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Basic Rights and Freedoms What Are They?

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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 in- dividual 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 ortho- dox 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 free- doms. 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 ex- amined 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 unlaw- ful. 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 eco- nomic 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 govern- ment 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 constitu- tional 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.
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