Canadian Bill of Rights Prohibits Sex Discrimination Summary

  • Last updated on November 10, 2022

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.

Summary of Event

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. Canadian bill of rights Act for the Recognition and Protection of Human Rights and Fundamental Freedoms, Canadian (1960) Women;political and legal rights Civil liberties;Canada Civil rights;Canada [kw]Canadian Bill of Rights Prohibits Sex Discrimination (Aug. 4, 1960) [kw]Bill of Rights Prohibits Sex Discrimination, Canadian (Aug. 4, 1960) [kw]Rights Prohibits Sex Discrimination, Canadian Bill of (Aug. 4, 1960) [kw]Sex Discrimination, Canadian Bill of Rights Prohibits (Aug. 4, 1960) [kw]Discrimination, Canadian Bill of Rights Prohibits Sex (Aug. 4, 1960) Canadian bill of rights Act for the Recognition and Protection of Human Rights and Fundamental Freedoms, Canadian (1960) Women;political and legal rights Civil liberties;Canada Civil rights;Canada [g]North America;Aug. 4, 1960: Canadian Bill of Rights Prohibits Sex Discrimination[06620] [g]Canada;Aug. 4, 1960: Canadian Bill of Rights Prohibits Sex Discrimination[06620] [c]Laws, acts, and legal history;Aug. 4, 1960: Canadian Bill of Rights Prohibits Sex Discrimination[06620] [c]Civil rights and liberties;Aug. 4, 1960: Canadian Bill of Rights Prohibits Sex Discrimination[06620] [c]Women’s issues;Aug. 4, 1960: Canadian Bill of Rights Prohibits Sex Discrimination[06620] Diefenbaker, John G. Lesage, Jean

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 British North America Act (1867) Constitutions;Canada of 1867—did not begin with rhetorical flourishes extolling the virtues of that document (“to form a more perfect union”) or setting forward high ideals (“life, liberty, and the pursuit of happiness”). The BNA Act was written simply as an act of the British parliament. Its purpose was not to separate Canada from Great Britain over Britain’s objections but rather to bring together the existing British colonies of Canada, Nova Scotia, and New Brunswick into one country. Moreover, the concern for checking power and protecting individual rights so evident in the U.S. Constitution and Bill of Rights are nowhere to be found. Parliament’s powers are defined in terms of making laws for the “peace, order, and good government of Canada.” In large measure, the differences between the two constitutions on this point can be traced to the respective political cultures of Canada and the United States.

“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 Constitutions;United Kingdom Parliamentary democracy Democracy is an “unwritten” constitution in which the British parliament is supreme. It is unwritten in the sense that no formal document exists that can be identified as the British constitution. Rather, the British constitution is generally considered to be an amalgam of several documents, most notably the Magna Carta (1215), the Petition of Right (1628), and the Habeas Corpus Act (1679). The British parliament has no rival or independent executive branch to deal with; prime ministers and their cabinets are drawn from its members. No court can declare its laws unconstitutional, and no parliament can tie the hands of a future parliament by denying it the right to make any laws it sees fit to enact.

The U.S. Constitution, Constitution, U.S. in contrast, is a written constitution in which the principles of separation of powers and federalism hold center stage. The separation-of-powers doctrine limits what any one branch of the national government may do. The judiciary, for example, may declare laws to be unconstitutional. Federalism limits the reach of the national government by allocating certain powers to the states and placing them off-limits to national authorities. The Canadian constitution is a hybrid of these two types of constitutions. No single constitutional document exists, as in the United States, yet far fewer documents make up the Canadian constitution than the British one.

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 Canada Act (1982) , with its Charter of Rights and Freedoms, Charter of Rights and Freedoms, Canadian in 1982. Under the BNA Act, the national government was given authority over trade and commerce, defense, and foreign affairs. The provinces were given jurisdiction over education and welfare. Neither of these were important policy areas at the time the document was signed. According to the act, provinces were also given the exclusive power to make laws concerning “property and civil rights in the province.” This provision has been especially important for the province of Quebec and the efforts of its leaders to maintain a separate sense of Quebec identity through the structure of its education and legal system.

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 Quiet Revolution (Quebec) Quebec sovereignist movement Canada;Quebec sovereignist movement Nationalism;Quebec , as this transformation came to be known, represented a major challenge to the federal government. One of the principal forms that this challenge took was a heated political debate over the process of amending the constitution. Because the BNA Act was passed as an act of the British parliament, the British considered themselves entitled to alter it.

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.

Significance

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 Supreme Court, Canadian was unwilling to make major human rights decisions based on this piece of legislation. In 1983, a majority opinion of the court stated that the Canadian bill of rights did not deal with “human rights and fundamental freedoms” in an abstract fashion but only as they existed in Canada at the time that the legislation was passed. This narrow view of the reach of the Canadian bill of rights was modified by a 1970 decision extending its reach to previous legislation.

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. Canadian bill of rights Act for the Recognition and Protection of Human Rights and Fundamental Freedoms, Canadian (1960) Women;political and legal rights Civil liberties;Canada Civil rights;Canada

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">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.
  • citation-type="booksimple"

    xlink:type="simple">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.
  • citation-type="booksimple"

    xlink:type="simple">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.
  • citation-type="booksimple"

    xlink:type="simple">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.
  • citation-type="booksimple"

    xlink:type="simple">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.
  • citation-type="booksimple"

    xlink:type="simple">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.
  • citation-type="booksimple"

    xlink:type="simple">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.
  • citation-type="booksimple"

    xlink:type="simple">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.
  • citation-type="booksimple"

    xlink:type="simple">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.

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