How we’ve used it, misused it, and found it unusable in the year since it became doctrine but not quite law

PETER C. NEWMAN August 12 1961


How we’ve used it, misused it, and found it unusable in the year since it became doctrine but not quite law

PETER C. NEWMAN August 12 1961

ON DOMINION DAY a year ago, Prime Minister John Diefenbaker delivered a sixty-two minute speech in the House of Commons that eloquently concluded the chief legislative crusade of his political life: the adoption of a Canadian Bill of Rights. He wound up his address with a rhetorical flourish which will no doubt be quoted by after-dinner speakers at political banquets for as long as there are Canadian Tories:

“I am a Canadian, a free Canadian, free to speak without fear, free to worship God in my own way, free to stand for what I think right, free to oppose what I believe wrong, free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.”

Fifty-six MPs followed the prime minister in the Bill of Rights debate. The Conservative members compared it to the Magna Carta and the Sermon on the Mount. At least one Conservative cabinet minister has sent a copy to every school child in his riding. Twenty thousand prints, on special parchment, have been manufactured by the Queen’s Printer, and the calfskin original is expected to become the centre-piece of a “freedom train” exhibition that will cross Canada during the 1967 centennial celebrations.

The Conservatives refer to the Bill in party pamphlets as representing “the essence of the conscience of the people of Canada”; Liberal and CCF politicians call it vague, ambiguous and unnecessary. And even now, after a whole year in which the Bill of Rights has been nominally the law of the land, it's impossible to say definitely which is right.

One of the early test cases of the teetotaling prime minister's Bill was concerned with an admitted alcoholic’s liberty to keep on drinking. Harold Griffin, a sixty-year-old resident of Kitchener, Ont., who had a record of more than two hundred arrests, had assaulted Jack Kauk, a waiter at a local hotel, because Kauk refused him further service. The magistrate ruled that this was a violation of the guarantees of “equality before the law" as set out in the Bill of Rights, dismissed the case, and ordered the waiter to pay court costs. Griffin’s triumph didn't last long. He was arrested a few weeks later, and given a thirteen-week jail term for daring waiters to throw him out again, now that he had Mr. Diefenbaker on his side.

Yves Beriault, a twenty-one-year-old Montreal youth, was convicted of assaulting two policemen who had been called in by neighbors to break up a loud party he was throwing at his girl friend’s home; he used the Bill to get an appeal. In Toronto, George Martin and his wife Ann, who were charged with obtaining money and accommodation by posing as doctors interested in the rehabilitation of prisoners, managed to get their bail reduced from five thousand to one thousand dollars; the magistrate agreed with their lawyer’s contention that the higher amount was "not consistent with the spirit of the new Bill, as it affects the freedom of the citizen.” But when a fellow lawyer tried to use the same tactics in another courtroom to lower the five-thousand-dollar bail that had been set for Edward Phelan, accused of a ninety-doilar robbery in a beauty salon, Magistrate C. A. Thoburn told the court: “I know nothing about the Bill of Rights except what I read in the papers.” No one in the courtroom had a copy, and the request was turned down.

For the first month or two after its passage, lawyers appeared to throw the Bill of Rights into just about every conceivable legal situation, but almost always without effect. It was unsuccessfully used in the legal fight that preceded the Canadian National Exhibition appearance of a six-year-old saxophonist, following musicians’ union objections. Douglas Campbell, a youthful apostle of nuclear disarmament, found it useless in preventing a conviction for impeding traffic, after he'd lectured a downtown Toronto crowd on the horrors of atomic war.

The lawyer for Max Bluestein, a convicted Toronto gambler, tried to invoke the Bill to exclude police evidence obtained in Bluestein's Lakeview Athletic Club. Police had broken into the place, and then posed as bookmakers for customers who were phoning in bets. The magistrate ruled that the evidence was admissible even if the police had exceeded their authority, and that the Bill of Rights did not apply.

In a similar "test of evidence" case in Edmonton, defense counsel Abe Miller tried to invoke the Bill against the police, because they had based an impaired driving charge against his client on his inability to walk a straight line. He claimed that this was self-incrimination, an act specifically forbidden by the Bill, but Magistrate S. V. Legg decided that the Bill was inapplicable.

One case where the Bill of Rights did apply, but where its effect on the interest of the accused was somewhat ambiguous, took place at Summerside, Prince Edward Island, where fifteen-year-old Andrew Arsenault was being tried for the murder of a farmer at Abram’s Village. Trials of juveniles are held in closed sessions, supposedly for their own protection, but Magistrate Chester Macdonald ruled that under the new bill, even juveniles "have a right" to public hearing.

Probably the most far-reaching test of the Bill of Rights is still in the B. C. courts. This case is concerned with the right of Indians to buy liquor. If the Bill’s guarantee of equality regardless of race should be found applicable, this case could topple the whole antique structure of Indian liquor restrictions.

At least part of the courtroom confusion surrounding the Bill has been due to a widespread misunderstanding of what the Bill intends to accomplish. It is not designed to protect citizens from each other: its fundamental purpose is to protect Canadians from the power of the federal state.

The Bill of Rights declares that in Canada there have existed and shall continue to exist, without discrimination of any kind, rights of the individual to life, liberty, security of person and enjoyment of property, and the right not to be deprived of any of these things, except by due process of law. It also lists the freedoms of religion, speech, assembly, association and the press. The Bill’s second section declares that all laws within the authority of the federal parliament should he interpreted in a way that will not permit arbitrary detention, cruel punishment, or unfair treatment. The most significant effect of the Bill is to provide a set of instructions to judges for interpreting federal laws in a way that will provide maximum protection to individual rights.

"Mr. Diefenbaker’s Bill has sown seeds of good, the full effect of which has yet to ripen." says Saul Hayes, executive vice-president of the Canadian Jewish Congress. "It has already produced a certain amount of soul searching in the courts on the question of human rights."

It was because of the Bill’s existence, in Hayes' opinion, that his organization managed to have a non-discrimination clause added during last spring's revision of the federal Civil Service Act.

"In our work." says Sid Blum, director of the Jewish Labor Committee, a national organization that concerns itself with the welfare of Jewish immigrant workers, "the Bill of Rights has become an effective moral force, and I expect it'll he even more helpful in the future." Blum cites the federal government’s recent change in National Housing Act regulations, which refuses mortgage money to any builder for three years after he’s convicted of practising discrimination in his completed projects.

Officials of other organizations, however, including the Jehovah's Witnesses, the Negro Citizenship Association and the Christian Science movement, declare that the Bill has not helped them in any tangible way.

To Prime Minister Diefenbaker himself, the passage of the Bill of Rights was a victory in an intensely felt personal battle. "I can speak on the subject of racial origin." the prime minister said during last year's debate on the Bill. “I know something of what it has meant in the past for some to regard those with names of other than British and French origin as not being that kind of Canadian that those of British or French origin could claim to be.”

Although he is a third generation Canadian, Diefenbaker's German - sounding name caused him a great deal of embarrassment. especially during and immediately after World War I. As late as 1943 the Women's National Conservative Association at a Toronto meeting urged Diefenbaker to change his name to Baker. He refused, politely pointing out that his name really wasn't that difficult to pronounce. "It's Dief as in chief." he said, "followed by the sound of the letter n, and then baker."

During his seventeen years in the opposition benches, Diefenbaker repeatedly urged the government to adopt a Bill of Rights, and proposed several drafts. It finally became part of the law of the land at II p.m. August 10, I960.

“The Bill may fool us”

Even before the Bill was given royal assent, it gained leave for appeal to the Supreme Court of Canada for Irene Rebrin, a Russian language teacher at the University of British Columbia, who had been ordered deported seven months previously by Ottawa. The Chinese-born lecturers lawyer contended that the Bill of Rights had been controverted by application of the immigration laws. However, the Supreme Court dismissed the case, ruling that Miss Rebrin had not been deprived of liberty, except by due process of law. A similar judgment ended an appeal under the Bill for Mrs. Louie Yuet Sun, who was deported although she’d had a child while in Canada on a visitor’s visa.

From these and other cases, it’s obvious that it will take many years of legal precedent to place the Bill of Rights in proper perspective in Canada's legal code. Constitutional authorities differ about its value. W. R. Lederman. the dean of the Queen's University law faculty, concluded that it was "well worth doing." whereas D. W. Mundell, professor of constitutional law at Osgoode Hall. Toronto, says. "The Bill will not likely lead to any development of the law that would not have taken place without it. However, there are avoidable uncertainties in the Bill that will lead to a vast amount of litigation."

"The Bill of Rights may fool us into thinking we have achieved something real, when we have actually achieved little but a statement of aspirations and hopes,’’ says Prof. E. R. Scott, dean of the McGill law faculty.

The main reason for the disagreement is that this bill is not like most other bills of rights. Normally, such measures are a charter of fundamental freedoms in the country’s constitution, so that no future government can readily or furtively remove them. (Even this doesn’t necessarily mean much; Russia and Cuba both have beautifully worded bills of rights.) By contrast. Diefenbaker’s Bill is simply an act of parliament, in which parliament exhorts itself to observe certain rights. There’s nothing to prevent any future parliament from amending or even repealing the legislation. Moreover, the Bill includes no machinery to enforce the fundamental rights which it declares all Canadian citizens shall possess, and sets out no penalties for abrogating these rights.

Lawyers who support the Diefenbaker Bill insist, however, that it’s the strongest measure that could have been passed without changing the Canadian constitution, the British North America Act. In fact if not in legal theory, this would require approval of all ten provincial governments—which is conceded to be virtually impossible at the moment.

It is not unanimously accepted as a certainty that the B.N.A. Act would have to be amended. No binding decisions have determined whether civil liberties are a field divided between the federal and the provincial authority, or whether civil liberties are wholly and solely a federal matter. Some judgments of the Supreme Court of Canada appear to support the latter view, and to build up a concept of "common law rights” immune from provincial interference.

The Supreme Court took its most important step in this direction when it threw out the Alberta Press Bill in 1938. The provincial Social Credit government had passed an act forcing newspaper reporters to disclose the sources of their stories and to publish statements issued by the government correcting previous articles. Supreme Court Chief Justice Sir Lyman Dull reasoned that because the BNA's preamble states we are to have a constitution similar in principle to that of the UK, our legislative institutions must work “under the influence of public opinion.” No provincial legislation could therefore abrogate freedom of the press. Quebec’s Padlock Act, passed in 1937, allowed the attorney-general of Quebec to padlock any premises that he thought were being used for Communist purposes. The Act was similarly ruled invalid by the Supreme Court in 1957.

But the Court has not been able to defeat many questionable statutes that lie plainly within provincial jurisdiction. In a 1914 decision, the Supreme Court declared valid a Saskatchewan law prohibiting white girls from working in Chinese restaurants. The Supreme Court also upheld the federal order-in-council of 1945 which deported Japanese-Canadians and deprived them of their citizenship, despite the order’s obvious interference with fundamental freedom.

In any event, the Bill of Rights itself is clearly based on the assumption that civil liberties are a divided field, falling partly under federal and partly under provincial jurisdiction. Section 5 of the Bill stipulates that its guarantees apply "only to matters coming within the legislative authority of the (federal) parliament of Canada.” And since "property and civil rights" are specifically assigned to provincial authority by the BNA Act, it can be argued that almost any invasion of civil liberty is a provincial matter of which Ottawa washes its hands. When a restaurant refuses to serve a meal to a Negro, or (as happened in Calgary recently) an employee is fired for saying something favorable about Castro’s Cuba, provincial, not federal laws apply.

"The Bill of Rights seems to provide protection to all Canadians, just so long as they don’t live in any of the provinces,” a Toronto lawyer said recently.

The federal government is having trouble getting some of its own legislation to agree with the Bill. Two federal acts—on fisheries and narcotics control—had to be changed during the last session.

Mr. Justice Roger Brossard of the Montreal Superior Court cited the Bill of Rights when he halted a recent inquiry into income tax statements filed by René Lafleur, a Montreal industrialist. The Department of National Revenue had appointed a commissioner to look into Lafleur's income tax declarations but, following its usual practice, did not invite Lafleur himself to appear. The judge said this deprived Lafleur of a fair hearing, as stipulated by the Bill of Rights. His ruling challenges the longstanding method of federal tax investigators, and the case is expected to reach the Supreme Court of Canada eventually.

It’s an open secret in Ottawa that the general revision of the Immigration Act, forecast in last year’s throne speech, has been postponed because no one has yet been able to figure out how the legislation can retain its racially restrictive character, without contravening the high principles of the rights legislation.

“So far,” says Justice Minister Davie Fulton, "no courts have used the Bill of Rights to strike down any existing statute, but it’s far too early to say that none ever will.”

The Bill of Rights makes no major change in the federal statute which, by its very nature, contains the most sweeping encroachments on personal freedom — the War Measures Act. Passed in 1914 when Canada suddenly found herself at war, this act gives Ottawa dictatorial powers over the whole nation, including the powers of censorship, of summary deportation, and of imprisonment without trial. A. R. M. Lower, the distinguished Canadian historian, has called the War Measures Act "the most iniquitous piece of legislation ever to disgrace a British statute book.” Most people and all governments accept the necessity of some abridgment of personal freedom in wartime, but Canada’s parliament has undertaken a study to see if the War Measures Act can be made somewhat more compatible with the Bill of Rights.

Dr. Lower, who is no Tory, is one of those who believe that the Diefenbaker Bill of Rights is a good thing, a step in the right direction that should not be mocked or derided or made a target for partisan attack. "The Bill of Rights,” he wrote recently, "represents the prime minister’s long cherished convictions about civil liberties and the merely destructive criticism of which so much has been heard is not to the point. Good citizens, it seems to me, will shun party nonsense, accept the Bill gratefully, whatever its defects, and devote themselves to bettering it.”