on women’s rights, and the need for protections and guarantees more deeply rooted in the Canadian constitution, is evident in Canadian court rulings.
On the whole, the Canadian Supreme Court
Offsetting the inconsistent way in which the Canadian Supreme Court viewed the provisions of the Canadian bill of rights was the positive contribution that the passage of the bill of rights played in prompting the provinces to pass their own (although generally more limited) human rights legislation. It also kept attention fixed on the lack of constitutionally guaranteed civil rights in Canada and thus contributed to public pressure for the passage of the Charter of Rights and Freedoms. The protections contained in the charter applied to both federal and provincial laws and were embedded in the Canadian constitution, giving them an added aura of importance in judicial decision making.
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Flanz, Gisbert. Comparative Women’s Rights and Political Participation in Europe. Dobbs Ferry, N.Y.: Transnational, 1983. Does not have a section on Canada but provides important comparative focus. Chapters are organized geographically (Scandinavia, Western Europe, Southern Europe, and Eastern Europe) and chronologically. -
Granatstein, J. L. Canada, 1957-1967: The Years of Uncertainty and Innovation. Toronto, Ont.: McClelland and Stewart, 1986. Written in a very readable style, this book serves as valuable reading for those interested in understanding the nature of Canadian politics at the time the bill of rights became law. -
Landes, Ronald G. The Canadian Polity: A Comparative Introduction. 4th ed. Scarborough, Ont.: Prentice Hall Canada, 1995. Contains a chapter comparing the U.S., British, and Canadian constitutions. Includes discussion of the Canadian bill of rights. -
MacKinnon, Catharine A. Are Women Human? And Other International Dialogues. Cambridge, Mass.: Belknap Press, 2006. Examines the legal status of women around the world. MacKinnon was instrumental in establishing sex harassment laws in the United States beginning in the mid-1970’s. -
MacLennan, Christopher. Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960. Ithaca, N.Y.: McGill-Queen’s University Press, 2003. A history of the movement for civil rights in Canada, up to and including the year the Canadian bill of rights was passed. -
McWhinney, Edward. Quebec and the Constitution, 1960-1978. Toronto, Ont.: University of Toronto Press, 1979. Examines two decades of constitutional debate, politics, and developments in the relationship between Quebec and Ottawa. Focus is on Quebec’s demands for social, economic, linguistic, and political self-determination. -
Sproats, John R. Equality Rights and Fundamental Freedoms. Scarborough, Ont.: Carswell, 1996-1999. Examines both the Canadian bill of rights and the Charter of Rights and Freedoms. Includes the text of both documents. -
Tarnopolsky, Walter. The Canadian Bill of Rights. 2d rev. ed. Toronto, Ont.: Macmillan of Canada, 1978. An important reference and resource. One of few book-length studies on the Canadian bill of rights. -
Van Loon, Richard, and Michael Wittington. The Canadian Political System: Environment, Structure, and Process. 3d ed. Toronto, Ont.: McGraw-Hill, 1981. This edition was written before the passage of the Canada Act and therefore contains a focused discussion of the bill of rights. References to relevant court cases.
France Grants Suffrage to Women
Canada’s Citizenship Act Is Passed
Indian Parliament Approves Women’s Rights Legislation
Diefenbaker Serves as Canadian Prime Minister
Civil Rights Act of 1960
European Social Charter Is Signed
Congress Passes the Equal Pay Act
Congress Passes the Voting Rights Act
British Parliament Passes the Equal Pay Act of 1970
Canada Invokes War Measures Act Against Quebec Separatists