BLAIR FRASER April 30 1955


BLAIR FRASER April 30 1955



Who guards the freedom of worship?

FREEDOM of worship comes up again before the Supreme Court of Canada at the court session which opens April 26. The Supreme Court will be asked to decide whether provincial policemen have the right to enter a man’s home without a warrant to break up by force a religious service being held there. In deciding this, the Supreme Court may also give another judgment on a vital but still unsettled constitutional issue:

What government has authority over civil liberties in Canada? Is it the federal or the provincial?

Are the freedoms of worship, expression and association common rights of all Canadian citizens, guaranteed by the preamble of the British North America Act, and not to be restricted by any lesser authority than the parliament of all Canada? Or are they to be lumped in with “property and civil rights in the province,” provincial matters subject to the authority of each of the ten legislatures, so that a Canadian’s liberty may vary from province to province?

So far the Supreme Court’s answers to these questions are ambiguous, because the point is one on which individual Supreme Court judges have differed radically.

IN THE PRESENT CASE the facts are not in dispute. Both sides agree that on Sept. 4, 1949, Esymier

Chaput held a meeting of thirtyeight persons in his home at Chapeau, Que., a village just across the Ottawa River from Pembroke, Ont. Chaput is a minister of the Jehovah’s Witnesses sect and the meeting was to hear a sermon by a visiting minister, F. A. Gotthold, of Ottawa.

On the day of the meeting the Roman Catholic parish priest of Chapeau, Father Harrington, called the Quebec Provincial Police to protest against the meeting. The Provincial Police officer in Chapeau, Constable Chartrand, called his superior officer in Montreal and reported the priest’s complaint. He was told to get two other provincial policemen from nearby villages, Constables Romain and Young, and stop the Jehovah’s Witnesses’ meeting.

The meeting began at two in the afternoon, and the three constables arrived at 2.40. They stood for a minute or two listening to Mr. Gotthold preaching and reading from the Bible, though they testified later that they didn’t listen to what he was saying. All three officers stated under oath that the meeting was entirely peaceful and quiet, with no disturbance or threat thereof.

After a brief pause Constable Chartrand said, “I’m sorry, but I’ll have to break up this meeting.”

Mr. Gotthold, the minister, asked, “Am I under arrest?”

“No,” said the constable.

“Then I shall keep on preaching until I am arrested,” the minister rejoined, and he did so.

The constables hustled the thirtyeight members of the congregation out of the house, then confiscated the books, pamphlets and other such objects in the room. Finally they came up to Mr. Gotthold, who was still reading from the Bible; they took his Bible away from him by force, and by force escorted him out of the house and into a Provincial Police car. They drove him to the river, put him on the ferry for Pembroke, and told him not to come back.

“I’m sorry,

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Backstage at Ottawa


it’s orders, and you have to leave,” Constable Chartrand said.

In all this, no violence or injury was inflicted on the visiting minister or any of his flock. They were, however, moved by physical force and against their will.

No charge was laid against any of them, then or later. The constables took away the Bibles, hymn books and pamphlets and sent them to Montreal to be impounded as “evidence”; it was never explained against whom or what the evidence was being held, but the books were not returned.

The incident came into court when Esymier Chaput, in whose home the service was held, sued the three provincial constables for five thousand dollars damages. He said they had acted without lawful authority in interfering with his rights as a citizen in the privacy of his own home. The three constables pleaded that they had acted in obedience to the orders of a superior officer. In the Quebec Superior Court this was accepted as a sufficient defense, and Chaput’s action for damages was dismissed. The Quebec Court of Appeal unanimously upheld the trial judge.

Exactly what the superior orders were is not recorded. The constables’ testimony varied somewhat on this point—sometimes they were sure they had been ordered to break up the meeting, sometimes they were merely to “keep law and order and prevent any trouble.” The superior officer who issued the orders was not called ás a witness by either side.

What is absolutely clear, though, is that the provincial constables thought they were simply enforcing the law. As one of them testified, “Jehovah’s Witnesses are illegal in the Province of Quebec.” He wasn’t exactly sure what law made them illegal—“that’s got nothing to do with me”—but he was patently sincere in thinking that any meeting of Jehovah’s Witnesses in Quebec was a breach of public order. It is almost equally clear that the trial judge was inclined to ayree. Quebec’s Freedom of Worship Act was recently amended for the express purpose of making it easier to suppress Jehovah’s Witnesses; it is not mentioned in the Chaput case but its spirit and its constitutional validity are obviously involved.

THE SUPREME COURT of Canada has already indicated that it regards the Chaput case as one of capital importance. The court has taken the unusual step of inviting provincial and federal governments to intervene and make submissions on the constitutional issue involved. Some provinces, including Quebec, have accepted the invitation. If the federal government does

not a ppear, Supreme Court judges will ask to know why.

Interesting as it will be to see which side the various governments take, the main interest will centre on the judgment of the Supreme Court itself. This is the first time that the freedom of worship issue has been faced by the Supreme Court as it is now constituted.

When the question last came up, in October 1953, it came up in a different form and before a slightly different court.

In that case, Jehovah’s Witnesses had been arrested under a Quebec City bylaw that forbade the distribution of circulars in the city streets without the permission of the chief of police. The Witnesses contended that the bylaw was ultra vires of the municipal and provincial governments because it encroached upon the freedom of worship. Quebec City pleaded that the bylaw was not an infringement of civil liberty but a mere traffic regulation to prevent the obstruction of sidewalks.

When the case reached the Supreme Court of Canada it elicited not two but four separate judgments from the nine judges.

Four of the nine upheld Jehovah’s Witnesses; they declared that the bylaw did indeed infringe upon the freedom of worship, that this and other basic freedoms were indeed matters of federal jurisdiction, and that the bylaw was therefore invalid. They said the judgments against Jehovah’s Witnesses in the Quebec courts should be quashed.

Four of the nine, including all three French-speaking judges from Quebec, decided (for two different sets of reasons) that the bylaw was a traffic regulation and that therefore it was within the powers of the municipality. They said the judgments against the Witnesses should be upheld.

The remaining judge who broke the tie was Mr. Justice Kerwin, now Chief Justice of Canada. Mr. Justice Kerwin agreed with those who would quash the judgment that the bylaw was no mere traffic regulation, but an encroachment on the freedom of worship. However, he did not agree that freedom of worship and other civil liberties were matters of federal jurisdiction. He thought they were purely provincial, an aspect of “property and civil rights in the province.”

Mr. Justice Kerwin did agree that the bylaw was invalid, but only for a particular reason. There was another, older statute called the Freedom of Worship Act, passed by the Quebec Legislature soon after Confederation. The municipal bylaw violated this provincial statute, and was therefore void. But the Province of Quebec had power to amend the statute to restore the bylaw’s validity. This amendment has since been passed.

This judgment left the real issue of civil liberty in the air. Only four judges, one short of a majority, had declared it to be a federal matter. Four more had not declared themselves clearly on this general issue, though some appeared to think it provincial. One, Mr. Justice Kerwin, had been definite in the view that it was provincial.

But since 1953, the Supreme Court itself has changed. Chief Justice Thibaudeau Rinfret, who thought the Quebec bylaw a mere traffic regulation but who probably would have held civil liberties to be a provincial matter, has retired. His place has been taken by Hon. Douglas Abbott, who has not yet had occasion to record his opinion as a Supreme Court judge on this constitutional issue.

It will be interesting to see how the present Supreme Court lines up. The judgment should be down before summer. ★