Basic Rights and Freedoms What Are They?

BASIC RIGHTS AND FREEDOMS WHAT ARE THEY?

W. F. BOWKER"^ Edmonton

Introduction In speaking of basic rights and freedoms we think of the individual in relation to the state. He may claim that the state should leave him alone and not interfere with him in certain activities-he demands liberty or freedom. Again, he may claim the assistance of the state in obtaining for him fair treatment from a branch of government or from an individual. He insists on the state securing to him his "rights". These freedoms and rights may be called basic, inherent, natural, human or fundamental ; and the claim to them may be based on religion, philosophy, tradition or on current concepts of fairness. Since Canada inherited British traditions of government and constitutional law, we naturally start by recalling those well- known historical safeguards of the subject-Magna Carta, the Peti- tion of Right, the Habeas Corpus Acts, the Bill of Rights, the Act of Settlement . These are all landmarks in the struggle of the individual and Parliament for control over the executive, and which concluded in the establishment of parliamentary sovereignty. Then if we look at the standard English texts I we find they discuss these rights in terms of freedom of person and property, freedom of speech, rights of association and public meeting. These rest in large measure on absence of parliamentary restriction. Since there is no written constitution and hence no limitation of Parlia- ment's powers, Parliament can restrict them and in emergencies does. If one accepts the view that man has certain rights, given by *W. F. Bowker, Q.C., Dean, Faculty of Law, University of Alberta, Edmonton . i Hood Phillips, Constitutional Law (2 Ed, 1957), Part V ; Wade and Phillips, Constitutional Law (5 Ed, 1955), Part VIII ; Dicey, Law of the Constitution (9 Ed. 1939), Part 11 ; Jennings, The Law and the Constitution (3 Ed, 1943), Ch. VIII ; Keeton, The British Commonwealth (1955), pp. 59-73 ; Holdsworth, History of English Law (3d ed 1938), Vol . 10, 658-705 .

44 THE CANADIAN BAR REVIEW [VOL. XXXVII God or a social contract, then the state should not restrict them- not even Parliament. It should not be sovereign for that purpose, and if it takes away basic rights then the people as a last resort have the right to revolt. The British North America Act in creating Canada gave us the principle of parliamentary sovereignty, but at the- same time the federal system necessarily put limitations on central and local legis latures. However, the Act does not remove from the legislatures the power to restrict basic rights, apart from the provisions protecting the French language and denominational schools. Such is the orthodox theory of which the late Mr. Justice Riddell was a vigorous exponent. Provided the legislature keeps within its proper subject matter, it has powers as unlimited as those of the British Parliament and any statute is valid no matter what right it infringes? We shall see later that some cases, particularly in recent years, do not fully accept this theory. Events throughout the world and even at home have created a new interest in the subject of basic rights since the war ; and Canada's membership in the United Nations and execution of the Declaration of Human Rights have naturally drawn attention to the question, how do we stand ourselves?' The starting point must be a description of our rights and freedoms. What are they? The answers to this vary from time to time, from country to country and as between persons. We shall here attempt a survey of those that Canadian law recognizes with some brief references to the position of the United States which is examined in greater detail in another article in this issue.

I. Freedom to Communicate Information and Ideas In the English tradition freedom in these areas consists in mere inaction by the government . As Jennings has said of freedom of speech, "It arises from the tautalogous principle that anything is lawful which is not unlawful. There is no more a `right of free speech' than there is a right to tie up my shoe lace". The important point is that if we believe in free speech we will not make it unlawful.

2 Riddell, The Constitution of Canada (1920) ; Florence Mining Co. Ltd. v. Cobalt Lake Mining Co., Ltd. (1909), 18 O.L.R. 275 ; aff'd 43 O.L .R . 474. 3 Proceedings of Special Joint Committee on Human Rights and Funda- mental Freedoms (1947-48) ; Proceedings of Special Committee of the Senate on Human Rights and Fundamental Freedoms (1950) . This Com- mittee recommended a constitutional Bill of Rights and as an interim measure a statutory Bill.

1959] Basic Rights and Freedoms : What Are They? 45 We do profess the conviction that within wide limits discussion of matters ofpublic interest, including criticism ofgovernment and its policies is in the interests of society. When a state is young and weak, and in times of peril, criticism is often forbidden or punished. Around 1800 both Upper and Lower Canada had Alien and Sedi- tion Acts4 designed for this purpose and resembling the American laws of 1898 that were invoked to stifle criticism of the government of John Adams. Coming to .modern times, World War I saw many charges of sedition ; but in an Alberta case in 1916, R. v. Trainor,' Stuart J. protested against the laying of charges of sedition against every German sympathizer; "the courts should not, unless in cases of gravity and danger, be asked to spënd their time scrutinizing with undue particularity the foolish talk in bar rooms" . This judgment anticipates to some extent the "clear and present" danger test that Holmes and Brandeis JJ. later developed in the United, States in cases of this kind. Then right after the war, when the socialists in both countries were busy with agitation there occurred the Winnipeg general strike. The leaders were convicted of uttering seditious wordss and Parlia ment amended the Criminal Code to make illegal any association whose purpose is to bring about governmental, industrial or economic change by force ; the Act made membership in, or speaking for such an association, an offence. During the depression, a few convictions were made, but a strong opposition to it developed and Parliament repealed it in 1936.7 It resembles in a general way the many state Acts that were so widely used in the United States just after World War I ; and indeed the events surrounding the Winnipeg strike are a faint echo of the round-up of socialists in the United States at about the same time.' In 1940 Congress passed a statute of the same general type as the one Canada repealed in 1936. It is still in force and has been held valid.' The main offence is advocacy of overthrow of the government by force. Even without a statute of this type the state can stifle attacks on government through the laws against sedition. This was common-

4 Doughty and Story, Canadian Constitutional Documents (vol 1,1918), p. 15 ; 34 Geo. III, c. 5 (L.C.). s[1917] 1 W.W.R. 415 (Alta.). c R. v. Russell, [1920] 1 W.W.R. 624 (Man.). 7 Criminal Code, R.S.C., 1927, c. 36, s. 98 ; repealed Stats. of Can. 1936, c. 29, s. 1 . 8 See Chafee, Freedom of Speech in the United States (1941), Part I. s Dennis v. United States (1951), 339 U.S. 162.

46 THE CANADIAN BAR REVIEW [VOL . XXXVII place in England in the eighteenth century. However, belief in the right of criticism will cut down the scope of this crime. In Boucher v. The King the court made a decision that deserves to be ranked with the great opinions of Holmes and Brandeis JJ. The judgment is not written in terms of "clear and present danger" or constitutional rights. It simply says there is no sedition without an incite- ment to violence. Rand J. declared : Freedom in thought and speech and disagreement in ideas and beliefs on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality .10 The later case of Switzman v. Elbling held Quebec's Padlock law invalid; and although the basis of the judgment was infringement of criminal law, several members of the court expressed views similar to those just quoted." The next measure of interest here is an Alberta Bill of 1937 to require newspapers to publish corrections of their criticisms of government . The Lieutenant-Governor reserved his assent and the Governor-General referred the Bill, with others, to the Supreme Court. The Bill was held invalid but Duff C.J. uttered his famous dictum that although the provinces have wide legislative power over newspapers, "the limitation is reached when the legislation effects such a curtailment of the exercise of the right of public discussion as substantially to interfere with the working of the Parliamentary institution of Canada".12 So far we have spoken of freedom of speech and not of press. John Milton's famous argument for a free press was a protest against a licensing ordinance that imposed a censorship or prior restraint. It was achieved in England in 1695 simply because Parlia- ment omitted (for no reasons of principle) to renew the Licensing Ordinance. At this time a free press did not mean that newspapers could say what they liked. It merely meant that no government official would prevent publication. Once published, the printed word was subject to the most stringent laws of sedition. Since the Napoleonic wars they have not been invoked, and freedom of press has come to include the right to criticize. If one can judge from accounts from the United States, "press" seems to have become almost synonomous with the daily newspaper 10 [1951] S.C.R. 265, at p. 288 ; see also Saumur v. Quebec, [1953] 2 S.C.R. 299, per Rand J., at p. 330. 11 (1957), 7 D.L.R. (2d) 337 (Can.). 12 Re Alberta Statutes, [1938] S.C.R. 100. On appeal, the Privy Council did not consider the "Press Bill", see [1939] A.C. 117.

1959] Basic Rights mad Freedoms : What Are They? 47 and that organ has invoked freedom of the press to escape various laws of general application, though usually without success." On the other hand, the Canadian Daily Newspaper Association once published a statement that begins Fundamentally it is not a special privilege reserved for newspaper publishers. It is rather a phase of a much larger freedom-the freedom of all men to speak their minds openly and without fear. The press claims no right which should not belong to every citizen in a democracy, but freedom of the press is an all-important part ofthis larger freedom ; because, under modern conditions, the press is the principal agency by which the ordinary man receives the information he needs to judge the actions ofhis. rulers and make up his mind on public issues. Without newspapers, or with only gagged and blindfolded ones, he is in the dark, and helpless. An unfettered press is therefore one of the essential bulwarks of a democratic world. Freedom of speech and press may come into conflict with other claims ; for example the claim of others that their reputation shall not be damaged by false statements. Some newspapers may think freedom of the press justifies them in libelling others with impunity but fortunately our law says that freedom of the press means no such thing. The clash of freedom of the press with other interests can be shown in connection with contempt of court. The common law on this subject is that one of the forms of contempt is "scandalizing the court" (intemperate criticism of the judiciary) ; another is comment on pending cases. Now it is generally agreed that courts should be slow to exercise their summary power to commit for the first of these types of contempt,14 but in the case of pending trials our courts like the English have been strict in punishing comment that might affect the verdict. Trial by newspaper is not to be permitted." In the United States, on the other hand, a series of de- cisions has practically abrogated the courts' summary power to commit newspapers for contempt of this type. 16 The accused claims a fair trial ; the paper successfully claims the right to publish lurid and prejudicial accounts. Sins, if not crimes are still committed in the name of "liberty". Two important potential restrictions on freedom of speech and press are regulations of the Post Office and Customs. Canada's 13 Chafee, II Government and Mass Communications (1947), pp. 500-562. 1° E.g. Fournier v. A.G. (1911), 17 C.C.C. 108 (Que.) ; Re Nicol, [1954] 3 D.L.R. 690 (B.C.). is E.g. Hatfield v. Healy (1911), 3 Alta. L. R. 327 ; Steiner v. Toronto Star (1956), 1 D.L.R. (2d) 297 (Ont.) ; See also McRuer, Criminal Contempt of Court Procedure (1952), 30 Can. Bar Rev. 225. 11 E.g. Craig v. Harney (1947), 331 U.S. 367 ; See Maryland v. Baltimore Radio Show (1950), 338 U.S. 912.

48 THE CANADIAN BAR REVIEW [VOL . XXXVII Post Office Act used to authorize regulations to prohibit obscene or criminal publications. Obviously, the exercise of this power acts as a prior restraint or censorship. The Act has now been amended to permit the Postmaster General to prohibit delivery of mail to or from a person whom the Postmaster General believes on reasonable grounds to be using the mails to commit an offence. The order is an interim one until a Board of Review has made its recommenda- tion and then the Postmaster General may revoke the order or make it inal.17 An order might be made for the exclusion of literature that, in the opinion of the Postmaster General, is obscene or seditious or blasphemous. In other words, there is still a prior restraint but the Act does seem designed to prevent a hasty or ill- judged decision. As for the Customs Tariff, item 1201 includes among prohib- ited goods "books, printed paper, drawings, paintings, prints, photographs or representations of any kind of a treasonable or seditious, or of an immoral or indecent character"." This leaves the decision in the hands of officials of the department and has been the subject of criticism. In 1958 Parliament amended the Customs Act to give an appeal to the provincial court where the goods have been refused entry under item 1201 .19 Thus the question of the character of the book is now a matter for the court. In the United States the Supreme Court has from time to time considered actions of the Postmaster General and the customs authorities as a possible infringement of free speech. It is hard to compare the position in the two countries for there have been scarcely any reported cases in Canada. This does not mean that we have had no abuse of government power, but simply that these issues do not reach the courts as readily as in the United States. The Supreme Court has from time to time held invalid rulings of post office and customs authorities.29 Motion picture censorship exists in some provinces but I know ofno litigation on the subject. In the United States motion pictures were originally held to be outside the protection of free speech. In 1952, however, the Supreme Court held that pictures are not mere entertainment, but are a medium for communication of ideas and hence entitled to the protection of free speech." Censorship of the 17 Post Office Act, R.S .C., 1952, c. 212, s. 7. 18 Customs Tariff, R.S.C., 1952, c. 60, sch. "C". is Stats. of Can., 1958, c. 26, s. 3 . 20 See Chafee, I Government and Mass Communications (1947), pp . 242-366 . 21 Burstyn v. Wilson (1952), 343 U.S. 495; Superior Films v. Industrial Commission (1953), 346 U.S. 587.

1959] Basic Rights and Freedoms : What Are They ? 49

movies is largely based on obscenity, a difficult quality to define. In recent years, there has been much criticism of the English rule, whichis based on the tendency of the words to deprave and corrupt, and which has been applied here.22 In the United States there has been a tendency to liberalize the rule." In this country, Parliament amended the Code in 1949, to make it a crime to publish "crime comics". A law of this kind would certainly encounter in the United States a vigorous argument that it infringes freedom of the press. We turn now to freedom of assembly. Originally it was related to the right to -petition Parliament, but is now generally agreed to be independent of petitions, and is, or course, cognate to freedom of speech . In England, the right of assembly exists to the extent that the law does not restrict it. There as in Canada, the main restrictions are in the criminal law. The Canadian Criminal Code forbids unlawful assemblies and authorizes the English device of "reading the Riot Act" for the purpose of dispersing a riotous assembly.24 During the depression a number of meetings held to protest economic conditions were held unlawful .25 Another means of curtailing the right of assembly is the requirement of local permits.. Refusal of a permit is an effective censorship. In the United States constitutional protection is given to the rights of assembly and petition . The Supreme Court has frequently set aside convictions against the soap-box orator for speaking with out a permit . There is a particularly strong view against prior restraints, and the need of a permit is just that; 26 moreover, if the speaker has permission to speak, and makes an inflammatory speech, the Supreme Court has gone to some lengths in saying that even then he is not guilty of breaking the peace." In our sketch of freedom of speech, press and assembly space has not permitted more than a glimpse at the vast body of case law in the United States. In the last third of a century the scope of these freedoms has been extended by making them applicable against

22 E.g. R. v. National News Co., [1953] 4 I .L.R. 274 (Ont .) . See Mackay, The Hicklin Rule and Judicial Censorship (1958), 36 Can. Bar Rev. 1. For a judgment on obscenity of pictures that combines common sense with a touch of humour see R. v. Stroll (1951), 100 C.C.C. 171 (Que .) . 23 See Gellhorn, Individual Freedom and Government Restraints (1956), Ch. 2. 24 Ss. 64-70. 26 E.g. R. v..Beattie (1931), 55 C.C.C. 380 (Man.) ; R. v. Stewart (1934), 61 C.C.C. 217 (Alta.). 26 E.g. De Jonge v. Oregon (1937), 299 U.S . 353 ; Hague v. C.LO . (1939), 307 U.S. 496; Kunz v. New York (1950), 340 U.S. 290. . 27 E.g. Beauharnais v. Illinois (1950), 337 U.S. 1 : Cf. Feiner v. New York (1951), 340 U.S . 315.

50 THE CANADIAN BAR REVIEW [VOL . XXXVII the states through the Fourteenth Amendment which forbids state from denying life, liberty or property without due process o law. Liberty in modern times means all those liberties that are es sential to ordered liberty (whatever they may be) and include those we have been discussing. Not only do these "liberties" liml the state, but in the view of some judges they are "preferred" a against other competing rights. In other words, many legal require ments are ineffective against a person who can persuade the cour that the requirement infringes his freedom of speech. Examples are these: a labour organizer who refuses to register under state law; 2 picketers who refuse to obey an anti-picketing law;" persons who object to taking a loyalty oath; 311 or who refuse to answer questions put by a government committee about political beliefs." The last subject under this heading is freedom of worship. At first sight it might appear to differ from the others which all have to do with communication of thought from one person to another, whereas a person can worship alone. The fact is, however, that worship is usually conducted in association. Moreover, freedom of worship in a broad sense includes the spreading of the gospel to non-believers . Indeed, freedom of speech as well as of worship carries a connotation of the right to try to persuade others. Both Milton and Mill in their famous essays included both secular and religious speech as part of the same freedom. The concept of liberty of worship is fairly modern in England. For a long period prior to the Revolution of 1688, harsh persecu- tion of heretical and dissenting sects occurred at intervals. One of the best statements in favour of toleration is John Locke's letter published in 1689. It makes effectively two points : that religion is no concern of the state-"the care of souls is not committed to the civil magistrate any more than to other men" ; and that no church should force its views on anyone-"No religion which I believe not to be true can be either true or profitable unto me." The gradual relaxation of disabilities against dissenters, Roman Catho- lics and others required a century and a half in England .32 Indeed,

2,8 Thomas v. Collins (1944), 323 U.S. 516; Staub v. Baxley (1958), 355 U.S. 302. 29 Thornhill v. Alabama (1940), 310 U.S. 88 ; cf. Hughes v. Superior Court (1950), 339 U.S. 410 and companion cases. 31 See Wieman v. Updegraff (1952), 344 U.S. 183 ; Speiser v. Randall (1958), 357 U.S. 313. 31 Watkins v. United States (1958), 354 U.S. 178; Sweezy v. New Hampshire (1958), 354 U.S. 234. 32 Taswell-Langmead, English Constitutional History (6 Ed, 1905), Ch. 17, Iv.

19591 Basic Rights and Freedoms: What Are They? 5 1 Jews were not admitted to Parliament until 1858, twenty-six years after their disability was removed in Quebec." As a rule, toleration was allowed in British colonies to a greater extent than at home. This was certainly true in Rhode Island, Pennsylvania, and for a time in Maryland ; and in Quebec, the Roman Catholic faith was respected almost from the beginning.34 When Lord Durham made his report after the rebellion of 1837 he found that "religious differences have hardly operated as an additional cause of dissension in Lower Canada, and a degree of practical toleration known in very few communities has existed in this colony from the period of the Conquest down to the present time." The case was different in Upper Canada, where the Clergy Reserves and the issue of sectarian schools as against public schools caused bitterness almost until Confederation. There is no need to go into detail in connection with the provisions to safeguard denominational schools in section 93 of the British North America Act or the later provisions applicable to the prairie provinces and Newfoundland. There has been much litigation and at times hard feeling in Manitoba and Saskatchewan . At present, the supporters of separate schools may pay their taxes to that school instead of to the school of the majority in five provinces. In the others, the position is the same as in the United States. Taxes must be paid to the general school system and persons wanting a denominational school must pay as well the cost of supporting it. There have been recent Canadian cases holding that children cannot be compelled to submit to religious exercises. The theory is that the right to give one's children the education of one's choice is anterior to positive law;" but the contention that children should not have to go to school at all because of their religious belief has failed." Throughout the country's history, there has been little strife over worship as distinct from education. The Saskatchewan Bill of Rights Act secures it and the pre-Confederation Freedom of Wor-

as (1832), Wm. IV, c. 57 (L.C.) ; see Sack, The History of the Jews in Canada, (1945) Chs. 7-9. as Kennedy, The Constitution of Canada (1937), Chs. 6 & 7. as See : Weir, The Separate School Question in Canada (1934) ; Miller, National Government and Education in Canada (1940) . as R.S.S ., 1953, c. 345, s. 3. 37 Chabot v. School Commissioners of Lamorandiere (1958), 1412 D.L.R. (2d) 796 (Que.). sa Perepolkin v. Superintendant of Child Welfare (1958), 11 D.L.R. (2d) 417. For the position in the United States see Meyer v. Nebraska (1923), 262 U.S . 390 ; Pierce v. Society of Sisters (1924), 268 U.S. 511 .

52 THE CANADIAN BAR REVIEW [VOL . XXXVII ship Act has been brought forward in Quebec and Ontario ;" and,l of course, the Criminal Code makes it an offence to obstruct a~ clergyman in his calling or to obstruct a religious service; and blasphemous libel is a crime." Most of the cases raising the question of freedom of worship have arisen out of the activities of Jehovah's Witnesses. In several provinces they have been charged under by-laws that require a licence or permit for distributing literature . They have usually been acquitted, at least outside Quebec, on the ground that the by-law was intended to apply to commercial sales and not to religious literature41 In the famous case of Saumur v. Quebec, four of the nine judges upheld the by-law as proper regulation of municipal affairs. Chief Justice Kerwin held that the by-law could not prevail over the Freedom of Worship Act, and the remaining four held that freedom of worship is not a mere civil right, over which provinces have jurisdiction. Rand J. said 42 "Strictly speaking civil rights arise from private law; but freedom of speech, religion and the inviolability of the person, are original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order" . These liberties can be circumscribed to some extent by other rights, but there is no prior or antecedent restraint placed upon them. A by-law of this kind is a form of censorship . As yet there is no Supreme Court case on which a majority has taken this view but in Birks v. Montreal three ofthe judges adopted this ground in holding ultra vires a by-law requiring stores to be closed on holydays.43 Most of the judges who have said that the provinces are constitutionally incapable of restricting freedom of speech and worship have not clearly said whether they think Parliament is under the same disability. However, Abbott J. has said that it is, at least in relation to speech on public matters.44 If he is correct, then he must reject the well-settled concept that between central and local legislatures there is a plenitude ofpower, and must take the position that in these areas there is an unwritten constitutional Bill of Rights binding both federal and provincial governments.

39 Freedom of Worship Act, R.S.Q., 1941, c. 307 ; Rectories Act, R.S .O., 1897, c. 306. 43 Ss. 161, 246. 11 R. v. Kite, [1949] 2 W.W.R. 195 (B.C.); Ottawa v. Irving (1951), 99 C.C.C. 318 ; R. v. Mustin, [1940] O.R. 393 ; cf. R. v. Napier, [1941] O.R . 30 ; R. v. Naish, [1950] 1 W.W.R. 987 (Sask.). 42 Supra, footnote 10, at p. 329. 43 [1955] S.C.R. 799. 44 S,vitzman v. Elhling, supra, footnote 11, at p. 371 (Can .).

1959] Basic Rights and Freedoms : What Are They? 53

A later case than Saumur is Chaput v. Romain 45 in which a Witness was awarded substantial damages against police officers who broke up a religious service in his home. Other cases of some importance are those arising out of the refusal of Witnesses' children to salute the flag or sing the national anthem in school. In an Alberta case, the Board was held entitled to expel the children but the legislature promptly amended the School Act to exempt them,46 and in Ontario the Court of Appeal held that the School Act excused students whose parents objected.47 These cases do not seem to be as well known as the American decision that held a similar requirement to be an infringement of freedom of worship.4 $ In the United States the Witnesses have won a large number of cases in which they challenged the right of a city or town to require them to obtain a permit and the Supreme Court agreed that such by-laws cannot constitutionally be applied to the Wit- nesses' activities . The requirement of a permit makes the by-law particularly vulnerable for it is a prior restraint. It leaves in the hands of a local official the decision whether the Witnesses' literature may be distributed. In other cases, a simple prohibition against distributing hand bills (as distinct from the requirement of a permit) met the same fate. True the Witnesses have not always won. A by-law requiring a permit to hold a parade has been held binding on them ; and they may be guilty of creating a breach of the peace if their words are very insulting; and they have been held subject to a child labour law. On the other hand, some of the cases decided when the triumph of the Witnesses reached a peak about ten years ago go exceedingly far. A Witness successfully defied a local ordinance requiring a permit for the use of sound trucks in city parks ; the ordinance left too much discretion to the chief of police49 Other American cases held that Witnesses could distribute their pamphlets in a company town and a government-owned town notwithstanding a state law making it an offence to remain on private property after a request to leave.59 The main interest in the American cases is this-if we have 45 [1955] S.C.R. 874. 41 Ruman v. Lethbridge S. Bd., [1943] 3 W.W.R. 340 (Alta.) ; the amendment is Stats. of Alta., 1944, c. 46, s. 9. 47 Donald v. Hamilton Board ofEducation, [1945] O.R. 518 . 48 West Virginia v. Barnette (1943), 319 U.S. 624. 49 Saia v. New York (1948), 334 U.S. 558 ; cf. Kovacs v. Cooper (1949), 336 U.S. 77. 6' Marsh v. Alabama (1946), 326 U.S. 501 ; Tucker v. Texas (1946), 326 U.S. 517 ; cf. Breard v. Alexandria (1951), 341 U.S . 622 .

54 THE CANADIAN BAR REVIEW [VOL . XXXV freedom of religion whether by statute or a written or unwritten Bill of Rights, the balancing of this freedom with others is a difficult task. Some of the American cases appear to deprive municipalities of reasonable powers of regulation.

II . Immigration, Deportation, Citizenship and Voting Aliens outside Canada have no legal claim to enter. When M Mackenzie King said in 1947 "It is not a `fundamental human righ of an alien to enter Canada. It is a privilege. It is a matter of do mestic policy"" he stated the obvious, though many may think we have a moral obligation to admit some aliens. The Immigratio Act in prohibiting certain classes does not seem unfair and arbitrar though the additional power given to the Governor in Council t exclude persons may be open to criticism.", There has been som adverse comment on the administration of the Act in specific cases; for example, for allegedly arbitrary exclusion. The creation of Appeal Board in 1956 was apparently in answer to the criticisma.1a The power to deport is, of course, the correlative of the powe to exclude" but it is obvious that special hardship may occur i the case of a person who has been a long-time resident. Indee the Act does exempt aliens with Canadian domicile from a number of the provisions for deportation." The Act gives judicial revie when the person has Canadian citizenship or domicile" and eve$ in other cases the courts will intervene if the administrative proceedings are not authorized by the Act." A recent writer says : The government can point out that deportation is never ordered except after careful inquiry by administrative officers . The Minister himse may intervene to see that justice is done, and that mercy and compassio temper it . Few immigrants are deported ; most deportations are for criminal offences, and an immigrant who applies for relief is never, i practice, deported for that reason alone. Nevertheless, the powe exists, and it might have pernicious effects even if it were never used . While an alien is in Canada, the Canadian Citizenship Act" gives him the right to hold property that a natural-born citize has; and he is triable at law the same as a natural-born citizen 11 Quoted in Re Hanna (1957), 21 W.W.R. (N.S.) 400 (B .C.) ; Corbet Canada's Immigration Policy (1957), p. 1 . sz Immigration Act, ss. 5, 61 . sa Corbett, op cit., supra, footnote 51, pp. 80-89. b" A.G. for Canada v. Cain, [1906] A.C. 542. 'IS . 19 . 51 S. 39. 57 E.g. Samejima v. The King [1932] S.C.R. 640 ; Re Hanna, supra, footnote 51 . 11 Corbett op cit. supra, footnote 51, p. 92; for a discussion of America deportation cases see Gellhorn, supra, footnote, 23, pp . 29-38. 11 R.S .C ., 1952, c. 33, Part V.

1959] Basic Rights and Freedoms : What Are They ? 55

This leaves a great deal unsaid : What other rights does he have? Jurisdiction over naturalization and aliens belongs to Parliament and its power over immigration prevails over that of the provinces ." In spite of this British Columbia passed a large number of statutes designed to keep out Chinese and Japanese, or at least to make it hard for them to stay. Indeed, twenty-one were disallowed between 1884 and 1908.61 Among Acts not disallowed, one forbade Chinese from working in coal mines. In Union Colliery v. Bryden,sz the Privy Council held the Act invalid as in relation to aliens and naturalization. On the subject of naturalization, the Citizenship Act provides for the naturalization of aliens . A person who so becomes a Can- adian citizen "is, subject to the provisions of this Act, entitled to all rights, powers and privileges . . . to which a natural-born Canadian citizen is entitled ...... 63 However, the Act does not define them. In Cunningham v. Tomey Hamma, the Privy Council upheld a British Columbia Act depriving Japanese of the right to vote .64 The significant point in the judgment is that although Parliament has jurisdiction over aliens and naturalization, this does not include privileges or consequences that flow from either status. This seems to leave naturalized citizens or aliens at the mercy ofdiscriminatory provincial legislation. The only judicial pronouncement indicating a contrary view is a dictum of Rand J. in Winner v. S.M.T.11 In discussing provincial power to regulate highways he said : "A province cannot by depriving a Canadian of the means of working, force him to leave it . . ." and "Highways are a condition of the existence of an organized state ; without them its life could not be carried on. To deny their use is to destroy the fundamental liberty of action of the individual, to prescribe his participation in that life ; render such a law, the exercise of citizenship would be at an end . . ." and "To prevent a person from engaging in business at a Post Office or a Customs House or a bank by forbidding him the use of the highways, is, so far, to frustrate a privilege imbedded in Dominion law."

66 B.N.A. Act 1867, ss. 91(25), 95. See Mercier, Immigration and Pro- vincial Rights (1944), 22 Can. Bar Rev. 856. 61 Memorandum on Dominion Power of Disallowance of Provincial Legislation (1946), pp. 68-9, 72-3. 61 [18991 A.C. 580. 63 S. 22. 14 [1903] A.C. 151 ; see also Quong Wing v. The King (1916), 49 S.C.R 440. 66 [1951] S.C.R. 887 varied [1954] A.C. 541 . For a discussion of privileges and immunities of United States citizenship see Edwards v. California (1941), 314 U.S . 160.

5E) TIM CANADIAN BAR REVIEW [VOL. XXXVII Turning now to denaturalization which is provided for in the Citizenship Act we note that one who is not a natural-born citizen loses his citizenship after ten consecutive years residence outside Canada." Another provision permits the Governor in Council tol revoke citizenship of persons not natural-born (1) for failure to return to Canada to face a treason charge and (2) for fraud i~ obtaining citizenship.17 During the present session of Parliament, ~ debate has taken place on a Bill to remove the first of these grounds." As for voting rights Cunningham shows that a province may deprive a citizen of the right to vote. In fact, such deprivation i; now rare. The federal Act gives the franchise to every residen British subject oftwenty-one years of age. The only exceptions apar from electoral officers and judges, are Indians, convicts in prison mentally diseased and certain Doukhobors.11 Most of the pro vincial statutes exclude Indians, usually with the exception of thos who have had war service and those who have given up their right as Indians. British Columbia, Manitoba, Newfoundland and Nov Scotia do not exclude Indians, though British Columbia exclude Doukhobors. An examination of the Indian Act shows that Indians are unde many disabilities'° to which other citizens are not subject71 Before leaving the matter of the franchise we might note that most of the provinces gave women the right to vote during Worl War I and that no electoral Act now excludes them. In concluding this subject we might note that there is no statut providing for denial of passports comparable to those in the Unite States,72 and no general policy of refusing passports to Communist seems to exist.

III. Substantive Protection ofPersonal Liberty: Security of the Person The word liberty is, of course, elusive, for it can range from Liberty of speech to liberty to make contracts. Here we mean the claim

ss Stats. of Can., 1952-53, c. 23, s. 19. 17 Ibid., 1958, c. 24, s. 2. 68 Edmonton Journal, February 6th, 1959. ss Canada Elections Act, R.S .C., 1952, c. 23, s. 14. 10 Indian Act, R.S.C., 1952, c. 149. 71 As to Esquimos The Supreme Court has held that "Indians" in s. 9'1 (24) of the B.N.A. Act includes the Esquimos in Quebec but I doubt th~t all Esquimos are included in the Indian Act . 72 See Kent v. Dulles (1958), 357 U.S. 116, holding the statutes did not give to the Secretary of State unlimited discretion to withhold passport

1959] Basic Rights and Freedoms : What Are They? 57

to be left alone and to do what one wishes in non-economic matters." It is hardly necessary to say that no one can be held in slavery. It never was recognized in the colonies. The Criminal Code formerly included the crime of kidnapping a person with intent to put him into slavery, but the new Code omits the word.74 In the United States slavery was, of course, abolished after the Civil Velar, but in some American states up to recent times it has been possible to keep a workman in peonage by paying him in advance and then punishing him under a law making it an offence to accept salary in advance and then fail to perform the work." The traditional safeguard against wrongful detention or im- prisonment is, of course, the writ of habeas corpus. It antedates the statute of Charles II by centuries ; the purpose of that statute and a later one of 1816 were to make the writ more effective.76 In the colonial period in Canada habeas corpus statutes were passed and a number of provinces have their own today. The Supreme Court of Canada has jurisdiction to issue the writ but has declined to use its powers to interfere in the administration ofjustice in the provinces and generally the writ is not available as an extra appeal from a conviction.77 It is, however, frequently used to challenge the validity of a deportation order. Of course, in wartime, internment provisions may operate in effect as a suspension of the writ. Other forms ofinterference with the person are compulsory vaccination laws, quarantine for contagious diseases, and compulsory treatment for venereal disease. At least two provinces, Alberta and British Columbia, have sexual sterilization Acts. Under both Acts the basis of sterilization is the likelihood that children of the person will be mentally deficient. However, the consent of the person must be given, or if he is incapable, the consent of specified other persons is required. The Supreme Court recently held that a province . may compel a person to take a "breathalyser" test'$ Legislation of this kind often meets objection based on inherent rights of the person, but even if Canada were to give constitutional

73 The liberty to move about might be included here but has been mentioned above in connection with rights of citizenship ; similarly with the parents' right over education of children, which was included with freedom of religion . 74 S. 233, replacing former s. 297. 76 Bailey-v . Alabama (1911), 219 U.S. 219 ; Pollock v. Williams (1944), 322 U.S. 4. ' 76 The texts cited in footnote 1 all discuss the writ under.security of the person . 77 E.g. Re Sproule (1886), 12 S.C.R. 140. 711 Re sec. 92(4) Vehicles Act (1959), 15 D.L.R. (2d) 225 (Can .).

58 THE CANADIAN BAR REVIEW [VOL. XXXVII protection to inviolability of the person it would probably not apply to provisions like these . In the United States vaccination and sterilization laws were upheld long ago." The next aspect of liberty of the person has to do with un- authorized activities of government officials-the right to be pro- tected against arbitrary arrest and molestation of the person and the home. These rights were established in England two hundred years ago by the cases arising out of the government's attempt to put to silence the irrepressible John Wilkes."' In Canada the Criminal Code is reasonably clear as to the power to arrest with and without warrant, though the new Code seems to leave the power of an ordinary citizen in some doubt." It does embody the rule of Christie v. Leachinskys2 that the person being arrested must be told the reason. A blank or general warrant is not authorized . The warrant must name the accused." As for searches, the Code prescribes the procedure for issue and execution of a search warrant and many provincial statutes authorize searches with and sometimes without warrant. A special form of search warrant, still authorized under the customs, excise and narcotics laws, is the writ of assistance, issue by the Exchequer Court. It is widely worded and authorizes search es, seizure and arrest 84 In the United States, "writ of assistance" is an ugly word. Shortly before the revolution when Crown officers, applied to the court in Boston for a writ of assistance, James Oti~ made his famous, and unsuccessful, argument that such writs are' void at. common law and the statute authorizing them is contrary] to fundamental principles of law. Actually Otis's clients wanted t evade customs duties. The memory of experiences with Crow Officers doubtless was a reason why the American Bill of Right protects citizens against unreasonable searches and seizures. Ther is a continual stream of cases to the Supreme Court ; an accuse person argues that federal authorities seized his property-nar cotics, counterfeit money, parts of a still-by an unreasonabl search. If he can convince the court that the search or seizure wa unreasonable, he can have the evidence suppressed. This is th 's Jacobson v. Mass (1905), 197 U.S. 11 ; Buck v. Bell (1927), 274 U.S~. 200; cf. Skinner v. Oklahoma (1941), 316 U .S. 535. 81 Leach v. Money ; Entick v. Carrington; Wilkes v. Wood, (1763), 1 State Trials, at pp. 1002, 1029, 1153 . 8~ Ss. 434-8 and 25. See Wright, Cases on Torts (2 Ed. 1958), pp,. 117-8. I 81 [19471 A.C. 573, s. 29. 83 Ss. 440(4), 442(1) . 84 Customs Act, R.S.C., 1952, c. 58, s. 143 ; Excise Act, R.S.C., 1952, 100, s. 78 ; Opium and Narcotic Drug Act, R.S.C., 1952, c. 201, s. 22. Th writ which is examined here is under the opium Act.

1959] Basic Rights and Freedoms : What Are They? 59

sanction that the court created to check unreasonable searches $5 What is an unreasonable search is almost impossible to say-at least the division of opinion on the court so indicates." The concern of the court to discourage unlawful seizures goes back to the Eng- lish common law," but English law does not use the device of malting the evidence inadmissible . The main sanction, apart from public opinion, is a civil action for trespass or assault and sometimes a criminal charge. Our judges have on occasion spoken out strongly against high-handed action by the police." Related to this question is that of admissibility of evidence obtained by a blood test, or a forced emetic. By Canadian law it is admissible; by American it may or may not be, depending on the degree of violence used by the police."' Wire-tapping is a form of intrusion on what might be called a right of privacy. There is so far as I know no legislation on the subject, though in one case the court quashed a "search warrant" authorizing the police to enter a telephone exchange and tap the wires ; the Code does not authorize such procedure." In the United States, federal law and some state laws forbid wire-tapping and there has been a continuing debate on the wisdom of these enact- ments.

IV. Racial Discrimination and Equal Protection of the Laws Discrimination may tâke the form of legislation, such as Jim Crow laws, or other government action, such as refusal to select negroes for jury duty; or it can take the form of private action, such as the refusal of a theatre or café owner to admit persons of certain races. The common law requires only common carriers and innkeepers to deal with everyone, and it has been held in Canada that cafes and beer-parlors are not under this obligation." As for discriminatory legislation, the mostconspicuous examples have been in British Columbia. These were attempts to discourage Japanese and Chinese by making it hard for them to work. Today, as Weeks v. United States (1914), 232 U.S. 383. This rule does not apply to state searches- Wolf v. Colorado (1949), 338 U.S. 25. es United States v. Rabinowitz (1950), 339 U.S. 56. 87 Miller v. United States (1958), 357 U.S. 301. 88 See R. v. Container Materials Ltd. (1941) 76 C.C.C. 18, at p. 52 (Ont .) ; Fleming v. Spracklin (1921), 50 O.L.R. 289 ; R. v. MacDonald (1932), 59 C.C.C. 56 (Alta.). ss Attorney General v. Begin, [1955] S.C.R. 593. Re sec . 92(4) Vehicles Act, supra, footnote 78 ; Rochin v. California (1951), 342 U.S . 165 ; Brei- haupt v. Abram (1956), 352 U.S. 432 . so Re Bell Telephone Co. (1947), 89 C.C.C. 196 (Ont .). si Franklin v. Evans (1924), 55 O.L.R. 349 ; Christie v. York, [1940] S.C.R. 139 ; Rogers v. Clarence Hotel, [1940] 2 W.W.R. 545 (B.C.) .

60 THE CANADIAN BAR REVIEW [VOL . XXXVII

outside of the few exceptions in the voting laws, very few statutes, federal or provincial, actually prescribe discrimination. Alberta's Communal Property Act" which restricts the size and location of Hutterite colonies has met with some criticism. The government is now studying the operation of the Act. The most significant trend since the war is the growth of an attitude opposed to discrimination . The judgment of Mackay T. in Re Drummond Wren" in 1945 received wide acclaim. It held invalid as against public policy a covenant by the purchaser of land not to resell to persons of certain races. True his judgment was overruled, though the Supreme Court held these covenants invalid on other grounds." In the meantime, both Ontario and Manitoba passed legislation declaring such covenants invalid ." The only province with a comprehensive Bill of Rights Act is Saskatchewan." Both that province and Ontario have a Fair Ac- commodation Practices Act" forbidding discrimination by persons operating places to which the public is admitted. The first cases under the Ontario Act were rather discouraging, for the restaurant owner was acquitted on evidence that seemed to show discrimination ; however, in a later case there was a conviction." In the field of labour relations Ontario was the pioneer in prohibiting discrimination by unions and employers with a Fair Employment Practices Act in 1951. Since then similar acts have been passed by Parliament and five other provinces ." One obser- vation is relevant here ; some persons oppose legislation of this type on the ground that "you cannot legislate morality". As a matter of fact, the legislature can lead public opinion ifit is neutral, or evenly balanced. Moreover, anti-discrimination laws do not tell the café-owner to love the negro but to serve him. Of course it is easy to point to the difficulties in the United States but even there great progress has been made. New York's anti-discrimination law

92 R.S .A ., 94 1955, c. 52. 11 [1945] 0.R. 778. 95 Noble v. Alley, [1951] S.C.R. 64. R.S .O., 1950, c. 68, s. 21 ; Stats. of Man., 1950, c. 33 ; see Smout, Racial and Religious Restraints on Alienation (1952), 30 Can. Bar Rev. 863. ss R.S.S., 1953, c. 345 ; An Alberta Bill of Rights Act, 1946, c. 11 was~l held invalid because the main purpose was a scheme that interfered with banks, and the Privy Council held inseverable those portions that would have been valid by themselves. Attorney-Gen. of Alberta v. Attorney-Gen of Canada, [1947] A.C. 503. 11 Stats. of Sask., 1956, c. 68 ; Stats. of Ont., 1954, c. 28. 9s R. v. McKay (1955), 113 C.C.C. 56 (1956), 5 D.L.R. (2d) 403 (Ont.) 99 British Columbia, Manitoba, New Brunswick, Nova Scotia, Sas katchewan.

1959] Basic Rights and Freedoms : What Are They ? 61

appears to have improved the lot of the negro "° and the admission of negroes to organized baseball since 1947 is significant. It is not necessary to examine in detail the removal of disabilities ofwomen. They have equality with men in holding office and voting . Recently, Parliament passed an Act providing equal pay for women,iol and a number of provinces have similar Acts. One cannot leave this topic without reference to Canada's handling of the Japanese after Pearl Harbour. It is not fair to criticize the government in wartime for every stringent measure that hind-sight proves to have been unnecessary. On the other hand, thousands of Canadian citizens, many of them born here, suffered great hardship . Perhaps the uprooting and the uncertainty oftheir future were the worst features . One cannot read the account of their treatment, including the Orders in Council providing for repatriation to Japan without concluding that a main motive was racism. The sale oftheir Vancouver property, which scarcely seemed necessary to the War effort, can hardly have any other basis. °2

V. Protection ofProperty, Contract, and Other Economic Rights We begin with the proposition that a Canadian legislature acting within its powers can take away the property of one and give it to another; it can regulate contracts, as by enacting laws to establish minimum wages and hours of labour ; it can regulate business ; and it can pass laws altering the remedies available under contracts. The late Mr. Justice Riddell often pointed this out.'°s His is not only the orthodox view but in the writer's opinion, correct. It flows from the theory of parliamentary sovereignty which was not curtailed by the British North America Act save by the division of powers, and rare exceptions such as legislation relating to education. However, some statutes are held ultra vires because they trench on matters outside the jurisdiction of the enacting legislature. Not- able examples are provincial statutes designed to relieve debtors during a depression-they may infringe Parliament's powers over bankruptcy or interest ; z°4 similarly with statutes reducing interest

"' Berger, The New York State Law Against Discrimination (1950), 35 Cornell L. Q. 747. Carter, Practical Considerations of Anti-Discrimina- tion Legislation (1954), 40 Cornell L. Q. 40. "I Female Employees Equal Pay Act, Stats. of Can., 1956, c. 38. 102 La Violette, The Canadian Japanese and World War II (1947) Chs . 9-12. See Co-op Committee on Japanese Canadians v. Att. Gen. of Can., [19471 A.C. 87. Nakashima v. The King, [194714 D.L.R. 487 (Ex. Ct.) . ios Riddell, The Constitution of Canada (1920). i°' Re Debt Adjustment Act, [1943] A.C. 356; Re Farm Security Act, [1949] A.C. 110; Canadian Bankers' Assn . v. Att. Gen . of Sask ., [1956] S.C.R. 31 .

62 THE CANADIAN BAR REVIEW [VOL . XXXVII on provincial bonds.'°b A statute may be invalid even though on a subject within provincial power if it creates a board or tribunal that is in effect a court the judges of which must be appointed by the federal government .los Courts can, in fact, use the British North America Act to create what is, in effect, an area in which neither central nor local powers can operate. They do this by putting a narrow construction on the powers of each. Regulation of marketing furnishes an example, though this problem now appears to be in the course of solution.l°7 In construing statutes, courts can use canons of construction to circumscribe the scope of statutes. Sometimes provincial courts have said that the legislature may not declare a statute to mean something other than what the court has previously said it to mean, and also that the legislature cannot deny access to the courts in individual cases. These views are incorrect,"' though the legislature cannot bar access in order to prevent a test of the validity of a statute. As for confiscatory legislation, there is no statute which does not provide for compensation for taking of property and indeed the Supreme Court has declined to recognize a foreign confiscatory statute."' However, in theory there is no objection . VI. Procedure in Criminal and Civil Cases and Before Administrative Boards Whatever else we mean by "the rule of law", we imply fair and evenhanded procedure. We have in mind the clause of Magna Carta, that "No freeman shall be taken, imprisoned, disseised, outlawed, or exiled except by the judgment of his peers or the law of the land." The last phrase is obscure but its influence on English law has been profound. So it is with the next clause: "To no one will we sell, to no one will we deny or defer right or justice." The phrase "due process of law" did not originate in the American Bill of Rights but in a statute of Edward III."" The actual content of all these terms has varied over the centuries, but they do connotes fairness of procedure. What provisions are in our Criminal Cod that safeguard the accused in criminal proceedings? The grand jury "s Rex v. L O. F., [1940] A.C. 513. "I Toronto v. Olympia Edward Rec. Club, [19551 S.C.R. 454. 107 P.E.I. Potato Marketing Board v. Willis, [1952] 2 S.C.R . 392 ; R Farm Products Marketing Act, [1957] S.C.R. 198. 108 Western Minerals v. Gaumont, [1953] 1 S.C.R. 345 ; Montreal Trus Co. v. Abitibi Power Co., [1943] A.C. 536. 101 Laane v. Estonian S.S. Line, [1949] S.C.R. 530. 110 28 Edw. III, c. 3 ; See Radin, The Myth of Magna Carta (1947) 60 Harv . L. R. 1060.

1959] Basic Rights and Freedoms : What Are They? 63

survives in half the provinces. Jury trial is preserved for serious offences though the accused in most cases may waive it, and a charge against a corporation under the Combines Investigation Act is tried by judge alone. Selection of juries is left to provincial law, but mixed juries are permitted in Quebec and Manitoba. The reported cases indicate few complaints of unfairness in selection of juries . The charge must give sufficient notice of the offence and the court can order particulars if fairness requires it. The accused is entitled to make full answer and defence and he is entitled to counsel. Trial must be held in open court, with narrow exceptions . No one is to be charged twice with the same offence, and if a witness is asked an incriminating question he may object to answer, whereupon he must answer but the answer shall not later be used against him. On appeal, the test is whether a miscarriage ofjustice has occurred . In the United States, convictions are sometimes set aside for breach of constitutional safeguards even where there is no miscarriage of justice. The only substantial difference between American and Canadian practices lies in the meaning of "right to counsel." In capital cases and sometimes in other cases in the United States this means that the state must provide counsel ifthe accused has none."' This is not so in Canada, though in serious cases counsel is generally provided . We have set out these well-known provisions to show that they give the same general protection as the American constitution gives. Of course, there are many rules not in the Code such as that ex- cluding confessions unless the Crown shows they are voluntary. As for civil trials, the jury is disappearing in some provinces though in important cases there is a right to it unless the judge decides it is inappropriate to the type of case before him. Generally the, law is similar to that in England and as far as the rules are concerned it is not a reckless opinion to say they are fair. As in England the judge is in charge, whereas in some of the states, at least in the past, the judge's role has been reduced. As for administrative boards, there has been criticism, as in other places, but in spite of privative clauses in statutes, the courts still exercise jurisdiction to see that "natural justice" is preserved. Much has been written on this concept and it shall not be discussed here.

111 Uveges v. Pennsylvania (1948), 335 U.S. 437.

64 THE CANADIAN BAR REVIEW [VOL . XXXVII Conclusion Although a discussion of the scope and constitutional validity of the proposed Canadian Bill of Rights is outside the subject matter of this article, by way of conclusion I would like to make a few short observations on its scheme. The Bill declares in section 2 certain rights and freedoms and in section 3 provides that federal statutes shall be construed so as not to abrogate those rights and freedoms or to deprive a person of certain safeguards that relate to judicial proceedings, and in particular, to criminal charges. Some critics of the Bill allege that it is too narrow. My criticism is quite different : if our federal law infringes fundamental rights in any particular, or if it omits to preserve them, appropriate legislation should be passed on the subject. Some people take the other view. They think that a list of our rights and freedoms must be collected together in one place. I am not able to disprove the argument that a separate Bill of Rights has some psychological value on the rest of the world or on immigrants. But surely no one is unaware of the secure position of fundamental rights in Britain, a country that has never enacted a "Declaration of the Rights of Man". Its few landmark statutes are practical and deal with particular matters and on many subjects British law protects fundamental rights by remaining silent. It is likely that immigrants and others concerned with the state ofhuman rights in Canada will be more concerned about the taste of the pudding than its appearance. That Canada should try to meet the obligations of the United Nation's Universal Declaration of Human Rights, so far as they can be reduced to legal form, is undeniable, but a judgment like Boucher v. The King is worth a dozen declarations of the right of free speech. Taking the criminal law as an example, the submission here is that our Code and the common-law rules on criminal proceedings compare favourably with those of other countries. There is no wisdom in passing a separate statute that implies otherwise. If however, our criminal law abridges human rights or omits to safeguard them, then let us amend the Criminal Code. For instance, Parliament deliberately refrained from abolishing capital and corporal punishment when it revised the Code in 1952. The Bill on the other hand says that all acts of Parliament shall not be construed to authorize the imposition of torture or cruel, inhuman and degrading punishment . Does this put an end to capital or corporal punishment? It is certainly arguable that it does. Another example. The Code has a clear provision for holding

1959] Basic Rights and Freedoms: "at Are ?'hey? 65 trials in camera in certain specified cases. The Bill says all Acts shall not be construed to deprive a person of a public hearing. If Parliament wants to do away with trials in camera, which I doubt, the proper way is to amend the Code, and not to do it by a side wind. Next, there is the right of the individual to protection of the law without regard to race, national origin, colour, religion or sex. Parliament has already provided equal pay for women and forbidden discrimination in labour relations and in recent years has removed unfair legislation from the statute book. If in the areas over which it has jurisdiction Parliament wants to go further, then it should do so by passing laws with definite sanctions. A bald declaration has no teeth. The present Bill would not be effective -to compel a restaurant owner in the Northwest Territories (where the Bill clearly will apply) from serving a negro-but an Act like the Fair Accommodation Practices Act of Ontario or Saskatchewan would. A further point is this. Some seem to think we should be ashamed because we do not have a Bill of Rights-that unless we spell out our rights they are not secure and perhaps we do not value. them. My suggestion is that we have much to .be proud of-it is not unfair to point out that we have had no loyalty oaths, no loyalty programmes, no elaborate plan to withhold passports, no section in the Criminal Code proscribing advocacy of overthrow of government by force. These are examples of government action that have troubled responsible men like the late Professor Chafee and Pro- fessor Gellhorn. As the former once said, schemes. like these area case of "Give me the hammer Suzy, there's a fly.on baby's head". We are better off without them and can take satisfaction in having refrained from them. On the other hand, section 6(5) of the Bill keeps out of its scope regulations under the War Measures Act.. Of all the actions the Dominion government has ever taken, some of the measures under that Act are the most open to question. The handling of the Japanese during World War II perhaps comes first and one can include aspects of the general internment programme under the Defence of Canada Regulations, and some aspects ofthe Espionage investigation. Yet the Bill, affirmatively ensures that they might ". happen again.