For the sake of argument

Why pass a useless Bill of Rights?

M. S. DONNELLY January 3 1959
For the sake of argument

Why pass a useless Bill of Rights?

M. S. DONNELLY January 3 1959

Why pass a useless Bill of Rights?

For the sake of argument


'the Bills of Rights which was introduced by the prime minister on Sept. 6 and deferred until parliament meets again will, if passed in its present form, be useless because of two major defects. First, the legislation will be an ordinary act of parliament, and not an amendment to the constitution. It will be subject to all the insecurities of what a future parliament might do by majority vote. Second, the provisions of the bill will apply only to civil liberties that are within the jurisdiction of the federal government and will have no binding effect whatever on the provinces. The bill represents an attempt to apply the old adage “half a loaf is better than none" to a subject where il has no application. Civil liberty must, from the point of view of citizenship, he a unity. Our legislative Solomons are proposing to cut the child in half. Surely its real mother should now come forward and claim the infant. The real mother is, of course, the citizens of Canada and no agency of government whether provincial or federal. The courts are anxious to declare that this is so but the birth certificate, in the form of the British North America Act. has some misleading entries. Unless these are changed the present proposal will prove completely futile. The legislation proposed may be considered under the three subheads into which it has been divided by the legislative draftsmen in the department of justice — the fundamental freedoms of speech, association and religion: the procedural safeguards offered a citizen in the event of a charge being brought against him: and finally, a system for pawning all the guarantees offered in the event of war. The first paragraph of the socalled Canadian Bill of Rights says "in Canada there have always existed and shall continue to exist the following human rights and fundamental freedoms, namely . . . freedom of religion, freedom of as-

sembly and association, freedom of speech and freedom of the press.” This is poppycock. Events of the past twenty years or so make it abundantly clear that these things may or may not exist and that where they have been denied the supreme court has been powerless to do anything about it. Take freedom of religion as the Jehovah's Witness sect has found it in the province of Quebec, and to illustrate this take the experience of Mr. Chaput. In September 1949 ( haput was sponsoring a meeting of Jehovah’s Witnesses in his home in Chapeau, ihree policemen intervened, closed the meeting, seized the literature—including a Bible— and put Chaput aboard a ferry going to the Ontario side of the Ottawa River with a warning to stay away or stop preaching. While the waters did not part to make way tor his return he did come back, and sued the policemen concerned for damages. After losing every round in the Quebec courts (on the grounds that the policemen were acting under the orders of superiors) Chaput was recently awarded two thousand dollars damages by the Supreme Court of ("añada. But this award was not on the grounds of freedom of religion-—the decision was that no law forbade the adherents of this particular religion to practice and therefore the gendarmes concerned had acted illegally. Since the decision was handed down, the Quebec government has passed a law restricting the right of the Witnesses to practice their religion and a number of the members have been arrested and fined or sent to jail under its provisions. What is to stop the government of the province of Quebec or any other province from outlawing any religious sect it happens to dislike? Certainly not the new Bill of Rights, because it covers only federal matters. A citizen of Canada may now assume that in its federal aspects his continued on page 36 PROFESSOR IN THE DEPARTMENT OF



For the sake of argument continued from page 6

The Rights Bill protects no one against provincial


religious freedom is recognized, but in the provincial aspects it's not necessarily so!

The right to the “enjoyment of property" is cited in the proposed Bill of Rights as one of the fundamental freedoms that has been, and ever more shall be. This should be considered side by side with the situation of the Hutteritcs of Alberta. The Alberta government, responding to the pressures of public opinion, has passed several statutes restricting their right to hold property. Under the terms of latest restrictive legislation no Hutterite colony may acquire land within forty miles of an existing colony, any land so purchased must be no larger than sixty-four hundred acres, half of which must be uncultivated, and must have been for sale on the open market at least ninety days before a Hutterite colony can purchase it. The right of the Hutteritcs to enjoy property will remain as it is now regardless of whether the Bill of Rights is passed or not. There is no shadow of doubt regarding the legal right of the Alberta provincial government to pass such legislation. A Bill of Rights worth its salt should provide a mechanism through which such legislation can be challenged on the grounds of the principles implicit in it.

Perhaps the most insidious violation of the principle of freedom of speech and association (and of almost any other freedom one might mention) is found in the Quebec Padlock Law of 1937 which remained on the statute books and operative for twenty years. This act made it illegal “for any person who possesses or occupies a house within the province to use it or allow any person to make use of it to propagate communism or bolshevism by any means whatsoever." The attorney-general was simply given the power to padlock the premises of anyone he suspected.

Neither communism nor bolshevism was defined in the act because, as the premier put it, “communism can be felt." One member of the Quebec Upper House offered his own definition as "actions which sap the foundations of things dear to the province” and another suggested that it should include "those who daily vilify public men" and a member of the cabinet suggested that the act should cover those who were Communists but hadn't yet realized that they were.

I he act was drafted so as to prevent any appeals to the courts and it took nearly twenty years to find a loophole large enough to push one through. When the case finally got to the supreme court a year ago the act was promptly declared unconstitutional and inoperative. However. before anyone begins to rejoice at the demise of this iniquitous piece of legislation he should consider the reasons for the dropping of the judicial guillotine. A majority of the judges based their decision on the fact that the Padlock l aw represented provincial interference with exclusive federal power over criminal law. and not on the grounds of civil liberties. Two judges out of nine went so far as to lament their lack of legal grounds for nullifying the statute squarely on its principle and intent but the remarks they made are classified by lawyers as obiter dicta, or made in passing. Perhaps a more meaningful description would be wishful thinking.

The dilemma of the supreme court

when faced with a violation of civil liberty is nothing new and is well illustrated by the attempt of the Alberta Social Credit government in 1937 to deny freedom of the press. In that year the legislature passed an act making it mandatory for newspapers to publish all information handed them by a designated official of the administration. The papers could also be required to divulge the source of any other stories they might carry on the activities of Aberhart and his legislative supporters. When this case came before Supreme Court Chief Justice Duff, he began casting about for something in the BNA Act that w'ould justify a stand on principle. He could find only the clause in the preamble which referred to Canada's constitution as being "similar in principle” to that of the United Kingdom. The chief justice observed that this could scarcely be a reality unless the dissemination of information was free and unfettered. But this was not the grounds on which the act was thrown out. The court decided that the act in question was part of and dependent on a general scheme of Social Credit legislation already invalidated (on grounds having nothing to do with civil liberties) and hence fell with it. A vital question remains unanswered. Could a province under different circumstances muzzle the press or would the “similar in principle” clause be sufficient to prevent it?

Since what is in the Bill of Rights is worthless there is, perhaps, little point in mentioning things that are not in it. However, if a new' bill is to be drafted the question of racial discrimination, particularly in education, should be covered. We have as yet no problem of racial segregation in the schools but it would be well to make sure that none arises.

Clearly the Bill of Rights will give citi-

zens no protection against provincial violation of civil liberties. This weakness in itself renders it useless. However, it is not even evident that the self-denying ordinances that the federal parliament proposes to impose on itself are worth the paper they will be printed on. The last half of part one spells out the legal protections that exist under the common law respecting arrest, trial and detention. These are, of course, the right to counsel, the right to be informed of the charge, the remedy of habeas corpus and so on. It also appears to go one step further in extending these protections to individuals appearing before administrative boards and commissions. If a citizen were subpoenaed to appear before a royal commission he could insist on counsel.

How to break the Bill

One hates to raise difficulties in the face of such a laudable sentiment, but suppose a subsequent act or order-incouncil creates a board or commission with terms of reference which deny some of the protections offered by the Bill of Rights. Could the person or persons affected claim redress on the grounds that the parliament of 1959 had promised not to do this? Does the act of parliament which purports to guarantee these rights have any more sanctity than a future act which might qualify some or violate others?

Part II of the Bill of Rights deals with civil liberties in the event of "real or apprehended war, invasion or insurrection.” As it stands now' the War Measures Act gives to the federal cabinet power to authorize whatever may be thought necessary in the interests of security. Among the powers specified are “censorship and control of publications and writ-


ing, communications and means of communication” and “arrest, detention, exclusion and deportation.” All this would be done by orders-in-council with the force of law and if any of them were violated the cabinet could, without reference to any court, prescribe its own penalties up to five years, five thousand dollars or both.

This may sound pretty bad but take heart—if the new bill passes the situation will be as follows. Should the hydrogen bombs and nuclear warheads begin arriving when parliament is in session then the proclamation declaring war must be laid before it “forthwith.” If it should happen that we are blown up when parliament is not in session then the proclamation must be laid before it “within the first fifteen days next thereafter.” In either event here is what will happen (you may want to post this up along with the evacuation route provided by civil defense): “a notice of motion in either House signed by ten members thereof and made in accordance with the rules of that House within ten days of the day the proclamation was laid before parliament, praying that the proclamation be revoked, shall be debated in that House at the first convenient opportunity within the four sitting days next after the day the motion in that House was made. If both Houses of Parliament resolve that the proclamation be revoked, it shall cease to have effect.” Obviously our legislators think of everything!

Most Canadians will be satisfied if civil liberties can be effectively protected in time of peace. What is needed to do this is a fundamental change in the British North America Act. The essence of civil liberties is that government agrees to keep its hand strictly off them — to preserve them rather than supervise their use. While they must be reserved to the people they cannot be left subject to the whims of majority opinion. As John Stuart Mill points out in his Essay On Liberty, Christ was crucified, Socrates condemned and Galileo imprisoned on the basis of majority opinion. Individual rights can be protected against the vagaries of public opinion only through the courts. But in a federal state such as Canada the courts themselves must have a charter to fall back on. The best form for this to take is as a Bill of Rights imbedded in the constitution and thus made part of our national birth certificate.

Amending the Canadian constitution is a difficult operation. The British North America Act is seen by some as a treaty or compact between two races whereby they agreed to conditions under which they would live together, and which cannot be changed without unanimous consent. While this doctrine is hokum, legally speaking, it can be effective on the hustings if party leaders, either Liberal or Conservative, choose to act like demagogues rather than statesmen.

The Liberals, when in power, never would sponsor a Bill of Rights. Some of them argued that since Britain does not have one it follows that Canada does not need one, completely ignoring the fact that Canada is composed of federated provinces and Britain has a national government only. The real reason for this refusal was lack of political courage.

The Conservatives were brave in opposition and were all for a Bill of Rights that would be binding on the provinces. The speeches they made then are buried in Hansard and apparently forgotten.

Surely both parties can now agree that the fabric of the nation will be strengthened rather than weakened if citizenship is made to mean the same thing in all parts of the country. +