While human rights legislation has been a success, another post-war, pre-Charter experiment in the statutory protection of fundamental freedoms was a disappointment. The 1960 Canadian Bill of Rights, an ordinary Act of Parliament, declared a list of important civil rights to
be fundamental and provided that all laws should "be so construed and applied so as not to abrogate, abridge or infringe" any of the rights or freedoms so declared.28The list of rights and freedoms protected is similar, although not identical, to that found in the Charter. Although the Bill of Rights has been superseded in importance, it remains on the books and, as will be explained, should not be ignored, for it contains certain guarantees not found in the Charter.
The Bill of Rights suffered from two fundamental defects.
First, it applied only to federal laws and thus did not reach the laws of the provinces. This limitation meant that the actions of provincial legislatures and those acting under provincial authority were immune from its application. This feature of the Bill of Rights was seen by future chief justice of Canada Bora Laskin, then a law professor, as an inexcusable abdication of federal authority.29Second, as the Bill of Rights was an ordinary Act of Parliament and did not form part of the constitution, the mandate it conferred upon the courts was suspect. Judges were reluctant to find that Parliament had, with one stroke of the legislative pen, authorized them to invalidate other duly enacted laws. The very notion seemed to run counter to the basic precepts of parliamentary supremacy.
Although the Bill of Rights acquired "quasi-constitutional" status in the view of Laskin CJC,30with the notable exception of R v Drybones,31the courts did not consider that this enactment of the Parliament of Canada conferred upon the judiciary the authority to invalidate duly enacted laws. Drybones involved a provision of the federal Indian Act that made it an offence for an Indian to be intoxicated off a reserve, a harsher regime than that applied to others in the Northwest Territories, who were guilty of an offence only if found intoxicated in a public place. The Supreme Court of Canada struck down the offence on the ground that it violated the Bill’s guarantee of "equality before the law and the protection of the law." The ruling in Drybones suggested that the Court was prepared to give some weight to the Bill of Rights, but that promise proved...