by Denis Smith
JOHN DIEFENBAKER’S REPUTATION WAS MADE AS THE CHAMPION OF CIVIL LIBERTIES. His most prominent commitment, on achieving office, was to adopt a Canadian bill of rights. During the minority parliament of 1957-58 that goal was deferred in favour of more immediate political measures. But once the majority was achieved, it headed the government’s agenda. Diefenbaker’s old ally in the cause, Arthur Lower of Queen’s University, wrote to him soon after the government was formed to offer encouragement.
I trust that during your term of office, you will do your best to bring forward such matters as guarantees for civil liberties, in order to familiarize the Canadian people with them and to educate them. I do not really think that a Bill of Rights would be practical politics just yet, but it well may be that certain minor matters can be attended to and that educative debates can be arranged. I would urge you to look into this whole nasty business of R.C.M.P. file-compiling. I suspect they have a file on you: I know they have one on me. Why? There is not a single incident in my whole public career which is not open to the light of day, and I am sure you can say the same. Why, then, this endless compiling of files? Already these have gone so far that people are afraid … This is the negation of self-government. If you do nothing more than relieve to some degree the spirit of fear imposed by our over-zealous policemen, you will have deserved well of your country.52
In April 1958 the prime minister promised the Canadian Congress of Labour that his government would introduce a bill to assure that rights would be “defined and guaranteed in precise and practical terms to all men by the law of the land.”53 One of the inevitable issues of dispute was the extent of parliament’s power under the federal Constitution to enact such legislation, and in the summer Diefenbaker received inconclusive advice on the question from the constitutional lawyer Bora Laskin. Laskin, however, was inclined to believe that the federal parliament could protect the traditional political freedoms on the ground that they were “in no sense local values but, indeed, underlie the very structure of our constitutional system.” In this case, parliament could forbid discrimination as part of the criminal law.54
Under Fulton’s supervision, officials in the Department of Justice took the initiative to prepare draft legislation. Cabinet discussed referring the bill to the Supreme Court for an advisory opinion on its constitutionality, but the prime minister was reluctant to do that. Instead, cabinet decided to give it a political test. On September 5, 1958 - as the session was about to end - Diefenbaker introduced Bill C-60, “An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms,” with no intention that it should be adopted in its original form. The bill would be floated to stimulate debate, die on the order paper, and be reintroduced, perhaps after amendment, in a subsequent session. The bill, Diefenbaker told parliament, “will not do everything,” but it was intended to “curb the human tendencies of national governments to take shortcuts in ruling the people.”55 His emphasis was clearly on the bill’s educative effects as a declaration of existing rights and as a restraint on Ottawa’s powers alone. It would be adopted as a simple statute, would offer guidance to lawmakers as they drafted future federal laws, would contain exemptions for periods of emergency, and would contain no sanctions. These features were consistent with the prime minister’s enduring attitudes. They avoided the strains of a long search for federal-provincial agreement on a constitutional amendment, as well as the intellectual conundrums of a profound debate on political values. The bill was a politician’s tentative step out onto a high wire - but a step that no other federal politician had dared to take. By its nature it was unsatisfactory to parliamentary traditionalists, to advocates of an entrenched bill in the American style, to French-speaking Canadians uneasy about possible infringements on Quebec’s claims, and to social democrats seeking greater protections for economic and social rights.56
The Globe and Mail welcomed the government’s tentative approach: “The issues involved are both vitally important and highly complex, and it is desirable that Parliament and the public should be given ample time to consider them.”57 The challenge was instantly taken up at the annual meeting of the Canadian Bar Association, where delegates, attacking on all fronts, called the bill “downright dangerous,” “window dressing,” “a political show,” a useless piece of paper unless it were entrenched in the Constitution.58 Others - notably the prime minister’s political associate Eddie Goodman - gave it warm support.59
Intense public discussion continued through the autumn and winter. In December the prime minister was disappointed by the comments - this time public - of Bora Laskin. With the draft bill before him, Laskin had sharpened his judgments: he was an opponent of the Diefenbaker compromise, and he was in full cry. He shared the government’s belief that there were certain essential assumptions governing conduct in the Canadian democracy, but he found the bill “disappointing in its approach, unnecessarily limited in its application and ineffective in its substance.” It was “merely a timid and tepid affirmation of a political and social tradition,” had no application to the provinces, and even within the federal realm was so narrowly drawn that its “grandiloquence of expression” would lack any effect in concrete cases. It was not enough, he insisted, simply to see the bill as “a beacon of direction to legislators, to courts and to all public administrators.” Since the Canadian courts had begun to find implicit guarantees of rights in the British North America Act, he speculated that “we would be as well off without a Bill of Rights as to have one so limited in its reach, so limited in its effect as Bill C-60.”
Laskin found the bill’s “declaratory approach” suitable for the Universal Declaration of Human Rights, which applied to a world of nations at various stages of political evolution. But “surely it is hardly satisfying to a community like Canada to be fed on the same bubbly mixture … when we have inherited a mature tradition of political civil liberty and have carried it into even broader fields?” He rejected the government’s judgment that a constitutionally entrenched charter of rights was unachievable. Conceding the difficulty of agreement with the provinces, he saw no reason why Ottawa should not ask Westminster to amend the BNA Act to restrain federal legislative powers. And if, as he thought, there were genuine legal doubts about the reach of a federal bill, cabinet could also ask the Supreme Court for an advisory opinion on whether such an amendment might actually apply to the provinces as well. He could not conceive, for example, how freedom of speech, religion, and association could be bisected into federal and provincial segments. “Shall we talk, for example, of freedom of speech in a federally-controlled bank or railway or uranium mine, and of provincial freedom of speech on provincial highways and in retail stores or factories?”
This was root and branch criticism, scarcely softened by Laskin’s concluding comment that the country should be grateful that the government had promoted discussion of “an issue of transcendental importance.” Eddie Goodman agreed with Diefenbaker that the speech “does not give enough appreciation of the courage that the introduction of the Bill required and of the benefits that are to be derived from it.”60 Over the following two years there was continual legal criticism, but as Edward McWhinney noted: “No significant lowest common denominator of agreement was evident among the professional legal commentators’ detailed criticisms of the draft Bill … Under the circumstances there were those who, recognizing the immense practical and political difficulties and the inevitability of angry criticism … would counsel Prime Minister Diefenbaker to follow the course of discretion and shelve his draft Bill, once the first public disenchantment with the Bill became apparent.”61
But that was not his way. Diefenbaker was slow to move on contentious issues, but once committed he was aroused to combat rather than to reflection by public criticism. On an issue so central to his reputation and identity he could not give up the cause. He let the debate wash on, inconclusively, for almost two years, determined in the end to have his bill. In September 1959 he told the Canadian bar meeting
that he would proceed by simple act of parliament because the provinces would not “abdicate their constitutional rights” in a constitutional amendment. The Globe and Mail commented that Diefenbaker was missing a chance to confront and settle the whole issue of constitutional amendment, but he had no intention of losing his bill in that morass.62
In December 1959 another civil libertarian whom Diefenbaker respected, F.R. Scott of McGill University, privately expressed doubts similar to Laskin’s and carefully outlined two means of entrenching the bill in the Constitution. The first echoed Laskin’s suggestion that Ottawa alone could request the United Kingdom parliament to add the bill to the BNA Act as a limitation on federal powers, thus binding future parliaments. The second recommended an additional amendment to the BNA Act, proposed in the same way, “declaring that any province whose legislature adopts the Bill of Rights shall be thereafter bound by it to the same extent and degree as is the Parliament of Canada. Thus the provinces can come in one by one, as fast as they like.” Until the blessed day when Canada could finally bring the Constitution home, such amendments at Westminster would “at least indicate that we are more serious as a nation about the protection of basic rights than is suggested by the present Bill C-60.”63
These comments, like Laskin’s, were insulting to Diefenbaker. Despite their ingenuity, he did not plan to pay them any heed. He would not complicate the debate by any effort to amend the Constitution. Neither the provinces nor Westminster would share credit for his achievement. The prime minister replied dryly to Scott, “I will refer to the several points raised by you when the Bill is before Parliament.”64
Diefenbaker introduced the bill to the House for the second time on Dominion Day, July 1, 1960, intending this time that it would receive rapid passage into law. The measure, he said, was “the first step on the part of Canada to carry out the acceptance … of the international declaration of human rights or … the principles that actuated those who produced that noble document.” It would guarantee to all Canadians the rights and benefits of citizenship - to the extent that they fell under federal jurisdiction. That was a limitation, he admitted, “but in reply I say it will at least represent the essence of the conscience of the people of Canada.” He suggested that the bill “embodies a pledge for all Canadians”: “I am a Canadian, a free Canadian, free to speak without fear, free to worship God in my own way, free to stand for what I think right, free to oppose what I believe wrong, free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.”65
The government gave the bill priority in debate for the week that followed. Whatever criticisms the opposition made of the measure’s weaknesses, they could not risk opposing it in principle, and on July 7 it received unanimous approval on second reading. Diefenbaker concluded debate with a display of the anguished personal feelings that had moved him in his cause.
I can speak on the subject of mixed racial origin, Mr. Speaker. Had my name been that of my mother it would have been Campbell Bannerman … I know something of what it has meant in the past for some to regard those with names of other than British and French origin as not being that kind of Canadian that those of British or French origin could claim to be.66
He still felt the ancient pain of “second-class citizenship” and was determined to inoculate all Canadians against it. On July 1 he noted proudly that legislation had been adopted during the session to give the vote to “the first citizens of Canada,” treaty Indians and Eskimos.67
The bill now passed to committee for several weeks of hearings that included familiar testimony from supporters and critics, including Professors Lower and Scott. After the defeat of a score of Liberal amendments and the addition of a flowery preamble, the Canadian Bill of Rights was adopted on third reading by another unanimous vote of the House. On August 10, 1960, it was proclaimed into law.68
During its first year, the Bill of Rights was invoked in about a dozen court cases and sustained in only one tax dispute. It caused “a ripple on the Canadian legal and legislative scene, but certainly not a splash,” in the view of one reporter. It was ten years before the Supreme Court applied the non-discrimination principles of the bill to erase some sections of the Indian Act. As an educational and propagandist device, by contrast, it was an instant prize for the Conservative Party. The government printed 20,000 copies of the bill on ornamented parchment, in seven colours, embellished with the prime minister’s flowing signature and his pledge as a “free Canadian.” They were offered for sale at one dollar each, and became familiar decorations in police courts and classrooms across the land.69 John Diefenbaker considered the bill to be his greatest achievement, and wrote sixteen years later in his memoirs:
Those law professors and politicians who condemned it had closed their eyes to what was happening. All the laws of this Dominion were made to conform to it. It became the standard and the pattern for those Canadian provinces that wished to enact their own provincial Bills of Rights. No less important were the individual acts of fine citizenship which the Canadian Bill of Rights inspired. For example, I was most impressed when my long-time friend and colleague, the Honourable David Walker, in consequence of his commitment to the concept of non-discrimination, initiated, as President of the prestigious Lawyers’ Club in Toronto, the sweeping aside of any barriers preventing Jewish membership.70
That was a legacy of decency for a conservative country still shackled by its historic fears and prejudices.
The widely distributed parchment copies of the bill contained only part one of the legislation, which outlined the traditional liberties and legal rights “declared to exist” in Canada. But that list included an escape clause, allowing parliament to limit or deny those same claims by indicating in any bill that it intended to legislate “notwithstanding the Canadian Bill of Rights.” (This would become the model for a similar escape clause in the Trudeau Charter of Rights of 1982.) Even more startling was the final section of the act, which provided that any actions taken in a state of emergency under the War Measures Act would not constitute violations of the Bill of Rights.71
Critics pointed out that the prime minister himself, in the early postwar years, had favoured repeal of the War Measures Act because it permitted arbitrary cabinet rule. Diefenbaker’s response recalled his complaisant wartime attitude to the authority of the state. The power to rule by decree was necessary because Canada was living in “trying and dangerous times” under the threat of nuclear war. Therefore, emergency rule was legitimate as long as the proclamation of an emergency was subject to review by parliament. The Bill of Rights amended the War Measures Act to provide for such review. Diefenbaker’s parliamentarism thus allowed him a certain sophistry in his commitment to civil liberty: rights were only what parliament declared them to be. This attitude was perhaps a key to his reluctance to entrench these rights in the Constitution. He genuinely rejected the belief that they should exist beyond parliament’s power. But that reasoning justified the same invasions of rights he had complained about in wartime, as the use of the War Measures Act demonstrated in October 1970. Diefenbaker could never untangle the logical dilemma, except by claiming that parliament had been mistaken to approve emergency powers in 1970. “The important thing was,” he argued weakly in the memoirs, “that in principle it preserved the rights of Parliament and was a defence against the government’s using the War Measures Act under circumstances where it really was not justified.”72 In 1970 such principle buttered no parsnips.
For Diefenbaker there was another, still lower, level of sophistry and hypocrisy in his approach to civil rights. Under the rationale of the Soviet threat and a common allied approach to intelligence methods, the entire subject of security vetting of civil servants was managed beyond the sight of parliament or the cabinet. Diefenbaker had approved, with some doubts, the policies supervised by the Security Panel when he came into office, and he received regular reports of the panel’s activities from its chairman, Robert Bry
ce.73 At the very time that he was enshrining his declaration of rights in law, his own government was acting, with his knowledge, to deprive Canadian civil servants of employment through Star Chamber proceedings on grounds of “defects” or “weaknesses” of character. (The phrases were vague, but referred chiefly to homosexuality.) Diefenbaker’s doubts led initially to a request to the Security Panel for a reconsideration of security procedures involving “weaknesses of character” in June 1958. The result was not an easing of policy, as he had perhaps intended, but an alarmist report to the panel in October 1959. Homosexuals were declared to be unreliable and “unsuitable for employment from the point of view of good personnel management, quite apart from the security considerations.”74
This report produced irreconcilable divisions among members of the Security Panel and no recommendation to cabinet to alter the existing, illiberal policies. On the basis of the report, the RCMP security service began general investigations into homosexuals in federal employment during 1959. It reported 363 “confirmed, alleged, and suspected homosexuals” in thirty-three departments and agencies. It identified 153 of these persons as “confirmed” cases; and of these, 116 were no longer in government service, through firing, resignation, retirement, or death.
The RCMP’s evidence-gathering was notoriously sloppy, but departments seemed to act with alacrity under the existing guidelines when they received security reports. The security service also investigated more than three hundred private citizens identified as homosexual in 1959 in order to gather “the most complete picture possible.” The RCMP expressed some concern that departments were firing suspects before investigations were complete. During the next decade the numbers of persons on RCMP suspect lists for homosexuality, both inside the civil service and among the general population, grew steadily.75