The Canadian Bill of Rights, S.C. 1960, c. 44 (the “Bill of Rights“) is a Canadian federal statute that was enacted in August 1960. It is quasi-constitutional in nature. As it is an Act of Parliament it applies only to federal law. It also predates the Charter of Rights and Freedoms, which has largely superseded the Bill of Rights in importance.
However, not all of the provisions of the Bill of Rights were reproduced in the Charter of Rights and Freedoms.
Section 2(e) of the Bill of Rights provides:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to […]
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.
In Canadian National Railway Company, the Federal Court established that four basic conditions must be met in order for paragraph 2(e) of the Bill of Rights to be engaged:
- The applicant must be a “person” within the meaning of paragraph 2(e);
- The arbitration process must constitute a “hearing […] for the determination of [the applicant’s] rights and obligations”;
- The arbitration process must be found to violate “the principles of fundamental justice”; and
- The alleged defect in the arbitration process must arise as a result of a “law of Canada” which has not been expressly declared to operate notwithstanding the Canadian Bill of Rights.
Hassouna v. Canada
In Hassouna v. Canada (Citizenship and Immigration), the Federal Court addressed whether the citizenship revocation procedures for misrepresentation contained in Stephen Harper’s Conservative Government of Canada’s Bill C-24 constituted a hearing for the determination of the applicant’s rights and obligations. In determining that it did, the Court also ruled that while acquiring Canadian citizenship is a privilege, once a person becomes a citizen their citizenship is a right.
The Federal Court also found that in order for Canada’s citizenship revocation process to be procedurally fair, people need to be entitled to: (1) an oral hearing before a court, or before an independent administrative tribunal, where there is a serious issue of credibility; (2) a fair opportunity to state the case and know the case to be met, (3) the right to an impartial and independent decision-maker, and (4) that all factors of their case, including humanitarian & compassionate considerations, be considered.
The Federal Court also determined, however, that there is no expertise threshold required for a tribunal to determine whether a person’s citizenship should be revoked.
Goodman v. Canada (Public Safety and Emergency Preparedness), 2022 FCA 21
In Goodman v. Canada (Public Safety and Emergency Preparedness) the the Federal Court of Appeal noted that there differences that exist between the principles of fundamental justice pursuant to section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter) and those pursuant to subsection 2(e) of the Bill of Rights. It went on to state that subsection 2(e) of the Bill of Rights only encompasses the principles of fundamental justice tied to a fair hearing whereas section 7 of the Charter encompasses both substantive and procedural fairness principles tied to “life, liberty and security of the person,” and consequently the rights under section 2(e) of the Bill of Rights are narrower than the rights guaranteed under section 7 of the Charter. It further found that humanitarian & compassionate considerations are not a principle of fundamental justice for the purpose of section 2(e) of the Bill of Rights. It went on to note that:
Based on binding jurisprudence, the Federal Court also held that the appellant was using the Bill of Rights to claim a right, when it is restricted in this context, to a privilege (memorandum of the respondents at para. 25-28).