I CORRESPONDENCE the Canadian Bill of Rights

I CORRESPONDENCE

At the Mid-Winter Meeting of the Council of the Canadian Bar Association held at the Seigniory Club on March 2nd, 3rd and 4th, 1959, Mr. D. W. Mundell, Q.C., Chairman of the Civil Liberties Section presented a memorandum on the proposed Canadian Bill of Rights. This was followed by comments made by Mr. A. N. Carter, Q.C., a member of the Special Advisory Committee to this Section, and a Resolution of Council. The Editor wishes to express his gratitude to the Printer for having included these important documents in the special number on the Bill of Rights although they were received after the issue had gone to press.

TO THE EDITOR 1 . The enactment of a Canadian Bill of Rights appears now to be . settled government policy. The issue as to whether there should or should not be such a Bill of Rights therefore is decided. The purpose of this memorandum is to examine the particular Bill now proposed with a view to making constructive suggestions if possible. To do so the significance and effect of the Bill must be appraised. These can be most clearly understood if the particular proposal, is considered in the framework and perspective of the various possible proposals and their different significance and effects. This memorandum is, therefore, in two parts 1 . Possible types of Canadian Bills of Rights, their effects and the considerations advanced for and against them ; and 2. Consideration of Bill C-60 "An Act for the Recognition and Protection of Human Rights and Fundamental Free- doms."

2. Four major viewpoints have been expressed with respect to a Canadian Bill of Rights (a) A Bill of Rights should be enacted as an amendment to the B.N.A. Act restricting the authority of Parliament and the legislatures of the provinces ;

248 THE CANADIAN BAR REVIEW [VOL . XXXVII

(b) An overriding federal Bill of Rights should be enacted by Parliament ; (c) Complementary Bills of Rights should be enacted by Parliament and the legislatures ; and (d) No Bill of Rights in any form should be enacted. 3. These divergent views do not necessarily indicate any controversy on the need for recognition and protection of human rights and fundamental freedoms which is universally recognized. The discussion has been whether a Bill of Rights is the most effective means for the legal system to protect human rights and fundamental freedoms. Recognition that this is the nature of the discussion does not diminish its importance but focuses it on the correct issue. 4. To weigh the reasons advanced for the three positive proposals for a Bill of Rights their different legal and practical effects are recalled . 5. An amendment to the B.N.A. Act adding a Bill of Rights to it has usually been proposed on the basis that the amendment will restrict Parliament and the legislatures of the provinces from passing laws infringing the rights and freedoms protected by the Bill of Rights. After it is passed, whether a particular federal or provincial Act does infringe on the Bill of Rights would be determined in the final analysis by the judges of the Supreme Court of Canada. If the Act was found to infringe, it would be ineffective. To give effect to it a further amendment to the B.N.A. Act would be needed. 6. Parenthetically, it should be noted that, although an amendment to the B.N.A. Act can have this effect, it need not necessarily do so. The effect would depend upon the form of the amendment. If the amendment merely added the Bill of Rights to the B.N.A. Act as part of the constitution of Canada, Parliament could by an ordinary Act of Parliament then repeal, amend or override the Bill of Rights under the authority of section 91 (1) of the B.N.A. Act which empowers Parliament to amend the constitution of Canada. An amendment to the B.N.A. Act in this form would have substantially the same practical result as the proposal for an overriding federal Bill of Rights. Again the amendment might in form enact a Bill of Rights as part of the constitutions of Canada and of the provinces. Parliament can amend the constitution of Canada under section 91 (1) and the legislatures ofthe provinces can amend the constitutions of the provinces under section 92 (1) of the B.N.A. Act. An amendment in this form would be uncertain in effect but presumably would be subject to amendment by Parliament and the legislatures and have substantially the same practical result as complementary Bills of Rights by Parliament and the legislatures . The proposal for an amendment to the

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B.N.A. Act is usually advanced as intended to limit the authority of Parliament and the legislatures to make laws and is so discussed here. 7. The B.N.A. Act has been amended until now by the Parlia- ment of the United Kingdom upon a request made in a formal address of the Senate and of the House of Commons of Canada. At the present time no legal authority exists in Canada to pass an amendment. Amendments so requested have always been passed by the United Kingdom Parliament . It is not known whether such a course would always be pursued in the future. 8. The proposal for an overriding federal Act enacting a Bill of Rights is based on the premise that the B.N.A. Act as it now stands gives Parliament authority to enact a Bill of Rights of general application defining and protecting human rights and fundamental freedoms. Parliament's authority may be viewed as exclusive or the matter may be considered to have a double aspect so that both Parliament and the legislatures can enact Bills of Rights . On either alternative any provincial Acts that infringe the federal Bill of Rights would be overridden by it. Whether a provincial Act did so infringe would be decided by the courts. Such a Bill of Rights could be repealed, amended or overridden from time to time by ordinary Act of Parliament . 9. The proposal for enactment of complementary Bills of Rights by Parliament and by the legislatures is based on the premise that neither Parliament nor the legislatures have full and ex clusive authority to enact Bills of Rights of general application. On this view authority is divided and Parliament can enact a Bill only in the federal sphere and the legislatures can enact Bills only in the provincial sphere . The Bills of Rights so enacted could be repealed, amended or overridden by the legislatures or Parliament from time to time in their respective fields of authority. 10. The major reasons that appear to be advanced in support of the four viewpoints outlined above are now set out in prop- ositional form without argument or explanation except such as is needed to clarify the issues . 11 . Four fundamental reasons appear to underly all proposals for a Bill of Rights . First, in the refined legal systems of modern times there are certain fundamental rights and freedoms which are, in effect, natural rights . Individuals or minorities should be assured that these fundamental rights will not be invaded either inadvertently or for transitory'purposes without the most earnest consideration. Second, the protection of human rights and fundamental freedoms is now an international doctrine as a result of the Declaration of Paris of 1948 and the conventions now being negotiated amongst the members of the United Nations. Third, experience shows that Bills of Rights are effective to protect the

250 THE CANADIAN BAR REVIEW [VOL . XXXVII rights of individuals. Fourth, in any event a clear and authorita- tive statement of the general principles on human rights and fundamental freedoms would be of value in attaining their recognition. 12. These reasons are common to all proposals for a Bill of Rights. Preference for any one of the three possible types of Bills of Rights is based on special arguments relating to the particular type, in part negative arguments against any other form of a Bill of Rights and in part affirmative arguments for the particular form preferred. 13. Preference for a Bill of Rights amending the B.N.A. Act to restrict the authority of Parliament and the legislatures is put on the following grounds. The fundamental rights and freedoms now generally recognized are so universal that they are practically immutable. Theyshould receive the maximum protection by denying to popular assemblies such as Parliament and the legislatures the ability to infringe them. They should be subject to repeal or amendment only by an amendment to the B.N.A. Act enacted in the same solemn way as the Bill of Rights itself. Again, the decision as to whether a particular enactment infringes these fundamental rights should be placed in the hands of the impartial judiciary rather than popular assemblies who are subject to pressures for transitory objectives. Even if in such a Bill of Rights Parliament is given authority to override it at times of emergency, the Bill would prevent inadvertent or ill-considered invasions of freedom in times of tranquillity . 14. Reasons for preferring a Bill of Rights embodied in an overriding Act of Parliament are as follows. An amendment to the B.N.A. Act so sweeping as to add a Bill of Rights to it should not be made when there is no legal authority subject to direct Canadian control that can further amend it. Moreover, it is not proper for Canada in its present state of nationhood to make re- quests for such amendments. The only amendment that should now be sought is one to establish an amending procedure. In any event, the protection afforded by an Act of Parliament would in practice be as effective as an amendment to the B.N.A. Act since it would prevent rash provincial action and it is inconceivable that Parliament itself would repeal, amend or override the Bill of Rights except in the most justifiable circumstances. Further, this technique does not set aside the doctrine of the sovereignty of Parliament- that Parliament consisting of the elected representatives of the people is supreme. The restriction on provincial legislation would prevent local pressures from leading to inadvisable measures, which is recognized by the power of disallowance given in the B.N.A. Act, and is justifiable since Parliament which represents the nation as a whole, is still supreme. The power of disallowance by itself does not afford as great protection as an Act of Parliament. This

1959] Correspondence 251 power has to be exercised from time to time and each time is ,subject to the political exigencies of the moment. Moreover it must, in effect,be exercised within one year of the enactment of a provincial Act and the power may have expired before the need for its exercise is recognized in cases of inadvertent invasions of fundamental freedoms. Again, if the Bill of Rights has a provision permitting Parliament to override it at times of emergency, an amendment to the B.N.A. Act has little greater effect than an Act passed by Parliament. Finally, if this proposal is based on the view that Parliament has exclusive authority to enact a Bill of Rights so that the provincial legislatures cannot do so, this is the only way that a Bill of Rights can be enacted in Canada. 15. Reasons for preferring the enactment of complementary Bills of Rights by Parliament and the legislatures adopt the objec- tions just stated to an amendment to the B.N.A. Act. The view is then taken that Parliament cannot enact an overriding Bill and that_ legislative authority is divided. These are the only kind- of Bills of Rights that can be passed. In any event if the matter has a double aspect so that Parliament can override provincial legislation, Parliament should not do so since the basis of the federal system is the existence of local diversities which should be preserved. Moreover, the enactment of an overriding federal Bill will give rise to constitutional controversy which would result in grave domestic politicat problems which can be avoided by complementary Bills. The expression of human rights and freedoms in clear terms in complementary Bills of Rights would meet the major objectives and would be practically effective. Such Bills would have great educational value and would lead to the recognition of these rights and'freedoms in practice. They require no change in the role of the judiciary. The existing power of disallowance by the federal government of provincial legislation is a sufficient protection against serious invasions of human rights and freedoms by the provinces. 16. The reasons for opposing a Bill of tights in any form at- tack the four general arguments advanced in favour of the proposal. First, the basic premise is unsound. Fundamental rights and freedoms which are universal and immutable do not exist either philosophically or as a matter of positive law. Legal history shows that they are subject to change and refinement. Second, international recognition of human rights and fundamental freedoms is an illusion. Some ofthe countries most strongly supporting Bills of Rights in the international sphere and which possess Bills of Rights domestically, do not in practice apply them. Canada should not bind itself to a convention if other signatories have no intention of adhering to it in practice. Third, experience has shown that Bills of Rights are not effective as methods of protecting

252 THE CANADIAN BAR REVIEW [VOL. XXXVII human rights and fundamental freedoms. Germany and Cuba had Bills of Rights. So has Russia. Fourth, general definitions of human rights and fundamental freedoms will not advance them but will crystallize them and restrict their growth. The traditional method of protecting them in Canada by providing speedy and available remedies is as effective for protection and less inhibiting on their development. A further general argument against a Bill of Rights is that in any event it is unnecessary. The federal power of disallowing provincial legislation now protects against any grave invasion of rights or freedoms by provincial action. As to federal action, Parliament can be relied on adequately to protect rights and freedoms in times of tranquillity . A Bill of Rights would necessarily have to permit unlimited action by Parliament in times of emergency threatening the nation as a whole and could afford no protection then. 17. Reasons already given against various proposals to restrict the authority of Parliament and the legislatures, or of the legislatures, by an amendment to the B.N.A. Act or an overriding federal Act are adopted by those who oppose the enactment of a Bill of Rights at all. Greater emphasis is placed on the argument that this is a denial of the practical political sovereignty of Parliament and the legislatures consisting of the elected representatives of the people. To deprive Parliament and the legislatures of this supre- macy is a fundamental change in the constitution that is not justified. Further, a Bill ofRights of this nature would place in the hands of the judiciary the power of deciding grave questions of legislative policy overriding Parliament or the legislatures on matters which should more properly be entrusted to them. The role of the judiciary would be very substantially changed and it might be brought into the partizan political sphere. Again Bills of Rights of this type will import rigidities into the constitution with practical disad- vantages in other directions that would outweigh the advantages of the protection aimed at by a Bill of Rights. As to complementary Bills of Rights they afford no additional protection since they are subject to repeal or amendment at any time by Parliament and the legislatures but they would create uncertainty in the law. 18. A basic issue between the proposal for an overriding federal Bill of Rights and for complementary federal and provincial Bills of Rights turns on the legislative authority of Parliament and of the legislatures. The general considerations on this issue are as follows. 19. Since the B.N.A. Act does not in terms refer to a Bill of Rights or to human rights and fundamental freedoms as such, authority to enact a Bill of Rights, if any, must be determined under the general distribution of legislative power effected by it. 20. Reference is usually made to the following provisions.

1959] Correspondence 253 21 . The preamble to the B.N.A. Act refers to the federal union as intended to be provided "with a Constitution similar in Prin- ciple to that of the United Kingdom". 22. The opening words of -section 91 provide that Parliament may make laws "for the Peace, Order and good Government of Canada in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces." In the enumeration of specific powers conferred on Parliament there are a number of powers that would bear on matters relating to Bills of Rights, for example, "Postal Service" has a bearing on means of communication. 23 . Section 92, of the B.N.A. Act authorizes the legislatures of the provinces to make laws in relation to "Property and Civil Rights in the Province", "The Administration of Justice in the Province including the Constitution, Maintenance and Organiza- tion ofProvincial Courts, both of Civil and of Criminal Jurisdiction and including Procedure in Civil Matters in those Courts" and "Generally all Matters of a merely local or private Nature in the Province." 24. Reference is sometimes also made to section 93 which en- trenches rights in relation to religious denominational schools. 25. The arguments in favour of the view that Parliament may enact an overriding Bill of Rights containing provisions relating to such matters as the protection of life and liberty subject to the due process of law, equality before the law and the freedoms of speech, religion, assembly and the press, are put forward on two bases. 26. First, treating such a Bill of Rights as a single legislative scheme for national protection of basic rights and freedoms, the enactment deals with an integrated concept that has national dimen- sions rising above "Property and Civil Rights in the Province" or matters of a "merely local or private Nature". Their protection is a matter that from its inherent nature is of concern to the nation as a whole and falls outside of section 92. The power to enact such a scheme falls in the opening words of section 91 as a matter not assigned to the provinces affecting the peace, order and good government of Canada as a whole. Second, if the rights or freedoms are looked at separately, each of them is from its inherent nature a matter of national concern. For example, freedom of discussion and of the press are implicit in a constitution similar to that of the United Kingdom with parliamentary institutions as they are essential to permit these institutions to function in both the national and provincial spheres . The legislatures of the provinces cannot regulate and control the press without affecting the operation of federal parliamentary institutions . The power to do so, therefore, falls outside of section 92 and comes with the opening words of

254 THE CANADIAN BAR REVIEW [VOL . XXXVII section 91 . Arguments along similar lines are developed for the other rights and freedoms specified. 27. Arguments that authority to enact laws on rights or freedoms is divided and in favour of provincial power to enact a Bill of Rights of general application are as follows. The B.N.A. Act does not by its terms contemplate a Bill of Rights. There is however nothing inherently national gained by grouping a number of rights and freedoms in one enactment. They must be taken separately and considered in relation to the various heads of legislative power set out in sections 91 and 92. Although some aspects of various rights and freedoms may fall within specific federal powers in section 91, for example, "Postal Service" or specific matters that have held to be federal such as "Radio", as the regulation of a means of communication, they do not do so generally. The general protection of property and the person and the various freedoms fall withiaa "Property and Civil Rights in the Province" or are matters "of a local and private nature" within each province. To some extent they may also fall in the "Administration Justice" . Since they fall in section 92 they cannot therefore fall in the opening words of section 91 which are confined to matters "not coming within the classes of subjects . . . assigned exclusively to the Legis- latures of the Provinces." 28. No Bill of Rights enacted by Parliament has been before the courts. A provincial Bill of Rights-the Alberta Bill of Rights Act, 1946, has been dealt with ([1947] A.C. 503). It was held to be ultra vires on the grounds that it was part of a legislative scheme to introduce social credit invading the federal field of "Banking" and its validity as a Bill of Rights did not receive consideration. 29. Three provincial Acts have been canvassed in the Supreme Court of Canada as infringing fundamental freedoms . 30. In the reference to the Supreme Court of Canada in 1938, (re The Alberta Statutes, [1938] S.C.R. 100) one ofthe Bills referred was "An Act to ensure the Publication of Accurate News and Information" which purported to impose requirements on the press as to the publication of news. This statute, amongst others, was held to be ultra vires by the Supreme Court of Canada. The Chief Justice, Sir Lyman Duff, (Davis, J. concurring) discussed the authority to regulate the press. He referred to the nature of parliamentary government and the right of public discussion. He stated, "We do not doubt that (in addition to the power of disallowance vested in. the Governor General) the Parliament of Canada pos- sesses authority to legislate for the protection of this right." Cannon J. adopted a somewhat similar view. The remaining two judges held the statute to be ultra vires as one act forming part of an invalid legislative scheme invading the federal field of"Banking" and did not deal with this point. Although the decision of the

1959] Correspondence' 255 Supreme Court was appealed, to the Privy Council, where it was affirmed, this particular statute was not dealt with on the appeal since it had become inoperative in the interim. 31 . In the Jehovah Witnesses' case (Saumur v. City of Quebec, [1953] 2 S .C.R. 299) a city by-law, passed under a provincial statute, forbidding distribution in the streets of any book, or pam phlet without permission from the chief of police was held to be invalid. Four members of the court took the view that the legis- lature of the province has no authority to legislate to infringe on freedom of religion and of the press. Three held that freedom of worship is a matter within the legislative powers of the province. Two members of the court adverted to this issue stating that "it may well be that Parliament alone has power to make laws in relation to religion as such" but did not feel called upon to decide the question and stated that they expressed no opinion upon it. 32. In the Padlock Law case (Switzman v. Elbling and A.G. of Quebec, [1957] S.C.R. 285) the provincial statute was held invalid as legislation in relation to the federal matter, the "criminal law". Three members of the court also held that it was an unauthorized interference with freedom of speech and expression essential under the democratic form of government established in Canada. 33. A possible view is that neither Parliament nor the legislatures can infringe on certain fundamental matters that are im- plicitly embodied in the B.N.A. Act as basic to the constitution established by it, such as freedom of discussion and the press. If they are implicit foundations of the democratic parliamentary system, the argument against provincial interference applies equally to interference by Parliament. Although using this argument to hold the provincial Act ultra vires in the Alberta Press case, ap- parently Duff, C.J.; held the view that Parliament could legislate to protect these freedoms. Whether or not it could interfere with them may be another question .

34. The Bill of Rights presently before Parliament may now be considered in the light of the foregoing discussion . 35. Section 2 of the Bill provides "it is hereby recognized and declared that in Canada there has always existed and shall continue to exist the following human rights and fundamental freedoms, namely . . ." and then follows an enumeration. This language, it will be seen, can be analyzed to provide "it is hereby recognized and declared that . . . there . . . shall continue to exist the following human rights and fundamental freedoms ...... The significance of this expression may be that the Bill is intended to override any provincial legislation that conflicts with the rights and freedoms enumerated. The Bill would therefore raise the constitutional ques-

25 6 THE CANADIAN BAR REVIEW [VOL. XXXVII tion as to whether Parliament may enact an overriding Bill of Rights . 36. Section 3 of the Bill however is restricted to Acts of the Parliament of Canada. It enacts a rule of interpretation to the effect that all such Acts whether previously passed or passed after the Bill of Rights are to be interpreted to give effect to the rights and freedoms enumerated, and then enacts certain additional specific rules . 37 . To some persons the Bill is to be interpreted as legally operative to override provincial legislation. To others, since the language is in terms declaratory only and not directly mandatory and since, section 3 is restricted to federal legislation, the Bill is to be interpreted as intended to be restricted in its effective legal operation to federal legislation. Support has been given to this view by statements that have been made. 38. The intended effect of the Bill should be made clear, to enact it knowing that a basic question of interpretation which can be avoided will arise at the outset, is undesirable. The adoption of the principle of the declaration appears to make it logical to give to it its fullest possible legal effect as overriding inconsistent provincial legislation. 39. The precise wording of the rights and freedoms enumerated in section 2 has raised some questions. The expression "due process of law" in subsection (a) may have two meanings. First, it may mean merely "according to law". Second, it may mean according to certain basic standards of justice. In Bills of Rights the second view has customarily been adopted. 40. The effect of the words "the right of the individual to protection of the law without discrimination by reasons of race, national origin, colour, religion, or sex" in subsection (b) is not clear. Some differentiations are made by law between various categories of individuals which are intended to be beneficial . This is argued on legislation in relation to Indians. The situation of immigrants is not in all respects the same as that of persons who are citizens of Canada. The intended operation of this provision is not apparent . 41 . The term "freedom" in the four freedoms ofreligion, speech, assembly and association and the press enumerated in subsections (c) to (e) is of course a qualified term. For example, freedom of speech and the press have always been subject to the laws ofslander and libel. Freedoms of assembly and association have always been subject to the laws relating to riots. It appears to be clear that these qualifications are imported as an essential part of the existing freedoms which are declared to have existed. 42. The language of the enumeration in section 3 of the Bill may raise difficulties of interpretation and application. The prohibition

1959] Correspondence 257 in subsection (a) against "the imposition of torture or cruel, in- human or degrading treatment or punishment" would appear in terms to apply to punishment by flogging which is at present per- mitted by law, and hanging. It might also apply. to disciplinary measures taken in penal institutions, such as solitary confinement. There is uncertainty in the intended operation. 43. The reference in subsection (c) to "other constitutional safe- guards" for a person compelled to testify before a tribunal has no clear meaning. The position of a witness at common law and under the provisions of the Evidence Acts give little guidance on it. 44. Subsection (e) prohibiting a person from being deprived "of the right to a fair and public hearing" on any criminal charge may well raise questions under legislation providing for private hearings such as the Juvenile Delinquents Act. In this case the privacy is afforded as a protection to the accused but is. a denial of his right. 45 . The second major question that arises on the draft Bill relates to the exception of emergency legislation under the War Measures Act from its operation. 46 . A provision for special powers in time of emergency notwithstanding anything contained in a Bill of Fights is not an uncommon provision in Bills of Rights. The principle of such emergency powers is recognized in the draft Conventions on Hu- man Rights and Fundamental Freedoms now under consideration by the United Nations. 47. The general arguments for and against such special powers are as follows. , 48. Those who oppose such a provision state that the human rights and fundamental freedoms recognized are so immutable that they should not be set aside even in times of a national crisis. They argue that the basic rights and freedoms of the individual included in a Bill of Rights are so fundamental -that the will of the majority should never be allowed to infringe on them at any time. 49. Those who advocate setting aside the Bill of Rights in time of emergency deny the validity of this argument. They say when the existence of the nation as a whole is imperilled so that the whole legal system is exposed to overthrow it is nugatory to protect the right of one or of a minority of individuals. In such case the government responsible for the national security should not .be. restricted. They recognize that there may be mistakes involving hardship, but say that the increasing awareness of the importance of human rights and fundamental freedoms is likely to minimize these hardships and that greater vigilance in time of crisis can now be expected. 50. It is suggested that such a provision is necessary, recogniz- ing, however, the need for great vigilance to protect rights. and

258 THE CANADIAN BAR REVIEW [VOL . XXXVII freedoms in time of war. Some concern has been expressed at the enactment of this provision in the Canadian Bill of Rights which elevates the War Measures Act to a higher constitutional position than should be the case. 51 . Comments have also been made on the language of this provision. Subsection (5) of the proposed amended section 6 ofthe War Measures Act provided for in section 6 of the Bill reads "Any act or thing done or authorized or any order or regulation made under the authority of this Act, shall be deemed not to be an abrogation, abridgement or infringement of any right or freedom recognized by the Canadian Bill of Rights ." It has been suggested that this might be expressed more clearly by a simple statement that the Canadian Bill of Rights does not apply to the War Measures Act or any act or thing done or authorized on any order or regulation made under it. The reason for the form of the provision adopted is not clear. Some concern has been expressed that the proposed provision as it now stands might give ground for argument that there is protection for things purportedly done under the War Measures Act.

Conclusions 52. The following recommendations are made : 1 . Thelanguage of section 2 of the Bill of Rights should be a- mended to make it clear that it is intended to override provincial legislation that infringes upon the rights and freedoms there expressed. 2. The Bill should be referred to the Supreme Court of Canada for an opinion as to whether it is within the powers of Parliament before it is brought into force. If the Bill is brought into force before this question is settled, there will be undesirable uncertainty as to whether the Bill is effective or not which can be avoided. Further it can be expected that the Bill will in any event be brought before the courts by private litigants at an early stage. It is prefer- able that it should be brought before the court in the form of a reference which would give wider scope for parties to intervene which they would not have in private litigation and which might be of assistance to the court. 3 . The language of the Bill should be reviewed in an endeavour to clarify the uncertainties indicated in this memorandum. It is recognized however that from its very nature a Bill of Rights neces sarily employs broad and general language and further refinement may not be possible. D. W. MUNDELL *

*D. W. Mundell, Q.C., Toronto, Chairman, Civil Liberties Section, Canadian Bar Association .

1959] Correspondence 259

TO THE EDITOR : At the. outset I should like to congratulate Mr. Mundell on the admirable summary he has prepared of the points raised by the proposed Canadian Bill of Rights . That I do not agree with either his approach or his recommendations must not detract from my sincere admiration of the_ability, learning and fairness with which he has prepared his memorandum. I cannot concur in the view that as the proposed Bill "appears now to be settled government policy", we, as lawyers, should ac- cept it as inevitable, refrain from considering its need and value and confine ourselves to suggestions for its improvement. 1, for one, regard the Bill as unnecessary and as liable to cause uncertainty or undue rigidity in the law and, therefore, as objectionable. In expressing my views I confine myselfto the common law provinces, as I have no knowledge ofthe law in force in Quebec. The Bill, notwithstanding its more impressive title, is simply a Bill .for the protection of certain private rights. There is no need for protecting such private rights in Canada : they are already adequately protected by the law and by effective legal remedies . Canadian courts are vigilant to safeguard those rights as has been shown in recent years by the cases cited in paragraphs 30, 31 and 32 of Mr. Mundell's memorandum, viz: re The Alberta Statutes, [1938] S.C.R. 100, the Jehovah Witnesses case (Saumur v. City of Quebec, [1953] 2 S.C.R. 29 ), and the Padlock Law case (Switz- man v. Elbling and A. G. of Quebec, [1957] S.C.R. 285), and also by the recent decision of the Supreme Court of Canada in the Roncarelli case. Two recent cases in England involving invasions of such private rights would undoubtedly be followed in Canada. I refer to Constantine v. Imperial Hotel, [1944] K.B. 693, where the plaintiff, a man of colour, recovered damages from the defend- ant hotel for refusing him as a guest ; and to Christie v. Leachinsky, [1947] A.C. 573, where it was held that in normal circumstances an arrest without warrant either by a policeman or a private person, can be justified only if it is an arrest on a charge made known to the person arrested. These private rights have always been the special care of the courts, and even when the right to trial by jury has been limited in civil cases, that right has been preserved inviolate in cases of false imprisonment, malicious prosecution, libel and slander. These rights are the outcome of the ordinary law of the land en- forced by the courts and safeguarded by trial by jury. But none of these rights as they exist today is absolute, whereas in the proposed Bill in most instances they are expressed to be absolute. In their nature they are necessarily limited, otherwise injustice will result . Freedom of speech is subject to the limitations that you must not defame your fellows or communicate what is

260 THE CANADIAN BAR REVIEW [VOL . XXXVII obscene or seditious. Freedom of the press, although designated separately in the Bill is essentially an instance of freedom of speech. The freedom of assembly and association is merely the result of the views taken by the courts of the individual liberty of the person, and the individual liberty of speech, but in exercising the right of assembly the individual must not commit a trespass or make statements that are libellous or seditious, nor may the ob- ject of the assembly be to break the peace or commit a crime. The right by the ordinary law is, therefore, necessarily qualified. Simi- larly "the: right of the individual to life, liberty, security of person and enjoyment of property, and the right not to be deprived thereof except by due process of law" is expressly qualified in the Bill by the concluding six words, and is simply a description of the existing private right of every person in Canada. I read the concluding words "except by due process of law" as meaning "according to law". I do not understand what is the significance of the alternative meaning suggested in Mr. Mundell's memorandum, viz : "According to certain basic standards of justice". I do not see how the right of assembly and association is extended or its protection increased by its inclusion in a statute : if Parliament should decide to change the law affecting the right it could do so notwithstanding the enactment of the proposed Bill, as it would be doing so "by due process of law". "The right of the individual to protection of law without discrimination by reason of race, national origin, colour, religion or sex" already exists . Surely it is not intended by such phraseology to abandon control over immigration or to extend to Indians the full rights of citizens. Although the reasons of the members of the Supreme Court of Canada differed in the Jehovah Witnesses case the outcome recognized the right of the individual to practise the religion of his choice in Canada. What I have sought to emphasize is that the private rights of individuals in Canada designated in the proposed Bill of Rights are amply protected by the existing law, and that the enactment of the Bill would add nothing to that protection, and is therefore unnecessary. Moreover, a survey of the rights as established by the existing law shows that the rights are necessarily qualified as a result of the experience of centuries, whereas in the proposed Bill of Rights they are described in nearly every case as absolute and without qualification. It will be said that qualifications are implied : if so, what are they? If they are the existing qualifications, then the law as it exists will be calcified. Its flexibility will be lost and, however public opinion may change, no change in the law relating to such private rights maybe made without amendment to the Bill of Rights.

1959] Correspondence 261 How much better it would be to trust Parliament and the courts as they have been trusted in the past to modify the law relating to such private rights as circumstances and public opinion require, and not put this part of the law in a strait jacket of the model of 1959 . It will be a sorry day for Canada when Parliament is so dis- trustful of itself and its successors that it surrenders its power to change the law. Of course,, the idea is absurd. If Parliament in the future should decide that the law should be changed, it would simply preface its enactment by the formula "Notwithstanding any thing contained in the Canadian Bill of Rights". The prohibition in the Bill against abrogation, abridgement and infringement of rights, in other words, is idle, and to the layman mislead- ing. I emphasize the great respect shown by Canadian legislative bodies, the courts and the executive for the protection of fundamental private rights. There has been one, and so far as I know only one, serious departure, and that was in the treatment given the accused persons investigated preliminary to the spy trials, so called, in 1946. The methods used. were made possible, however, only by the War Measures Act and the regulations passed under it. Such extraordinary powers are undoubtedly needed in times of war, invasion and insurrection and I do not criticize their re- tention under the proposed Bill. What I do stress is that the Bill if enacted, will be useless to prevent a repetition in like circumstances, of the methods used in dealing with accused persons in 1946 . I have made clear that I am opposed to the enactment of the proposed Bill even if expressly confined as at present to laws enacted by, or subject to the legislative authority of the Parliament of Canada. Still more am I opposed to an extension of the terms of the Bill to override, or rather purport to override provincial legislation that infringes upon the rights and freedoms therein expressed. If such legislation were valid it would be unnecessary for the reasons already set out in full, and it would substitute either unqualified rights for the delicately modulated rights fashion- ed by the courts and legislatures after centuries ofexperience, or rights with implied qualifications fixed in the model of today and incapable of adaptation to meet changing circumstances and public opinion. . Such an attempt by Parliament to appropriate to itself a large part of the subject_ matter of civil rights expressly assigned to the legislative powers of the provinces would be resented fiercely as an invasion unwarranted either by the B.N.A. Act or by any au- thoritative decision of the courts. For I repeat that these rights without exception are private rights inherent in the individual and the outcome of the ordinary law of the land. That they are fre-

26)2 THE CANADIAN BAR REVIEW [VOL . XXXVII quently considered in text books on constitutional law does not alter their nature. "There is no hard and fast definition of constitutional law. In the generally accepted use of the term it means the rules of law, including binding conventions which regulate the structure of the principal organs of government, and their rela- tionship to each other and determine their principal functions" . (Wade & Philips, Constitutional Law, 3rd. ed., p. 2). Although the constitutional lawyer has a particular interest in the means which the law provides for safeguarding individual liberty, whether of the person or speech, the rights arise out of and are protected by the ordinary law and for the most part fall directly within the category of civil rights designated in section 92 (13) of the B.N.A. Act. In so far, of course, as they are protected by the criminal law they are subject to the jurisdiction of Parliament, but this is because criminal law is so allotted by section 91 (27) and not because of any vague, indefinite constitutional doctrine which some would read into the B .N.A. Act. Civil rights as a class of subject assigned exclusively to the legislatures of the provinces is excepted from the power given to Parliament to amend the constitution of Canada by 1949, c. 81 (U.K.). I do not think that this Council should recommend that the Canadian Parliament should attempt any such invasion of provincial legislative powers. The suggestion that the Bill of Rights should be enacted by the Parliament of Great Britain as part of the B .N.A. Act is even more objectionable than having it enacted in its present form by the Parliament of Canada. If it were made part ofthe B.N.A. Act it would be beyond the power of the Canadian Parliament to amend it, and the law of Canada would either be distorted by the absolute rights designated in section 2, or have those rights as qualified today fixed on future generations if the courts were disposed to read those qualifications into the Bill. This would, indeed, be an abdication of its powers by the Canadian Parliament, and a clear admission that in future it should not be trusted to legislate soundly with regard to so-called fundamental private rights. No action of Parliament in the past has warranted such an admission. It will be apparent that I do not support the first two recommendations set out in Mr. Mundell's memorandum, although I am in agreement with the third, vic : that the language of the Bill requires clarification, particularly as suggested in paragraphs 42 to 44 inclusive. A. N. CARTER *

*A. N. Carter, Q.C., St. John, N.B., Member of the Special Advisory Committee to the Civil Liberties Section, Canadian Bar Association.

1959] Correspondence 263 RESOLUTION OF THE COUNCIL OF THE CANADIAN BAR ASSOCIATION WHEREAS the matter of the enactment of a Canadian Bill of Rights and its form and content is of significant importance to the people of Canada, and WHEREAS the consideration of such a Bill of Rights is of greatest concern to the legal profession and has revealed a wide diversity of opinion and adequate time should be available for further study thereof: RESOLVED that representations be made to the Government to postpone consideration of the proposed Bill of Rights until the next session of Parliament.

Books Received The mention of a book in the following list does not preclude a detailed review in a later issue. The Background to Current Affairs. By DESMOND CROWLEY, M.A . (N.Z.), Ph.D. (London) . London : Macmillan & Co. Ltd . New York : St. Martin's Press. Toronto : The Macmillan Company of Canada Limited . 1958. Pp. ix, 370. ($3 .75 .) Bilateral Studies in Private International Law American-Swiss Private In- ternational Law. By ARTHUR NUSSBAUM. Second Edition. New York : Oceana Publications . 1958. Pp. 93 . ($5 .00 U.S.) Cases on the Law of Torts. By C. A. WRIGHT, Q.C., LL.D., Dean and Pro- fessor of Law, Faculty of Law, University of Toronto. Second Edition . Toronto : Butterworth & Co. (Canada) Ltd. 1958. Pp. xix, 953 . ($16.00 - special price to students $11 .00) Courtroom Medicine. Compiled and Edited by MARSHALL HOUTS, Member of the Tennessee and Minnesota Bars, Judge, General Counsel to the Court of Last Resort. Springfield : Charles C. Thomas. 1958 . Pp. xviii, 511 . (no price given) Das Zivilprozessrecht Finnlands . By TAUNo TIRKKONEN. Publikationen Des Finnischen Juristenvereins Serie D, No. 3. Helsinki: Akateeminen Kirjakauppa . 1958. Pp. xii, 102. (No price given) Days in Court. By R. Roy MCMURTRY, Q.C. Toronto : The Carswell Company Limited . 1958. Pp. 198. ($5 .75) Dicey's Conflict of Laws . By J. H. C. MORRIS with Specialist Editors . Seventh Edition. London: Stevens and Sons Limited . Toronto : The Carswell Company Limited. 1958. Pp. cxxiv, 1180. ($22.00) Early English Legal Literature. By T. F. T. PLUCKNETT, F.B.A., Hon . Fellow of Emmanuel College, Cambridge, Professor of Legal History in the University of London. Cambridge : University Press. Toronto : The Macmillan Company of Canada Limited. 1958 . Pp. viii, 120 . ($3 .15)

264 THE CANADIAN BAR REVIEW [VOL . XXXVII

The French Legal System, An Introduction to Civil Law Systems. By RENÉ DAVID and HENRY P. DE VRIES. New York : Oceana Publications . 1958. Pp. 152. ($5 .00 U.S.) The Handwriting of English Documents. By L. C. HECTOR, M.A ., An Assis- tant Keeper of the Public Records, Lecturer in Palaeography, Uni- versity College, London. London : Edward Arnold (Publishers) Ltd . Canada : The Macmillan Company of Canada Limited . 1958 . Pp. 126 . ($5 .75) Introduction to the Law of Property. By F. H. LAWSON, Professor of Com- parative Law in the University of Oxford . Oxford : Clarendon Press. Toronto : Oxford University Press. 1958. Pp. xii, 200 . ($2.25) A Legal Bibliography of the British Commonwealth of Nations . Volume 6. Second Edition. London: Sweet & Maxwell Limited . 1958 . Pp. vii, 147. ($5 .75.) Potter's Outline of English Legal History. By A. K. R. KIRALFY, Ph.D ., LL.M., of Gray's Inn, Barrister-at-Law, Reader in Law at King's College, London. Fifth Edition. London : Sweet & Maxwell Limited . 1958. Pp. xvi, 285. ($4 .75) Privileged Communications Between Physician and Patient . By CLINTON DEWITT, Professor of Law, Western Reserve University . Springfield : Charles C. Thomas. 1958. Pp. xviii, 528. (no price given) The Results of Probation . Edited by L. RADZINOWICZ, LL .D . for the De- partment of Criminal Science, Faculty of Law, University of Cam- bridge. Toronto : The Macmillan Company of Canada Limited . 1958. Pp. xvi, 112. ($3 .60) Shorter Constitution ofIndia. By DURGA DAs BAsu. Calcutta: S. C. Sarkar & Sons Private Ltd. 1958. Pp. xlix, 624, vi. ($6.25)