Repression and Resistance: Canadian Human Rights Activists, 1930-1960 9781442679238

Table of contents :
Contents
Acknowledgments
Abbreviations: Organizations and Laws
Introduction
1. Civil Libertarians and the Padlock Law
2. The Second World War: Civil Liberties at Risk
3. The Japanese-Deportation Issue
4. The Gouzenko Affair, Civil Libertarians, and the Shugar Case
5. The Canadian Jewish Congress and the Human Rights Community
6. Civil Liberties Groups and the Cold War
7. The Dresden Story: The Jewish Labour Committee and Blacks in Dresden, Ontario
8. The Canadian Human Rights Community and the Bill of Rights
Conclusion
Notes
Bibliography
Index

Citation preview

REPRESSION AND RESISTANCE: CANADIAN HUMAN RIGHTS ACTIVISTS, 1930–1960

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R O S S L A M B E RT S O N

Repression and Resistance Canadian Human Rights Activists, 1930 –1960 .

UNIVERSITY OF TORONTO PRESS Toronto—Buffalo—London

www.utppublishing.com © University of Toronto Press Incorporated 2005 Toronto–Buffalo–London Printed in Canada ISBN 0-8020-8921-6

Printed on acid-free paper

Library and Archives Canada Cataloguing in Publication Lambertson, Ross, 1944– Repression and resistance : Canadian human rights activists, 1930–1960 / Ross Lambertson. Includes bibliographical references and index. ISBN 0-8020-8921-6 1. Human rights workers – Canada – History – 20th century. 2. Human rights – Canada – History – 20th century.—I. Title. JC573.2C3L34 2005——323'.092'271——C2004-902095-1

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP). This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada.

To Carol, my best friend and best critic

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Contents

ACKNOWLEDGMENTS—

ix

A B B R E V I A T I O N S : O R G A N I Z A T I O N S A N D L A W S —xi

Introduction—3 1—Civil Libertarians and the Padlock Law—16 2—The Second World War: Civil Liberties at Risk—68 3—The Japanese-Deportation Issue—106 4—The Gouzenko Affair, Civil Libertarians, and the Shugar Case—143 5—The Canadian Jewish Congress and the Human Rights Community—196 6—Civil Liberties Groups and the Cold War—243 7—The Dresden Story: The Jewish Labour Committee and Blacks in Dresden, Ontario—281 8—The Canadian Human Rights Community and the Bill of Rights—318 Conclusion—372

viii—Contents N O T E S —387 B I B L I O G R A P H Y —459 INDEX— —483

Acknowledgments

This book is a much-altered and somewhat expanded version of my doctoral dissertation at the University of Victoria. I should therefore begin my acknowledgments by thanking my PhD adviser, Ian McPherson, who uncomplainingly read through so many preliminary drafts. I also thank the Social Sciences and Humanities Research Council, the history department of the University of Victoria, and the Ewart Foundation for providing financial assistance in the writing of my dissertation. Warm thanks also to Ian Smillie, who put me up (and put up with me) every time I came to Ottawa for research. In all the research for this work I have been helped by a large number of librarians and archivists, especially those at the National Archives of Canada, the Canadian Jewish Congress Archives in Montreal, and the Ontario Jewish Archives in Toronto. As well, several academics were kind enough to read portions of the manuscript. Many thanks to James Walker, Reg Whitaker, and Andrée Lévesque for their time, criticisms, and helpful suggestions. Thanks also to my wife, Carol, who patiently tolerated my monomania and listened to more versions of this work that I like to admit. Any errors, of course, are my responsibility. Particular thanks to all the people who submitted to interviews. Talking with these people was the most rewarding part of what has been a long but fascinating experience.

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Abbreviations: Organizations and Laws

ACL ACLU BNA Act CAAE CASW CBA CCCJ CCF CCJC CCL CCLPA CFBR CIIA CIO CJC CLAT CLAW CLAWF CLC CLDL CLPD CLU

CNCR CPC

Association for Civil Liberties [Toronto] American Civil Liberties Union British North America Canadian Association for Adult Education Canadian Association of Scientific Workers Canadian Bar Association Canadian Council of Christians and Jews Co-operative Commonwealth Federation Co-operative Committee on Japanese Canadians Canadian Congress of Labour Canadian Civil Liberties Protective Association Committee for a Bill of Rights Canadian Institute of International Affairs Committee for Industrial Organization Canadian Jewish Congress Civil Liberties Association of Toronto Civil Liberties Association of Winnipeg Canadian League against War and Fascism Canadian Labour Congress Canadian Labor Defense League Canadian League for Peace and Democracy [Canadian] Civil Liberties Union [usually the Montreal branch; in French, the Section de Montréal, Société Canadienne des Droits de l’Homme] Canadian National Committee on Refugees and Victims of Political Persecution Communist Party of Canada

xii—Abbreviations

CRCIA CRU CSU CUA DOCR ECCR ECPCL FAP FCSO FEP FOR ILGWU ILP IWW JCCD JLC JPRC LDR LPP LSR MCLA MCLU NAACP NCCL NCCSF NCDR NCW NDP NUA OCLA OCLU SA SC SCM SCR TCLU

Committee for the Repeal of the Chinese Immigration Act Civil Rights Union Canadian Seamen’s Union Civic Unity Association [Vancouver] Defence of Canada Regulations Emergency Committee for Civil Rights Emergency Committee for the Protection of Civil Liberties Fair Accommodation Practices [Act] Fellowship for a Christian Social Order Fair Employment Practices [Act] Fellowship of Reconciliation International Ladies Garment Workers’ Union Independent Labour Party Industrial Workers of the World Japanese Canadian Committee for Democracy Jewish Labour Committee Joint Public Relations Committee [Canadian Jewish Congress and B’nai Brith] League for Democratic Rights Labor Progressive Party League for Social Reconstruction Montreal Civil Liberties Association Montreal Civil Liberties Union National Association for the Advancement of Colored People National Council for Civil Liberties National Council for Canadian-Soviet Friendship National Council on Democratic Rights National Council of Women New Democratic Party National Unity Association Ottawa Civil Liberties Association Ottawa branch of the [Canadian] Civil Liberties Union Statutes of Alberta Statutes of Canada Student Christian Movement Supreme Court Reports Toronto branch of the [Canadian] Civil Liberties Union

Abbreviations—xiii

TLC UBC-CLU UDHR UJPO ULFTA VCC VCLU WEA WIL WWR

Trades and Labor Congress University of British Columbia branch of the [Canadian] Civil Liberties Union Universal Declaration of Human Rights United Jewish People’s Order Ukrainian Labor Farmer Temple Association Vancouver Consultative Council Vancouver branch of the [Canadian] Civil Liberties Union Workers’ Educational Association Women’s International League for Peace and Freedom Western Weekly [Law] Reports

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Introduction—1

REPRESSION AND RESISTANCE

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Introduction—3

Introduction

We live in ‘the age of rights.’ As Louis Henkin has noted, ‘human rights is the idea of our time, the only political-moral idea that has received universal acceptance. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, has been approved by virtually all governments representing all societies. Human rights are enshrined in the constitutions of virtually every one of today’s ... states.’1 This is more than just international and constitutional window dressing. Aside from occasional criticisms of ‘human rights imperialism’ by non-Western authoritarian states, or philosophical arguments that question the validity of ‘socially constructed’ values, support for human rights is widespread and powerful. Canada is no exception to this general rule. We, too, are engaged in ‘rights talk.’ McGill University law professor Maxwell Cohen noted, as early as 1968, that Canada had undergone a paradigm shift in its adoption of a new ‘debating language.’ This helped to provide a favourable environment for the creation of a number of anti-discrimination laws, as well as the 1960 Bill of Rights and then the 1982 Charter of Rights and Freedoms. Indeed, it has been suggested that, as Canadians have become increasingly secular, we have replaced God with a new, liberal deity – the worship of human rights, and Michael Ignatieff has recently argued, in The Rights Revolution, that ‘Canada has become one of the most distinctive rights cultures in the world.’2 Ignatieff’s work is an important contribution to what might be called Canadian human rights historiography, but he focuses on developments from 1960 to the present and says little about the immediate post-war period. This book both supplements his work and fills in some gaps, stressing that our rights exceptionalism is a very modern

4—Repression and Resistance

development. As will become clear, Canada has been at least as, and in some ways more, authoritarian than the United States and Britain, and in the field of equality rights we actually followed the Americans (in the northern states), modelling our early anti-discrimination laws upon their pioneering efforts. To excavate and explain this earlier history of the Canadian version of the ‘rights revolution’ is a legitimate and important goal for a historian, but it is doubly important because Canadians often suffer from a kind of collective amnesia about their history, especially the warty bits. As legal historian Constance Backhouse has noted, Canadians demonstrate a ‘stupefying innocence’ about stories of racial oppression in the past, and the same could be said about earlier violations of fundamental libertarian rights such as free speech and freedom of association. Legal and political historiography can show how the trappings of the modern ‘rights state’ have their roots in a long tradition of injustices against minorities, as well as an equally long tradition of resistance to those injustices.3 Admittedly, awareness of these injustices is increasing and has helped to produce a political culture of recriminations and redress. In 1988 the Mulroney government apologized and agreed to pay $21,000 to each of those members of the Japanese-Canadian community still alive who, in 1942, had been interned primarily because they were related by blood to a country at war with Canada. It also offered, in 1990, an ‘unqualified apology’ to Italian Canadians who had been ‘interned unjustly’ during the Second World War. This encouraged other ethnic communities to press their own demands, based on a litany of historical complaints heretofore largely unknown to the average Canadian citizen. The Ukrainian community, for example, set up plaques commemorating the internment of members who were unjustly declared ‘aliens’ during the First World War and also began to demand (via the Ukrainian Canadian Congress and the Ukrainian Canadian Civil Liberties Association) that Ottawa pay compensation for their monetary losses. Similarly, the Chinese Canadian National Council and the National Congress of Chinese Canadians asked for redress on the grounds that all Chinese immigrants were forced to pay a discriminatory ‘head tax’ from 1885 to 1923 and then, until 1947, most Chinese male immigrants were not allowed to bring their families to Canada. In addition, the National Association of Canadians of Origins in India has demanded compensation for the Sikhs turned away from Canada in the 1914 Komagata Maru incident, while the Canadian Jewish Congress

Introduction—5

(CJC) has demanded compensation for Canada’s refusal to admit nine hundred refugees fleeing Nazi persecution in the 1930s. Moreover, both the German Canadian Congress and the National Congress of Italian Canadians took up the cause of a number of loyal citizens interned during the Second World War simply because of their ethnic backgrounds. In 1994 the federal government apologized for any actions ‘that were at odds for our shared commitment to human justice’ but refused to pay out any money for further redress. There always remained, however, the possibility of litigation.4 How did this emphasis on rights and redress occur? This book begins with the political turmoil of the Great Depression and the founding of Canada’s first civil liberties organizations; it ends with the passage of Prime Minister John Diefenbaker’s Bill of Rights in 1960. During that period Canada went from a country replete with human rights violations to one with few official forms of racial and religious discrimination, a wide range of laws against private discrimination, and a far better track record of respect for libertarian rights such as freedom of speech and freedom of association. It is the thesis of this book that these changes were the result of a number of factors. First, there was a shift in thinking, language, and law at the international level, beginning in the Second World War and gaining strength in the immediate post-war period. Before the Second World War, there was scant mention of human rights in international law, and the Charter of the League of Nations contained no explicit mention of the concept. As Hannah Arendt pointed out, only marginal figures talked about human rights, and no politician took them seriously.5 But things began to shift during the war. In England, H.G. Wells attempted to link the war effort with a declaration of human rights, and in August 1941 Franklin D. Roosevelt and Winston Churchill prefaced their Atlantic Charter with a statement that victory over the Axis powers was ‘essential to decent life, liberty, independence and religious freedom, and to preserve human rights and justice ...’ Then, in 1945, the United Nations enshrined the notion of ‘fundamental human rights’ in its founding Charter, and a few years later, in 1948, created the Universal Declaration of Human Rights (UDHR), an international agreement that certain fundamental rights are entitled to the protection of the world’s states.6 Second, economic and demographic changes made Canadians increasingly sympathetic to the international discourse of human rights. As the country became increasingly well off in the immediate post-

6—Repression and Resistance

war years, and as political stability seemed assured, there was greater acceptance of ethnic differences and alternative political views. Admittedly, Cold War fears undermined this political toleration, but gradually the dangers of political radicalism seemed to fade. At the same time, economic growth stimulated ethnically diverse immigration as well as a feeling that newcomers were potential contributors rather than threats to the Canadian way of life. In short, Canadians began to take the first halting steps towards the modern multicultural experiment. Third, a number of Canadians did their best to spread the emerging discourse of human rights and to translate it into legal changes. Sometimes these people acted individually, but more often they formed organizations. In some cases these organizations were established simply to promote the rights of their respective members, but in other cases their goal was improved respect for the rights of all citizens. Beginning even before the war, with the creation of Canada’s first civil liberties organizations, and expanding significantly in the early postwar period, these different bodies opposed both limitations on freedom and discrimination on the basis of race, religion, and national origin. (To some degree they also opposed discrimination on the basis of sex, but in the pre-feminist era, before the 1960s, there were few people actively opposed to patriarchy.) At first these organizations focused upon specific violations of rights, somewhat later they began to lobby for anti-discrimination legislation, and over time they came together in a campaign for a constitutional innovation – the creation of a Canadian Bill of Rights. Before we proceed further, it is useful to define some terms. For the purposes of this book, ‘human rights’ are certain moral concepts believed by many people to be true. It is not important in a work of history to discuss whether these concepts are philosophically tenable or simply ‘nonsense on stilts,’ as Jeremy Bentham once said of an earlier version of human rights (that is, natural law). It is beyond dispute that ‘human rights’ exist as a concept in people’s minds, that they have an effect on people’s behaviour, and that they have been written into various pieces of international and national legislation. They are, therefore, grist for the mill of historical investigation. It is generally agreed that the concept of human rights is rooted in the notion of human dignity; human rights supporters maintain that every person is morally entitled to certain standards of decent treat-

Introduction—7

ment by virtue of that person’s membership in the human race (rather than membership in a particular state or the possession of certain qualities such as wealth, gender, race, age, or religion). In the words of the Catholic philosopher Jacques Maritain, writing at the dawn of the ‘age of rights,’ each individual ‘possesses rights because of the very fact that it is a person, a whole, master of itself and its acts, and which consequently is not merely a means to an end, but an end, which must be treated as such.’7 Human rights can be categorized in a number of ways. The United Nations agreements that make up what has been called the International Bill of Rights are the Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and the International Covenant on Civil and Political Rights. The 1948 UDHR lists certain principles embracing a wide scope of ‘human rights and fundamental freedoms,’ a set of moral guidelines that are not actually binding in international law. The two covenants, however, approved only in 1976, are legally binding on all states that have ratified them (including Canada), and they outline in considerable detail the principles of the UDHR. The Covenant on Civil and Political Rights refers primarily to classical-liberal rights, such as the right to free speech and the right to a fair trial, while the other covenant deals mainly with reform-liberal (or even social-democratic) rights, the so-called ‘programmatic rights’ such as the obligation of a state to provide programs that give its citizens basic education or a level of health care consistent with the state of the economy. Most of these rights are individual rights (that is, they can be exercised by individuals apart from any group membership), but both covenants also refer to a particular collective right, the right of a people to ‘national self-determination.’8 Both individual and collective rights have enjoyed some degree of constitutional protection in Canada from the very beginning. The 1867 British North America Act, the founding document, stipulated that Canada was to have ‘a constitution similar in principle to that of the United Kingdom,’ which meant, among other things, a system in which individual rights were implicitly guaranteed. But it also made Canada a federal state (something completely foreign to the British tradition); protected several types of collective minority rights, such as Frenchand English-language rights and the right to denominational schools (separate state-supported schools for the Protestant minority in Quebec and for Catholics in some areas outside of Quebec); and, of course,

8—Repression and Resistance

confirmed Canada’s status as a colony of Great Britain, with the result that the collective rights of the mother country had legal supremacy over the collective rights of its offspring. Early Canadian history involved, to a significant degree, conflict about collective rights – Canada’s right to independence, provincial rights, and linguistic and denominational school rights. In addition, some new collective rights issues emerged after Confederation, such as the special legal status of certain collectivist religious groups such as Doukhobors, Mennonites, and Hutterites. And in recent years the once largely invisible issue of aboriginal rights has been pushed onto the centre stage of Canadian consciousness. This book, however, focuses on individual rights issues, avoiding any discussion of collective rights except where they impinge incidentally upon the topic at hand. An analysis of both individual and collective rights would constitute a historiographic morass in which both the reader and writer could easily founder and be lost.9 Individual rights, however, can also be divided into different categories. This book will focus upon two – libertarian and egalitarian rights. The former refer to the right of the citizen to be free from excessive governmental intrusion into the lives of citizens. This has always meant, among other things, not only the right to own and exploit private property, but also the right to free speech, the right to free association, and the right to freedom of religion. The latter refer to the right to be treated as an equal – not to be treated by either the state or other members of society as a second-class citizen.10 Dichotomizing individual rights in this fashion is useful in a number of ways. First, it enables us to see that some groups, such as Communists, were struggling primarily to protect their libertarian rights – the right to free speech and free association – while other groups, such as Jews, were fighting primarily to achieve egalitarian rights – the right not to suffer discrimination on religious grounds. Second, it also draws our attention to the fact that there is an eternal tension between individual freedom and equality; the two are not easily reconcilable. For example, laws prohibiting discrimination in the provision of public services are clearly a limitation on the freedom of merchants who may wish to discriminate. This book examines demands for both libertarian and egalitarian rights by focusing upon the people who made the demands, particularly individuals organized into interest groups. In doing this, it makes an analytical distinction between two kinds of human rights groups.

Introduction—9

First, there were civil liberties organizations that championed both libertarian and egalitarian rights but leaned more in the direction of the former than the latter. Second, there were equality rights groups, organizations that for the most part were unconcerned about individual liberty and concentrated instead upon the inequalities deriving from racial and religious prejudice. (Today the difference between groups that emphasize equality over freedom and those that emphasize freedom over equality is often described as a split between human rights and civil liberties bodies. For example, in British Columbia there exists a B.C. Civil Liberties Association as well as a B.C. Human Rights Coalition. Notwithstanding this contemporary terminological distinction, I have chosen to use the term ‘human rights group’ as an overarching concept that embraces both egalitarian rights organizations and civil liberties associations. In short, it is a theoretical category, not an empirical description.) Egalitarian rights groups and civil liberties groups did not always see eye to eye on human rights issues, but they were not poles apart. Frequently they cooperated, forming the two core elements of what can be called the human rights policy community. (The political scientist Paul Pross has defined a policy community as ‘that part of a political system that – by virtue of its functional responsibilities, its vested interests, and its specialized knowledge – acquires a dominant voice in determining government decisions in a specific field of public activity, and is generally permitted by society at large and the public authorities in particular to determine public policy in that field.’) Much of this book, therefore, deals with the way in which egalitarian rights groups, civil liberties groups, and their allies formed human rights policy communities at both the national and the local level and lobbied to pursue their common goal of improved respect for human rights.11 Another useful concept is that of the ‘policy network.’ William Coleman and Grace Skogstad have defined a policy network as ‘the properties that characterize the relationships among the particular set of actors that forms around an issue of importance to the policy community.’ One can thus speak of a Canadian post-war ‘human rights policy network’ each time the members of the rights community joined together and focused upon a particular policy issue.12 Chapter 1 deals briefly with the years following Confederation until the Great Depression. When the first Canadian civil liberties groups emerged in the 1930s, libertarian rights took precedence over egalitar-

10—Repression and Resistance

ian rights, and one issue in particular was paramount – the so-called Padlock Law in Quebec, which was used to attack Communists and anyone else perceived to constitute a threat to the economic-politicalreligious establishment of the province. To a large extent, the early history of civil liberties groups in Canada is the history of resistance against the Padlock Law. With the advent of the Second World War, the main threat to civil liberties came from Ottawa more than from Quebec. Chapter 2 looks at the civil libertarian response to the war, including the way in which Communist/non-Communist tensions led to the demise of some of the civil libertarian organizations. Chapter 3 concentrates upon the emergence of an egalitarian rights coalition called the Co-operative Committee on Japanese Canadians (CCJC), created to fight Ottawa’s treatment of Japanese Canadians, especially its plans to deport many of them at the end of the war. The CCJC stands as one of the first examples of an egalitarian human rights policy community; rather than focusing on libertarian rights, it took on the related but different issue of discrimination, and it did so in a way that transcended individual self-interest, for while the Japanese community was an important part of the CCJC, the coalition involved many other groups motivated primarily by a commitment to social justice. This included, moreover, certain civil liberties organizations, which for the first time had begun to turn their attention to egalitarian rights. Of course, civil liberties groups still remained interested in individual freedoms. Chapter 4 looks at the civil libertarian responses to the Gouzenko affair, the 1945 – 6 Soviet espionage case, and examines the re-emergence of a Communist/non-Communist schism within the civil libertarian movement. The emergence of the Cold War made it increasingly difficult for any form of cooperation between these two factions. Meanwhile, some minority groups had decided, in the light of Nazi atrocities and the emerging international discourse of human rights, that they should take action against racial and religious discrimination. Chapter 5 examines the Canadian Jewish Congress, which in the late 1940s and early 1950s took a leading role in the fight against prejudice and discrimination, coalescing with other bodies and demanding legal changes. The chapter also shows how, simultaneously, the CJC’s allies in the civil liberties organizations underwent a sea change in their attitudes towards equality rights – they jettisoned their classical liberal belief that the state should not intervene in the market.

.

Introduction—11

place and embraced the reform-liberal notion that the state has a positive obligation to provide anti-discrimination legislation. Together, the Jewish community and civil libertarians (along with a wide variety of other groups) successfully lobbied for a number of legal changes that better protected ethnic and religious minorities from the more overt manifestations of bigotry. Chapter 6 deals once again with the Cold War and the divisions between Communist and non-Communist civil libertarians. These groups failed to create a national organization and usually worked in parallel, running along twin tracks that led in the same direction but seldom converged. However, the two camps did manage to transcend their differences on one issue – the Padlock Law – bringing it before the Supreme Court in 1957 and obtaining a ruling that the statute was indeed unconstitutional. Chapter 7 moves from libertarian issues back to the problems of securing egalitarian rights. It examines the role of the Jewish Labour Committee (JLC), which created an important national network of human rights labour bodies in the late 1940s and early 1950s. These were the nation’s first real equality rights groups – committed to a general defence of ethnic equality rather than simply defending the interests of a particular group. (However, they were not, on the whole, very interested in gender equality and said little about aboriginal rights.) This chapter analyses in particular the way one of these labour committees in Toronto played a key role in the campaign to have the Ontario government create one of Canada’s first anti-discrimination statutes in the early 1950s. The same organization then worked with the black community of Dresden, Ontario, to ensure that the law would end the ‘Jim Crow’ policies of certain local businesses. Yet legal victories for human rights activists in the immediate postwar period were limited in their scope, and consequently many leaders began to demand the creation of a bill of rights in the constitution. As Chapter 8 demonstrates, this law did not emerge full-blown from the brow of John Diefenbaker; it was the end product of a long period of lobbying and coalition-building. While Cold War divisions still made it difficult for Communists to work with non-Communists on this issue, virtually all members of the Canadian human rights community took part in the struggle and frequently coordinated their activities, building upon the experiences and networking of earlier campaigns. Their efforts paved the way for Diefenbaker to achieve what had become one of his major goals.

12—Repression and Resistance

In examining the first six of the major issues mentioned above – the Padlock Law, the deportation of Japanese Canadians, the Gouzenko affair, the early anti-discrimination law, the Cold War issues, and the Dresden story – each chapter of this book dwells primarily upon either the civil liberties associations or the equality rights groups of the human rights community. (Chapter 8, dealing with the Bill of Rights, was just as important to civil liberties groups as it was to equality rights groups.) However, this analytical distinction should not be taken too far. The two sets of organizations were often linked by individuals with a foot in each camp, and they often cooperated. Sometimes equality rights groups could take an interest in civil liberties, and from about the Second World War onwards the civil liberties groups became increasingly concerned with egalitarian rights. Despite their differences, they began to coalesce into a human rights policy community. It is a central assumption of this book, unlike most other works touching upon this period of human rights history, that a full understanding of the era must involve a discussion of the activities of both equality rights bodies and civil liberties organizations. Some of these were private, others were ‘public.’ A private interest group is an organization devoted to promoting the affairs of its own members; trade unions, ethnic organizations, and churches are all private interest groups. If they promote the human rights of other members of society, that activity is only tangential to their more fundamental purpose. A public interest group, by contrast, is ‘one that seeks a collective good, the achievement of which will not selectively and materially benefit the membership of the organization.’13 Environmental and consumer groups are often considered to be public interest groups, but any body that is concerned with the promotion of one or more of the essential liberal values of freedom and equality can also be legitimately considered a public interest group. Both civil liberties organizations and equality rights bodies are sufficiently broadly focused to qualify for this categorization. True, the distinction between private and public interest groups is disputed. It has been argued that what at first glance seems to be ‘the public interest’ is usually really a private interest. So-called public interest groups are then dismissed as simply ‘special interest groups’ which, cleverly hiding behind a semantic smoke–screen, act as selfish advocates of their own tribal values and goals. Of course, it must be conceded that no human rights group is entirely composed of altruistic and principled members; some people will support such groups

Introduction—13

simply because it is in their strategic interest to do so. However, a rights group that does not selectively promote the interests of its own members but defends certain general principles is certainly more ‘public’ than a group set up to defend only the interests of its members.14 Indeed, there are compelling pragmatic reasons for the emergence of public interest groups, as well as for private interest groups to embrace public goals. As Alan Borovoy of the Canadian Civil Liberties Association has pointed out in a recent book, ‘it’s easy to understand ... why numbers of women would support women’s liberation, but why should men do so? What’s in it for them? Why should anyone but the beneficiary of a particular measure support it?’ In short, why would members of different ethnic groups, classes, languages, or religions, as well as genders, ever come together and make common cause on an issue?15 One obvious answer to this rhetorical question is the modern truism that, in the field of human rights, we are all minorities of some kind. Another way of putting it is the cruder and more general aphorism that if we do not hang together we will all hang separately. In other words, enlightened self-interest can build consensus out of fragmentation. Borovoy seems to be suggesting, however, that hanging together will be easier if the focus is on what he calls ‘universal values’ rather than particular interests. He argues that any organization that can appeal to ‘a system of universality that appears equally fair to all’ will have considerable power in drawing together diverse groups. Moreover, he concludes, liberal values such as individual freedom and equality constitute the best contemporary solution to this problem. Appeals to these liberal values will draw people with different identities together in a way that overcomes what Borovoy calls their ‘tribal loyalties.’16 This transcendence of tribal loyalties may be important for more than practical political reasons. The political scientist Benjamin Barber has argued that political activists united in the pursuit of universal values constitute a crucial element of a healthy society. If Canada is a society that works, notwithstanding our high levels of ethnic diversity and other potentially divisive interests, one of the reasons for this may be that we have developed over time organizations committed not just to their own self-interests but to broader values of freedom and equality. Tracing the emergence of such organizations is one of the goals of this book.17 Of course, we should not assume that transcending self-interest and embracing wider principles is easy. According to the psychologist

14—Repression and Resistance

Lawrence Kohlberg, the ability to deal with abstract ethical principles, such as universal principles of justice or respect for human rights, is at the highest level of moral development and not something that most citizens can achieve. Most of us, as Borovoy seems to be suggesting, are likely to support a public interest group more for reasons of indirect self-interest than out of a genuine commitment to abstract principle. Or, as Pierre Elliott Trudeau has put it, ‘few men are aroused by injustice when they are sure of not being its victims ...’ The tension between pragmatism and principle is an enduring part of the human condition, and is nowhere more apparent than in the field of human rights activism.18 Aside from this, concentrating on the evolution of a human rights policy community within the context of liberal universal values imposes some limitations and raises certain questions. For example, many human rights issues that are important today were either ignored or weakly voiced by rights groups during the period covered by this book. As a result, not only collective rights but also a number of important individual rights issues, such as censorship of literature and art, are for the most part not examined here. In addition, this book says little or nothing about the rights of women, gays and lesbians, the physically and mentally challenged, and aboriginals. This does not imply that members of these groups did not suffer discrimination, or that such discrimination was trivial. It simply means that this work focuses on major public issues during a specific time period, rather than examining all the major private wrongs. To take just one example from this period, the involuntary sterilization of the ‘feeble-minded’ often created terrible injustice, but it was not an issue taken up by any human rights group until at least the late 1960s.19 In addition, the institutional focus of this book means that ‘French Canada’ is both important and peripheral. A number of Quebec-centred issues, such as the infamous Padlock Law, had a major impact on the national scene. However, within Quebec most of the rights activists were anglophones; only a few Québécois played a role in human rights organizations. Prior to the Quiet Revolution in Quebec, debate over la survivance, and the corresponding matter of provincial rights, played better upon the political stage than any discussions of individual liberties. Finally, it must be stressed that this book is not based upon an implicit assumption that the perfection of liberalism constitutes the highest point of human development. Charles Taylor has argued cogently that the collectivism of a society like Quebec is not necessarily

Introduction—15

mistaken or without value simply because it deviates from the traditional individual-rights model of liberalism.20 In addition, there is considerable merit in the social-democratic notion (which for a while was debated as part of the Charlottetown Accord, and which has support in the International Covenant on Economic, Social, and Cultural Rights) that such goods as a basic education, adequate health care, and decent housing should be considered ‘social rights’ rather than gratefully accepted privileges. As this book will demonstrate, many of the early civil libertarians in Canada cherished the core liberal values of political freedom and equality but believed that they should be supplemented by the rights inherent in a system of democratic socialism. Of course, many democratic socialists are simply progressives wearing track shoes – liberals in a hurry. The most powerful criticism of liberal values comes from Marxists, who have frequently argued that liberal rights are mere ‘bourgeois’ obfuscations of the underlying reality of class oppression, a way of putting off the inevitable revolution by misleading the masses and placating them with band-aid solutions. But, as this book shows, liberal rights are a valuable means of achieving political and social reform in a capitalist state; during most of the twentieth century the Communist Party in Canada defended these rights vigorously, realizing that they needed them as protection. The radical British labour historian E.P. Thompson is undoubtedly right when, in defending one of the core elements of a liberal legal system, he says, ‘I am insisting only upon the obvious point, which some modern Marxists have overlooked, that there is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me an unqualified human good.’21 Yet, as Marxists like to remind us, people make their own history but not under conditions which they have chosen. The struggle for human rights in Canada was fought by individuals both within and outside different organizations, but their success was to some degree contingent upon a number of external factors: the nature of the economy, the political culture (including changing international values), and the overarching institutional-legal framework. This leads to some final questions, which are at the centre of this book’s Conclusion: Where did these people succeed, where did they fail, and why? In short, how do we explain their contribution to Canada’s shift into the post-war ‘age of rights’?

16—Repression and Resistance

1 Civil Libertarians and the Padlock Law

Canada’s gradual entry into the age of rights, from about 1930 to 1960, was marked by several developments. First, there emerged a number of organizations devoted to the protection of what today we would call ‘human rights.’ There had certainly been rights groups prior to this period; take, for example, the impressively named but unremittingly illiberal Equal Rights Protective Association, an organization formed in 1889 for promoting the rights of anglophone Protestants at the expense of French-speaking Catholics. But the period studied by this book, especially the post-war years, saw an unprecedented proliferation of organizations devoted to the protection of both libertarian and egalitarian rights. Second, these organizations were in many cases a new species altogether. Rather than being associations of self-protection, they often concerned themselves with the protection of others. It is true, of course, that altruistic political intervention was not unknown in the years before 1930; consider, for instance, the Society of Friends of the Indians of British Columbia, an interest group formed in the early part of the twentieth century.1 But there were no civil liberties organizations prior to the 1930s and no egalitarian rights groups – organizations devoted to the principle of equality for all – until the years immediately following the Second World War. Third, these groups also began to speak a new language (or discourse). Rather than trumpeting the virtues of traditional ‘British liberties,’ they began to speak of ‘human rights,’ a phrase that not only had a wider meaning than the term it replaced but also was more likely to appeal to Canadians whose ancestry was other than AngloCelt. Once again, there was no abrupt change; references to ‘human

Civil Libertarians and the Padlock Law—17

rights’ were not wholly absent in the years before 1930, but they were rare. Then, during the Second World War, the concept of human rights began to take root in people’s minds and speech, and it achieved international recognition by virtue of incorporation into the Charter of the United Nations. But although it was further enshrined by the Universal Declaration of 1948, the linguistic shift developed only gradually. Attachment to the heritage of ‘British liberties’ could fade away only when Canada sloughed off its traditional colonial mentality, and this was contingent upon a number of factors – changing immigration patterns, the rise of a new generation with different values, and an increasing awareness that the sun had indeed set upon the putative glories of the British Empire.2 Later chapters in this book will examine the shift from ‘British liberties’ to ‘human rights,’ as well as the emergence of egalitarian rights groups. This chapter deals with a prior development – the emergence during the 1930s of a number of rights groups, including the first Canadian civil liberties organizations. But to explain the way in which Canada began to change in the 1930s, and then changed even more in the 1940s and 1950s, it is necessary first to investigate briefly the way in which Canadians thought and spoke about basic rights and liberties in the years immediately following Confederation, from 1867 to the late 1920s. At the time of Confederation, Canada was a liberal state with ‘a constitution similar in principle to that of the United Kingdom.’ This portmanteau phrase, which appears in the preamble of the British North America Act, was included by the Fathers of Confederation as an alternative to creating a list of key liberal principles. The BNA Act is specific about some things, such as the fact that Canada is to be a monarchy with a parliamentary system of government, as well as a federal system with powers carefully divided between Ottawa and the provinces, and it also creates a Senate which is intended, among other things, to represent the propertied classes. But it says nothing explicitly about certain British statutes, conventions, and legal principles such as Magna Carta, the 1689 Bill of Rights, responsible government, the rule of law, or the common law rights of free speech, freedom of religion, freedom of association, and the right to a fair trial. All this was implied in the preamble. These cherished British values were considered by the Founding Fathers to be essential, for it was conventional wisdom that British culture, including its legal system, constituted the evolutionary high

18—Repression and Resistance

point in a Darwinian age. As one commentator put it in the 1870s, ‘to reproduce the British constitution, with its marvelous heritage of balanced power and liberty ... and to do this across the breadth of a whole continent – these are objects which are worth some labour, some sacrifice to obtain.’3 It was also self-evident, at least to the political elites, that British traditions were the constitutional epoxy which could hold together the two ‘founding races’ – the British and French. In the words of Sir Wilfrid Laurier, in a famous speech on political liberalism, he and his fellow French Canadians had found both ‘liberty and security in the shadow of the British flag and its accompanying institutions.’4 This happy state of affairs, moreover, was achieved without any supplement to the BNA Act in the form of a bill of rights. A constitutionally entrenched list of citizens’ rights was considered to be an American concept, a radical innovation that was at best unnecessary and at worst slightly dangerous, the product of the optimism and revolutionary zeal of the Enlightenment. The Canadian constitution, by contrast, was drawn up in the sober era of British utilitarianism, the product of a legal-positivist mindset which shied away from any grand listing of natural rights. According to A.V. Dicey, the eminent Victorian legal scholar who not only reflected the constitutional certainties of the age but also drove them home to several generations of British and colonial lawyers, the unwritten elements of the British system were ‘for practical purposes worth a hundred constitutional articles guaranteeing individual liberty.’5 Dicey added to the intellectual scaffolding that supported this constitutional smugness. He argued that the principle of parliamentary supremacy, ‘the very keystone of the law of the constitution,’ was sufficient in the hands of an enlightened electorate to ensure that both liberty and security would coexist in amicable glory. In short, the final decision on any matter involving individual rights and liberties was to be left to Parliament. This principle of parliamentary supremacy was another of the British elements that the BNA Act’s preamble implicitly guaranteed to Canadians. Of course, because Canada was also created as a federal system, this meant that it would be perhaps more accurate to say that the country enjoyed the supremacy of parliaments in the plural, provided that those parliaments operated within the federal-provincial division of powers. It was true that there were some constitutional limitations on this principle (such as the supremacy of the British

Civil Libertarians and the Padlock Law—19

Parliament over its colony, or the guarantees of certain linguistic and minority religious school rights), but by the turn of the century it was clear that the courts would defer to the national and provincial legislatures in matters involving individual human rights.6 Whether or not the voters and their lawmakers would actually respect these rights depended upon a number of factors, including the dominant discourses of the post-Confederation period. Since the term ‘human rights’ was almost unknown during this period, people frequently referred to their heritage of ‘precious British liberties’ and the principle of ‘British fair play,’ terms that embraced the liberal ideals of freedom and equality. In practice, however, these terms could be used to permit or even to justify what we today would consider to be a number of serious violations of fundamental human rights. Take, for example, the issue of equality. At the legal-constitutional level this concept was guaranteed by the principle of the rule of law, a central part of the British heritage which stipulated, among other things, that all people were equal in the eyes of the law. In the words of A.V. Dicey, this meant that ‘no man is above the law’ and ‘every man, whatever his rank or condition, is subject to the law of the realm and amenable to the jurisdictions of the ordinary tribunals.’7 The right of equality before the law was, however, a procedural rather than a substantive guarantee. In other words, while all citizens had the right to be treated fairly by the legal system, whatever their rank in society, the rule of law did not protect any group of citizens or even a single individual from the sting of discriminatory legislation. In the face of a legislature determined to discriminate against a minority, the rule of law provided scant protection against injustice. As a result, at first the right to vote in Canada was granted only to men (not women) who possessed at least a moderate degree of personal property, and soon the franchise laws excluded both aboriginals living on reserves and people of Asian extraction. Over time, racial and religious discrimination became a fact of life, for English Canadians were trying to build not just a nation that replicated British liberal values but also one that mirrored its ethnic and cultural identity – a ‘white man’s society’ that was English-speaking, primarily Protestant, and thoroughly British in its institutions and culture. From this there flowed both a set of immigration laws that tried to filter out ethnic ‘undesirables’ such as Asians, blacks, and Jews and a number of domestic laws that discriminated against those lucky enough to slip through the relatively porous barriers.8

20—Repression and Resistance

Yet it was not only government that acted in an illiberal fashion. Ordinary citizens, especially those involved in business, often violated the equality rights of unpopular minorities. The more violent and public examples of these constitute what might be called ‘headlines history’ – for example, the anti-Asian riots in Vancouver in 1907 and incidents involving the Ku Klux Klan.9 More often, private discrimination consisted of subtler forms of pressure, the death of a thousand cuts. Some flavour of this can be captured by reference to a few representative incidents – a woman being informed in the 1890s that she and other women were barred from study at an Ontario law school,10 a concert hall in Montreal refusing to let a black couple sit in the orchestra section,11 the insertion in the early twentieth century of discriminatory restrictive covenants in property deeds for Vancouver’s tony British Properties neighbourhood (making it virtually impossible for a person of Asian extraction to purchase or build a house in that area),12 and an admissions officer at McGill University telling a Jewish youth in the 1930s that ‘my job is to keep people like you out of this institution.’13 Canadian history is full of stories like these, some of them recalled in written records, some of them restored by our historiography, but many buried in the memories of fading generations. To be sure, at the ideological level, British liberal values provided some protection for equality rights. First, they underpinned what has been called the principle of ‘equality of right,’ a notion rooted in an earlier struggle against the hereditary privileges of feudal society; initially, it meant that there should not be one law for the nobility and another law for ‘lesser’ mortals. In addition, liberal values also began to embrace a supplementary concept called ‘equality of opportunity,’ the idea that each individual should be free to develop without artificial restrictions. In other words, the ‘logic of the system’ drove liberals to believe that there should be no substantive barriers to the full enjoyment of the rights of citizenship.14 Yet this logic battered against, and was often defeated by, the barriers of privilege. The notion of equality always carries within it an implicit question – equal to whom? At the level of a society, the answer is usually those people who make up what, for want of a better term, can be called ‘the establishment’ – those who enjoy the most economic, social, and political power. They are the citizens who enjoy the greatest measure of privilege and who resist any attempts at levelling. And in the past they had both the arguments and the political

Civil Libertarians and the Padlock Law—21

power to guarantee that their privileged position would not be quickly nibbled away by outsiders. Yet in many cases the beneficiaries of privilege were not necessarily members of the political elite. For example, the legal historian John McLaren has shown that widespread public pressure in the British Columbia of the 1880s was responsible for the passage of a number of illiberal laws discriminating against the local Chinese, laws that were struck down by certain undemocratic but liberal judges. By the end of the century, however, nativism and democracy had overwhelmed these liberal impulses, undermining the egalitarian rights of Asian immigrants.15 Similarly, John Herd Thompson has pointed out that the Anglo-Celtic settlers of the prairie provinces in the early years of the twentieth century subscribed to a belief in ‘the sanctity of majoritarian democracy.’ This notion, allied with ideas of British cultural superiority, became the justification for suppressing both the language rights of French speakers and the educational rights of the Catholic minority.16 Privilege also raised barriers to political freedom. As the labour movement gained strength in the early twentieth century, and as radical left-wing ideologies began to capture the imagination of many workers, the representatives of Canadian government at all levels – municipal, provincial, and federal – reacted by limiting ‘British liberties.’ Freedom of speech for the Industrial Workers of the World (the IWW, or ‘Wobblies,’ as they were commonly known) was curtailed, and many of their leaders were jailed on trumped-up charges such as vagrancy. Then, during the First World War, the federal Parliament passed the War Measures Act. This temporarily gave the cabinet enormous powers, permitting it to create any laws that it might ‘deem necessary or advisable for the security, defence, peace, order and welfare of Canada ...’ The government made full use of the sledgehammer powers of this legislation to clamp down on traditional ‘British liberties,’ targeting people thought to be sympathetic to the enemy as well as limiting the rights of those opposed to the injustices of the economic system.17 Soon after the war, in response to the fright that it received when strikers shut down and took over the city of Winnipeg, Ottawa tilted the scales even further towards ‘order’ rather than ‘liberty’ by amending the Immigration Act so as to facilitate the deportation of radicals. The new section 41 of the act, which passed both houses of Parliament

22—Repression and Resistance

in less than twenty minutes, explicitly permitted the deportation of anyone not born in Canada – British-born or otherwise – who sought to overthrow the government by violence, who destroyed property unlawfully, or who ‘by word or act create[d] or attempt[ed] to create riot or public disorder in Canada.’ This was a powerful tool in the hands of an apprehensive and authoritarian government.18 Ottawa also responded to the Winnipeg General Strike of 1919 by creating what became known as section 98 of the Criminal Code. This declared unlawful ‘any association whose purpose it is to bring about any governmental, industrial or economic change in Canada by force or violence, or which teaches or defends such uses of violence.’ Members of such organizations could be sent to prison for up to twenty years, and there was a reverse onus clause that presumed guilt in the absence of contrary evidence, even if a person had simply distributed a prohibited organization’s literature or attended one of its meetings. At the same time, the production or importation of such literature was prohibited, and in a separate section the penalty for sedition was raised from two years in prison to a Draconian maximum of twenty.19 Limitations on libertarian rights were the product of two different strains of political culture, acting in response to the perceived threats of the time. In Quebec, ‘British liberties’ were often regarded as a foreign import. As Laurier had to admit, in the middle of his famous speech on the British political heritage, in his province liberalism was often regarded as a dangerous and revolutionary ideology, and his compatriots were often unfamiliar with liberal institutions. Some years later, the ultramontane leader of the Catholic Church, Cardinal Roderique Villeneuve of Quebec, demonstrated this in a speech to an audience of non-Catholics, where he proclaimed that ‘I tolerate you in order to have your collaboration in the common good, and when such collaboration stops, when you preach corrosive doctrines and spread everywhere poisoned seeds, then I can no longer tolerate you. Such, gentlemen, is Catholic liberalism, the true liberalism.’20 The other side of the authoritarian coin was anglophone Toryism, which favoured order over freedom. This conservative perspective often cribbed and confined the liberties of others, honouring British traditions more in rhetoric than in application. As one critic in the 1930s put it, those ‘who are most vociferous about the sanctity of British institutions are also most emphatic about preventing those with whom they disagree from enjoying them.’ Moreover, these Tories usu-

Civil Libertarians and the Padlock Law—23

ally called for limits on freedom when freedom threatened their economic privileges. As the Canadian diplomat Escott Reid wrote, looking back on this period of political turmoil: ‘In the twenties and thirties most of the big business men in the English-speaking communities of Canada professed great admiration for Britain and British traditions yet many, possibly most of them, advocated curbs on freedom of speech repugnant to British traditions. Probably they thought that freedom of speech, particularly at universities, would endanger their material interests. French radical-socialists in the thirties were said to have their hearts on their left and their purses on their right. These big business men had pro-British sentiments on their left and their material interests on their right.’21 Yet the justification of authoritarian measures in English Canada fell within the elastic framework of liberalism. Frequently conservatives relied upon the Lockean distinction between freedom and licence – the former was held to be desirable, but only in moderation; taken to extremes it was likely to turn into the latter, a threat to the social order. However, it was Edmund Burke far more than Locke who seems to have been the ideological touchstone for Canadian Tories. A belief in the virtues of the market, a mistrust of democracy, and an emphasis on order and stability were typical of their English-Canadian version of conservatism. As Prime Minister R.B. Bennett argued, in a speech that was well received by the Tory press, ‘As we have freedom, so have we justice. It is not just or right that now, or at any other time, we should permit, by word or deed, such action as may tend to unsettle confidence in the institutions and customs under which we live.’22 Resistance to the perceived injustices of both authoritarianism and prejudice was not uncommon in these early years, but it tended to be either individual or limited to the ad hoc efforts of narrowly defined communities. There is no evidence of any groups that could be called human rights organizations – bodies devoted to equality in general rather than simply a ‘better deal’ for members of a particular ethnic, religious, gender, or occupational/class category. When, for example, the British Columbia government passed a law denying the vote to Chinese (and later, to Japanese and Indo-Canadians), there was no organization to protest this as a violation of traditional ‘British liberties.’ And when the law was, at the turn of the century, challenged (unsuccessfully) as an unconstitutional infringement of the federal division of powers laid out in the BNA Act, the challenge was launched

24—Repression and Resistance

by the Japanese community on the west coast, apparently operating on its own and without any support from other minority ethnic groups.23 Nor do there seem to have been any groups that could be called civil liberties organizations – bodies committed to the traditional liberal freedoms of citizens in general. Perhaps the closest thing to early civil libertarianism was the ‘free thought movement,’ which, beginning in the 1870s, attacked organized religion but defended civil and religious liberty, including freedom of speech.24 In the early part of the twentieth century, some organizations took up the fight for liberal freedoms, but these were really only reactions by groups whose own political oxen had been gored – for example, the Workers Political Defense League, organized at the end of the First World War. Then, in the 1920s, Communists set up the Canadian Labor Defense League (CLDL), an organization devoted to the defence of these traditional British liberties. This too was not, strictly speaking, a public interest group devoted to fighting for the rights of all Canadians. It was committed to the rights of free speech and freedom of association, but only in cases where the state was oppressing workers; the rights of the bourgeoisie were irrelevant or even antithetical to its goals. At best, it could be considered a proto-civil liberties organization.25 Meanwhile, harsh repression of socialists, anarchists, communists, and pacifists in the United States had created a counter-reaction which in 1920 led to the founding of the American Civil Liberties Union (ACLU). The reason why Canadians did not soon follow this example is not entirely clear. Perhaps there was simply no one in Canada equivalent to the single-minded Roger Baldwin, founder of the ACLU. It is more likely, however, that Canadians were still too British to emulate the American example (which, admittedly, was not initially very successful). It would not be until 1934 that the British would create their own civil liberties organization – the National Council for Civil Liberties – and it would have been unusual if Canadians, who at this time still lived in what was very much a British colony, both legally and intellectually, had taken a step in advance of citizens in the mother country.26 Canadian governments began once again to clamp down on radical organizations in 1929 and then intensified their efforts as the Great Depression called into question the legitimacy of both capitalism and liberal democracy. This was a period in which the authorities increasingly demonstrated what literary critic Northrop Frye has called their

Civil Libertarians and the Padlock Law—25

‘garrison mentality’ – seeing British Canada as ‘a closely knit and beleaguered society ... [where] one is either a fighter or a deserter.’ An organization such as the CLDL occupied an ambiguous position within this perspective. As an active and often effective supporter of traditional British liberties, it became attractive to many liberal and socialdemocratic Canadians. But it nevertheless remained a narrowly focused rights organization, usually defending the rights of ‘foreigners.’ Moreover, it also carried a certain taint because of its Communist association.27 As people suffered, organized, and protested during the 1930s, the police in communities across the country increasingly squelched leftwing activities (and sometimes strikes) by prohibiting meetings or arresting organizers on charges such as vagrancy, unlawful assembly, and rioting. Sometimes they used what the increasingly social-democratic Canadian Forum called the ‘barbarous and stupid methods’ of beating, dispersing, and arresting protesters. At other times the gag was less intrusive; the former Communist Peter Hunter has recalled that ‘in the small town of Chatham, all attempts to speak were foiled by a chief of police who supervised a bunch of students in drowning me out by ringing their bicycle bells.’28 There were various repressive tools available to the authorities, such as section 98 of the Criminal Code or deportation under the Immigration Act. Another was the law of sedition. In early 1931 a number of Communists were arrested in Montreal, charged with sedition, and sentenced to a year’s hard labour in the notorious Bordeaux jail. The law was also applied (concurrently with section 98) against Tim Buck, leader of the Communist Party of Canada (CPC), and several of his associates; it was then used against the CLDL leader A.E. Smith when he accused the prime minister of being complicit in an attempt to murder Buck during a prison riot. In addition, the police in Quebec used section 98 to harass the Jehovah’s Witnesses, notwithstanding the fact that they were hardly preaching the violent overthrow of the state. In some cases the accused were either found not guilty or acquitted on appeal, but the frequent use of the law clearly put a chill on citizens’ right to free expression.29 While the CLDL played a central role in fighting against these trials, deportations, and police excesses, a number of non-Communist Canadians raised their voices. One of them was Frank Scott, a law professor, social democrat, poet, supporter of prison reform, and, over time, seminal member of the Canadian civil liberties movement. Described

26—Repression and Resistance

by one of his colleagues as having a ‘tall, handsome, rather austere appearance,’ and more colourfully by a journalist as possessing ‘a strong-boned dolicocephalic vault with a renaissance nose and a mobile mouth,’ Scott was said to have a personality that contained ‘passion and compassion, generosity and tolerance, sensitivity, a witty sense of humour that could respond to any occasion, and an enormous relish for life.’ The son of an Anglican archdeacon in Montreal whose Canadian roots went back several generations, he was aware that his background gave him more power than most other people to ‘get away’ with unpopular statements and positions.30 Through his father, Scott was exposed to the values of the Social Gospel, a version of Christianity that stressed the brotherhood of mankind and the necessity of social action (as opposed to simple prayer and individual rectitude), but he was also influenced by Fabian socialism while attending Oxford as a Rhodes Scholar, as well as by the writings of J.S. Woodsworth, the Independent Labour Party politician who later became the first leader of the national social-democratic party, the Co-operative Commonwealth Federation (CCF). These influences, and his perceptions of the great gulf between rich and poor, turned the sensitive poetic youth into a life-long socialist. Aroused by injustices towards others, he frequently acted out of principle rather than retreating, as he easily could have, into the cosseted and comfortable life of an establishment lawyer. As he wrote in 1933, Canada needed ‘... a supreme act of sympathy and justice towards the whole working class by those in power – a release of our natural wealth for the needs of the starving, a placing of human welfare above property rights, and an insistence that the burden of the depression shall be distributed equitable over all classes in the community.’31 Scott soon became what might be called a ‘nodal’ actor in the developing Canadian human rights community. A founder of the League for Social Reconstruction (LSR), a group of left-wing intellectuals who helped to found the CCF, he played a leading role in the CCF and also worked with a multiplicity of organizations, including groups committed to civil liberties, prison reform, and justice for Japanese Canadians. Moreover, he was connected to a wide spectrum of influential political figures by virtue of his membership in the Canadian Institute of International Affairs (CIIA). The historian Doug Owram places Scott, and many other civil libertarians mentioned in this chapter, in what he calls ‘a new reform elite’ formed in the early 1930s. These individuals were primarily well educated, upper or middle class, in the same

Civil Libertarians and the Padlock Law—27

age cohort (about age thirty-five), anglophone, and male. In terms of party affiliation, they were primarily CCF or Liberal, with the occasional Conservative. They were connected by a web of personal, professional, and voluntary organizational ties, including participation in a number of voluntary groups with ‘interlocking directorates,’ such as the CIIA. They were concerned with Canada’s developing sovereignty but also with the question of individual freedom, especially as seen through the filters of reform liberalism. The members of this emerging elite believed that the state could be a positive agency of social change, and they agreed with Vincent Massey, one of their most respectable members, that ‘while freedom once meant freedom from government regulation, it now must also mean freedom by means of government regulation.’ They were, in short, the intellectual shock troops of the modern welfare state.32 One of the earliest manifestations of Scott’s radicalism was, paradoxically, his defence of traditional British liberties. For example, in early 1931 he protested the ‘high-handed and illegal approach’ of the authorities in both Toronto and Montreal, arguing that ‘the British method was to allow radicals to express themselves freely.’ Scott also published an article in the intellectual journal Queen’s Quarterly which castigated the government for prosecuting the leaders of the CPC. Pointing out that Canada was the only democratic country in the world to have outlawed the Communist Party, he noted wryly that the nation was now in the same camp as ‘Italy, Japan, Poland, and some of the more reactionary Balkan states.’33 It is worth stressing that Scott, as well as many other social democrats of the time, was a socialist in economic matters but a liberal in political ones – a believer not only in parliamentary democracy but also in the freedoms that underpin its workings. (As one historian of the CCF has put it, ‘their liberalism kept them from being communists while their socialism prevented them from becoming liberals.’34) This was the result of both a principled commitment and enlightened selfinterest. As espousers of economic ideas that were anathema to the political ‘establishment’ of the day, they realized that only in a relatively free society did they have a chance to convince the public that they were worthy of being voted into office in order to change the system. This led logically to the creation not just of a social-democratic party but also of interest groups. In 1931 a letter to Canadian Forum from a J.C. Wilson had outlined some of the acts of police censorship and

28—Repression and Resistance

mob rule that were taking place in Montreal, and then asked plaintively, ‘Is there no Association in existence to curb the rude and reckless thing that passes for literary censorship amongst us?’ But it was Albertans who seem to have taken the first step. In January 1933 Alfred Stiernotte, a Belgian-born chemical engineer educated at the University of Alberta in Edmonton and a far-left member of the LSR’s Calgary branch, wrote to W. Norman Smith, of the United Farmers of Alberta (UFA), asking him to present to the UFA convention a resolution from ‘the supporters of the new Canadian movement for civil liberties’ and assuring him that a society would probably be formed in Edmonton ‘within the next few days.’ The resolution referred to two recent freespeech issues, involving Manitoba judge L. St George Stubbs (who was being investigated for some left-wing remarks he had made during trials) and Professor W.H. Alexander (whose president at the University of Alberta had asked him not to speak out in support of a CCF candidate), as well as limitations on freedom of assembly, ‘particularly in the opposition to Sunday meetings in the city of Calgary.’ (This last point no doubt referred to the way in which the municipal authorities had forbidden the Communist Party to hold parades.) The resolution noted that these freedoms were essential for effecting a peaceful transformation from ‘the present competitive system to a more human system,’ and finished with a request that the UFA support the creation of a civil liberties organization.35 The reference to Alexander is interesting. Not only was he a classics professor who had recently joined the CCF, he was also a prominent member of the Unitarian Church in Edmonton, one who demonstrated a decidedly humanist bent, in part a reflection of the Social Gospel ideas so prevalent at this time. Stiernotte had come under his influence at the university and indeed would later become a Unitarian minister himself. It is not surprising that Stiernotte, as a disciple of Alexander, should have been involved in an organization protesting speech limitations imposed on this controversial academic figure.36 Stiernotte, however, was trying to move beyond the confines of his province. He had already sought out support for his organization from a number of MPs, including J.S. Woodsworth, the leader of the CCF. Moreover, in a letter to Scott and several other members of the League for Social Reconstruction (LSR), the social democratic reform group that helped to create the CCF, Stiernotte suggested that the time was ripe for the creation of an alternative to the CLDL, a Canadian version of the American Civil Liberties Union. He also publicized this pro-

Civil Libertarians and the Padlock Law—29

posal in a letter to the editors of both the Canadian Forum and the New Outlook (the United Church newspaper).37 Scott wrote back to Stiernotte, noting that a number of people in Montreal had already been discussing the creation of a ‘Canadian civil liberties union.’ However, he was concerned that any proposal that seemed to come out of the LSR would prove unattractive to Liberals and Conservatives. At the same time, he agreed to move a motion in favour of civil liberties on behalf of Stiernotte and the Calgary branch of the LSR at the next national convention of the organization.38 The correspondence between Stiernotte and Scott illustrates one of the problems facing those who wanted to support civil liberties during this period. Some classical liberals had begun to dig in their heels against the growth of the welfare state, seeing the concomitant growth of bureaucratic power as a new threat to traditional freedoms. This became a burning issue in the late 1920s when Lord Hewart, a British judge, sounded a warning in a book titled The New Despotism. Stiernotte’s organization appears to have followed this line and indicated that civil libertarians should worry about welfare-state reforms leading to what might be called ‘executive despotism’ – excessive power in the hands of either the cabinet or the public service. Scott’s socialdemocratic impulses, however, led him to support the growth of the welfare state, and he therefore wrote to Stiernotte that ‘to my mind a civil liberties association should concern itself solely with the preservation of the right of freedom of speech and association’ and not the growth of the bureaucracy. For Scott, ‘The New Despotism’ was exemplified by the callous treatment of political radicals protesting the injustices of the capitalist system.39 Stiernotte also corresponded with Frank Underhill. A historian at the University of Toronto, as well as a founder of the LSR, Underhill was another of the early Canadian social democrats who saw collectivism as the logical but paradoxical corollary of the British liberal passion for individual freedom. He also had practical experience with the value of civil liberties, having been one of sixty-eight professors who publicly deplored a decision by the Toronto police to prevent a local branch of an international pacifist group, the Fellowship of Reconciliation (FOR), from holding a public meeting in 1931. This letter, sent to the local newspapers, affirmed the academics’ support for the rights of free speech and free association, ‘the proudest heritages of the British peoples.’ Along with the others, Underhill had been publicly reprimanded, and he was also chastised privately a few months

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later by the president of his university for making what were considered to be excessively critical remarks about Prime Minister Bennett.40 Underhill was enthusiastic about Stiernotte’s proposal for a national civil liberties organization, although he echoed Scott’s warning about the dangers of having the LSR playing a central role. He added, in a comment that illustrated the internecine divisions of the civil libertarian community, ‘If you can find the leadership somewhere, a great many of us would serve in the ranks. The leadership is at present being provided by the C.L.D.L. who are doing very good work, as far as I can observe, but there isn’t much use for the despised bourgeoisie trying to work along with the Communists.’41 Stiernotte also corresponded with American civil libertarians, attempting unsuccessfully to have them send free literature to a number of potential Canadian supporters. The ACLU did, however, send another LSR activist, King Gordon, a list of Canadians who were members of the American organization, in order to facilitate the creation of a Canadian counterpart.42 King Gordon was a close friend of Frank Scott, the two of them having studied together at Oxford where they fell under the spell of Fabian socialism. Gordon was a committed Social Gospeller, a United Church minister who helped found the LSR and taught at United Theological College in Montreal. He also soon demonstrated, involuntarily, how it was not always government that threatened ‘British liberties.’ His advocacy of socialism was apparently too rich for United Theological College, and in 1933 his contract was not renewed. As a result, a number of left-leaning United Church members, believing that their church was too closely connected with the economic status quo, created the Fellowship for a Christian Social Order, with Gordon as its first chair. This was ‘an association of Christians whose religious convictions have led them to the belief that the creation of a new Social Order is essential to the realization of the Kingdom of God.’ Committed to ‘free discussion of social reform even of the most radical type,’ the association developed over time into a non-denominational organization and remained active until late 1945, frequently taking a stand on both libertarian and egalitarian rights issues.43 Meanwhile, Scott, Underhill, and Gordon made no immediate progress in forming a civil liberties organization, no doubt because they were busy helping to create the CCF, the national political party that aimed to replace the evils of capitalism with a democratic-social-

Civil Libertarians and the Padlock Law—31

ist form of government. Yet, although on economic matters the CCF was socialist, it also stood up for both libertarian and egalitarian rights; its 1933 Regina Manifesto demanded not only ‘equal treatment before the law of all residents of Canada irrespective of race, nationality or religious or political beliefs’ but also ‘Freedom of speech and assembly for all as well as for the elimination of s. 98 of the Criminal Code and reform of the Immigration Act.’ Throughout the 1930s, 1940s, and 1950s, the CCF could usually be counted upon to be the strongest supporter in Parliament of what today we would call basic human rights.44 While Scott and other activists were creating the CCF, Alfred Stiernotte was busy creating Canada’s first civil liberties organization, the Edmonton-based Canadian Civil Liberties Protective Association (CCLPA). According to an RCMP report, it was formed in 1933 ‘under the direction of the Communist Party leaders as a result of the arrests made during the unlawful assembly in December, 1932, and in order to obtain the support of the business people of the city to the campaign for the repeal of Section 98 of the Criminal Code.’ Perhaps this allegation of a radical-left provenance is true, but the RCMP also claimed that neither the CPC nor the CLDL played an active role in the organization. In any case, the initial executive was a mixed ideological bag. The secretary, Ella C. Timbres, was probably the wife of Dr Harry Timbres, a supporter of several Communist ‘front’ organizations who later died in the USSR while doing medical research, and another board member, Mrs I. Ringwood, was an enthusiastic believer in the Soviet Union. On the other hand, the chair of the CCLPA was a lieutenant-colonel, G.W. Macleod, not likely a Communist supporter. In addition, LSR-member Stiernotte served as assistant secretary, and one of its advisory board members was Aaron Mosher, the anti-Communist president of the All-Canadian Congress of Labour.45 Ella Timbres kept in regular touch with Frank Scott, in the hope that other groups might be formed and a national organization would ultimately link them together. However, the Edmonton group lasted only a few years, falling apart because of partisan divisions. According to Stiernotte, the organization ‘became entangled in the [Alberta Premier] Brownlee case [involving allegations of sexual impropriety] due to several members of the Executive apparently greatly desiring the fall of the U.F.A. [United Farmers of Alberta] government. Several members of the Advisory Board did not agree to this action and resigned. After this episode the society simply ceased functioning.’46

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Meanwhile, social democrats (and many others) were increasingly appalled by political developments in Quebec. In 1931 the Canadian Forum published an article that decried the ‘ruthless and persistent’ suppression of free speech and trade union activism in the province by the Liberal (but certainly not liberal) regime of Louis-Alexandre Taschereau – ‘pure laissez-faire illuminated by touches of fascism.’ The author of this article, the first of many dealing with civil liberties violations in that province, was Eugene Forsey, a Newfoundlander who taught economics and political science at McGill University.47 A small man with a dapper look that included a neatly trimmed moustache, Forsey was yet another Oxford-educated Rhodes Scholar who had become attracted to Fabian socialism. He was also intensely religious, believing in the ideas of the Social Gospel. Shortly after the publication of his first article in Canadian Forum, he helped to create the CCF and then played a significant role in the Montreal civil liberties community until the Second World War. Like Scott, he threw himself into the struggle because he saw liberal rights as not only intrinsically valuable but also a means to the broader goal of a radically restructured economy; without freedom of speech and association, there could be no progress for the left. In 1941 Forsey left McGill (and the civil liberties movement) for a year at Harvard and then began work as research director of the Canadian Congress of Labour (CCL), but he continued a prolific and peppery correspondence with newspaper editors (especially those at the Globe and Mail), becoming somewhat of an institution for his comments on a wide variety of issues, including the correct use of the English language. He later became well known to television-watchers as an expert commentator on constitutional questions, which he addressed with his unique brand of acerbic wit and straightforward insight. In later years he drifted away from the social-democratic movement and in the 1980s accepted Prime Minister Pierre Elliott Trudeau’s offer to make him a Liberal senator – a rather strange turn of events for a person who had helped in the writing of the Regina Manifesto.48 In early 1933 Forsey was shocked by a particularly nasty case of what he considered to be the proto-fascism of Depression-era Quebec – the death of an immigrant named Nick Zynchuk. As Quebec historian Andrée Lévesque has summed up the story: This unfortunate unemployed man from rue Saint-Dominique in Montreal, who had emigrated 5 years previously from Poland, was cut down by

Civil Libertarians and the Padlock Law—33 constable Joseph Zappa. Finding out that the process-servers had carried out his belongings along with those of other tenants in his building, Zynchuk grabbed a bed post and brandished it above the head of a policeman, who shot him at point-blank range. When his superiors demanded why he had fired, Zappa responded, ‘He’s a communist.’ Cleared of all blame, Zappa represents the arrogance and impunity of the anticommunist forces.49

This death, and a violent attack by Montreal policemen on the funeral procession, became a left-wing cause célèbre, and Zynchuk was immortalized as a symbol of ‘fascist repression.’ The Canadian Forum frequently referred to the issue as a powerful symbol of Quebec illiberalism, and, as the Canadian poet Dorothy Livesay recalls in her autobiography, ‘the event captured the imagination of writers on the left, and became the theme of plays, stories, and poems.’ One of these was a play called Eviction, by the Workers’ Experimental Theatre, while Livesay herself wrote a poem titled ‘An Immigrant (Nick Zynchuk)’ as well as a short story called ‘Zynchuk’s Funeral.’50 The Zynchuk affair also outraged Frank Scott, especially when he saw a number of people attack the funeral procession. In the words of his biographer, Scott ‘saw a plump little man in a bowler suddenly step up to a labourer, who had been standing by the edge of the road, and knock him to the ground with a ferocious punch to the jaw.’ Scott was shocked when he discovered that the man in the bowler was a policeman. He and some of his colleagues, including Warwick Chipman, a law professor and leading member of the bar in Montreal (and also a poet, like Scott), immediately formed an ad hoc group which lobbied the municipal authorities to stop this practice of using plain-clothes policemen for the purpose of ‘crowd control.’51 Meanwhile, protest against Zynchuk’s death generated a coalition. The main organizations were the CLDL, the Trades and Labor Congress (TLC), and the central branch of the Montreal Labor Party, but they were supported by a number of tangential rights groups: the Protestant Ministerial Association, the Montreal Women’s Clubs, the Delorimier Liberal Reform Club, the League for Social Reconstruction, and the Montreal United Church’s Committee on Social and Economic Research. (This church group illustrates the connection between the Social Gospel and libertarian rights. The committee was made up of three members, all strong supporters of the LSR and all adherents to the Social Gospel. One was King Gordon, the second was J.A. Coote, a

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member of McGill’s engineering faculty, and the third was Eugene Forsey).52 Soon, however, the liberal elements of Montreal were faced with a more serious problem than police brutality. In 1934 the Taschereau government passed the Certain Meetings Advertising Act (also known as the ‘David Bill’), which forced people to obtain prior approval from local chiefs of police before passing out circulars. This turned out to be a useful means of silencing not just Communists but also troublesome trade unionists, and a number of concerned citizens created an ad hoc group opposed to the legislation, calling it ‘a direct infringement of the fundamental right of all British subjects to freedom of assembly.’53 The new group was the Emergency Committee for the Protection of Civil Liberties, regarded by its members as the first step in the creation of a national civil liberties organization devoted to the support of ‘the fundamental rights and liberties of British subjects.’ The founders were concerned about the waning of democracy internationally as well as the pattern of civil liberties violations in Canada, especially Quebec’s David Bill. They were encouraged, however, by the fact that a civil liberties association had been functioning for some time in the United States and also by the fact that one had recently been formed in England.54 The Montreal organization was probably dominated by Communists, for initially no prominent CCFers such as Frank Scott or Eugene Forsey were members of its executive, and the RCMP believed that the organization was part of the United Front movement. (The Comintern defined a ‘united front’ as a grass-roots coalition in which members of the Communist Party would join with members, but not leaders, of other parties and organizations.) The RCMP was particularly suspicious about one member, Lillian W. Mendelsohn, an active member of something called the Saturday Night Club, founded about 1930, which gathered at people’s homes to discuss public issues and to advocate free speech. That, of course, did not prove anything, for the RCMP was not always able to tell a social democrat from a radical socialist, but Frank Scott also regarded Mrs Mendelsohn as ideologically distasteful.55 Yet the most important of these committee members was probably R.L. Calder, QC, certainly not a Communist Party member. A brilliant lawyer and a crown prosecutor in Montreal in 1924–5, Calder was trilingual (in English, French, and Gaelic). During the First World War he had won the Military Cross while serving with the 13th Highland-

Civil Libertarians and the Padlock Law—35

ers, and later he became the second-in-command of the Quebec Royal 22nd Regiment, the ‘Van Doos.’ He was, in short, a respectable member of the Quebec establishment.56 Yet Calder also exemplified a phenomenon that developed in Depression-era Canada – people shifting to the left in response to economic dislocations and right-wing governmental authoritarianism. For many years he had considered himself a Liberal, but the policies of the Quebec governments caused him to move first to the Conservative Party and then to the CCF. He ran as a CCF candidate in the 1939 provincial election and served as a member of its council in the early 1940s.57 Calder was not afraid to work with Communists (or Jehovah’s Witnesses, for that matter; he took on several cases for this controversial religious sect). In 1935 he chaired a meeting of Louis Kon’s organization, Friends of the Soviet Union, and he also helped Kon to rent the Montreal Stadium in order that local Communists could hold a rally welcoming party leader Tim Buck, who had recently been released from prison. He also was an enthusiastic supporter of Norman Bethune, the far-left Canadian doctor who had been helping the Republicans in Spain.58 Nevertheless, Calder’s politics was rooted in liberalism and the principles of the British constitution. He was an impassioned supporter of what he called ‘our British heritage of freedom’ and even maintained the increasingly archaic notion that there is a special ‘sense of fairness and decency which abides in the Briton.’ Calder described himself in 1937 as ‘a bewildered survival of the Victorian age’ who believed in ‘capitalism, individualism, democracy, and that elementary justice which is the corollary of the Golden Rule.’ As far as he was concerned, working with Communists was simply a tactical necessity. As he said to a mass meeting organized by the Communist Party, ‘I don’t care whether a man is a true Conservative, or a real practicing Liberal, or a Communist, or a Socialist, or an Anarchist. We are all in the same fight.’59 Calder’s attacks on authoritarianism were strongest in the late 1930s but had actually begun in response to a 1929 law created by the Taschereau regime. This was an amendment to the Code of Civil Procedure which interfered with the right of a citizen to challenge a government’s actions through the use of prerogative writs (a traditional means by which citizens could challenge illegal acts of the government). According to Calder, Article 87a of the revised code left

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‘civil liberties as a doughnut which is mostly all hole,’ making it extremely difficult for a lawyer to do anything about arbitrary decisions of the authorities. In his privately published broadside Comment s’éteint la Liberté, he explained in detail a case that had come to his attention. It involved a trucker who had been pulled over by the police and had his vehicle locked in their garage. The man had been caught in what we today would call a ‘Catch-22’ situation; he had not obtained a special licence from the Public Service Commission permitting him to operate a trucking service, but not only had he never been informed that such a licence was necessary, it also seemed that the commission was no longer issuing those licences. Because of Article 87a, Calder was unable to take the matter to court and have a judge issue a writ ordering the commission to issue the necessary permit. He eventually persuaded the authorities to fix the matter, but this was done more as a favour than as a legal obligation. As Calder pointed out, there is ‘an enormous difference between a citizen who has the right to go up to the front door demanding entrance and the serf who must implore at the key-hole and climb the back-stairs, on his knees. There is all the difference between tyranny and freedom.’60 Over time, despite the close ties between Calder and the Communist Party, Scott and a number of his social-democratic friends, including Eugene Forsey and King Gordon, joined the Emergency Committee for the Protection of Civil Liberties. Yet it always remained an ad hoc body, and never evolved into a national civil liberties group. The reasons for this are not entirely clear, but it probably had something to do with the way the left was badly split between Communists and anti-Communists.61 For the most part, the Communists wanted nothing to do with social democrats, calling them ‘social fascists’ and dupes of the capitalist class. When, on occasion, they were willing to make common cause with the social democrats, the normally reviled moderate leftists were not so willing to kiss and make up. On several occasions in 1933 the CLDL proposed ‘united action’ between themselves and the newly formed CCF in order to protest the trial and incarceration of Tim Buck and other Communist leaders. J.S. Woodsworth, however, rebuffed them. The CCF leader noted that his party favoured free speech and free assembly, but he added that ‘as long as the members of your organization and others allied continue to attack and misrepresent our organization and its members, it is obvious that co-operation is impossible.’62

Civil Libertarians and the Padlock Law—37

Yet Woodsworth did not speak for all members of the CCF. When A.E. Smith of the CLDL was being tried for sedition the following year, the Communists once more asked the CCF to cooperate. They were again rebuffed by Woodsworth, but many CCFers believed that cooperation was desirable, and the issue generated a significant division within the Ontario and British Columbia wings of the party.63 With some social democrats willing to cooperate with the ‘reds,’ the CPC was able to found the Canadian League against War and Fascism (CLAWF) in the fall of 1934. Intended to bring together not just workers and farmers but also members of the middle class, it became over time a replacement for the CLDL and took on the role of something very like a civil liberties organization. Any ‘fascist measures,’ such as section 98 of the Criminal Code, the David Bill in Quebec, and federal censorship of radical literature, were fervently opposed by CLAWF.64 The chairman of this body was A.A. MacLeod. Born in 1902 in Cape Breton, he worked in the Sydney Steel mines before joining the Cape Breton Highlanders in 1916 and serving overseas. After the war he went back to the mines but also became involved in pacifism and radical political causes, such as the Canadian Committee to Aid Spanish Democracy (which he helped to found) and then CLAWF. Later, during the Second World War, he edited the Canadian Tribune, an unofficial Communist newspaper which described itself as ‘A Journal of Democratic Opinion,’ and in 1943 he entered Ontario politics, winning a seat as a representative of the Labor Progressive Party (LPP), the CPC in a new form. According to MacLeod, CLAWF was set up to be ‘a strictly nonpolitical organization,’ and there were only five Communists on its forty-six-member National Council. Most of the others were prominent left-liberals and social democrats, including the Social Gospel minister Salem Bland and the Reverend T.C. (‘Tommy’) Douglas, the Baptist minister who in 1944 headed the first social-democratic government in North America when he became Premier of Saskatchewan. In 1937 the organization claimed to represent over 250,000 members, although it was about to decline in importance the following year when Douglas and a number of other social democrats left the fold. By this time the organization had changed its name to the Canadian League for Peace and Democracy (CLPD), to emphasize that its opposition to fascism was not an endorsement of communism but rather a commitment to wider principles.65

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Meanwhile, in 1935 the Communist Party had come under even greater pressure to cooperate with the formerly reviled social democrats and moderate trade unionists. As a result of the Soviet Union’s fear of Hitler, fascism, and war, the seventh World Congress of the Communist International changed the party line completely, bringing about an end to the so-called Third Period of attacking others on the left. As one sceptical contemporary observer put it, ‘the advent of Fascism has at last aroused the Marxists from their cabalistic configurations with the millennium. The Communist party has become passionately respectable. It no longer believes that compromise is the road to social fascism ... Those civil, religious and political liberties that have been established are no longer snares for immature and groping multitudes.’66 In the wake of this ideological somersault, national Communist parties everywhere, including Canada, were supposed to cooperate with those to their immediate right. The idea, modelled after relative successes in France and Spain, was intended to create a broad alliance against the growing threats of fascism and war. Within Canada, this meant primarily a joint attack on both federal and provincial rightwing politicians, as well as their supporters in the ranks of big business and major newspapers such as the Financial Post and the Globe and Mail.67 This so-called ‘united front’ or ‘Popular Front’ alliance was supposed to take place at two levels. First, the CPC was eager to unite with the minor parties – the Reconstruction Party, Social Credit, and above all the CCF. Second, the Popular Front was intended to take place at the level of what today would be called ‘civil society’ – primarily trade unions and interest groups promoting the causes of peace, youth, the arts, and civil liberties. As a result, Communist-dominated bodies such as the CLDL or the Workers’ Unity League were either weakened or dismantled and party members began to work with ‘progressive’ forces to their immediate right, including (for the first time) not just workers but middle-class intellectuals and lawyers. All this involved a shift in emphasis from revolution to reformist policies. It also meant a new-found reverence for the traditions of ‘bourgeois democracy,’ including civil liberties. As Dr Norman Bethune put it, at a meeting in Saskatoon in favour of the Spanish Republicans in 1937, ‘this clenched fist is the property of no political party but is the symbol of the Popular Front; it represents the unity of all progressively minded democratic people, Socialists, Communists, Progressive

Civil Libertarians and the Padlock Law—39

Liberals fighting for the protection of international democracy against Fascism.’68 Nevertheless, the Communist conversion on the road to utopia engendered mixed reactions on the part of potential allies. The trade union movement underwent what the RCMP called a ‘profound radicalization,’ including a decision by the Toronto Trades and Labor Council to rescind its 1929 policy of excluding Communists from membership. At the party level, however, most CCFers were wary about the sudden expressions of affection on the part of the Communist Party, as well as cognizant that an alliance with the Communists would make the party even more vulnerable to red-bashing. The delegates to the national CCF convention in 1936 voted overwhelmingly (eightyeight to seven) against political collaboration with the Communists.69 Yet the convention did agree that ‘non-political’ collaboration of local CCF units with Communists would be acceptable in some circumstances. In the words of its national secretary, David Lewis, ‘the CCF is aware of the possible threat to our democratic rights and the need for unity in opposing all encroachment on our civil liberties in defending the unemployed worker and the poverty-stricken farmer, and in educating and organizing the Canadian people for peace.’ In other words, the party accepted the necessity of cooperation at the level of civil society. This opened the way for groups like the CLDL. In March 1936, at a special meeting of the CLDL, the Communist activist Beckie Buhay explained how the party line had changed, necessitating ‘some new form of struggle that will have a wide appeal to the broad masses of the people.’ She referred in particular to the work of John G. ‘Jack’ King, the national secretary of the CCF Youth Movement who had joined the CLDL and soon was to become its provincial secretary in Saskatchewan. She pointed out that his connections with the CCF had enabled him to win over people who would never have worked with an organization clearly dominated by the Communist Party of Canada.70 Jack King is one of those interesting people who passed through the usually impermeable barrier between the CCF and the CPC. In 1938 he moved to Toronto to take up employment with the Canadian Committee to Aid Spanish Democracy, and he also became national secretary for the Canadian League for Peace and Democracy. Then, in the 1940s, he became one of the founders of the Communist-dominated Canadian Tribune. In 1942 he joined the RCAF and two years later was killed in a bomber crash. The Tribune gave him a stirring obituary,

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referring to him as ‘another valiant fighter who gave his best to the struggle for the united front against fascism in the pre-war days.’71 King’s shift to the far left seems to have taken place in 1935 when he, like many sensitive Canadians, was profoundly disturbed by the sight of thousands of unemployed men marching (and riding the rods) to protest in Ottawa. Although Prime Minister Bennett talked briefly with some of the ‘on-to-Ottawa trek’ leaders, the meeting was acrimonious and unfruitful and a majority of the trekkers were prevented from going any farther than Regina. The federal government then decided to carry out a pre-emptive strike by using section 98 to declare illegal the organization behind the trek – the Relief Camp Workers’ Union. When a large police contingent descended upon a protest meeting in Regina in order to carry out the arrests, the result was chaos. While the government argued in retrospect that the workers had fired upon the police, most of the evidence suggested that in fact a police riot had occurred, with the promiscuous use of ‘baseball bat’ truncheons and then revolvers.72 The ‘Regina Riot’ and the use of section 98, as well as charges of rioting, wounding, and assault, created a firestorm of public indignation, at least from those on the liberal and left portions of the political spectrum. People united behind an organization called the Citizen’s Defence Movement, which was buttressed by a number of local bodies, such as the Toronto Citizens’ Committee, consisting of representatives of seventeen different groups including both Communists and the provincial CCF. This ad hoc association devoted itself not just to the release of the arrested trekkers but also to ‘the defence of civil rights and liberties’ in general – another early manifestation of the civil libertarian impulse.73 The Citizen’s Defence Movement also created a national council, with Jack King as the national secretary and a membership consisting of ‘prominent people of progressive inclinations.’ This indicated how the issue had managed to bring together, at least temporarily, people from both the moderate and the radical left. Representatives of the former on the council included Frank Scott and King Gordon, as well as a few other Social Gospel and CCF types, including the philosopher Gregory Vlastos and the Alberta politician Elmer Roper. The ranks of the radicals included CLAWF founder A.A. MacLeod and Roscoe S. Rodd (who in the 1950s headed a Communist ‘front’ organization called the League for Democratic Rights).74 Then, in early 1936, Scott received a letter from Jack King which suggested that they create a national civil liberties organization. Scott

Civil Libertarians and the Padlock Law—41

was sufficiently interested to send out feelers to several of his friends, including Frank Underhill and prominent CCF activist Graham Spry. He thought that King would be a good person to run such a civil liberties group, and Scott was willing to sit on its national executive. He indicated, however, that he wanted a bourgeois institution somewhat closed to Communists; he stressed that there should be no possibility of the Communists running the organization.75 Underhill turned out to be not as enthusiastic as Scott about accepting King’s proposal. He met with King to discuss his plans, accompanied by a fellow academic, classics professor Eric Havelock. (Like Underhill, Havelock was a charter member of the LSR. He was also an activist in the Fellowship for a Christian Social Order (FCSO), a freespeech advocate, and later the treasurer of the Canadian Forum.) The two were impressed by King, but Underhill later reported that Graham Spry feared that King was ‘just another agent of the United Front tactics being used by our communist friends.’ Underhill concluded that ‘this subject is surrounded with such an atmosphere of intrigue and suspicion here that it is hard to know what to do.’76 It is fascinating to note that only two days after Underhill sent off his concerns to Scott, the latter was writing to King about the dangers of cooperation with the Communists. However, the tenor of the letter suggests that Scott had not yet received Underhill’s letter, for, rather than mistrusting King, he seemed to be confiding in him. As he wrote, ‘In Toronto ... a certain left-wing group were instrumental in smashing the CCF organization in 1933, and they now have the nerve to come along as the principal promoters of the United Front. They will no doubt crowd into the Civil Liberties work ... I would suggest that you do not hand over any particular authority to a group in Toronto until you have had the approval of men like Underhill and Havelock ...’77 The ‘intrigue and suspicion’ that Underhill referred to seems to have stalled the plan to create a national civil liberties organization. Then, in July 1936, the Spanish Civil War broke out. Viewed by many people as the first full-scale struggle between the world’s fascists and antifascists (with the latter consisting of Communists, social democrats, and liberals), this conflagration had the effect of kindling political conflict in all parts of the world, including Canada. In October 1936 a delegation arrived in Montreal to raise money for the anti-fascist Spanish Republicans. It was locally sponsored by the Committee for Medical Aid to Spain, chaired by Frank Scott, but Angus Macleod’s Canadian League against War and Fascism had brought

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the delegation to North America. In Montreal, allegations that the delegates were Communists produced an anti-democratic mixture of mob intimidation, government partiality, and free-speech violations. Scott found it difficult to get permission to hold a meeting, and on at least two occasions hordes of right-wing university students prevented the delegates from speaking. (Interestingly, one of the students was Pierre Trudeau, later a disciple of Scott, and still later prime minister of Canada.)78 For people aware of what was happening in Germany, these events were profoundly disturbing, especially because they mixed right-wing bully-boy tactics with anti-Semitism. As the Canadian Forum reported, ‘in different parts of the town that evening hundreds of demonstrators were parading the streets shouting “A bas les communistes. A bas les apostates” [Down with the communists. Down with the heretics] and then bursting into “O Canada.” They smashed windows in Jewish stores, assaulted one McGill professor, and hurled imprecations at the offices of the Montreal Star and Montreal Herald.’79 Meanwhile, there were other right-wing demonstrations against both Communists and Jews in Montreal. When in Quebec City large crowds gathered on 25 October to celebrate the feast of Christ the King, both Cardinal Villeneuve and Premier Duplessis spoke, warning of the dangers of communism and pointing to Spain as a particular example of the menace. Duplessis also gave a summary of his and Quebec’s conservative political values: ‘The grand theories of liberty, of equality, of fraternity are of no account. Those which do count are the three theological virtues: faith, which illumines the intelligence, charity, which enriches the heart, hope, which brings comfort.’80 Premier Duplessis had only recently come to power. Initially hailed as something of a reformer, he had created a new party, the Union Nationale, which in August 1936 had been successful in ousting the corrupt and authoritarian Liberal government of Taschereau. However, it soon became clear that Duplessis’s regime was conservative rather than progressive. The average voter, especially the over-represented rural inhabitant, saw him continue the conservative traditions of patronage politics while increasingly giving voice (especially in the 1940s and 1950s) to the new Quebec nationalism. The Catholic Church saw him leave most of the functions of education and social security in the hands of the clergy. Big business, largely English Canadian or American-owned, saw him support economic growth by means of anti-labour policies. And all of these forces saw him respond to the

Civil Libertarians and the Padlock Law—43

Depression-era rise of political radicalism and aggressive trade union activity by declaring war on whatever smacked of communism or even (at times) social democracy.81 Of course, not to attack communism would have been impossible. The Catholic Church in Quebec was irrevocably opposed to communism, not only because of the economic policies of the Soviet Union, but also because of its opposition to the ‘opiate of the masses’ – religion in general and Christianity in particular. Moreover, as one historian has put it: ‘The Spanish Civil War left the French Canadian with two very strong and lasting impressions. One was the identification of Communism with the burning of churches, the killing of priests and nuns, the destruction of the family as a social institution, the end of all morality, and the total elimination of all religious influences and practices under a governmental system inspired by the principles of militant atheism. The other lesson drawn from the Spanish conflict was that ... if a handful of Communists could wield such power in Catholic Spain, they could do the same in Catholic Quebec.’82 It was no wonder, then, that the visit of the Spanish delegation to Montreal sparked such a response from the anti-Communist right. But their actions in turn inflamed many of Quebec’s liberal and socialdemocratic anglophones. R.L. Calder wrote to Scott, stressing his willingness to join any group that would defend traditional liberties: ‘Like you, I am sickened by the events of yesterday – the triumphant hooliganism, the abject abdication of civic duty.’ Eugene Forsey, who was also involved in the Spanish Republican cause, wrote to his MP, stating that ‘the plain fact is that the city authorities abdicated in the face of threats. Law and order were set at naught. Peaceable, decent citizens were deprived of their rights at the bidding of lawless and turbulent adolescents.’ Meanwhile, an English professor at McGill, A.S. Noad, suggested to Forsey that they organize a large protest meeting. Noad, who had formerly shown no great interest in politics, knew both Spain and Italy well and had seen first-hand the way in which civil liberties had been eroded in the latter country. He was appalled at developments in Europe and frightened that things were moving in that direction in Quebec.83 In retrospect, it is not easy to appreciate the level of intimidation that faced the Montreal critics. In addition to the threat of mob violence, exacerbated by the fact that the authorities and the police were more sympathetic to the rioters than to their targets, liberal critics were often demonized. The acting mayor of Montreal claimed that

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many of the supporters of the Spanish Republicans, including even some of the McGill professors who were injured in the riots, were Communists themselves; he also implied strongly that they got what they deserved. In the face of such remarks, holding an anti-fascist protest meeting, or even attending one, called for a significant measure of courage.84 Despite these concerns, Forsey was thirsting for action, and soon he had helped to set up a meeting of concerned citizens. The result of this meeting was a blue-ribbon committee to investigate the recent events and make proposals. The chair was professor Noad, and he was to be aided by such people as Frank Scott, law professor Warwick Chipman, R.B.Y. Scott (a professor at United Theological College who was also active in the Fellowship for a Christian Social Order), and Hubert Desaulniers, the French-Canadian secretary of the CCF provincial council. (For some reason Forsey was not at first a member of the committee, but he joined later and even chaired it for a while.)85 Once again, however, the birth of a civil liberties organization was fraught with ideological peril. In November Scott wrote to David Lewis, the national secretary of the CCF, saying, ‘We had quite a fight at our Monday meeting. A group of left-wingers of the Mrs. Mendelsohn variety appeared and fought every recommendation that the committee had brought in. Even the proposal to create a national civil liberties union was opposed on the ground that it was designed to prevent any action being taken at all ... The opportunity of a united front with the right wing democrats has been temporarily lost ... My own feeling is that it will take another incident to provide us with the degree of support which is necessary to make a civil liberties organization really effective.’86 Nevertheless, the social democrats continued to plan the creation of a national civil liberties group. At some point they either rejected (or were rejected by) Jack King and went looking for a suitable alternative. By the end of the year, however, Scott had admitted failure, and it looked as if the best scheme would be to create two separate groups, one in Montreal and the other in Toronto, with coordination of activities to take place some time in the future. But both Scott and Graham Spry agreed that steps should be taken to keep out Communists and to make any future civil liberties organization ‘the most polite, democratic, white-tie liberal sort of an affair to champion “British freedom” etc.’ They also agreed that it would be better to start the organization in Toronto first, so that (as Scott wrote) ‘it will not appear to be a

Civil Libertarians and the Padlock Law—45

move by the English minority in Montreal directed against French Canadian fascism.’87 Meanwhile, civil liberties violations in Quebec were about to become a national issue. In 1936 the Liberal government of Mackenzie King (having replaced the Bennett government the previous year) repealed section 98 of the Criminal Code. From the Quebec perspective, this left Canadians inadequately girded against the threat of radicalism, and therefore in March 1937 the legislature passed An Act to Protect the Province against Communistic Propaganda. This law, commonly known as Premier Duplessis’s Padlock Law, declared that ‘it shall be illegal for any person, who possesses or occupies a house within the Province, to use it or allow any person to make use of it to propagate communism or bolshevism by any means whatsoever.’ Should the attorney general (who was also the premier) be satisfied that a house had been used illegally in this fashion, the legislation gave him the power to ‘order the closing of the house for any purpose whatsoever for a period of not more than one year.’ In other words, the police could padlock the house, apartment, or place of business without the necessity of formally laying charges or bringing anyone to trial. The legislation did permit the owner of a padlocked property to petition the courts for a cancellation or suspension of the order, but the burden of proof was upon the owner to demonstrate that the property had not been used, or was used without the owner’s knowledge, as a place from which Communist propaganda was being spread. (As Eugene Forsey wrote at the time, this was ‘contrary to every principle of British justice,’ because the property owner was ‘assumed to be guilty until he can prove himself innocent!’)88 The law also made it unlawful, with a punishment of imprisonment lasting from three to twelve months, ‘to print, to publish ... or to distribute in the province any newspaper, periodical, pamphlet, circular, document or writing whatsoever propagating or tending to propagate Communism or Bolshevism.’ Moreover, Duplessis could also empower the police to seize, confiscate, and destroy any such materials. In later years Eugene Forsey, who became one of the most outspoken opponents of the Padlock Law, recalled that from the beginning it had been popular with Quebec’s political establishment, and not just those in the Union Nationale. As he wrote in a letter to the editor of the Montreal Gazette, ‘not one member of the Liberal party in either House voted against the bill; and I cannot call to mind the name of a single Liberal or any importance outside the legislature who so much

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as let out a squeak on the subject.’ Indeed, according to the journalist Leslie Roberts (later a member of the post-war Montreal civil liberties group), the law was strongly supported by a majority of anglophones in Quebec. As he put it, ‘the English-speaking Quebecker ... is the most conservative-thinking of all Anglo-Canadians. He believes firmly in the rightness of things-as-they-are and has been weaned on a press which hammers home the idea every time the feeding-bottle appears on the news stands. Therefore he abhors the very word communism with all the zeal with which nature is alleged to abhor a vacuum.’ (This predilection seems to have taken deep root in some minds. Conrad Black, the publishing magnate and part-time historian, has written in his monumental biography of Duplessis that the Padlock Law was in practice a ‘rather innocuous statute.’)89 However, from the perspective of a small group of civil libertarians, mostly anglophone but including some francophones, the law was a nightmare. To begin with, it imposed censorship on a political party which, however controversial, was perfectly legal in Canada now that section 98 of the Criminal Code had been repealed. Second, this censorship could be executed at the whim of the premier, thereby raising the spectre of ‘executive despotism.’ And third, it attacked the property rights not only of Communists but also of non-Communists who had (perhaps even inadvertently) rented or leased their property to a person distributing propaganda or even holding a radical meeting. One of the forgotten victims of the Padlock Law was an instalment furniture company which was able to repossess its furniture from a padlocked home only two years after the police had applied their padlock.90 Yet there was more. The statute contained no definition of the term ‘communism.’ As R.L. Calder put it, ‘the definition of Communism reposed in the cranium of the Attorney-General,’ and Duplessis was capable of considering almost any critic a Communist. Indeed, one of his cabinet ministers argued that the law was explicitly ‘aimed at the many people who are Communists without knowing it.’ This gave the authorities carte blanche to decide what forms of unpopular political dissent could be suppressed, and in practice it meant the seizure of any writings that the police suspected might be left wing.91 In addition, it was almost impossible to launch a court challenge to the padlocking of a property or the seizure of materials. The earlier (Taschereau) legislation that curtailed the ability of a citizen to use the traditional prerogative writs as a means of challenging a government’s

Civil Libertarians and the Padlock Law—47

behaviour had effectively immunized the authorities from almost any legal counter-attack. As long as the police did not arrest anyone, there seemed to be little that a lawyer could do. It is tempting to see Duplessis as the unwitting godfather of the Canadian civil liberties movement, but the activists in Montreal were apparently committed to forming an organization even before the passage of the Padlock Law on 17 March. The New Commonwealth, the CCF weekly newspaper, made no mention of the law in its 20 March 1937 issue (although a full story by Eugene Forsey appeared in the 27 March issue), but it did carry the following announcement: Formation of a national civil liberties movement has been announced in Toronto. The movement will be known as the Canadian Civil Liberties Union and will perform the same work in Canada as the Civil Liberties Unions of Great Britain and the United States. —Branches have already been formed in Montreal and Toronto and interested groups have been contacted in Winnipeg, Ottawa, and other Canadian cities. —The functions of the union will be to maintain ‘the liberties of the subject’ such as the right of free speech, free assembly, free association, and free publication ... —The union is not designed solely to engage in labor defence activities, which, it is believed, more properly can be fulfilled by labor defence organizations, political parties, or trade unions, but the union will cooperate and assist in any case where principle of civil liberties is at stake.92

This birth announcement for the Toronto branch of the Canadian Civil Liberties Union (TCLU) was a bit premature. As the New Commonwealth acknowledged a few months later, the organization had not yet appointed its officers and so far consisted only of a number of ‘very influential and representative men and women of all political views.’ For example, representing the CCF was George Grube, a professor of classics at the University of Toronto who was an outspoken pacifist as well as an editor of the Canadian Forum, and E.B. Jolliffe, who served for a while as the leader of the Ontario CCF. Judith Robinson, on the other hand, was a well-known journalist who supported libertarian rights from a Tory perspective. Then, on the other end of the spectrum, there sat Margaret Fairley, who has been described as ‘one of Canada’s most accomplished Communist intellectuals.’ As was usually the case at this point in the emerging civil liberties

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movement, most of the members seem to have had what might be loosely called ‘British’ names.93 We know more about the activists of the CLU – the Montréal branch of the Canadian Civil Liberties Union (in French, the Section de Montréal, Société Canadienne des Droits de l’Homme).94 In its early years it was led by respectable intellectuals and professionals, often with a strong bias towards social democracy and (in some cases) radical Christianity. For example, J.C. Hemmeon and A.S. Noad were both professors at McGill, the chair was the CCF activist Hubert Desaulniers, and the legal adviser, J.K. Mergler, was one of the founding members of the Montreal branch of the LSR. Radical Christians were represented by R.B.Y. Scott and Eugene Forsey. In addition, the group included two liberal journalists, Jean-Charles Harvey and Edmond Turcotte, as well as a number of non-Communist labour leaders – Raoul Trépanier, president of the Montreal Trades and Labor Council and a vice-president of the national TLC, and Paul Fournier, a member of the same group’s executive.95 While the above list contains a good smattering of francophones, they were a substantial minority on the board of the organization. In part, this was, as Scott claimed, because liberalism was a scarce commodity in French Canada. It was also because liberalism was dangerous. As Eugene Forsey wrote, because of the quasi-fascist elements in Quebec, it took ‘more courage for a French-Canadian to speak one word against the government than for an English-Canadian to make a dozen speeches.’96 As was the case with many rights groups in this period, women were not well represented on the executive. Of the seventeen original members, only two were women – a Dr Ruth Dow and a Catherine Mackenzie, principal of the Montreal High School for Girls. Neither was a well-known political activist, nor do they seem to have played significant public roles. Later, a few other women appeared on the executive, including Agatha Chapman, who was implicated in the Gouzenko affair just after the war.97 Interestingly, Frank Scott’s name did not at first appear on the letterhead of the organization. Calder had become one of the vice-presidents, and although he later gravitated into the CCF, Scott always seems to have regarded him with some suspicion because of his willingness to work with Communists. Indeed, at one point Eugene Forsey suggested to a colleague that the only way that Scott could be persuaded to join the association would be to force the resignation of Calder and some of his supporters.98

Civil Libertarians and the Padlock Law—49

Scott’s antipathy to Communists in the Montreal civil liberties organization was, of course, in part the usual reaction of a social democrat to a party that until recently had been reviling him as a ‘social fascist.’ But Scott also believed that Communist influence would lead to tactical errors. As he wrote in a private letter, ‘there are two kinds of civil liberties movements which it is possible to create. One is a mass movement bringing in as many individuals and organizations as possible, and depending for its effect chiefly upon its display of popular feeling. Such a movement will always be, in a society divided into classes such as ours, of a distinctly left wing political complexion. The other type of civil liberties union is a much smaller and less ostentatious body, concentrating its interests primarily upon legal aid in selected cases, issuing pamphlets and statements, the examination of new legislation, and sending representatives and delegations to the authorities whenever civil liberties have been infringed ...’ He then argued that only the second type of organization could succeed in Quebec, adding that ‘when French Canadian liberalism begins to revive, the mass movement type of organization may be possible, but until then an attempt at mass tactics will, I am sure, not only fail to organize anything except a minority of left wing groups of Protestants and Jews.’99 Despite Scott’s fears, the CLU seems to have avoided this fate, probably because it tended not to take the road of mass protests and instead concentrated upon legal action and public condemnation. Indeed, it managed to use the Padlock Law as a means of securing allies across the country. The civil libertarians quickly began to protest the law, calling it ‘un-British and un-Canadian,’ and they were supported by the CCF. (This was not surprising, given the civil libertarian leanings of the CCF, but the party was also worried that Premier Duplessis considered even social democrats to be Communists.) In the House of Commons, J.S. Woodsworth mentioned, and in some cases extensively quoted, critical editorials in the Winnipeg Free Press, as well as in the conservative Financial Post and the Ottawa Journal, and he himself asked that the government refer the legislation to the courts. Later that summer a committee of the Canadian Bar Association (CBA), not an organization usually willing to take a strong stand on matters involving rights for political radicals, issued a report which heatedly condemned the legislation.100 Opposition led to calls for disallowance. In 1867 Ottawa was given the power to veto (‘disallow’) any provincial bill within one year of the date at which the federal cabinet received an authentic copy of the

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legislation. Bearing this in mind, the Canadian Forum called for Ottawa to act. The editorial writer admitted that ‘some timid radicals, to be sure, turn pale at the mere suggestion [of disallowance], fearing that the power might be used to frustrate the intentions of other provincial legislatures bent on doing things which would be altogether praiseworthy ... But in the struggle to preserve civil liberties we must make use of every weapon the law allows us.’ Although Woodsworth thought it unwise to stir the constitutional pot by calling for disallowance, a few months after the editorial the Quebec wing of the CCF demonstrated a distinct lack of timidity by writing to the federal minister of justice, Ernest Lapointe, and asking him to disallow the Padlock Law.101 Lapointe, however, raised the old cry of provincial rights. He maintained that the power of disallowance had fallen into desuetude, and added that it was not advisable for Ottawa to intrude upon matters within provincial jurisdiction. Of course, the power of provincial rights depended in large part upon the nature of the provincial ox that might be gored. Since Prime Minister Mackenzie King relied upon the support of sixty largely pro-Padlock MPs from Quebec (a provincial contingent even larger than that of Ontario), in this instance exercising Ottawa’s discretion not to disallow a provincial statute was clearly the better part of political valour. As an editorial in the New Commonwealth put it, ‘the government was trimming its sails to catch sectional breezes.’102 Moreover, Duplessis undermined pressure to disallow the law by refraining from enforcing it during the first six months of its life. Biding his time, he first created Bill 55, An Act respecting Workmen’s Wages, and Bill 209, the Fair Wage Act. While the new statutes were supposed in some ways to protect workers from exploitation, they actually gave the government wide-ranging powers to intervene in the collective-bargaining process, including the right of workers to choose their own unions. All this, of course, was intended to weaken the non-Catholic trade unions.103 It was not just the state, however, that was taking action against unions in Quebec. In the summer of 1937 the Montreal Gazette fired and blacklisted a reporter named R.A.C. (Campbell) Ballantyne, primarily because he had been attempting, as the president of the Montreal local of the American Newspaper Guild, to organize his fellow workers. The CLU took up Ballantyne’s case and tried unsuccessfully to send a deputation to the Tory president of the Gazette. Litigation proved

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fruitless, Ballantyne remained unemployed, and in the summer of the following year he became the CLU’s executive secretary.104 Although most of the CLU’s membership probably was not aware of it, Ballantyne was a covert member of the Communist Party. In many ways this was a good thing, since party members usually combined high levels of discipline and commitment; they were not dilettantes who faded away when the work got hard or criticism from the establishment got hot. Moreover, as labour historian Brian Palmer has pointed out, while some Communists were ‘bureaucratic sycophants of Stalin,’ others were independent thinkers who were drawn to the higher principles of democracy and human rights. On the other hand, being smeared as ‘red’ diminished a group’s ability to lobby government. When George Drew, the leader of the Conservative Party, declared that the CLU was a party ‘promoted by Communists,’ Eugene Forsey was outraged and alarmed enough to threaten to sue him for defamation.105 There is no doubt, however, that civil liberties groups like the CLU attracted not only liberals and social democrats but also committed Communists. For example, one of the people volunteering for the CLU was Irene Kon, who soon married Cam Ballantyne. Irene made no secret of her Communist affiliation. She was a fascinating contrast in commitments, for she was also a successful advertising executive and in her early twenties headed the Montreal office of the American advertising company Young and Rubicam.106 In the fall of 1937 the Quebec authorities intensified their campaign against communism. The first step was a decision by the city of Montreal to ban (allegedly because of the threat of riot by some rightwing youths) a public meeting welcoming Tim Buck and a Communist leader from France. A protest by the CLU proved futile, and a few days later the authorities prevented, without any apparent legal justification, the Friends of the Soviet Union from holding a meeting to celebrate the twentieth anniversary of the Soviet Revolution. At the end of the month the city withdrew permission for a meeting of the Federation of the Unemployed, at which Calder and Desaulniers were to have been among the guest speakers; in response to a CLU protest, the mayor responded that he understood one of the other speakers to be a Communist. Then, in early November, the provincial government banned the award-winning film The Life of Emile Zola, which it apparently deemed too iconoclastic for the unprotected ears of the masses.107

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Suppression of free speech was carried out with the full approval of the Catholic Church. In early November the archbishop of Quebec City addressed a large crowd in which he attacked both Communists and liberals: ‘Under the mask of freedom of speech we are asked to listen to the most perverse doctors: Sophism and Hypocrisy. Freedom of speech, yes, but not freedom to outrage our social conceptions, to insult our traditions, our principles and our religion ... Do you permit the plague-stricken, the germ-carriers to pollute, under pretext of equality, the pure air that surrounds us? Liberty, quite, but does liberty mean folly, connivance, unbridled licence?’108 A few days later, on 9 November, the police began to use their legal sledgehammer. Over the course of the next six months there were 124 Padlock Law raids, involving not just the closing up of houses but also the confiscation of materials. In many cases the police violated the traditional liberties of Communist leaders, but in other instances they abrogated the rights of CCF activists and even showed up at a meeting of the LSR. (In Quebec the distinction between Communist and CCF was often ignored. Indeed, Duplessis was on record as saying that the CCF was a party ‘of communist inspiration.’)109 The bill was also an effective way of harassing any trade unionists who threatened to upset the apple-cart of amicable (and deferential) labour-management relations. In 1935 a number of trade unions in the United States had split with the American Federation of Labor (AFL) to form the CIO (Committee for Industrial Organization), committed to organizing not the highly skilled and conservative craft workers of the country but also the less-skilled workers on the assembly lines of factories. Under the leadership of John L. Lewis, it also took advantage of the recent Comintern policy ordering Communists everywhere to work with progressive forces. Consequently, many of the first CIO organizers in Canada were Communists who had belonged to the now-disbanded Workers’ Unity League. When the CIO began to organize workers in Quebec, the local employers, and also the authorities, were quite alarmed, and in 1938 the police used the Padlock Law to confiscate the files of the nascent steelworkers’ union.110 Whenever the police seized materials they were looking, at least ostensibly, for truly radical literature such as copies of the Communist newspaper the Clarion. However, they frequently seized items that could be deemed dangerous only by the narrow-minded and plodding mind of a semi-educated police officer – certain articles from the Canadian Forum, any books published by Victor Gollancz in England,

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and, upon occasion, books by Charles Dickens. (One individual claimed that he had great difficulty preventing the police from taking away a book titled The Land of the Free, since they assumed that this could only refer to the Soviet Union!) Many of these materials, some of which had personal or sentimental value to their owners, were never returned.111 The Communist Party objected strenuously to this treatment, of course, and it created a leaflet entitled For Social Progress which asked Quebec citizens to unite in opposition. But the Padlock Law assault was highly effective. An RCMP report in January 1938 stated that ‘these raids have had a profound effect on the membership, not only of the Communist Party of Canada but also of all Left Wing organizations who are meeting in leased halls. As a result an atmosphere of defeatism prevails among the communists.’ In 1939, the RCMP reported, the party was complaining that it was increasingly isolated from the masses, that the Padlock Law had hampered its ability to elect any candidates, and that the circulation of local Communist publications had been seriously curtailed.112 The Communists’ battle against the Padlock Law was therefore often fought outside Quebec, or within the province only indirectly. In both cases, much of the Communists’ energies involved reaching out to ‘progressive forces,’ especially those within the Popular Front movement. For example, the United Labour Front in Quebec, which the RCMP saw as Communist-dominated, began to raise money for the coming legal battles and even asked Toronto trade unions to contribute to the cause. At the same time, CPC stalwarts throughout the country began to make speeches denouncing the legislation and calling for political pressure through resolutions and petitions. Above all, according to an RCMP observer, ‘the communist leaders have placed their hopes in the Civil Liberties Union and the Montreal Trades and Labour Council as the best means available to combat the “Padlock Law.”’113 The CLU therefore became the major Popular Front defence group (especially since the CLDL had withered away), and simultaneously the Padlock Law became the focus of one of the main Popular Front struggles of the late 1930s. Initially, Calder and the CLU provided free legal counsel for a number of Quebec citizens who wished either to recover their seized possessions or to win damages from the government, but at the end of November 1938 the CLU also sent Calder and Desaulniers to Toronto for the national congress of the Canadian League for Peace and Democracy. After hearing a speech by Calder about

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‘Our Vanishing Civil Liberties,’ the delegates decided to join the campaign against the Padlock Law.114 The fight was also seen as an attack on incipient fascism. While some observers of Quebec politics argued that Quebec under Duplessis was hardly likely to turn fascist, that Duplessis merely represented the traditional authoritarian style of Quebec politicians, and that the organized fascist movement was small, many social democrats, including those associated with the Canadian Forum, strongly disagreed. Quebec’s leading fascist, Adrien Arcand, had close ties to Duplessis’s Union Nationale, serving as the editor of Illustration Nationale, the semi-official voice of the party. He had also formed a National Social Christian Party, whose blue-shirted ‘storm troopers’ intimidated its critics at the same time that it poured out a flood of anti-Semitic hate propaganda, as well as diatribes against the Canadian constitution, racial toleration, trade unions, and liberal principles such as freedom of speech. Many people were also shocked when, in early 1938, the city of Sorel elected a fascist mayor and two fascist aldermen.115 The Padlock Law made it more difficult for anti-fascists in Quebec to engage in effective direct action. According to an RCMP report of this period, the Ontario fascists considered themselves disadvantaged because in their province the absence of a local Padlock Law meant that ‘the Communists could carry on their work with much more freedom and thus are able to cause considerable trouble for the Fascists.’ In short, the Padlock Law could be seen as simultaneously an anti-Communist and a pro-fascist piece of legislation, and in the overheated rhetoric of the Communist press it was called ‘the flesh and blood of fascism.’116 All this created tensions within the CLU. For a social democrat like Eugene Forsey, libertarian rights such as freedom of speech were principles that should be applied to both the extreme left and the extreme right. Others in the organization, however, such as the Communist Party member Cameron Ballantyne, distinguished ‘between the civil rights of those who supported civil rights, and those who wished to subvert them.’ They therefore ‘refused to defend the civil rights of fascists on the ground that, objectively, to do so would be to subvert civil liberty.’ It appears, from letters written by the members, that Ballantyne’s approach gradually won out.117 But the CLU members, whether Communist or not, could agree on one thing – the Padlock Law had to go. Forsey, who had a hand in the earlier Quebec CCF demand for disallowance, therefore drew up a

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similar petition on behalf of the Montreal civil liberties group. As he later reminisced, ‘it plainly fell within the canons for disallowance set forth by a series of Ministers of Justice in a long list of cases,’ and, as he wrote in the petition, which was signed by over 10,000 people, many of them French Canadians, and which three CLU lawyers presented to the minister of justice in March 1938, the Padlock Law violated ‘elementary principles of British constitutional government’ such as freedom of speech, freedom of the press, the right to public assembly, the right to a fair trial, the right to a presumption of innocence, and ‘freedom of the home from arbitrary state invasion.’118 As the petition also pointed out, not only was there was a long tradition of federal disallowance, but by now there existed also an excellent precedent. The Social Credit government of Alberta had recently passed several controversial pieces of legislation interfering with traditional property rights as well as with federal jurisdiction over a number of areas such as banking. Notwithstanding Lapointe’s earlier misgivings about infringing upon provincial rights, three of these statutes had been disallowed by Ottawa in 1937, within a month of having received royal assent. (Of course, while Quebec had sixty MPs in the Liberal caucus, Alberta had only one.) The CLU argued that the Padlock Law similarly interfered with federal jurisdiction, and asked Ottawa to disallow it also, but as one historian of this period has wryly noted, ‘the Padlock Act failed signally to arouse the Department of Justice to the pitch of indignation it might have reached if the property padlocked had been a branch of a chartered bank.’119 As a fall-back scheme, the CLU petition also suggested that Ottawa could refer the law to the Supreme Court as a reference case. In normal circumstances the constitutionality of a law can be challenged in the courts only in the course of ordinary litigation or prosecution. A person accused of breaking a law, for example, can use as a defence the argument that the law is unconstitutional and therefore of no force. However, Canadian law permits governments to ask a court for an advisory opinion on the constitutionality of a disputed law even where no actual litigation exists (or, in the case of litigation, to bypass the normal process of trial and appeals). While these advisory opinions do not have the force of law, they are considered to be extremely persuasive legal arguments; it is generally assumed that a decision in a reference case indicates how the same court would rule in a ‘real’ case, and if the Supreme Court rules against the statute it is considered to have been struck down. By 1937 Canada had a long history of

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governments changing their policies as a result of different reference cases, including a recent decision (the Alberta Press case) which declared unconstitutional a law requiring local newspapers to print, along with regular news and editorials, stories that presented the provincial government’s reasons for its radical policies.120 The CLU’s attacks on the law were facilitated by newspaper editorials or stories which were usually critical of the statute. The headline ‘Padlock Law Casts Pall of Fear Over All Quebec’ was not atypical. In addition, a number of academics and students across Canada joined the protest, as did several trade unions, the CCF (with Woodsworth raising the issue in the House several times), the United Farmers of Alberta, and the United Church Board of Evangelism and Social Service. This was for the most part a protest of anglophones – the presence of francophone organizations (or groups representing any ethnic minorities) was negligible – but it was otherwise certainly a national phenomenon; as Eugene Forsey wrote at the time, ‘petitions for disallowance have for months been pouring in on the Minister of Justice from almost every part of Canada.’121 Meanwhile, in February 1938, R.L. Calder began a nation-wide tour in order to raise public awareness about the law and to garner support for the CLU campaign. The tour was sponsored by the Canadian League for Peace and Democracy, however, and its Communist-front reputation meant that Calder frequently ran into difficulty getting a hearing even outside Quebec. For example, when he was invited to speak in New Brunswick by two CLPD activists, a lawyer named Frank Park and the political science professor C.B. Macpherson, the local Knights of Columbus publicly condemned the CLPD as a ‘communist front’ and made it difficult to rent a venue for Calder’s speech.122 Despite such occasional difficulties, however, Calder’s tour was a success, for the Padlock Law proved to be an attractive target. Some people no doubt saw the issue as an excuse for venting anti-French and anti-Catholic sentiment – especially when Calder, himself a Roman Catholic, claimed that Duplessis had passed the law in response to a request by Cardinal Villeneuve, and also when he pointed out that the law had been used to prevent the free distribution of Protestant bibles.123 Calder ended the western part of his tour in Vancouver, where he gave his usual speech to a capacity crowd. Not long afterwards, a number of citizens created a Vancouver branch of the Civil Liberties Union (VCLU). We do not have much information about the early

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days of the VCLU, but according to the RCMP it was part of the Popular Front movement. Their earliest report on this body, dated April 1938, stated that ‘the Canadian Labor Defense League at Vancouver has been liquidated and replaced by an organization similar to the Civil Liberties Union at Montreal.’ It seems clear, however, that the reports of the CLPD’s death were somewhat exaggerated. In the spring and summer it organized a number of protests against the violent treatment of unemployed workers who had occupied the Vancouver post office and civic art gallery as a way of protesting their plight. The VCLU also helped with a lawsuit on behalf of Steve Brodie, one of the protesters who was severely beaten by the police when they stepped in to end the post office ‘sit down strike.’124 Like the Montreal branch of the Canadian Civil Liberties Union, to which it was linked only by name, the VCLU seems to have consisted primarily of executive members who were predominantly middle class, British, male, and leaning ideologically towards the centre or the moderate left – ‘elite non-conformists’ who enjoyed enough acceptance in ‘respectable’ bourgeois society that they could exert some pressure from within but were sufficiently distant from its core that they could be critical of its hypocrisies and shortcomings.125 Chief among them was Garnett G. Sedgewick, a professor of English at the University of British Columbia, who considered himself to be a liberal but one with social-democratic leanings. Sedgewick publicly condemned the Padlock Law, in the face of criticism from the local Catholic bishop, who claimed that it was a desirable piece of legislation and that the CLU was a Communist organization.126 After visiting western Canada, Calder proceeded back east to Toronto, where in early April he, Eugene Forsey, and Raoul Trépanier addressed a large and sympathetic audience in Toronto. At what turned out to be a twelve-hour ‘Conference on the Padlock Law and Civil Liberties,’ all three spoke of the evils of the Padlock Law. This meeting was part of the Popular Front efforts to protest against the rise of fascism in Canada, and one of the keynote speakers was A.A. MacLeod, the national chair of the CLPD. Communists had recently been extremely successful in getting party members elected to positions in the trade union movement, so it is not surprising that the Toronto District Labor Council helped to sponsor the conference. Moreover, even in the planning stages the conference was intended to lead to the creation of a new anti-fascist organization. An RCMP report, filed some months before the spring meeting, concluded that ‘the Canadian La-

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bor Defense League and the Citizens Defence Committee at Toronto have been abolished and their work delegated to the Civil Liberties Union which will open an office ... in the near future.’127 According to the Toronto Star, the conference was formally supported by ‘an array of leading men and women in the city’ and attended by almost three hundred and fifty delegates, representing ‘68 trade unions and 133 fraternal, church and cultural organizations.’ Who were these ‘leading men and women?’ Except for a Mrs Isabel Grieve, the list in the Star consisted entirely of men, and most of them were eminently respectable members of the bourgeoisie, yet another indication of how the growing tide of authoritarian governments and grass-roots fascism was bringing together individuals who previously might never have considered cooperation. As with the civil liberties groups in both Montreal and Vancouver, many of them were ‘elite non-conformists,’ such as Malcolm Wallace, the principal of University College in Toronto. Wallace had first-hand experience with repression of liberties; he, too, was one of the sixty-eight professors who had been criticized for signing the 1931 letter in support of the Fellowship of Reconciliation. He was also a prominent member of the ‘new reform elite’ of Canadian politics, serving for a while (1943–5) as the president of the one body to which virtually all of them belonged, the Canadian Institute of International Affairs. Over time he became one of the mainstays of the Toronto civil liberties community, keeping involved until at least the late 1950s.128 A second prominent community leader listed in the newspaper was Rabbi M.N. Eisendrath of (Reform) Holy Blossom Temple in Toronto, one of the largest synagogues in the country. Eisendrath had been a founder and the first president of the Fellowship of Reconciliation in the early 1930s. It was therefore not surprising that he should be involved in the nascent civil liberties movement, but nevertheless his support indicates how the Jewish community was beginning to seek out allies in its fight against anti-Semitism, a phenomenon that was spreading like a cancer. Increasingly Canada (and the Western world) was divided into two camps; on the one side there stood fascism, authoritarianism, racism, and anti-Semitism, while on the other side there stood democracy, liberty, equality, and fraternity. As a result, although the middle-class Jewish community resisted formal anti-fascist cooperation with the Communist Party of Canada, it was willing to join Popular Front organizations.129

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The conference was chaired by Morley Callaghan, the well-known Canadian author. It is possible that Callaghan’s interest in civil liberties came in part from his legal training; he articled in 1925 with the prominent lawyer Joseph Sedgwick (himself a vice-president of a later Toronto civil liberties group in the 1940s). More important, he maintained what he called ‘an anarchistic angle’ on the world, mistrusting authority and the attempts of small-minded politicians to impose their views on ordinary citizens. Callaghan served as a vice-president of the Toronto civil liberties organization at one point during the war and tried to keep it alive for a short time afterwards. He remained involved with the Toronto civil liberties movement until the late 1940s.130 Despite the liberal and ‘respectable’ credentials of the above, the conference produced a set of resolutions that reflected left-leaning Popular Front values, referring to among other things, the iniquities of the ‘Hepburn-Duplessis axis.’ (Mitchell Hepburn, the Liberal premier of Ontario, had taken a strong anti-Communist stance and attacked the fledging CIO trade unions.) The document included a number of complaints about the Padlock Law, as well as Ontario’s labour policies and its recent censorship of anti-fascist films such as The Heart of Spain. In addition, the delegates affirmed their devotion not to the traditional liberal icons of ‘British liberties’ but to a more egalitarian and allembracing discourse – ‘fundamental principles of Canadian Democracy: Freedom of Speech, Freedom of the Press, Freedom of Assembly and the right of Labor to organize into unions of its own choosing.’131 The delegates then set out plans for a campaign to eliminate the Padlock Law by any means possible, including disallowance, and agreed to create a ‘permanent committee’ which would defend the civil liberties of the Canadian people. This led to the creation of Canada’s second major civil liberties group, the Toronto branch of the Civil Liberties Union. Meanwhile, the CLU in Montreal was engaged in some quiet diplomacy. Three members of the organization met with the federal minister of justice in late March, urging him once again to disallow the legislation. Several Quebec MPs had pressured Ottawa not to disallow the law, and Ottawa had been the target of a major letter-writing campaign in the province, with conservative forces demanding that the government leave the statute untouched. (Such was the popularity of the Padlock Law among federal politicians from Quebec that, within a year, one of them, Wilfrid LaCroix, tried to support the statute by

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making it illegal to send Communist materials through the mails.) Moreover, the prime minister and his cabinet were seriously worried that disallowance would lead to an efflorescence of fascist activism and anti-Communist mob rule in Quebec.132 The CLU delegates therefore found the minister unsympathetic to their request, although their efforts were being covertly supported by the prime minister’s secretary, J.W. (Jack) Pickersgill, a former history professor in Winnipeg who had some considerable sympathies for civil liberties and who sometimes gave Arthur Lower, a former colleague, advice on civil liberties lobbying. Pickersgill had secretly approached CCF secretary David Lewis and told him that he was ‘trying to construct an argument in favour of the Government doing something about the Padlock Law.’ He then asked Lewis to provide him with more details about the law and the legal reasons why it was so difficult to challenge the legislation in court. Lewis immediately wrote to Eugene Forsey, whom he had known since his days at McGill, as well as through the LSR and CCF, asking him if he could ensure that such information could be provided.133 Public pressure also continued. In May the CLU held a conference on both the Padlock Law and Quebec’s anti-labour legislation; once again the result was a call for disallowance (which, under the constitution, had to take place by 8 July or not at all). That same month, Forsey published yet another article in Canadian Forum, claiming that the Quebec ‘offensive against democracy and civil liberties is being pushed with increasing vigour and a broadening front’ and pointing out that what he called ‘the Black Terror’ was being applied in an extremely far-reaching manner. Even the CCF provincial headquarters had been invaded by the police, and copies of a newspaper published by the Quebec Liberal Party leader had been seized. Forsey added that in such an atmosphere it was hardly surprising that fascism in Quebec was alive and well.134 In June, a delegation created by the CLU’s recent conference joined with a large anti-Padlock Law delegation from Toronto. Together, they claimed to represent over two hundred organizations, embracing more than 100,000 supporters, and they were armed with a petition containing over 60,000 signatures. Yet the prime minister and minister of justice refused to meet the delegation, and although CCF Member of Parliament M.J. Coldwell tried to submit their petition, it was ruled out of order on technical grounds. Then, although that very month the government disallowed two more Alberta statutes (six in all were

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disallowed in 1938 and 1939), on 6 July 1938 the federal minister of justice, deferring ostensibly to the principle of provincial rights but in reality reflecting the influence of Quebec within the Liberal Party, announced that Ottawa would neither disallow nor refer the Padlock Law. The Canadian Forum’s lead story read, ‘Liberalism Commits Suicide,’ and it urged its readers to support the CLU, which soon decided that it would now have to launch its attack through the courts.135 Within a few weeks the Montreal organization had its test case. On 20 July the Quebec City police entered and ransacked the living quarters of an unemployed carpenter named François-Xavier Lessard. This was done on the authority of what the police called a ‘warrant,’ issued not by a judge but by either the police commissioner or assistant commissioner (who were deemed to have the power to issue such permits by virtue of their legal powers as justices of the peace). Having found the usual forbidden materials, the police then evicted Lessard and his family from their rented dwelling and padlocked it for one year. This was the first time a home rather than a business had been padlocked.136 Lessard immediately decided to resist and ‘broke into’ the apartment to retrieve some materials. All of his family’s possessions, including food and clothing, were inside the padlocked premises, so he perhaps felt that necessity was the mother of intrusion. On the other hand, he appears to have been an active Communist, and no doubt the party wished to create a test case. He therefore not only entered his apartment in full view of the police but also was assisted by a number of individuals, including A. Parent, the secretary of the Quebec section of the party. For some reason, Parent was arrested but not charged; however, both Lessard and another helper, Joseph Drouin, were arrested and charged with ‘wilfully violating a Provincial law’ as well as conspiracy to obstruct a police officer.’137 The case soon came to the attention of the CLU, which started a campaign to raise $10,000 for the Lessard family and the defence of the two men in court. A thousand dollars was pledged by the Quebec branch of the Communist Party, but the fund-raising also included, among other things, appeals in Canadian Forum and a gathering of ‘the Quebec Knights of the Padlock,’ a parody of the Knights of Columbus, in which Lessard was to be invested as the ‘Supreme Knight, with the insignia and jewels of his high office,’ and the assembled crowd would sing their anthem ‘O Cadenas.’ (The song, which in English means ‘O Padlock,’ was to be sung to the tune of the Canadian national anthem, ‘O Canada.’)138

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In late October and early November, Lessard and Drouin were tried and convicted, receiving heavy sentences of two years and one year respectively. The crown did not proceed with one of the original charges – ‘wilfully violating a Provincial law’ – realizing that it could be used by the CLU as a way of challenging the validity of the legislation. Instead, the two men were convicted of the crime of ‘conspiracy to obstruct a police officer.’ Despite the best efforts of the CLU lawyers, Calder and Mergler, the presiding judge refused to consider the constitutionality of the legislation. The CLU nevertheless decided to help the two men appeal.139 Meanwhile, the Toronto CLU continued to support its Montreal sister organization. In early November it held a second conference on the Padlock Law, attended by a number of trade unions, fraternal associations, and churches (together representing 45,000 people). Delegates of the Montreal branch of the CLU also attended the conference, claiming that their organization now had about one thousand members and had been able to raise $2,000 in the previous month alone. Nevertheless, the appeals were costly, so the Toronto organization promised to raise money which it would send to Montreal.140 The CLU continued to battle on a number of fronts, but it was clear that the Padlock Law remained the jewel in the crown of Quebec authoritarianism. It was, among other things, an extremely adaptable tool in the hands of innovative police forces untrammelled by any concern for what they considered the minor details of the rule of law. In late 1938 the Montreal police arrested for no official reason Oscar Kayne, the Quebec secretary of the Young Communist League, taking him off the street and back to police headquarters, stripping and searching him, rummaging through his briefcase, photographing him, and then fingerprinting him. They next searched his house and confiscated some of his books and magazines. When questioned, the police replied that their actions were legitimized by the Padlock Act. Though it is true that the statute was in some ways extremely elastic, this stretched it to the point of rupture. As a Canadian Forum editorial remarked, ‘thus the Padlock Law, which nowhere permits detention of individuals, and nowhere authorizes confiscation of literature, unless it is being circulated, is being used to justify any kind of illegal behaviour the police care to adopt. Canadians in Montreal, outside the Civil Liberties Union, now accept this sort of thing as a normal part of life in Quebec.’141

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Another authoritarian application of the Padlock Law was demonstrated during the 1938 Christmas season. As Eugene Forsey put it, in a typically pungent comment, ‘the provincial police, with the same delicate regard for one of the great feasts of the church shown by Mussolini in his invasion of Albania, served notice on some dozen or so landlords that they must evict certain tenants or find their property padlocked. Faced with a storm of protest, the police made no attempt to carry out their threat except in one case, that of Muni Taub.’142 Taub’s case turned out to be the means by which the CLU almost – but not quite – brought the era of padlock repression to an end. Taub was a Russian-born Jew who at the age of ten had witnessed firsthand a vicious pogrom initiated by the White Guard troops in 1919. When he immigrated to Canada he became a dress-cutter and union organizer, later serving as a secretary of the Communist Party in the Jewish sector of Montreal, as well as chair of the Jewish branch of the CLDL. It was, therefore, not surprising that he should have been targeted by the Montreal police.143 Initially, Taub was able to get maximum publicity for the case, refusing to leave the premises in mid-winter with his wife and baby son. However, because the authorities seem to have been intent on making an example of him, Taub decided to fight the eviction in court. Fortunately for him, he had rented his accommodation from his father-inlaw, Louis Fineberg, and when he took his problem to the Montreal CLU, R.L. Calder came up with a clever stratagem. As Taub later recalled, Calder ‘proposed that Fineberg take me to court, demanding that his son-in-law, daughter and grandson be evicted to save his house from being padlocked, which would deprive him of rental revenue. I would then be able to contest his action on the ground that the Padlock Law was illegal [that is, unconstitutional].’144 The CLU began to solicit funds for the case, realizing that to carry it all the way to the Supreme Court or (in a worst-case scenario) to the Judicial Committee of the Privy Council in Britain would be an expensive proposition indeed. In doing this they were hampered by the fact that the police now began applying the Padlock Law to them! All of the major hotels in the city made it clear that they would not rent meeting rooms for the CLU, a result of police threats to close them down.145 The CLU also thought about soliciting funds from Ottawa. Over the years the federal government had recognized, on at least three occa-

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sions (but admittedly, not since 1881), that the complete burden of carrying a constitutionally controversial piece of legislation through the courts should not be left entirely to the litigants. In the case of the Padlock Law, however, Ottawa once again appears to have been frightened that it might antagonize the Quebec government and therefore refused to provide any financial support.146 Meanwhile, the CLU helped choose their ‘opponents’ in the case of Fineberg v. Taub. It was arranged that the lawyers for Abe Fineberg, the plaintiff, would be Albert Marcus and Abraham Feiner. Former students of Frank Scott, they had radical Jewish working-class backgrounds and were developing a reputation in Quebec as two lawyers always ready to defend a Communist. Indeed, they were informally known among the Montreal police as les rats de Moscow. Not surprisingly, the two were strong supporters of the CLU, and (more important) they could be relied upon not to present a brilliant defence of the Padlock Law.147 When the case came before Chief Justice R.A.E. Greenshields of the Quebec Supreme Court, Calder admitted that the defendant, Muni Taub, had been using the premises for the purposes of propagating communism, but he argued that the Padlock Law was unconstitutional and that therefore Taub could not be made to pay any damages. Any potential loss of income was the fault of the government, which was applying an unconstitutional statute.148 Calder developed a number of arguments intended to demonstrate the unconstitutionality of the Padlock Act, but two were especially powerful. First, he maintained that the provincial government had invaded a field of federal jurisdiction – the criminal law – and the Padlock Act was therefore ultra vires, outside the division of powers laid down by the BNA Act. Unfortunately, Calder was faced with a precedent in the form of Bédard v. Dawson, in which Greenshields himself had ruled that a somewhat similar kind of law – in this case one that permitted the police to lock up any house being used as a brothel – was not a disguised form of criminal law but rather a statute falling within provincial jurisdiction over ‘property and civil rights’ and therefore entirely constitutional. Calder asked Greenshields to ‘distinguish’ the precedent (in other words, to find that it was not sufficiently similar to the case at hand) and therefore rule that it did not have to be followed.149 Calder’s other main argument stressed the way that the law violated ‘the constitutional rights and liberties of the citizens of the Prov-

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ince of Quebec as British subjects,’ including the rights of free speech and the freedom of the press. He stressed that the Padlock Act ‘prohibits free public discussion of affairs, and free examination and analysis of political views, and such curtailment interferes with the working of the parliamentary institutions of Canada as contemplated by the provisions of the British North America Act.’150 This was reminiscent of an argument recently made by two Canadian Supreme Court judges in the reference case dealing with the previously mentioned Alberta legislation interfering with the freedom of the press. Although the Supreme Court had ruled that the law was unconstitutional because it violated the federal-provincial division of powers in the BNA Act, two of the more liberal and activist judges (Chief Justice Lyman Poore Duff and Justice L.A.D. Cannon) also suggested that limiting certain rights of free expression was beyond the legitimate scope of a provincial legislature. In other words, because the preamble of the BNA Act called for ‘a constitution similar in principle to that of the United Kingdom,’ and because freedom of speech is, in Duff’s words, ‘the breath of life of parliamentary institutions,’ certain limitations on free speech in Canada might actually be unconstitutional. In short, the two judges suggested the existence of what came to be known as an ‘implied bill of rights’ – a set of constitutional limitations on the powers of legislatures. It is true that this argument was simply obiter – a non-binding legal suggestion of a minority on the Supreme Court. In the hands of a creative and liberal judge, however, it could have been a keen weapon for the defence of civil liberties.151 Yet Greenshields was neither creative nor liberal, and he dismissed both the ultra vires argument and the implied bill of rights argument. He dealt with the first point by refusing to distinguish the Bédard decision, ruling that the Padlock Law, like the Quebec law against brothels, was not actually intended to punish anyone. Blithely ignoring the fact that the Padlock Law was aimed at Communists, and that they were committing no crime as long as they avoided preaching sedition, Greenshields concluded that the law was ‘concerned exclusively with the control and enjoyment of property and the safeguarding of the community from the consequences of an illegal and injurious use being made of it; a pure matter of civil rights.’152 Greenshields then went on to reject Calder’s proposal that the Padlock Law was an unconstitutional interference with an implied bill of rights. He stated – in a breathtaking example of judicial illogic – that

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the Padlock Law did not really interfere with freedom of speech. Looking directly at the law, and firmly blinkered by his refusal to examine the context of the case, he concluded that Calder’s ‘somewhat involved attack on the statute’ was ‘unsupported by any provision contained in the statute.’ He added that the defendant ‘may disagree or agree with political views or with the manner in which parliamentary institutions in Canada are working or conducting. This is not contemplated or prohibited under the statute.’ That explanation completely missed the point of the Supreme Court’s implied bill of rights argument; as Eugene Forsey later remarked, ‘it is difficult to resist the conclusion that Judge Greenshields has not read the judgment.’153 Since the law was constitutional, Greenshields concluded, the sonin-law’s legal defence was invalid. The judge ruled in favour of the plaintiff, Fineberg, and stated that Taub had to pay the rental loss (as well as court costs) to his father-in-law. Three days later the judiciary dashed the CLU’s hopes a second time. The Quebec Appellate Court dismissed the appeals of Lessard and Drouin, upholding the decision of the trial judge that the constitutionality of the law was irrelevant. The two men, who had been free on bail supplied by the CLU, immediately began to serve their sentences – two years in the penitentiary for Lessard, and one year in jail for Drouin. Meanwhile, in a nasty display of vindictiveness, the provincial government cut off relief payments to Lessard’s wife, claiming as justification her husband’s ‘ideology.’154 These decisions, and the continued application of the Padlock Law in the wake of Greenshield’s decision, had two major effects upon the CLU. First, the organization publicly demanded a bill of rights – an idea previously suggested by the CCF as a means of curtailing dangerous governments. Second, the CLU decided to appeal the Taub, Lessard, and Drouin cases. (As an interim measure, the organization petitioned Ottawa to commute the sentences imposed on Lessard and Drouin, while simultaneously trying to raise the necessary funds for the appeals.) At one point, Frank Scott wrote to Louis St Laurent, at that time a prominent Quebec lawyer and still some years away from becoming a Liberal MP, let alone the next prime minister of Canada. St Laurent indicated that he was somewhat hesitant about taking on the Fineberg case, but that he was willing to consider the possibility.155 Everything changed when Canada declared war on Germany in September. St Laurent declined to take the case, citing the dangers to national unity that might occur if the case were continued during a

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period of inevitable English-French tensions. (English Canada largely supported the war and the notion of conscription, while most Francophone Québécois were in opposition.) The CLU members then dropped the case and turned their attention to wartime civil liberties violations.156 Moreover, because Stalin had signed a non-aggression pact with Hitler, the Communist Party line soon became one of absolute opposition to an ‘imperialist’ war. The Communists in the CLU were more than eager to criticize Ottawa’s wartime policies, including its civil liberties limitations. Consequently, when Duplessis called a provincial election for October, and took an anti-conscriptionist stance, Quebeckers and other Canadians were faced with the strange spectacle of the provincial Communists, the main victims of the Padlock Law, publicly supporting its creator! On the other hand, there was a perverse logic to this, since Duplessis used the Padlock Law during the election to attack not the Communists but the provincial Liberals of Adélard Godbout.157 Duplessis lost the election and Godbout became premier, an office he held for most of the rest of the war. Godbout was not a supporter of the statute, but it appears that he applied it at least once in the war’s early stages. Yet there was little temptation to use it, for Ottawa clamped down on the Communist newspapers and in the summer of 1940 used its emergency powers under the War Measures Act to have the Communist Party declared an illegal organization, as well as interning many of its leaders. The Padlock Law soon became a dead letter, even after Duplessis was returned to power in 1944. After the war, however, he revived it, and it remained a thorn in the flesh of Canadian Communists until it was finally declared unconstitutional in 1957.158 What about the litigants? The war meant an end to any hopes of redress. Although Fineberg’s property never did get padlocked, Muni Taub had no chance to challenge Greenshield’s decision in a higher court. Lessard and Drouin, moreover, had to serve out their sentences in prison. The three Communists were among the first civil liberties casualties of the war.159

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2 The Second World War: Civil Liberties at Risk

From the human rights perspective, the Second World War in Canada began with debate over libertarian rights and ended with arguments about egalitarian rights. This chapter deals primarily with the first debate, over questions of free speech, free association, and the right to due process, and shows how civil liberties groups were the most active organizations in the human rights community, with that community embracing a small number of other organizations, newspapers, and politicians. The next chapter looks at the way in which, towards the end of the war, an aroused public had come to focus much more on the fair treatment of racial minorities, especially Japanese Canadians, and how civil liberties groups were somewhat overshadowed by equality-seeking groups working together in coalition. During the war the most serious threat to the traditional ‘British liberties’ of Canadians came from the emergency powers given to the federal executive branch. About ten days before its declaration of war in September 1939, the Canadian government invoked the War Measures Act. The statute had been unused since 1919, but it was still very much alive, only needing the federal cabinet to take it down from the metaphorical closet shelf of dormant legislation, dust it off, and bring it to life once again by the passage of an order-in-council. From this point on, the most important laws affecting Canadians would be made by cabinet, not by Parliament. As one study of the Canadian constitution has put it, the War Measures Act replaced ‘traditional methods of constitutional practice with virtual Cabinet dictatorship.’1 One result was the Defence of Canada Regulations (DOCR), a set of rules that Canadian historian and civil libertarian Arthur Lower later

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called a ‘revolver pointed at the heart of liberty.’ These regulations had been gestating in the bureaucracy for about a year and a half, and although some of the more liberal civil servants had expressed concern about their authoritarian nature, the RCMP and the Department of National Defence managed to obtain a set of powers suitable for even ‘the most serious contingency.’ On 3 September, one week before Canada actually declared war, the federal government brought these sixty-four regulations into life by means of an order-in-council and immediately rounded up a number of Germans and German-Canadians on the grounds that they were probably Nazi supporters.2 To be sure, Ottawa did exercise some restraint in the application of its wartime orders-in-council. Shortly before the outbreak of war, the RCMP had proposed that all Fascist, Nazi, and Communist organizations should be ruthlessly suppressed. Instead, the government attempted not a mass round-up but a selective arrest of certain Germanic individuals believed to be dangerous. In retrospect, however, it is apparent that ‘the government had no ideas whom it had really interned. The minister of justice felt they must all be highly educated Nazi leaders. The truth was that the vast majority were simple workers and farmers.’ Over the course of the next few months, most were released, and, as it turned out, there never were any cases of domestic subversion on the part of German Canadians. Ottawa had, however, established a precedent of incarcerative overkill which over time would be also applied to people of Italian and Japanese descent. Although beleaguered Britain interned approximately 1,800 people, almost all foreigners, Canada (with one-quarter of the population) interned about 2,400 individuals, many of them naturalized Canadians. In addition, of course, many thousands of Japanese Canadians were also later uprooted, relocated, and in some cases interned.3 Ideology could also mark one as an irredeemable enemy in the eyes of the authorities. Although the federal government was relatively tolerant of Canadian fascists during the period of the so-called Phony War from 1939 to the spring of 1940, it did go after a number of anarchists, arguing that they were a threat to the war effort. Indeed, although they were acquitted in court, the government then attempted to deport one of them, Arthur Bortolotti, back to his native Italy. Given that anarchists were hardly persona grata in fascist Italy, and Bortolotti would probably have been harshly dealt with, this case aroused considerable controversy. For once, largely as a result of some liberal

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mandarins in the Department of External Affairs department (Norman Robertson and O.D. Skelton), the government finally backed down and released him.4 Sometimes civil liberties were violated as a result of ‘war hysteria’ on the part of the general public. As Michiel Horn has pointed out, in his examination of academic freedom in Canada, the respectable conservative elements of Canadian society, such as university boards and presidents, were hostile to academic critics of capitalism in the early 1930s, when faith in free enterprise had been badly eroded, and in the later 1930s, as war became a looming possibility, they began to worry about pacifists and critics of imperial British ties. Both Frank Scott and Frank Underhill, among others, came under attack for their allegedly anti-British ideas. In a sense, the ‘war hysteria’ had already begun.5 When the war finally arrived, however, the hysteria intensified. For example, when in the fall of 1939 a large number of United Church ministers signed a pacifist manifesto titled ‘A Witness against the War,’ public reaction was generally negative and the Halifax Herald went so far as to state, ‘Let them be taken out at dawn and shot like other traitors.’ While this might have been a rhetorical flourish, it certainly helped to put a chill on the right of free speech, as did also a decision by the University of Toronto in early 1940 forbidding one of its professors from taking part in a campus debate on the Russo-Finnish war. Later that year, moreover, the university almost fired Frank Underhill for making the apparently innocuous statement that Canadians now had ‘two loyalties,’ one to Britain and one to the United States, predicting that in time the former would weaken while the latter would increase.6 Underhill’s tribulations are easier to understand if one remembers that they came only a few months after the Nazis had steamrollered over their military opponents in the spring of 1940 and vigilante groups had sprung up in Canada, ready to suppress any manifestations of disloyalty. As the Canadian Forum demonstrated, often the main threats to peace, order, and good government were the alarmed citizens themselves; abominable cases included ‘the beating up of a crippled German shoemaker and his wife in South River by a gang of several hundred men,’ and an incident where ‘300 soldiers went on the rampage in Regina, smashing the windows of restaurants bearing foreign names. No charges were laid.’ Only occasionally was the tragedy balanced with comic relief, as when it was revealed that ‘residents of King township [Ontario] sleep better these nights since 1,100 Fenian

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raid muzzle-loaders have been removed from Sir Henry Pellat’s barn and brought to Toronto armories for fear they would fall into the hands of fifth columnists.’7 The provincial governments also succumbed to the hysteria. The premier of British Columbia, Duff Pattullo, warned CCF members of the Legislative Assembly that to oppose the sending of a Canadian expeditionary force to France was an offence under section 39 of the DOCR. The Manitoba government passed legislation that removed from office any member of the provincial legislature, municipal council, or local school board if that person had been convicted or even detained under the DOCR; one of the major targets of this law was the highly effective Winnipeg city councillor, Jacob Penner, interned for almost two years. In Ontario, meanwhile, Premier Mitchell Hepburn had attacked the government of Mackenzie King for not pursuing the war effort with all possible vigour, and banned a film called March of Time, not because he saw it as subversive but because it was not sufficiently critical of the federal Liberals. However, it was his attorney general, George Conant, who became a hero of the authoritarian right. He demanded that Ottawa take action against what he called the ‘slimy, subversive elements’ that opposed the war, he exhorted mayors, local police, and crown attorneys to do their best in suppressing any manifestations of subversion, and at one point he called for the suspension of the traditional principle that a person is innocent until proven guilty.8 Municipal authorities, too, were often eager to suppress dissent. Toronto Chief Constable Dennis Draper, a traditional nemesis of the radical left, asked the local Police Commission to prohibit public meetings of the allegedly Communist Ukrainian Labor Farmer Temple Association (ULFTA) as well as the local Lithuanian Society. But one of the most extreme cases of the hysteria virus infected the municipality of Hamilton, Ontario. Its board of control demanded legislation ‘which would disfranchise all citizens found to be members of or associated with, any club, group, society or organization, which has objects considered prejudicial to the good government of Canada and the prosecution of the war.’ One of the board members noted that, in his mind at least, the resolution was intended to include not just Communists and Nazis but also the advocates of ‘pacifism, disarmament and brotherly love.’ Fortunately, not even the Ontario government of Hepburn and Conant was willing to go that far, but the city of Toronto did purge itself of any employees suspected of ‘subversive tendencies.’

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When a former CCF secretary appealed his treatment, one city councillor demonstrated an appalling lack of logic and compassion by pointing out that ‘if you were in Germany today, you would be in an internment camp or more likely you would have been lined up and shot.’9 Sometimes minority rights were lost in a fog of jingoism. In September 1940 a number of Jehovah’s Witness children were sent home from school in Hamilton because they refused to sing the national anthem or salute the flag. (Both practices were seen by members of the sect as a form of heresy, placing allegiance to the state above allegiance to God.) Although the children promised to stand respectfully at attention during the singing of the anthem, they were not permitted to return to classes. Over the course of the next few years, the issue of religious freedom versus patriotic conformity was fought out at the judicial and political level in a number of provinces, and although the Witnesses were finally successful, it was a series of conditional wins, based upon fairly narrow legal technicalities.10 By the fall of 1940, over 1,500 people had been interned under the DOCR. In retrospect, this was the stuff of Orwellian nightmares. As the CBC program ‘Ideas’ put it, looking back years later, if the first casualty of war is truth, the second casualty is civil liberties – ‘the midnight knock at the door ... And suddenly a political dissident is hauled off ... No charges are laid, no lawyers are allowed, no jury ever renders a verdict.’ But on the whole, the Canadian people supported the government’s policies; outrage was more likely to be expressed (or even felt, given the restrictive nature of censorship) only by people who had personal knowledge of unjust treatment.11 The major exception to this authoritarian acceptance was the civil liberties movement. When the Canadian government declared war against Germany in 1939, there were three civil liberties organizations in Canada – the Montreal, Toronto, and Vancouver branches of the Canadian Civil Liberties Union. Within a few months they were joined by an Ottawa branch, and then by a Winnipeg-based organization that decided to remain somewhat separate, calling itself the Civil Liberties Association of Winnipeg (CLAW). (There were a few less influential civil liberties groups on the scene. For example, the RCMP noted the existence of a ‘Democratic Rights Movement’ in Victoria in 1939, a number of moderate left-wing and pacifist groups formed the Committee for the Maintenance of Peace Time Liberties in Vancouver, and in 1941 there existed a Regina Civil Liberties Committee. For a while

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there was also a Union Defence Committee, organized ‘to fight the attack on trade unionism and civil liberties’ in Ontario.)12 Usually these civil liberties groups did not take an absolutist position on wartime freedoms. They readily acknowledged that perilous times necessitated unusual policies but stressed that the federal government had gone too far in limiting the freedoms of citizens and curtailing the supervisory powers of Parliament. As a result, the civil libertarians’ activities were mainly devoted to persuading the federal government that it should modify and fine-tune its regulations, not overhaul them completely. (Indeed, as Larry Hannant has pointed out, none of these groups was concerned with another aspect of libertarian rights – the government’s program of fingerprinting and security screening – and civil libertarian B.K. Sandwell was even on record as defending a nation-wide program of fingerprinting virtually all adults.)13 The civil libertarian groups did not, of course, act alone; they had allies in many sectors of Canadian society, but on the whole their support was thin. The legal profession, for example, which likes to pride itself upon its commitment to liberty, was usually conspicuously silent, with a few exceptions such as R.M.W. Chitty and his Fortnightly Law Journal, a sort of trade magazine for the Ontario bar. As Chitty put it, ‘like Achilles of old we have sulked in our tents or worse still supinely gone over to the enemy and assisted in the enforcement of restrictions that shamelessly and without colour of constitutional right filch from the country that very freedom for which our men fight abroad and some of us shout about at home.’14 A close examination of Chitty’s arguments, however, reveals that his concerns about the government were more narrowly focused than those of people in civil liberties organizations. Indeed, Chitty seem to have been somewhat of an authoritarian civil libertarian. He managed this oxymoronic position by taking what might be called the Diceyan view of civil liberties, as opposed to the Millian perspective. In other words, his concern was primarily with the threat to freedom that came from limitations on the powers of courts and the expansion of discretionary powers in the executive branch. He seemed relatively unconcerned with the issues that had so concerned the liberal philosopher John Stuart Mill – limitations on freedom of speech and freedom of association. As far as Chitty was concerned, the more suppression in wartime the better, as long as it was done according to the rule of law and through duly constituted courts.15

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Many other lawyers probably felt the same way, while those of a more Millian bent no doubt believed that, without a bill of rights and in the face of strong public support for authoritarian measures, there was not much that they could do. After all, attacking the government in court was not usually productive. Some lawyers, such as J.L. Cohen, the famous (or infamous) defender of radical-left activists as well as Jehovah’s Witnesses, specialized in civil liberties work during this period, but such efforts were often more quixotic than effective. It is true that judges occasionally issued warnings about government power, stressing the judicial ‘duty ... of being vigilant in guarding the liberty of the individual,’ and at times they ruled that there was inadequate evidence to sustain a conviction, or that the meaning of a particular order-in-council was not as broad as the crown prosecutor claimed. For the most part, however, they did little to protect Canadian citizens. As one magistrate put it, ‘in times of peace the civil rights of the people, the liberty of the subject, the right of free speech and freedom of the press are entrusted to the courts. In wartime this may be changed.’ Moreover, it was clear that the judiciary was certainly not neutral about the war effort. As another magistrate said, speaking of Ottawa’s limitations on free speech, ‘the whole intention is to compel individuals to maintain silence or speak in the unconquerable spirit by which troops in action must be moved if they are to win.’16 Civil libertarians also had only limited support in the press. The Toronto Globe and Mail, for example, only occasionally lived up to its motto – ‘The subject who is truly loyal to the Chief Magistrate will neither advise nor submit to arbitrary measures’ – and some other newspapers leaned even further to the right. As one journalist wrote in the summer of 1941, ‘some evidence of the amount of interest in Civil Liberties amongst our fellow Canadians is found in the reaction of the press to the public meeting held in Toronto last month by the Civil Liberties Association of Toronto. 19 newspapers throughout the dominion carried the C.P. dispatch, or reported the meeting independently. Editorial comment was found in at least 16 papers, of which 6 were favorable and 10 unfavorable. The number of unfavorable editorials, written about a meeting to discuss press freedom, indicates fairly accurately the wide-spread complacency which is found in all sections of the press.’17 The despairing author of this article was an editorialist with the Canadian Forum, the intellectual periodical that over time had become the informal voice of the CCF. It was one of the few press organs that

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consistently hammered away at the federal government during the early years of the war, and it frequently published a ‘Civil Liberties’ column compiled by the civil liberties organization in Toronto. Much of this was the work of the Belgian-born University of Toronto classics professor George Grube, although he was no doubt aided by Canadian Forum editor Eleanor Godfrey, who was also an executive member of the Toronto branch of the Civil Liberties Union and then (as will be explained later) its successor organization, the Civil Liberties Association of Toronto (CLAT). Grube was one of the controversial professors who had supported the free-speech rights of the Fellowship of Reconciliation in 1931, and there had been calls for his removal from the University of Toronto in the spring of 1939 when he stated at a CCF convention that government defence spending was ‘a waste of public money in the interests of British Imperialism.’ Grube exemplified the same kind of liberal/socialist values held by F.R. Scott – a belief in the sanctity of civil liberties combined with a profound distrust of capitalism. A founder of the League for Social Reconstruction, he became one of the core leaders of the Ontario CCF, several times running (unsuccessfully) for office and at one point serving as president of the party. As a member of the Toronto civil liberties associations, he helped provide the Canadian Forum with monthly summaries of civil liberties violations and also wrote several articles criticizing governmental authoritarianism.18 Other critics of the government’s heavy-handed approach to civil liberties included the giant Toronto Star and the tiny Toronto News (published by the Tory civil libertarian Judith Robinson), the Winnipeg Free Press, and the Vancouver Sun (although the latter was a staunch opponent of equality for Japanese Canadians). But the most influential critical journal was no doubt Saturday Night, edited by the redoubtable B.K. Sandwell. One of the elder statesmen of the Canadian intelligentsia, Sandwell positively bristled with talent – he had taught economics at McGill and headed the English department at Queen’s University before becoming editor of the influential journal Saturday Night in 1932, a position that he held until 1951. Born in England, but educated after the age of twelve in Canada, Sandwell was a personal friend of Prime Minister King – and knew almost everyone else worth knowing in the Canadian establishment. A short 1946 biography said of him that ‘he makes one think of the White Rabbit in “Alice’s Adventures in Wonderland.” His hair is white, his ears large, his complexion pink,

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his eyes pale and blinkingly shortsighted. Taken piece by piece, his face is a plain one, with a large fleshy nose, receding chin and forehead, and protruding front teeth. The assembled parts, oddly enough, produce a face that is not only intellectual and distinguished but pleasing. The most pleasing things about B.K. Sandwell are his voice, which is deep and rich, and his speech, which, even after almost 60 years in Canada, marks him as an Englishman.’19 Sandwell used this voice, and his editorials in Saturday Night, to instruct Canadians on a wide variety of matters: art, literature, theatre, economics, politics, and international affairs. (The federal Historic Sites and Monuments Board has since placed a plaque commemorating him at 73 Richmond Street West in Toronto, the former site of the Saturday Night offices.) As a study of the journal has put it, ‘he made his paper entirely his own, stamped it with his personality, and then made it the authentic voice of a distinct class. That class was the liberal elite of English-speaking Canada, the class that more or less determined the affairs of Canada as a whole in the years when Sandwell flourished.’20 In ideology, Sandwell was a classical liberal – he considered John Stuart Mill to be a model for ‘the more liberal-minded among civilized people’ – and his writings suggest an entirely cerebral and rational approach to civil liberties. At first he appears to have been interested mainly in prison reform, writing fifteen articles on the subject between 1931 and 1940, and supporting the Archambault Royal Commission report on prisons when it came out in 1938. Later in the decade, however, he began to support, both in writing and as a volunteer, the Canadian National Committee on Refugees and Victims of Political Persecution, lobbying the government to admit Jewish refugees from Nazi Germany.21 Given his classical-liberal predilections, it was not surprising that Sandwell’s Saturday Night editorials regularly pontificated about the dangers of excessive limitations on fundamental civil liberties. However, he was not an ‘absolutist’ civil libertarian, ready to defend the rights of any group, no matter how unpopular. His enthusiastic support for the war effort meant that he supported limits on the freedom of anyone spreading anti-war literature, and he would have banned even the American Saturday Evening Post when it adopted an anti-war stance in the early years of the conflict. As for the Communists, Sandwell at one point advocated the banning of one of their newspapers and maintained that, as far as the party was concerned, the nor-

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mal liberal arguments about free speech did not apply – ‘It requires time for truth to emerge out of such a conflict, and during a war it is impossible to wait for it to emerge if meanwhile error is going to be even temporarily triumphant.’22 The Communist newspaper that Sandwell would have banned was the Canadian Tribune. Just as Sandwell’s commitment to the war effort watered down his civil libertarianism, so did the Communists’ initial opposition to the ‘imperialist war’ stoke their civil libertarian fires to new levels. When Ottawa quickly responded by banning two of their newspapers, the Clarion and Clarté, they retaliated by continuing to publish illegal mimeographed editions, as well as by setting up an ostensibly non-partisan journal called the Canadian Tribune: A Journal of Democratic Opinion. In the first years of the war, the Tribune frequently attacked the government for its suspension of civil liberties, and in early 1941 it received a three-week suspension for publishing materials which the government claimed were likely to weaken the war effort. Aside from this warning shot across its bows, however, it was allowed to continue publishing its articles for the duration of the war.23 The Tribune was, in fact, not just a mouthpiece for the Communist Party. To be sure, its main editor was A.A. Macleod, two other editors were R.A.C. Ballantyne and Margaret Fairley, and its business manager was Jack King, but it also included King Gordon on its editorial board. (Interestingly, towards the end of the war one of its regular columnists was Nathan Cohen, later well known to readers of the Toronto Star and Canadian television viewers as one of the country’s premier members of the literary cognoscenti.) As a result, although the journal clearly had a political bias, it often presented interesting and insightful commentary on the wartime situation. However, it did follow what might be called a ‘conditional absolutist’ view of civil liberties – absolutist in the sense that it completely opposed all limitations on the speech and associational rights of left-wing critics, but conditional in the sense that it showed no interest in extending civil libertarian principles to fascists and others on the far right. The Communists were not represented in the House of Commons at the outbreak of the war (although they did have some representation at the provincial and municipal level in some regions), so among the politicians it was the CCFers who were the most effective allies of the civil libertarians. Writing in the pages of Canadian Forum in early 1940, J.S. Woodsworth argued that Ottawa’s practice of government by means

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of order-in-council was wholly undemocratic, and his replacement as CCF leader, M.J. Coldwell, along with other social-democratic notables such as Angus MacInnis, continued the civil libertarian tradition. These outspoken critics were supported by party activists, who developed at their 1940 national convention a program that included a protest against ‘unwarranted encroachments upon our civil liberties and democratic rights’ and that committed the party ‘to fight incipient fascism and dictatorship at home.’24 Unlike the pragmatic Communists, who demonstrated a remarkable fluidity when it came to issues of free speech and free association, the CCF usually took a highly principled position. Typical of this was an editorial in the CCF’s New Commonwealth protesting the summary suspension of the Communist Canadian Tribune. Noting that ‘no paper in Canada has attacked the CCF more mendaciously than the Tribune,’ the editorial nevertheless decried the process by which the ‘contemptible’ Tribune had been denied the right to a fair trial. ‘To throttle any newspaper without trial is utterly inconsistent with democratic principles,’ said the New Commonwealth, adding that ‘the fundamental rights of democracy must be extended to the minority as well as the majority, to those who care nothing for democracy as well as those who do.’25 Conservatives, on the other hand, often took the predictable stance of Tory authoritarianism. As Ramsay Cook has argued, most of the federal Conservatives were ‘typically Tory in their approach to the wartime restrictions on civil liberties; they showed no trust in the Canadian people ... and showed an almost complete distrust of non-British elements in Canada.’ After all, they often claimed, foreign immigrants might well take advantage of the unfamiliar ‘British freedoms.’ On the other hand, it often seemed as if extremism in the pursuit of liberty was not a vice for old-stock Tory Canadians. A federal Conservative from Ontario was reported as saying that ‘J.S. Woodsworth and his henchman M.J. Coldwell should be interned for unpatriotic statements in the House.’26 There were, however, a few Conservatives who embraced a somewhat liberal perspective, including John Diefenbaker, the MP from Prince Albert and a future prime minister. Perhaps this was in part because Diefenbaker was more of a prairie populist than a true-blue Tory, but it also had something to do with his memories of being harassed because of his Germanic heritage and name, coupled with his experience as a trial lawyer defending underdogs. With his usual

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hyperbole he called himself in his memoirs ‘an unsworn enemy of injustice, particularly against the weak.’ However, during the war neither the Canadian Forum nor Saturday Night ever spoke of Diefenbaker as a force for civil liberties, and he admitted in his memoirs that his maiden speech in the House supported the DOCR. (As he said, ‘the national safety is of paramount importance over private rights.’) True, he claimed to have done some work on individual cases of injustice while acting as a member of a parliamentary committee reviewing the DOCR, but an examination of Hansard suggests that his later selfproclaimed opposition to the treatment of Japanese Canadians was a self-serving figmentary hindsight and that his strongest rights stance was a suggestion – after the tide of war had turned in 1941 – that the government should end its the ban on the Jehovah’s Witnesses and the Communist Party.27 Within civil society, only a few groups supported the civil libertarian position. Some, like the Canadian Association for Adult Education (CAAE), seem to have been interested largely as a matter of principle. Others, like the Social Gospellers in the Fellowship for a Christian Social Order and the Fellowship of Reconciliation, believed in higher principles also but in addition had a pragmatic interest in defending free speech – they had produced ‘A Witness against the War,’ the pacifist manifesto that engendered a wave of jingoistic criticism and almost led to prosecutions under the DOCR.28 For similar reasons, organized labour frequently criticized the government’s more Draconian regulations. In the first few years of the war, national conventions of both the Trades and Labor Congress and the Canadian Congress of Labour several times called upon Ottawa to secure labour’s right to strike and picket. Trade unionists also deplored the arrests of prominent labour leaders, especially when it appeared that they had been detained more because they were effective trade unionists than because they threatened the security of the state. Up to a point, the interests of trade unions and the Communists coincided, since the latter were often among the most effective labour activists.29 Generally speaking, whatever the group, the arguments against the DOCR and government policy were similar. Take, for example, the arguments of the Montreal branch of the Civil Liberties Union in its pamphlet ‘The War and Civil Liberty.’ Issued at the beginning of the war, this outlined the organization’s concerns about the government’s policy of ‘law by regulation’ – the DOCR – and it is typical of the

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arguments expressed by other civil libertarians in similar pamphlets, letters, petitions, and public speeches. The CLU listed what it believed to be the four most dangerous sections of the DOCR, dividing them into two categories. First, the censorship regulations (numbers 15, 39, and 39A) gave wide-ranging censorship powers to the secretary of state, who could prevent the publication of anything that ‘might be prejudicial to the safety of the State or the efficient prosecution of the war.’ The regulations also prohibited anyone from making, printing, or distributing such materials and forbade any statements, whether or not true, that were ‘likely to cause disaffection to his Majesty or to interfere with the success of His Majesty’s forces.’ Such nebulous phrases, of course, made it extremely difficult for the average citizen to know ahead of time exactly what was forbidden and what was permitted, and they also provided carte blanche for any zealous policeman or prosecutor.30 The CLU also decried interference with ‘the liberty of the subject,’ especially in Regulation 21. This had been the most contentious issue when the bureaucrats were creating the regulations just before the war, for it gave the minister of justice the power not only to prohibit actions ‘prejudicial to the public safety or the safety of the State’ but also to detain any person engaged in, or suspected of planning to engage in, such activity. This was not, technically, a punishment for a crime, but a detention to prevent possible future crimes against the state. It did not require a trial and conviction in a regular court of law – and civil libertarians therefore sometimes referred to it as the ‘Star Chamber’ approach, a reference to the special court of Charles II which the king had used to punish his critics. Moreover, the authorities were under no obligation to provide the ‘accused’ with specific details of his or her alleged offence, the normal protection of habeas corpus was suspended (for there were to be no appeals to the courts), and over time it became apparent that internees were often held incommunicado, without relatives or friends knowing anything about their fate.31 In addition, the regulations interfered with property rights and the right of association. The police could search premises without warrants, and the government could seize and confiscate property even if a person had not been sent to trial. Then, in January 1940, Ottawa added another order-in-council (PC 37) which defined a subversive organization as one whose members had spoken, published, or acted in any way prejudicial to the war effort; a judge could declare such an organization illegal, and individuals could be prosecuted for member-

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ship or even for defending the principles of such an organization. This was to some degree a rebirth of the infamous section 98 of the Criminal Code, opening the way for a subsequent banning of the Communist Party.32 The CLU also voiced a procedural objection to the DOCR. Unlike the situation in the United Kingdom, where parliamentary debate had forced the government to modify its regulations, the DOCR were created and initially applied without any parliamentary input whatsoever. Indeed, in the first ten months of the war, Parliament met for a total of seven days, and the government was quite content to govern without a committee to oversee the regulations. As an editor of Canadian Forum wrote, before the war Prime Minister King had frequently denounced ‘Order-in-Council government,’ but in Canada ‘British traditions are more honoured in the speech than in the observance.’33 Civil libertarians were soon dismayed by governmental willingness to use these weapons relatively indiscriminately. Noting that in the United Kingdom there was not one prosecution under the emergency regulations during the first five months of the war, the CLU claimed that in Canada the government had initiated over ninety prosecutions. Moreover, over time it also silenced people who in many cases were hardly threats to the security of the state. Montreal Mayor Camillien Houde, for example, was interned for making a speech opposing conscription, and Charles Millard, secretary of the CIO, was arrested for making statements prejudicial to recruiting, contrary to Regulation 39. According to press reports, Millard was guilty of having said that ‘men are joining the army because that is the only way they can be sure of eating regularly’ and ‘we should have democracy here in Canada before we go to Europe to defend democracy.’ Even though the charges were dropped before Millard was tried, the case publicized the dangers of speaking one’s mind on wartime issues.34 The free-speech chill also enveloped the press. Although the government banned only about a dozen newspapers, and prosecuted only four, this was far more heavy-handed than the newspaper censorship in Britain. At the same time, it led to a fair degree of self-censorship, with newspapers frequently erring on the side of caution.35 Perhaps the most egregious but admittedly trivial example of this self-censorship was the time the Toronto Star kept its readers ignorant of an entire week in the life of Superman. The reason for this exercise in kryptonite journalism was that the comic-strip hero had taken an anti-

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war position. Given that some American newspapers on sale in Canada carried the entire cartoon story, this cautious policy of the newspaper seems to have been both pusillanimous and inconsequential.36 Occasionally, but not often, the press spoke out against censorship. In the case of Mayor Houde, Ottawa might have ignored his anticonscription speech and refused to make a martyr out of the Quebec nationalist politician, for the press was at first gagged when the censors (‘the men with the blue pencils’) ruled that publication of his statement would probably constitute an offence under the DOCR. The Montreal Gazette, however, was able to evade the ruling by making the speech available to the leader of the Conservative Party, who read it into the records of the House of Commons. The speech was now public property and could be printed without fear of repercussions – except for Houde, who was quickly apprehended and interned. The initial decision by the censors to prevent publication of the speech generated considerable press criticism; according to a study of press censorship during the war, newspapers tended on the whole ‘to accept the censors’ edicts unquestioningly,’ but in this case they ‘unanimously attacked’ the censorship ruling as an unjustifiable interference with the workings of a free press.37 Street-level conversations were also inhibited by the enforcement of the DOCR. For example, the authorities clamped down on what were sometimes called ‘beverage room conspiracies’ or ‘beer parlour offences’; early in the war a Saskatoon resident was given a prison sentence for ‘grossly insulting a soldier,’ and another received three months in jail for saying ‘Chamberlain is as bad as Hitler.’ One case that generated much anger among sympathetic liberals was the prosecution of Dr Samuel Levine, who was unfortunate enough to have rented a room to a man whom the police subsequently found to be in possession of a considerable amount of Communist literature. Although Levine claimed – and his tenant corroborated – that he had no knowledge of the literature, he was first sent to prison and then after serving his sentence promptly interned.38 Sometimes the reasons for internment were even flimsier. For example, the minister of defence said in the House, while defending his decision to intern a Dr F.K. Schneider for a second time, ‘I hesitated because I had really nothing upon which to base my order for his reinternment; far from it. The man had the best recommendations possible. But there is public opinion, and I thought we must satisfy public opinion.’ This was vigilante justice made official.39

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Even when nobody was arrested, the police were often able to intimidate people. Madeleine Parent, a prominent left-wing activist, remembers working with another volunteer in the office of the Canadian Youth Congress in the late spring of 1940 when three RCMP officers arrived. As she wrote: They searched through the files, placed records in boxes, and took us and the boxes to RCMP headquarters in old Montreal. We were held there for about five hours, mostly under the supervision of a fourth officer who refused to give us any information or to allow us a phone call to our mothers or to anyone else. —In the end we were taken to another room to appear before a man who seemed to be in command, although he was in civilian clothes. It was in the late evening and it appeared that he had rushed to the office from home. He harangued us, sometimes wildly, always refusing to say whether we were to be arrested, charged, detained, or incarcerated under the War Measures Act or just allowed a phone call. Finally, he signalled to the officer who had brought us to headquarters to take us away ... The CYC closed its Montreal office immediately after the raid.40

Not only did the DOCR severely restrict free speech, but they also limited the right of freedom of association by allowing the banning of certain groups. For example, Ottawa declared the fascist National Unity Party to be an illegal organization and interned several of its leaders, including Adrien Arcand. Of course, given that Canada was at war with the fascist powers, this was not an outrageous violation of free speech, especially since there was some evidence that Arcand was in touch with the Nazis. However, the ban did not take place until the summer of 1940, almost a year after the war had begun. The proximate cause of the anti-fascist ban was the end of the ‘Phony War,’ when Denmark, Norway, the Netherlands, Belgium, and France collapsed with frightening speed as the German armed forces rolled over all opposition. This engendered the second wave of war hysteria in Canada, and it was then that the fear of ‘fifth columnists’ as well as the creation of vigilante groups made the government worried that peace and order might fall apart. There was even an allegation that the Moravian missionaries in Labrador were training their Inuit charges for an attack on Canadians to the south. As a result, although the government had considered liberalizing the DOCR, pressure from both the RCMP and the public forced the prime minister to capitulate. Ot-

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tawa responded to the domestic crisis by increased internment and the banning of all sorts of organizations.41 For German Canadians, this meant a new wave of internments. For Canadian Communists, it meant prohibitions on the party and affiliated groups. Ottawa also interned as many Communist activists as it could round up, including some allegedly ‘red’ labour leaders such as Pat Sullivan, president of the Canadian Seamen’s Union (CSU), and C.S. Jackson, the vice-president of the International Union of United Electrical, Radio and Machine Workers of America. After all, from a pro-British and pro-capitalist perspective (which represented the thinking of most English Canadians), the Communists were a serious threat. As one RCMP officer argued in a report: ‘They see Great Britain as the main obstacle in the destruction of capitalism and rejoice in anything that weakens her. They do not believe Germany will win the war, because they are sure that the Soviet Union will act at the opportune moment to prevent either side from overwhelming the other. They believe that the workers will turn to revolution as soon as they have suffered enough to create the necessary revolutionary conditions. They believe that military conscription in Canada will create a revolutionary situation in Quebec of which they hope to take the fullest possible advantage.’42 The Communist Party was first outlawed in May 1940, when Justice E.R.E. Chevrier of the Ontario Supreme Court decided a case involving section 39A of the DOCR. Not only did he find the three defendants guilty of publishing and circulating an election pamphlet that he deemed to be prejudicial to the prosecution of the war, but he also declared the party to be an illegal organization. The federal government then issued an order-in-council which rendered any appeal impossible; this order-in-council declared that the party, along with the now moribund Canadian League for Peace and Democracy, as well as fourteen other organizations, some Communist and others fascist, were outlawed. Ottawa was concerned about the effect of anti-war propaganda on Canadians, especially Québécois, and happy to eliminate a source of both political radicalism and effective trade-union activism. Although many of the major Communist leaders went into hiding, the government managed to intern about one hundred and thirty party members in the early part of the war.43 Often these internments were based on hearsay evidence, the government claiming that ‘representations had been made’ that the individual was a member of the Communist Party. Sometimes there were

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other allegations, even more flimsy. Muni Taub, for example, was interned in part because he had taken a leading role in the court challenge to the Padlock Law. And in another case that was widely condemned, a doctor was interned because one of his patients was apparently a Communist.44 As one might have guessed, internment was not pleasant. Patrick Lenihan, a Calgary alderman, has recalled that the guards were generally friendly, but neither he nor any of the others enjoyed the experience.45 As Mitch Sago put it, reminiscing years later about his internment as the publisher of a Communist newspaper: The prison camp was a whole new world, gray and claustrophobic. Time was two-dimensional: inside and outside. Inside, each day was confined by stone and steel, barbed wire and bayonets. There was a sense of waste, of suspended animation. Outside, humanity fought for its life and its future. All of us were garbed in POW uniforms with the red circle on the back of the jackets as insignia and target. We were marked men, prisoners of war, in uniforms decreed by international law. We had consistently opposed the enemies of our country, in return for which we had been imprisoned behind stone and barbed wire.46

From Ottawa’s perspective, this second wave of internments, Communist and otherwise, was an unqualified success. As one RCMP officer put it, ‘the effect of periodic internments is very beneficial in stabilizing public opinion.’ From the civil libertarian perspective, however, the government was once again acting in a ham-fisted authoritarian fashion. The civil libertarian press especially protested Ottawa’s approach to Communists, arguing that it was illiberal, misguided, and dangerous. The Canadian Forum pointed out that ‘Canada is the only English-speaking country in the world in which the Communist party has been made illegal,’ and added that ‘you cannot fight for freedom with one hand and strangle it with the other without making yourself ridiculous and, incidentally, the loser in the end.’ Moreover, as another Canadian Forum editorial put it, attacks against alleged Communists were intended ‘to attack and possibly destroy a whole host of progressive movements by smearing them with red paint.’ Even the staunchly anti-Communist Saturday Night worried that the governmental suppression of Communists looked too much like ‘a policy designed to intimidate labor.’ In the case of C.S. Jackson, for example, the government alleged not only that he was ‘associated with mem-

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bers of the Communist Party’ but also that he had been responsible for prolonging an illegal strike. (At Sullivan’s hearing the government also claimed that he was dangerous because he had attended a conference on civil liberties!) As the civil libertarians argued, it would have been less controversial to charge Jackson with the crime of contributing to an illegal strike and take the case before a court, especially because the strike was subsequently ruled to have been perfectly legal.47 This did not mean, of course, that civil libertarians were asking for a wartime policy of free speech as usual. But as one Saturday Night editorial pointed out, the federal government could have adhered to ‘basic principles of British liberalism’ by leaving the Communist Party alone while simply interning those Communists who were clearly impeding the war effort. This might not have satisfied Quebec, but it would have been a less extreme reaction to a national threat. It also would have avoided interning people who were simply alleged to be Communists.48 The banning of the Communists was also political dangerous, the civil libertarians pointed out. According to Andrew Brewin, one of the key members of the Civil Liberties Association of Toronto, as well as a prominent activist in the Ontario wing of the CCF, banning the Communists in the early part of the war prevented them ‘from cutting their own throats and from exposing their defeatist, if not treasonable, outlook to a public far too sensible to accept their doctrine of revolutionary defeatism.’ This, he said, had resulted in a kind of ‘silent martyrdom’ and given them ‘ammunition’ in their critique of liberal democracy.49 Ottawa also believed that the war effort was threatened by the Jehovah’s Witnesses, and here too it overreacted. The members of this group claimed that they had a religious obligation not to support the war in any fashion whatsoever. (For this reason, they all claimed the status of conscientious objectors.) Moreover, they had become a thorn in the side of the Catholic Church in Quebec, where their aggressive proselytizing had engendered a strong backlash. Consequently, on 4 July 1940 the federal government declared that the Witnesses were an illegal organization. It was paradoxical that Canada, in fighting against the Nazis, should use some of the same methods as the Nazis in dealing with this ‘troublesome’ religious sect. Of course, the internment camps which held some of the Jehovah’s Witnesses in Canada were in no way comparable to the Nazi concentration camps, but the

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fact remains that Canada was the only liberal-democratic nation in the world to have violated religious freedom in such a fashion.50 Perhaps the least defensible banning of an organization involved Technocracy, although the normally liberal Saturday Night advocated that the government shut it down, on the erroneous grounds that this group was ‘violently opposed’ to participation in the war effort. Its members, committed to the notion of a government run by technocrats rather than politicians, had been prevented early in the war from importing some of their literature from the United States. In addition, the RCMP had labelled this rather innocuous group a quasi-fascist movement, but the real reason for its banning was probably its advocacy of ‘total conscription’ – not only government control of corporate wealth and the major means of production (along with a ‘quick freeze’ of all trade unions) but also ‘conscription of all effectives, male and female, between the ages of 18 and 65 for national service both civilian and military.’ This latter policy would have split both the country and the Liberal Party along anglophone/francophone lines, as had been the case in the previous war, and the Liberal government of Mackenzie King was desperate to avoid any such schisms. As a result, Ottawa banned the organization about two weeks after the Canadian publication of its program of action, in June 1940. This ban was not lifted until 1943 when the Liberals had partially solved their dilemma by going to the people with a referendum on conscription and then establishing an improved national selective-service regime.51 June was also a bad month for many Italian Canadians. When Italy declared war on Great Britain and France, the federal minister of justice signed an order-in-council permitting the RCMP to arrest suspected fascist sympathizers. While some of the subsequent internees were clearly a danger to the war effort, many innocent Italian Canadians were also swept up in the net, as had been the case with the German Canadians before them. As with those of German extraction, and also those of Japanese descent, no cases of Italian-Canadian sabotage occurred during the war. One of the most interesting cases involved an artist who had painted a portrait of Benito Mussolini, surrounded by rather more spiritual beings, in the Church of the Madonna della Difesa in Montreal. The painting still may be seen, years after its creator languished for a short while in an internment camp, despite his arguments that he was not a fascist and had been coerced into including ‘Il Duce’ in the picture. However, this and other cases were on the whole ‘invisible’ civil liberties issues, not brought up by either the press or

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rights groups. Only later, long after the war, would the Italian- and German-Canadian communities attempt to publicize these injustices and demand some sort of apologies and redress. (Although this is small comfort to the Canadians unjustly interned during the war, it is worth noting that Canada was not completely addicted to the incarceration of citizens from enemy countries. In late 1941 Canada declared war on Hungary, Romania, and Finland but refrained from applying the DOCR to immigrants from these countries.)52 For reasons that may have as much to do with the writing and teaching of history as with a penchant for smug self-delusion, many Canadians are not aware of the way in which the state violated the due-process rights of Italian and German Canadians or the rights of free speech and freedom of association of other people during the Second World War. Most, however, are well aware of the illiberal treatment of British Columbia’s Japanese Canadians. This, too, was facilitated by the War Measures Act; all orders to the police and other local authorities were based upon federal orders-in-council (primarily the DOCR) which in turn were justified by the broad grant of executive power at the core of the War Measures Act. So how did Canadians end up with a situation in which the federal government (assisted by provincial authorities) was able to run roughshod over the ‘British liberties’ of its citizens? For one thing, there was no strong civil libertarian tradition or organization in Canada, and the activists were divided both geographically and ideologically. For another, they represented a distinct minority within Canadian society. It is self-evident that, in a time of social ‘hysteria,’ those who retain a critical perspective are usually out of step with the stampeding masses. As a result, it is hard to know exactly how much impact these small organizations had on the government. At the level of individual cases they certainly had some effect. For example, the Toronto group, in conjunction with the United Electrical Workers’ Union, hired J.L. Cohen to plead the case of C.S. Jackson before a governmental advisory committee considering government internments. Ottawa’s case was weak, and the committee recommended that he be released. The next day the minister freed Jackson, after ‘only’ six months in internment camp.53 At the more general level, it is also clear that the government sometimes listened to its critics. As early as January 1940 Ottawa responded by modifying the DOCR. No longer was it possible for a citizen to be prosecuted under Regulations 39 and 39A without the explicit ap-

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proval of a federal or provincial attorney general, and there was now a ‘good faith’ defence to such prosecutions; honest criticism was explicitly permitted. At the same time, however, Ottawa also moved in an authoritarian fashion. As noted earlier, it amended the DOCR to make it possible for a judge to rule an organization illegal if one of its officers had been convicted of a breach of Regulations 39 or 39A (which included doing anything ‘which might be prejudicial to the safety of the state or the efficient prosecution of the war’).54 Then, in the early summer of 1940, the prime minister finally allowed the creation of a parliamentary committee to review the DOCR, acknowledging in the House that he was responding to the request of the Toronto group as well as several other organizations, including the civil liberties association in Winnipeg. As was expected, civil liberties groups in Toronto, Montreal, and Winnipeg (along with J.L. Cohen, who represented the now illegal Communist Party) asked that the worst elements of the DOCR be removed, but the committee also received letters from Alberta Premier William Aberhart, and Ontario Attorney General Gordon Conant arguing in favour of even more severe restrictions on civil liberties. Despite the efforts of some of its more liberal members, the committee did not make any substantial progress in recommending changes, and it adjourned in August, not meeting again until the spring of 1941, when it heard again from some of the same interested parties as well as a few other groups, such as Wives of Interned Labour Leaders and the Czecho-Slovakian National Alliance.55 In June 1941 this committee submitted its final report to the House of Commons. Canada had now been at war for almost two years, but this was the first time that the House had been given an opportunity to deal specifically with the DOCR. However, it approved the report without much in the way of grumbling, and subsequently the government adopted a few of the committee’s suggestions. For example, Regulation 15 was amended so that the suspension of a publication could be appealed to a one-person committee consisting of a judge, and one of the alterations of Regulation 22 now made it easier for a person in danger of being detained to know more details about the government’s reasons. On the other hand, the minister of justice, Louis St Laurent, on at least one well-publicized occasion set aside the findings of a committee in such a way that even the Globe suggested the emergence of ‘a new despotism in Ottawa,’ and there were no changes at all to some of the other ‘dangerous’ regulations, such as Regulation 21, which

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gave the minister wide powers to order an internment. As a Tribune editorial lamented, ‘the situation is basically as it was before. The minister of justice or the secretary of state still has the final say about who should be interned or what publication should be suppressed.’ And since these ministers were operating on the basis of secret information coming from the RCMP, Canada still remained ‘a police state.’56 Nevertheless, changes did take place over time, and, as Ramsay Cook has argued in an exhaustive study of the topic, ‘though all the credit for the revisions that were made in the Defence of Canada regulations cannot be given to the civil liberties associations, as there were other groups and individuals who lodged protests, these organizations were undoubtedly the most potent single force in forcing the acceptance of changes.’57 What is the evidence for Cook’s assertion? First, although in 1940 approximately one hundred and fifty individuals and organizations, especially trade unions, made written representations protesting the severity of government policy (about two hundred and fifty individuals and groups asked for stricter or broader controls), the main bodies appearing before the committee were civil liberties organizations, which usually presented well-written and detailed briefs. Moreover, as noted earlier, the civil libertarians’ views were frequently publicized in the liberal press; both the Canadian Forum and Saturday Night usually followed the same line as the Toronto civil liberties association, and the Winnipeg Free Press usually maintained a similarly close relationship with the Winnipeg civil liberties group.58 But did activism and publicity translate into effective pressure? This cannot be proved conclusively. However, as noted earlier, the prime minister acknowledged in the House that the decision to set up a parliamentary review of the DOCR was to some degree a response to civil libertarian lobbying. This pressure was probably effective in large part because Ottawa was not ideologically monolithic – there were people in the cabinet and the Privy Council Office who were considerably more liberal than some of their colleagues – and it is possible that lobbying may have helped to tip the balance away from the authoritarian side of the scale. This is all the more likely because of the nature of some of the protesting civil libertarians. A close reading of the letters and briefs sent to the federal government by the leaders of these groups illustrates the elite nature of Canadian politics; much of the lobbying involved an extended conversation between

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‘family’ members about the respect for liberal values and the ‘British liberties’ tradition.59 Take, for example, the efforts of the Civil Liberties Association of Winnipeg. This group began life when four reform liberals and social democrats joined together in September 1939 to send a letter of protest to the prime minister about the suspension of civil liberties. These critics consisted of philosophy professor and United Church minister David Owens, Lloyd Stinson (also a United Church minister, who became Manitoba CCF party leader in the early 1950s), and Alistair Stewart (a chartered accountant who became a CCF MP for Winnipeg North at the end of the war). Within half a year this nucleus had expanded into first an organization called the Provisional Committee for Canadian civil liberties and then CLAW. The group also included, in addition to the original activists, other Winnipeg professors as well as business economist Mitchell Sharp (who afterwards worked as a federal bureaucrat and much later would become a cabinet minister in the government of Pierre Trudeau). Most important, it had the support of E.J. Tarr, a person much respected by the prime minister – president of the Monarch Life Assurance Company and head of the influential Canadian Institute of International Affairs.60 The group also included an up-and-coming history professor named Arthur Lower. As a later chapter will demonstrate, Lower was one of the people who, after the Second World War, played an important role in the struggle to obtain a national bill of rights. A somewhat dour-looking academic with a small goatee, Lower was born when Sir John A. Macdonald was still prime minister, as he noted in his memoirs, somewhat mischievously titled My First Seventy-Five Years. Lower is interesting not just because of his historical writings – especially his Colony to Nation, written during the war – but because he was a politically engagé intellectual with personal connections to a wide spectrum of the English-Canadian intellectual and political elite. (Like Tarr, he too was an active member of the CIIA.) Described by Carl Berger as ‘the most nationalistic of English-Canadians historians’ in the midtwentieth century, he retained throughout his life a Methodist-ingrained belief in the virtue of hard work and believed strongly that scholarship ought to be put to practical use. This orientation, combined with a strong commitment to the traditions and principles of British liberalism, led him inevitably in the direction of civil libertarianism. What other position could he have taken, in the face of the DOCR, when for

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him the ‘quintessence of liberalism’ was summed up by the phrase, ‘I wish neither to take nor to give orders’?61 Lower and his small group claimed in their letter to the prime minister that they spoke for ‘the intellectual elite’ of the country, and they flattered King by suggesting that he was a member of this elite as well. (In reality, Lower was not impressed with the rest of his educated colleagues; as he later wrote, ‘in times of trouble the average academic promptly dives under the table,’ and he also claimed that he and Owens did most of the work.) They then enumerated some of the shortcomings of the DOCR and ended with the request, ‘Will you not, as a Liberal and a lover of freedom, give us back a reasonable measure of our civil rights, our freedom of speech in a moderate degree, our freedom of domicile, and above all our freedom from arbitrary arrest?’62 Not long afterwards, CLAW received some feedback in the form of, first, a letter from the prime minister to Lower, and then a ‘personal and private’ letter to Lower from J.W. Pickersgill, the prime minister’s principal secretary. This was the same Pickersgill who had helped David Lewis to lobby for the disallowance of the Padlock Law, so it is not surprising that he was sympathetic to CLAW’s requests. Moreover, he was a close personal friend of Lower, having taught history with him in Winnipeg before taking up employment in the federal public service. Pickersgill pointed out to Lower that King had filed the CLAW letter with his own papers, and he added a few suggestions about how the organization could be more effective in lobbying the prime minister – writing shorter letters, addressing their efforts also to cabinet ministers J.L. Ilsley and Ernest Lapointe (whom he saw as somewhat less liberal than King), and pointing out the importance to the government of not alienating American public opinion by the excessive limiting of freedom.63 (This latter point also appeared in a Saturday Night article critical of Ottawa’s authoritarianism. Indeed, in the early part of the war, Canadians were aware that the more liberal elements in the United States looked askance at the harsh nature of Canadian controls, and that on occasion the isolationists referred to Canada to bolster their position; a war, they alleged, would obviously mean severe limitations on civil liberties. Articles in the New Republic, the New York Times, and the New York Post commented on this, with Ottawa responding by temporarily banning the latter periodical. In turn, an American civil libertarian group called the International Committee for Political Prisoners

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singled out Canada as having the worst track record, among all the allied democracies, in the curbing of basic freedoms.)64 The Winnipeg group continued to prod the government. In May 1940 it sent a nine-page memorandum to the prime minister, other cabinet ministers, and the leaders of the other political parties. This memorandum was endorsed by seventy-seven citizens, mostly from Manitoba, and, as an accompanying letter pointed out, they were all people who did ‘not stand for extreme views of any sort, but on the contrary represent[ed] the sober common sense of our community.’ Like most civil libertarians at the time, these people all agreed that some limitations on traditional rights were necessary during war but were concerned that the government had gone too far.65 However, it was the Toronto group that perhaps had the most impact on Ottawa. First, it often lobbied MPs. For example, CLAT invited the celebrated left-wing lawyer J.L. Cohen to give a speech on the DOCR and then sent copies of that speech (also reproduced in Saturday Night) to all MPs. It also sent representatives to a hearing of the parliamentary committee on the DOCR. At other times it held public meetings on particular civil liberties cases, using them to whip up support for modification of the regulations. Most important, however, in February 1942 it led a delegation to the prime minister and several members of the cabinet, asking for (among other things) an amendment to Regulation 21 to ensure that it would not be used to prohibit workers from going out on strike. Within a few months the government acquiesced.66 CLAT’s ability to speak directly to the federal cabinet demonstrates the power of not only ideas but also ‘respectability’ and political connections. Members of the CLAT council included the newspaper magnate Clifford Sifton, as well as the eminently respectable Sir Ellsworth Flavelle, a director of the National Trust who had worked with Sandwell in the Canadian National Committee on Refugees and Victims of Political Persecution. Moreover, the first president of this organization was Sandwell himself. As noted earlier, the editor of Saturday Night was intimately connected to members of the political, cultural, and economic elite, and attaching his name to a delegation virtually ensured that it would receive a respectful hearing at the highest levels of government.67 Part of CLAT’s respectability came from its ideological purity. As noted earlier, the Toronto branch of the CLU had been fairly active, especially with regard to the campaign to repeal the Padlock Law.

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However, during the early part of the war it seems to have been virtually invisible, and in January 1940 it announced plans for ‘reorganization and expansion.’ When a number of prominent Ontario citizens a month later demanded some significant changes to the DOCR, asking that the regulations be submitted to a parliamentary committee as soon as possible, they did so without any reference to a sponsoring organization. (This was all the more interesting, since some of the signatories, such as Professor Grube and the journalist Judith Robinson, were members of the TCLU.)68 In March a number of these citizens formed a new organization, the Civil Liberties Association of Toronto, with the staunchly anti-Communist B.K. Sandwell as its first president. According to the private correspondence of one of the members, it developed out of efforts to reorganize the Toronto branch of the CLU ‘on a wider basis.’ This was no doubt an oblique reference to distancing the Toronto organization from the increasingly Communist Montreal branch of the CLU, and the name change reflected that strategy. Indeed, a short time later, at a national civil liberties conference in Montreal, the Toronto delegate, Lou Golden, was roundly booed by the audience for suggesting that Communists (and also fascists) be prohibited from joining civil liberties organizations.69 The early leadership of this new Toronto civil liberties group was certainly ‘respectable.’ Even the RCMP, always prone to see ‘reds’ under every political bed, maintained that the organization was not Communist-controlled like the Montreal CLU. In the beginning, according to Frank Underhill, the two most ‘active and useful’ members of the new organization were CCF stalwarts Geoffrey Andrew, a master at Upper Canada College, and the lawyer Andrew Brewin. Moreover, not a name of the original executive or council was tinged with red; the ideological proclivities seemed to range from the moderate right (such as two of the vice-presidents, Ellsworth Flavelle and J.M. Macdonnell, a prominent businessman and a Red Tory Conservative from Toronto) only as far as social democrats (such as philosophy professor George Grube or adult educationalist E.A. Corbett). Indeed, the most serious ideological division was between the ‘conditional’ civil libertarians, such as Sandwell, and the more ‘absolutist’ civil libertarians, such as the journalist and author R.S. Lambert. When Sandwell, almost immediately after being selected as CLAT’s first president, published his article calling for the suppression of the radicalleft Canadian Tribune, Lambert and a number of other members insisted that the editorial did not represent CLAT policy.70

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By early 1941, however, the Communists were attempting to elect supporters to the council. As a result, the CLAT executive planned the adoption of a rigorous membership policy, as well as seeking out new members on the right. Years later, J.M. Macdonnell reminisced in the House of Commons about Communists in CLAT, saying that they were well organized and had ‘an unlimited amount of time to spend at meetings.’ As a result, noted Macdonnell, he and other non-communists often had to stay at meetings until midnight, for fear of losing a crucial vote.71 These tensions apparently continued well into 1942. For example, the above-mentioned meeting between CLAT and the prime minister came about in part because Sandwell sent King a personal letter, in which he maintained that CLAT’s very existence was in jeopardy as a result of a threatened Communist takeover. This, he argued, could be prevented if ‘we can show our members that we are doing something useful,’ and therefore the proposed meeting would also be ‘in the interest of the Government.’72 Apparently CLAT was successful in its attempts to stave off Communist control. An examination of its council membership in 1943 indicates that there were, indeed, some fairly left-wing members of the association by then. One of the presidents was Drummond Wren of the Workers’ Educational Association (WEA), and the council also included the radical lawyer J.L. Cohen as well as Mrs Rae Lucock, later expelled from the CCF for her extremism. However, with Ellsworth Flavelle now president, and people like Sandwell and Brewin still on the council, it is clear that the organization was far from being a Communist-front organization.73 The Montreal branch of the CLU, on the other hand, seems to have been weakened by a very real process of Communist infiltration. As noted earlier, it had begun life as a liberal/social-democratic organization, although by 1937 it had a Communist, Cam Ballantyne, as its executive secretary. When war began, the organization still boasted a number of prominent liberals and social democrats, although Eugene Forsey and Frank Scott soon distanced themselves from the organization. Indeed, shortly before the war, a number of radical leftists had been elevated to the CLU board. Although the new vice-chair, Raymond Boyer, was not an admitted member of the Communist Party (few ‘respectable’ citizens were), he was a well-known member of the proCommunist artistic and social circles of that period. In fact, shortly after the war, he was detained as a result of the Gouzenko revelations

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about a Russian spy network in Canada, and he was subsequently sent to prison for passing a military secret to the Soviet Union. Similarly, the CLU’s treasurer, Agatha Chapman, was also implicated in the Gouzenko investigations (although she was acquitted), and after the war she supported the Civil Rights Union (CRU), an organization dominated by left-wing radicals. Within a few months Mary Jennison was also a member of the executive committee; she later was heavily involved in the allegedly Communist-dominated peace movement, and during the Cold War she worked for the Canadian-Soviet Friendship Society.74 It is extremely difficult, looking back at limited records, and for the most part without testimony from participants, to determine whether or not, and how, an organization might have been ‘taken over’ by Communists. One RCMP report argued that the number of Communists on the CLU board was largely irrelevant, for control depended upon a few ‘especially trained and well guided members on the Executive Board, and a rank and file membership made up of communists in a proportion of 3 to 1.’ This sounds like a plausible explanation, but it was the same report that claimed that the Communists also enticed into the organization ‘honest well meaning and sincere progressive and liberal minded people, by hypnotizing them into believing that those being prosecuted or interned are being cruelly victimized ...’ The RCMP observers were not known for the sophistication of their analyses.75 Yet it was not only the RCMP that sounded the tocsin. David Lewis, the national secretary of the CCF in Ottawa, and a long-time opponent of Communists, served as a valuable link between the CLU and the political process in Ottawa, sending the Montreal group information and strategic suggestions. His correspondence, moreover, shows that he was warring on two fronts – against both the federal government and the Canadian Communists. In early 1940 he was assisting the liberals and social democrats of the CLU to fight off a Communist drive to capture the organization, while also helping to create an Ottawa branch of the CLU free from Communist influence. (The major threat to the Ottawa group seemed to be a recently constituted branch of the Canadian Labor Defense League, and Lewis argued that it would be ‘a serious technical error to tie the CLU up with an organization which is known and recognized as a communist controlled organization.’)76 The Ottawa branch of the CLU does not seem to have lasted for very long. It was composed for the most part of lawyers and non-

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Communist members of the labour movement, yet almost as soon as the organization was created, Lewis worried about a Communist takeover. He wrote to Eugene Forsey, saying that ‘the communists are making a drive to capture the union. If they succeed the organization will become useless so far as effective work is concerned and our people will fight shy of it. Personally I would not blame them under the circumstances.’ Lewis’s worst fears seem to have been realized, for the organization disappeared shortly afterwards.77 By contrast, the Civil Liberties Association of Winnipeg remained ideologically ‘pure’ and survived. Communists attempted on several occasions to join CLAW, but they were largely unsuccessful, for the organization operated as a closed system in order to ensure that only the ‘right’ kind of people would be admitted. In fact, according to Lower, his organization even ‘laid down the principle that we would not help to defend Communists, that those whose allegiance is to a foreign state of doubtful friendliness can hardly expect the protection of our laws.’78 The Vancouver branch of the CLU, on the other hand, was somewhat more willing to defend Communists than was the Winnipeg group, and the RCMP therefore regarded it as simply a retooled version of the local CLDL. There is, however, no evidence that this analysis was correct. Although we have no records of its general membership, we do know that during the war the executive of the VCLU consisted of the usual mixture of leftist academics, social activists, lawyers, and politicians. Most of these, like University of British Columbia English professor Garnett Sedgewick, who had vigorously attacked the Padlock Law in the 1930s, and his departmental colleague, Hunter Lewis, were liberals or social democrats. One of the members, Laura E. Jamieson, was a CCF member of the provincial Legislative Assembly. The notice secretary was Nathan Nemetz, a lawyer with CCF connections who later switched to the Liberals and still later became chief justice of the province. The most radical member of the executive was probably Garfield King, a flamboyant lawyer with a reputation for taking on left-wing clients; King was not known to be a member of the Communist Party, but he was seen as sympathetic to its cause.79 These ideological divisions within the civil liberties groups ultimately made it impossible for them to transcend their geographical divisions and speak with a united voice. In early 1939 the Montreal branch of the CLU sent two of its executive members to a National Conference on Civil Liberties sponsored by the American Civil Liberties Union in

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New York, and concluded that a similar Canadian conference should be held in Montreal in early 1940, especially when they learned that a conference in Britain had helped to persuade the government of that country to change its wartime regulations. (Canadians frequently noted that civil libertarians in Britain had been able to curtail authoritarian governmental tendencies. In both that country and the United States, for example, the Communist Party was never made an illegal organization, and the British regulations included a number of safeguards that were absent in Canada.)80 Over the next few months, the CLU worked with a number of tangential rights groups to sponsor a national conference of civil liberties and libertarian organizations. The co-sponsors were the Christian Social Council of Canada; two progressive trade-union organizations, the All-Canadian Congress of Labour and the CIO; the social-democratic League for Social Reconstruction; the fairly radical Fellowship for a Christian Social Order; and the increasingly Communist-dominated Canadian Youth Congress.81 The Montreal CLU also planned to create, at a meeting immediately following the conference, an organization called the National Civil Liberties Union. To that end it wrote a draft constitution and sent it to the Toronto, Ottawa, and Vancouver civil liberties organizations. For a while, it also had high hopes that the civil libertarians in Winnipeg would form a branch of the CLU and then join in the creation of a national organization.82 The conference was not entirely a success. According to newspaper reports, the attitude of the delegates made it appear that the Montreal branch of the CLU was dominated by Communists. True, there were delegates from as far away as the west coast and the Maritimes, including a strong contingent from the Toronto civil liberties group. (According to Sandwell, his group sent delegates because the working class should not see their rights being defended only by Communists.) But the RCMP report of the conference, which in many ways corresponded to the mainstream press news stories, claimed that the conference was ‘a colossal blunder as it was obviously a Communist feast and too one-sided ... As a result of this conference many prominent individuals who have been connected with the CLU have withdrawn their membership.’83 The Communist-leaning Canadian Tribune denied that the conference had been a failure; it claimed that only three delegates opposed the central resolution denouncing any curtailment of ‘basic civil liber-

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ties’ and demanding the removal of most of the DOCR. Yet even the Tribune admitted that one of the long-time members of the CLU, the staunchly anti-Communist Jean-Charles Harvey, believed that the conference had been infiltrated by ‘fifth columnists.’ In addition, two members of the CLU executive, J. Norman Lee and Agatha Chapman, were summarily dismissed from their jobs at the Sun Life Assurance Company because they persisted in retaining their ties to the now publicly discredited organization. Following this, a number of council members resigned from the organization.84 The CLU denied allegations that it was Communist-dominated and claimed that, despite a campaign to discredit it, none of the members of the Executive was a member of the Communist Party, and less than 1 per cent of the membership had subsequently left the organization. Yet, although the Montreal group was still attempting, in June 1941, to create a national body, it was increasingly hampered by perceptions that the organization was a Communist ‘front.’ G.R. Parkin, a close friend of Frank Scott and one of the original supporters of the Montreal CLU, wrote to CLAT member J.M. Macdonnell to ask about how he might join the Toronto group, for he believed that the Montreal organization had been taken over by ‘an extremist element’ and was no longer ‘genuinely democratic.’ It may not have been quite true, as one RCMP report had it, that in the early 1940s the Montreal branch of the CLU was ‘the most effective weapon of the Communist Party of Canada,’ but it was clear that many ‘respectable’ liberals now saw it as ideologically tainted.85 Meanwhile, the Communists had also created their own civil liberties organization. In June 1940 the Canadian government had declared the Canadian Labor Defense League an illegal organization because of its Communist leanings. In June of the following year, however, the war entered a new stage when Hitler chose to invade the USSR. The civil libertarian position of the Canadian Communist Party then changed completely – the Soviet Union was now threatened by fascism, and the war effort became for Canadian Communists an allconsuming goal. Within two months they created a new organization, the National Council on Democratic Rights (NCDR), a sort of quasicivil libertarian association, with a central office and a number of regional member groups which lobbied Ottawa to free interned Communists and permit party members to take an active role in the Canadian struggle against fascism. In the words of A.E. Smith, the Social Gospel minister who had previously headed the CLDL, he and

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Communist activist Beckie Buhay opened their office in Toronto and sat ‘waiting for the RCMP to come and dislodge us. At the end of two weeks, still unmolested, we went active.’86 The NCDR held its inaugural meeting in August, set up a number of branches across the country (it soon claimed to represent 140,000 people), convened a preliminary conference in September, and began circulating a petition which called for the release of all ‘anti-fascists’ as well as the repeal of section 21 of the DOCR. Two months later it sent a delegation and a lengthy brief to Ottawa. Subsequently it held large wartime conferences on civil liberties in Ottawa, Toronto, and Montreal, as well as a number of smaller meetings in other cities, and continued to lobby for what it called ‘democratic total war.’ Because of Hitler’s invasion of the USSR, the Communist Party line had changed from pacifism to militarism, and civil liberties issues involving Communists had become increasingly irrelevant, although at first the NCDR requested the release of interned ‘anti-fascists’ and an end to the search for those Communists, like Tim Buck, who had so far avoided capture.87 The NCDR carried on these efforts into the summer of 1942, appearing before the parliamentary committee on the DOCR and calling an ‘Emergency Conference for Democratic Rights’ in July, but it withered away when the federal government not only decided to hold a referendum on conscription but also began to moderate its stance on radical leftists. While Ottawa did not actually legalize the Communist Party (a step strongly opposed by the Roman Catholic Church, the province of Quebec, and the RCMP), it did over time release most Communist Party internees and made it clear that it would not incarcerate those who had so far escaped the clutches of the Mounties. In early 1943 A.E. Smith left the NCDR and became head of a special ‘civil liberties’ bureau of the Tribune, and, although he and his newspaper continued to demand an end to the banning of the party, these efforts evaporated in the summer when the Communists formed a new legal organization, the Labor Progressive Party.88 Meanwhile, the Montreal branch of the CLU had fallen apart. At first, following Germany’s invasion of the USSR, it lobbied the government to cease its suppression of Communists. Over time, however, as Ottawa accepted the Communists as ‘rehabilitated’ anti-fascists, the Montreal group agreed to suspend operations until, as Ballantyne later wrote in confidence to a left-wing friend, ‘a need ... should again become apparent.’ (Ballantyne himself moved on to become the man-

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aging editor of the Tribune and sat on the board of directors of an organization called the Quebec Committee for Allied Victory.) In short, those who had claimed that the CLU had become dominated by Communists were obviously correct. Just as Communist-dominated trade unions during this period eschewed strikes and any labour action that would impede support for the Soviet Union, so, too, did the Communists suspend their civil libertarian commitment for the duration of the war.89 In contrast to Montreal, the civil liberties organizations in Toronto, Winnipeg, and Vancouver remained active for the rest of the war. But, as Ramsay Cook has pointed out, their fight against the DOCR slowly diminished as Ottawa fine-tuned its regulations and the number of prosecutions and internments declined (partly, of course, because there was no need to clamp down on Communists after the summer of 1941). Yet there were still libertarian windmills to tilt against.90 A year after Hitler’s invasion of Russia, for example, the Civil Liberties Association of Toronto was still protesting Regulations 21 and 39 of the DOCR as well as Ottawa’s initial unwillingness to remove the de jure ban on the Communist Party. It made representations to the parliamentary committee on the DOCR, and it sponsored a large public meeting at Maple Leaf Gardens in order to draw attention to these issues. Then, in July 1942, a number of CLAT members, including Malcolm Wallace and B.K. Sandwell, lent their support to ‘We Stand for Freedom,’ an open letter to the chair of the DOCR parliamentary committee. This letter demonstrated the newly emerging but temporary alliance of Communist and non-Communist forces in the civil libertarian field, for the letter seems to have been sponsored by, or at least supported by, the NCDR, and several of the signatories, such as trade-union leader C.S. Jackson and Unity MP Dorise Nielsen, were widely regarded as Communist supporters.91 In addition, CLAT (as well as the other two non-Communist civil liberties groups) began to protest the property-rights violations suffered by the pro-Communist Ukrainian Labor Farmer Temple Association. They circulated a petition for redress and simultaneously issued a pamphlet called ‘An Appeal for Justice.’ ULFTA was a mutual-aid society that also provided a number of educational, athletic, and cultural services to Ukrainian communities across the country, but in 1940 Ottawa had banned it and placed over one hundred of its halls (along with their contents) under the control of the Custodian of Enemy Property. One of the major goals of the NCDR had been the

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legalization of ULFTA, but when, in 1943, the ban was lifted, and all of the property was supposed to be returned, it turned out that sixteen of the properties had by then been sold. This, as B.K. Sandwell noted, was not so much an issue of Communist rights as it was a fundamental issue of property rights, and CLAT took a leading role in demanding that the Canadian government reimburse ULFTA for its losses. Partly in response to pressure from ULFTA and its other supporters (including churches and trade unions), but also because Ottawa had decided during the war that redress would improve Canada’s relationship with the USSR, in 1945 and 1946 the government negotiated a series of agreements that returned most of the confiscated properties and provided compensation for much of the losses.92 Meanwhile, there were two other civil liberties issues involving the rights of minority groups: the plight of Jehovah’s Witnesses and Japanese Canadians. In his history of the former group, William Kaplan has argued that both were seen as ‘virtually non-issues’ during the war, and he is for the most part correct. As he points out, few people criticized the government for its treatment of the Witnesses, and the civil liberties organizations were completely silent. Indeed, Sandwell argued in Saturday Night that their suppression was correct, since their emphasis on the illegitimacy of earthly authority was ‘obviously highly detrimental to the nation’s war effort.’93 There was also little opposition to the initial violation of Japanese Canadians’ civil liberties, when in early 1942 they were treated as potential subversives and forcibly relocated away from the west coast, losing much of their property in the process. While it is today conventional wisdom that the internment policy was an unjustifiable violation of liberal-democratic values, in 1942 virtually all Canadians saw it as a necessary evil, justifiable in terms of national security, a defence against the possibility of anti-Japanese mob violence, and a way of solving the ‘Japanese problem’ by helping them to disperse and assimilate. Even the CCF, which had long advocated equal rights for Asian Canadians, was unwilling to criticize the policy, and the churches were likewise on the side of the government. (The only public critic of Ottawa seems to have been F.R. Scott, who published an article in the spring of 1942 which warned that ‘we must not let war hysteria at this time to lead us to ill-advised and undemocratic treatment of Canadian-born Japanese.’) It is therefore not surprising that civil liberties groups refrained from attacking Ottawa on this important rights issue, nor did they raise it when appearing before the parliamentary com-

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mittee on the DOCR. Only later in the war, as the next chapter will explain, did civil liberties groups come together with a number of tangential rights organizations to oppose unjust policies directed against Japanese Canadians.94 Of course, there were a few other wartime libertarian issues, including the Canadian Broadcasting Corporation’s censorship of information during the conscription debate, the so-called Gestapo Affair (involving allegations that the Ontario government had set up special police to spy on left-wingers), and worries that Ottawa had created a wartime system of ‘executive despotism’ that might not be dismantled after the end of hostilities. This latter concern was echoed in a 1944 report of the Canadian Bar Association committee on civil liberties. Much of the report was a discussion of ‘the Rule of Law so dear to the British subject ... which is the guarantee of all essential liberties, even in time of war.’ The analysis admitted that legislation by order-incouncil was at times necessary during wartime but warned that the approach smacked too much of ‘autocracy’ and should be eschewed in peacetime. As the report noted, ‘governments that try to place in the mind of the people the same respect for orders and regulations of delegated bodies, as for public laws of Parliament, simply degrade the whole system to the level of dictatorship.’95 This report was music to the ears of R.M.W. Chitty, who wrote that ‘it might ... help to impress upon the public the fact that civil liberty which they take for granted is the keystone of our constitution and that the profession alone stands between them and the power lust of the politician which would deprive them of every freedom that they possess.’96 Activists in the civil liberties organizations knew otherwise. The CBA had been silent about the DOCR in the early part of the war and ignored the wartime rights violations of groups such as the Jehovah’s Witnesses, the Communist Party, Japanese Canadians, and ULFTA. None of these issues was even mentioned in the 1944 report. If the legal profession alone stood between the citizen and the politician, then there was not much hope for the country. Indeed, wartime experiences had not made civil libertarians optimistic about the future. They had been discouraged by the way in which the Canadian government could run roughshod over traditional British liberties without engendering much opposition from the general public. As R.S. Lambert had put it, in comparing the British experience with the Canadian, ‘the farther you move from the center [of

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the British Empire], the more diluted become the traditions of free speech, free press, free associations and other essentials of civil liberty.’ And Arthur Lower, looking back years later in his memoirs, noted that only a few people had been willing to show the ‘high degree of courage’ it took to challenge the government’s policies on civil liberties.97 Why were civil liberties less honoured in the colonial hinterland than in the mother country? Lambert’s article provided several persuasive arguments. First, he looked at what today would be called political culture. In language which might now be considered offensive, he noted that French Canadians did not share ‘the Anglo-Saxon conception of personal liberty.’ Putting this into a more contemporary discourse, one could say that the political culture of Quebec was at that time highly authoritarian – and the Padlock Law, as Lambert pointed out, was a good indication of this. Lambert might have added, moreover, that not only did the people of Quebec represent one-third of the population at that time, but they also formed an important bloc within the governing Liberal party caucus. As this chapter and the previous chapter have demonstrated, the treatment of Communists, Jehovah’s Witnesses, and even members of the obscure group known as Technocracy was in large part affected by the political interests of Quebec within the Liberal Party. Lambert also pointed out that in English Canada there is limited toleration for dissent because we have, unlike the Americans, little history of minorities fleeing religious persecution in Europe. There is probably some truth to this argument, but he might have added that the Tory tradition in Canada is rooted in refugees fleeing political persecution in the United States. As some authors have argued, although this helped to make us a more ideologically pluralistic nation than our neighbour, it also created a strongly authoritarian strand within our political culture.98 Interestingly, Lambert did not mention the third cultural element – people who were neither of French nor of British extraction. Yet this does seem to have been a concern for many Canadians. For example, the chief English-language press censor defended his role by arguing that the ethnic heterogeneity of Canada made it more vulnerable than a country like Britain. Canada was still to some degree afflicted with a garrison mentality, and the predominantly British society was uneasy about ethnic minorities who might not be entirely loyal to the British crown and therefore might be vulnerable to ‘psychological sabotage’ from the Nazi propaganda machine.99

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Lambert also suggested an economic argument. As he put it, ‘whilst Canada’s past agricultural development has favored conservatism of thought and manners, her more recent industrialization and urbanization have not fostered the traditions of individual freedom as intensively as did the Industrial Revolution in 19th century Britain. The leisured section of the population is small, and there are few publicspirited and well-to-do persons interested in taking up cases of hardship for humane reasons.’ This explanation is strikingly similar to the ‘post-industrial’ argument of the modern political scientist Ronald Inglehart, who argues, on the basis of considerable cross-cultural data collected over a number of years, that values such as democracy, feminism, environmentalism, and human rights are more likely in societies that have undergone a lengthy period of economic growth and stability.100 All these factors had combined to create a nation that had overreacted to the challenge of the Second World War and limited civil liberties in ways that threatened the traditions of liberal democracy. Now that the war was ended, many people hoped that life would return to normal. But for civil libertarians, ‘normal’ was by no means ‘desirable,’ for it had meant the use of section 98 of the Criminal Code, the Padlock Law, and a number of other authoritarian measures. In the words of the hackneyed cliché, only time would tell.

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3 The Japanese-Deportation Issue

In the later years of the war, discrimination against a variety of ethnic and religious minorities began to permeate public consciousness, and debates about libertarian rights shifted to arguments about egalitarian rights. Yet, even at the beginning of the war, the federal government showed some concern for egalitarian rights. For example, the committee creating the DOCR decided that, in general, members of minority ethnic groups would be treated as individuals rather than as members of collectivities. Therefore, with the exception of the Japanese Canadians (admittedly, a large exception), there were no plans to round up people simply because of their heritage; the only German Canadians and Italian Canadians to be interned would be those who had given some indication of disloyalty or who might in some other way impede the war effort. Of course, as noted earlier, in many cases this evidence was extremely flimsy, resulting in considerable hardship to a number of loyal Canadians.1 Ottawa’s treatment of minorities was based partly upon pragmatic concerns, for it saw racial animosity as divisive and subversive of the war effort. As a result, fairly early in the war the federal government began to develop propaganda intended to dampen down the fires of anti-immigrant prejudice.2 Yet, at the same time, security threats and war hysteria seem initially to have inhibited any public interest in egalitarian rights. In 1940 the Canadian Forum carried an article by Toronto civil libertarian George Grube, in which he lamented the ‘unscrupulous fanning of racial antagonisms against Canadians of “foreign” origin.’ This article, however, was more the exception than the rule; a close reading of the liberal and left press reveals very little about discrimination, racism, and anti-Semitism in the early years of the war.3

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Nevertheless, the very nature of the war, often defined as a struggle between democracy and totalitarianism, lent itself to a new way of framing the rights of citizens. For example, C.H. McIlwain of Harvard University, in an article written for the Canadian Journal of Economics and Political Science in May 1941, said that ‘democracy is only the means – we hope and trust is the best means yet found – of ensuring something far deeper and far more important than this democracy itself. That something is the sacred right of a man to be a man. It is not the fashion any more to speak of the “rights of man,” but nevertheless, under whatever new name we put it, it is that for which we have always fought, for which we must fight now, and for which we shall have to fight in the future. Under totalitarianism the state is all and man is nothing.’4 Attention turned from libertarian to egalitarian rights in late 1942. For example, the Canadian Forum reviewed several publications which explained how modern science had torpedoed some of the old assumptions about racial superiority, and it also published several articles about racial and religious discrimination in Canada. One of the authors, looking particularly at the improved attitudes about Jews and blacks in Canada, suggested that Canadians were ‘in the midst of a revolution, a social transformation.’5 Saturday Night published a number of similar articles, concentrating especially upon the post-dispersal treatment of Japanese Canadians (although its commitment to the emerging emphasis on equality was somewhat marred by a piece titled ‘How Can We Keep Our British Racial Balance?’) These articles often contained references to democratic rights or used an anti-Nazi discourse, pointing out that Canada was fighting to preserve not just freedom but also equality for minority groups. In short, Hitler had managed to give anti-Semitism and racism a bad name.6 From 1943 onwards, the pages of the pro-Communist Canadian Tribune also headlined a number of stories about racial and religious discrimination, especially anti-Semitism, and focused on efforts by Communist legislators in both Ontario and Ottawa to obtain antidiscrimination legislation. At the same time, the newspaper highlighted one of the great lies of the era – the notion that prejudice and discrimination had been eliminated in the USSR. As one starry-eyed idealist put it, in that country, ‘enmity between races has given way to Man’s natural love for his fellow beings,’ and a small pamphlet called ‘The Races of Mankind,’ co-authored by the eminent anthropologist Ruth Benedict, not only debunked ideas of racial superiority but also made similar claims for the Russian system. (The Tribune carried ‘Progress

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Books’ advertisements for this pamphlet and reprinted a favourable review from, of all places, the Monetary Times, a Canadian journal of business and finance.)7 Not surprisingly, then, the non-Communist civil liberties groups also began to turn their attention in the latter part of the war to the thorny issue of racial and religious equality. For example, at about the same time that the Canadian National Committee on Refugees and Victims of Political Persecution, one of the many rights groups in which Sandwell was involved, was lobbying Ottawa to ease restrictions according to ‘race, creed or financial condition’ for refugees seeking entry to Canada, the Civil Liberties Association of Toronto was planning a conference on racial discrimination in Toronto. (The timeliness of this new interest was underscored when, shortly before the conference was held in May 1944, the black American singer Marian Anderson was refused entry to the Waspish Granite Club in Toronto.) Soon, CLAT had set up a number of committees dealing with discrimination and intercultural relations and was working closely with the Toronto-based Joint Council of Negro Youth. It also began to adopt the emerging rhetoric of human rights. As CLAT explained in a document summarizing its anti-discrimination activities, ‘it is not too much to say that wars and the terrible consequences of war have arisen as much from the refusal, whether through ignorance or willfulness, to recognize basic human rights, as from any other cause.’8 Over time, the Japanese-Canadian community became both a beneficiary of, and a catalyst for, this shift in emphasis. At the beginning of the war there were 23,000 persons of Japanese descent in the country, almost all living in British Columbia. Of these, approximately 2,400 were naturalized Canadians and 13,400 were Canadian-born. Many influential people on the west coast had regarded these people, even the second generation Nisei, as inassimilable aliens, and they were also often seen as undesirable economic competitors. For these reasons, as well as concerns about both national security and mob violence, the federal government had decided after the events of Pearl Harbor in December 1941 to move the Japanese-Canadian community away from the coast.9 As noted in chapter 2, almost no Canadians publicly opposed the forcible relocation and internment of Japanese Canadians in the mountains of British Columbia. However, this was a short-term reaction to a perceived immediate threat. The long-term ‘problem’ was the fact that most of these internees still considered British Columbia, especially

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the west coast, as their home. One solution, but not necessarily a permanent one, was the voluntary dispersal of these people to provinces other than British Columbia, and the government was willing to release workers from internment camps if they would seek employment in Ontario or Quebec. After some soul-searching, the Nisei leadership had also advocated moving east as a way of avoiding discrimination while achieving acceptance through dispersal and assimilation. Thomas Shoyama, the editor of their newspaper, the New Canadian, wrote that ‘our challenge is simply whether we are going to cower timorously here in BC, used and regarded merely as beasts of burden; or whether we are going to strike out boldly to work and fight for the right to be human beings.’10 Ottawa facilitated this exodus from British Columbia by assuring the other provinces that it was only for the duration of the war. However, the possibility of Japanese Canadians returning to the west coast after the hostilities were over hung like a sword of Damocles over both the province of British Columbia and the federal government. One possible way of preventing them from returning to the province was to encourage their permanent relocation in other provinces, despite Ottawa’s promises to the contrary. Another ‘final solution’ was to deport them to Japan as soon as the war ended. This was a proposal that had many supporters, especially in British Columbia. Before the end of the war, however, Ottawa had to decide whether or not to treat Japanese Canadians as equal citizens. In June 1944 the federal government introduced the Soldiers’ Vote Bill in order to let overseas Canadian soldiers vote in the next election. One clause of this bill disenfranchised ‘any person whose racial origin [was] that of a country at war with Canada’ and was clearly aimed at not just Japanese Canadians but also at Canadians of German and Italian origin. Pointing out that this kind of racial discrimination was reminiscent of the Nazis, two senators protested against the clause. The government, however, simply reworded the legislation so that it applied only to the Japanese Canadians of the recent involuntary diaspora. In a disingenuous statement to the House of Commons, Prime Minister King said that the law did not disenfranchise those Japanese Canadians who had previously lived outside British Columbia, and it avoided the ‘racial favouritism’ of giving the Japanese British Columbians privileges that they had not enjoyed before the war.11 Many non-Japanese Canadians were outraged by this discriminatory legislation. At the core of the protest was an organization called

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the Co-operative Committee on Japanese Canadians, which had developed earlier in 1942 and 1943 when a number of Japanese Canadians arrived in Toronto looking for work. They were helped by Ernest Trueman, a placement officer working for the federal Department of Labour who had worked in Japan with the YMCA and was sympathetic towards these ‘refugees’ from British Columbia. He was joined by a number of volunteers, several of whom had been missionaries in Japan, affiliated with the YWCA as well as the women’s missionary societies of the United Church and the Church of England. These people formed a Co-operative Committee on Japanese-Canadian Arrivals, a purely philanthropic organization with no intention of entering into the broader political scene. By early 1944, however, this body had started to become ‘political’; it was lobbying the Toronto municipal government to deal with discrimination against recently arrived evacuees, was accepting membership from other groups, and had begun to call itself informally the Co-operative Committee on Japanese Canadians. The CCJC, which popular historian Barry Broadfoot has called ‘the forgotten committee,’ was not initially well organized enough for a full-scale political campaign against the federal disenfranchisement legislation and could manage only letters of protest from individual members and member organizations such as CLAT. But although the campaign failed, and the legislation passed, the protest suggested that a fair number of Canadians were becoming concerned about the ‘dissonance’ between egalitarian principles and governmental policies; as one contemporary commentator put it, their protest was ‘one of the most encouraging evidences of the survival of a liberal spirit that this country has presented in a long time.’12 It soon became clear, however, that the liberal spirit had distinct limits. In the summer of 1944 the CCJC was acting at the national level primarily as an educative body, circulating 10,000 copies of a pamphlet entitled ‘A Challenge to Patriotism and Statesmanship.’ This pamphlet, originally published as an article in Saturday Night and first distributed by the Christian Social Council of Canada, had been written by Norman Black, a well-known educator and social democrat from Vancouver. It is an interesting document, for it demonstrates an important point about how even enlightened individuals at this point were trying to find some solution to the Japanese-Canadian ‘problem.’ According to Black, echoing the position of most liberals as well as the Nisei leadership, ‘the rational cure for undue geographical and occu-

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pational concentration is geographical and occupational dispersion.’ He therefore recommended fair compensation for their expropriated property and some sort of support for relocation in areas outside British Columbia.13 The situation changed completely when, in August 1944, the prime minister made a speech in the House which set out government policy on the matter of Japanese Canadians. He acknowledged that most of them had so far remained loyal during the war, and added that only disloyal individuals would be deported; the rest would be dispersed throughout Canada (although he argued that a permanent barrier to their return would be undesirable). He also paid lip-service to the new human rights values brought out by the war, saying that ‘we must not permit in Canada the hateful doctrine of racialism which is the basis of the nazi system everywhere.’14 Although historian J.L. Granatstein refers to the government’s policy as ‘a disgrace to a liberal democracy,’ and suggests that in retrospect the subsequent attempt to deport several thousand Japanese Canadians was a more unjustifiable violation of civil liberties than the betterknown evacuation from the west coast in 1942, behind the deportation policy was an attempt to achieve a political compromise. (Indeed, according to Granatstein, King’s speech was greeted by applause on the part of civil servants sitting in the gallery of the House of Commons.) The government was aware that there was considerable pressure for the deportation of all Japanese Canadians, and by offering to deport only the ‘disloyal’ members of the Japanese-Canadian community, it was hoping to choose the lesser of two evils.15 Not surprisingly, therefore, the human rights community was at first moderately encouraged by the prime minister’s speech. The CCJC, for example, agreed that dispersal was a necessary anodyne to west coast racism. The only complaint of the CCJC at this time was that the government intended to investigate the loyalty of Japanese Canadians by setting up a quasi-judicial commission. The coalition felt that no such testing was necessary, given the record of the community as a whole.16 Meanwhile, the American government removed all controls on Japanese Americans, a political bombshell that made it much more difficult to persuade Japanese-Canadian evacuees to leave British Columbia, for they now hoped that soon Ottawa might take the same approach. However, King’s government was committed to relocating as many Japanese Canadians as possible out of British Columbia, and in

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February 1945 it announced a ‘voluntary repatriation’ program whereby Japanese Canadians could opt either to move east of the Rocky Mountains or be given free passage to Japan as soon as might be practical. By May, over 6,000 repatriation forms had been signed, on behalf of over 10,000 men, women, and children, most of them Canadian citizens and representing over 40 per cent of the JapaneseCanadian population.17 What was the reason for Ottawa’s ‘repatriation’ policy? (Note, by the way, that it was really deportation, since many of these Japanese Canadians had never been to Japan.) To some degree, the reason can be found in the long-standing prejudices of many British Columbians, who viewed Japanese Canadians as totally inassimilable, dangerously fertile, suspiciously disloyal, and usually dangerous economic competitors. The war therefore constituted a golden opportunity to resolve this social-economic problem. Moreover, it was not just people on the west coast who held this view. Although the advocates of deportation were concentrated in British Columbia, a 1944 Gallup poll had found that, nation-wide, a slim majority of Canadians were willing to ‘repatriate’ Japanese Canadians after the war.18 One of the most interesting aspects of the west coast situation was the position of the local Labor Progressive Party. Although the Communists frequently took a public stand against racism, they temporarily abandoned this principle, no doubt tempted by the possibility of winning support from ‘white’ British Columbians such as fishermen, who were worried about future Japanese-Canadian economic competition. In late 1944 the provincial LPP suddenly advocated the postwar exclusion of all Japanese Canadians from the coastal area of the province.19 Politics indeed makes strange bedfellows, for most of the other advocates of bloodless ethnic cleansing were ‘respectable’ and conservative members of society. In 1942, for example, the city of Vancouver passed a resolution calling for the eventual deportation of Japanese Canadians, and the Vancouver Sun (its masthead proudly stating, ‘A newspaper devoted to progress and democracy, tolerance and freedom of human thought’) wholly approved. In 1944 the Sun was still arguing that the country should ‘Keep the Japs out,’ and in the same year the annual conventions of both the Union of British Columbia Municipalities and the provincial branch of the Canadian Legion considered deportation resolutions (although in both cases a number of liberal delegates strongly denounced the proposals), while the White

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Canada League, originally formed in 1928, had reorganized itself as the Japanese Repatriation League and issued a twelve-page pamphlet titled ‘the Japanese Menace.’20 For some people, a deportation policy was the preferred solution. For others, however, a form of interprovincial relocation was more acceptable, with deportation a fall-back position. By 1944 the Vancouver city council seemed to be split along these ‘hard’ and ‘moderate’ racist lines, with many of the councillors arguing that the only alternative to deportation would be for the other provinces to accept most of the former British Columbian residents. As two of the aldermen pointed out, however, the chances of the other provinces cooperating seemed to be non-existent.21 The exclusionists on the west coast were in the advantageous position of having several Liberal MPs in Ottawa, including Ian Mackenzie, the minister of veterans affairs and a member of the cabinet committee dealing with ‘Japanese Questions.’ An eloquent and powerful enemy of Japanese Canadians, Mackenzie had stated that he would ‘not remain 24 hours’ in any government that allowed them to return to the west coast.22 Prime Minister King, by all accounts, was a moderate when compared to Ian Mackenzie, but he was in the uncomfortable position of having promised the other provinces that the wartime dispersal would not be permanent. As long as the other provinces were unwilling to offer the hand of friendship to Japanese Canadians, the easiest solution seemed to be massive deportation.23 Yet there remained the troubling obstacles of liberal principles and public outrage. Even the strongest advocates of a ‘final solution’ to the Japanese-Canadian question were on the defensive in the latter part of the war, vigorously denying that they were racists or bigots. And it would have been seen as unbearably callous for Ottawa to admit that it wanted to rid itself of as many Japanese Canadians as possible in order to settle its domestic problems. Instead, the government continued to couch the argument in terms of considerations of ‘loyalty’ insisting that the people who had signed for ‘repatriation’ were by definition not trustworthy Canadians.24 Nevertheless, many citizens, led at first by church mission workers in the internment camps, argued that deportation was an inappropriate response for most cases and that not all of the ‘repatriation’ signatures were truly voluntary. Many Japanese Canadians soon began claiming that they had been subtly coerced into applying for transport

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to Japan, and few seem to have wholeheartedly endorsed the notion. Some of them signed as a way of remaining in British Columbia, having been led to believe by the authorities that they could later revoke their signatures. Others believed at the time that Canadians would never accept them, and that a reluctant exile was the only option. The flavour of the situation was captured by the bitter memories of one internee, who recalled years later: ‘When the police came around, they would go to a widow whose son was in the bush and her daughter was working in a hospital in Montreal and they would say “You have twelve hours to sign this.” What is that poor woman to do? Saying “yes” means that she goes back to Japan with the repatriation and saying “no” means she leaves her home to go to Eastern Canada.’25 Still others felt obliged to take care of their parents, even if this meant leaving their mother country. As one young girl later wrote, after deciding to accompany her father back to Japan, ‘I will never forget the hopeless, disconsolate foreboding I felt on the day I reluctantly signed for “repatriation.” Being born and educated in this country, I thought of myself as a native-born Canadian and empathized with this country’s cause in the war.’26 In order to fight the new deportation policy, the CCJC activists called a special meeting of diverse organizations in late May 1945. At this meeting the organization was formally constituted as a federation of different groups, and it chose as its first secretary Donalda MacMillan, a remarkable woman who had lived in Japanese Formosa (Taiwan) for some time with her husband, a United Church missionary. According to Edith Fowke, who wrote a short account of the CCJC, ‘without her inexhaustible energy and singleness of purpose it is doubtful whether the Co-operative Committee could ever have carried out the difficult program upon which it was embarking.’27 The delegates chose as their first chair the Reverend James Finlay, an outspoken and sometimes controversial United Church minister. Originally a Methodist, Finlay was yet another of the Social Gospellers in the nascent human rights movement of this period. A life-long pacifist, with strong ties to the Fellowship of Reconciliation, he had supported the controversial ‘Witness against the War’ manifesto in 1939, and over time he developed close ties with CLAT. During the war Finlay had begun broadcasting social-justice messages over the radio, reaching an estimated audience of 40,000. He had also practised what he preached, opening his own home to some of the displaced

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Japanese Canadians as well as turning his Carleton Street United Church in Toronto into a centre of community support for them and a venue for CCJC meetings.28 It is appropriate at this point to mention one of the unsung heroes of the anti-deportation struggle. According to Muriel Kitagawa, who lived with the Finlays for a while and saw the CCJC develop from a collection of aroused citizens into an effective lobby group, it was an ‘ordinary’ housewife, Olive Pannell, who read some of Kitagawa’s letters to the Carleton congregation and thereby motivated both the Reverend Finlay and most of his congregation into action. Kitagawa states that ‘the initial support, spurred on by Mrs. Pannell, gradually became the spearhead of the protests against injustice arising all over the country.’ It is hard to find a better example of a single individual, aroused by injustice, having such an impact upon an entire society.29 But individual outrage always needs to be channelled into collective organization. It is not easy to summarize the different groups that made up the CCJC, but a few generalizations are possible. It was, first of all, a pioneering effort in inter-ethnic racial comity; the Japanese Canadians were supported by a large number of ‘white’ organizations. On the other hand, it was by no means a modern multicultural effort; other ethnic groups, such as the Chinese, blacks, and ‘Indians,’ were nowhere to be seen. The only outsider group to join the coalition was the Canadian Jewish Congress, which by that time was beginning to realize that its struggles against anti-Semitism could be fruitfully pursued within the broader framework of anti-discrimination work.30 The coalition also illustrated the relatively progressive nature of Canadian Christians, especially those following the Social Gospel. The CCJC included most of the mainstream churches as well as a number of radical and pacifist organizations, especially the Fellowship of Reconciliation. Indeed, not only its president but many of the activists leading the CCJC were closely tied to FOR. The CCJC was also formally supported by a number of trade unions, an early example of the ‘social unionism’ that became increasingly important in the immediate post-war period. The term ‘social unionism’ denotes labour’s commitment not just to the traditional breadand-butter issues of better wages and improved working conditions; but also to worker education and other programs involving social welfare and human rights work.31 At the same time, support from trade unions indicated how, at least for the moment, the traditional divisions between Communists and anti-Communists were muted or

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even buried. For example, the coalition embraced both the United Electrical Workers of America and the United Steelworkers of America. The former was considered to be a Communist-dominated organization, and, as we have seen, one of its officials, C.S. Jackson, had been interned for a while during the war. The latter, by contrast, was closely associated with the CCF and led by the anti-Communist Charles Millard. (As noted earlier, it was Millard who, as secretary of the CIO, had been arrested for making speeches that might prejudice army recruiting.) In addition, both men were members of the CLAT council, until the organization split over incipient Cold War issues in 1946. At this point it might be useful to say a bit more about Jackson and Millard, for each played an active role in post-war human rights issues. Jackson never admitted to being a Communist, and indeed had some contempt for its leaders, but he was certainly a small-c communist, a part of the ‘movement’ that saw capitalism as a cancer needing to be excised. However, anti-Communists did not fear Jackson because he might foment a violent revolution; rather, he was dangerous as a labour organizer who kept control over his union even at the height of the Cold War because he was an extremely effective representative of rank-and-file interests.32 Charles Millard was also a successful labour leader, beginning his rise as the CIO organizer of the autoworkers in the famous Oshawa strike of 1937. He then was Canadian national director of the United Steelworkers of America from 1942 to 1956. A deeply religious man, he served as chairman of the Religion-Labour Foundation of Canada, as a member of the Board of Evangelism and Social Service of the United Church of Canada, and as an advisory council member of the Fellowship of Reconciliation. He later became a board member of the Canadian Council of Christians and Jews shortly after it was founded in 1947. Finally, Millard was also a social-democratic true believer. He served as a CCF vice-president (and Ontario CCF president) throughout the 1940s and was an Ontario MPP from 1943 to 1945 and again from 1948 to 1951. Indeed, he has been described one of the key members of the Ontario CCF ruling oligarchy.33 The CCJC coalition also attracted a number of women’s organizations. The 1940s and 1950s were not a period of feminist activism, especially in the field of human rights, but the CCJC was joined by a variety of groups, ranging from middle-class organizations such as the YWCA and the National Council of Women to the left-leaning and pacifist Women’s International League for Peace and Freedom.

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Finally, there were groups representing young idealists, including the YMCA and ‘student Organizations in all the leading Canadian Universities.’ The CCJC made a concerted effort to attract students, and the Social Gospel body called the Student Christian Movement was a particularly active supporter of the cause on campuses.34 Since the central headquarters of the CCJC was in Toronto, although it was represented also by a number of ‘branches’ in cities from Montreal to Vancouver, and since almost all Japanese Canadians had lived in British Columbia prior to 1942, it was important for the CCJC to link up with a west coast organization, the Vancouver Consultative Council (VCC). (The CCJC also worked closely with a similar group in Manitoba, the Winnipeg Consultative Council.) This organization, which had no Japanese Canadians on its executive, had been created as the Consultative Council for Co-operation in Wartime Problems of Canadian Citizenship in 1942 by a number of representatives of religious organizations such as the Fellowship for a Christian Social Order, the Vancouver Christian Youth Federation, and the United Church, as well as some secular left-wing groups such as the CCF and the Women’s International League for Peace and Freedom. It had cooperated with the British Columbia Security Commission, the body in charge of relocation, and attempted ‘to facilitate the exchange of information between groups who see the Japanese problem in BC as a national problem which is a challenge to citizenship, Christianity and our common humanity.’35 The VCC had begun political lobbying as early as the fall of 1942 when it asked the city of Vancouver to revoke its resolution calling for the ultimate deportation of Japanese Canadians. In 1943 it had prepared a petition for Ottawa on the matter of Japanese-Canadian resettlement, and by 1944 it had asked the prime minister to override provincial interests east of British Columbia by implementing a policy of permanent dispersal and resettlement. Only this, the VCC had argued, would undermine west coast demands for deportation, a ‘wicked and preposterous’ proposal reminiscent of the ‘characteristic racial attitude of Naziism.’36 In 1945 the VCC was still an organization with a strong core of religious supporters. Its list of eleven executive members included four church ministers, representing the Baptists, the United Church, and the Unitarians. The Unitarian Church minister was Alfred Stiernotte, the LSR member who had helped to form Canada’s first civil liberties group in the early 1930s. Other social democrats included

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Laura Jamieson, a CCF member of the Legislative Assembly who for a while had been the chair of the Vancouver branch of the Civil Liberties Union, and Mildred Fahrni, who later became the national secretary of the Fellowship of Reconciliation. Two other VCC board members were especially important. One was its president, Norman Black, the author of the previously mentioned pamphlet ‘A Challenge to Patriotism and Statesmanship.’ The other was W.H.H. Norman, a left-wing United Church Minister and former FCSO activist who had been born in Japan and was intimately familiar with the language and culture of that nation. Howard Norman was the brother of Herbert Norman, the brilliant Japan scholar in the Department of External Affairs who later was publicly targeted as an alleged Communist and committed suicide as a result of this harassment. During part of the war, Howard Norman worked on the west coast as an instructor in S-20, the Canadian Army Japanese Language School (Pacific Command), where he was in close contact with a number of influential members of the Japanese-Canadian community. He was also the first member of the clergy to protest against Ottawa’s policy of selling off confiscated Japanese-Canadian property in 1943, arguing that it violated their basic citizenship rights and was ‘nothing more or less than a Canadian variant of the Nuremburg laws against Jews.’ For the next few years he wrote a number of articles and pamphlets about the treatment of Japanese Canadians, some of which the VCC and CCJC used as ammunition in their struggle against the government.37 The CCJC began to ponder, in the spring and summer of 1945, the most effective way of combatting Ottawa’s deportation policy. Its first move was to draw up, at its founding meeting in May, a petition that asked for full rights of citizenship for Japanese Canadians, indemnity for property losses, removal of restrictions on purchases of property, and a request that those Japanese Canadians who had signed ‘repatriation’ applications be permitted to reverse their decisions. This petition was presented to the government by a delegation of the Fellowship of Reconciliation on 8 June.38 Meanwhile, the Japanese Canadians in British Columbia were challenging the government’s deportation policy by claiming that the British Columbia Security Commission had no legal power to deport any of them. However, by early August they had learned that the case had failed on a technicality – the commission had been dissolved in 1943. As a result, they began to consider some other approach – perhaps

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litigation would be unnecessary if only the government could be persuaded to change its policy.39 Lobbying was an alternative to litigation, but effective lobbying was in part dependent upon organization and sheer weight of numbers. Because it initially represented only about twenty-five groups, the CCJC immediately began working to obtain the support of other influential groups and individuals within the human rights community, especially those who had taken a stand on the recent disenfranchisement issue. To this end, FOR’s executive secretary undertook a tour of western Canada. At the same time, the CCJC began to lobby the government directly and indirectly.40 The direct approach involved preparing a brief and sending a delegation to Ottawa. The brief, addressed directly to the prime minister, is an important historical document for two reasons. First, it represents the earliest manifestation of public opposition to the deportation policy. Second, it constitutes an early example of argument based not upon the ‘British liberties’ discourse but upon the human rights approach that was to become commonplace in the post-war era. The brief opened by identifying the CCJC as an organization ‘composed of representatives of returned Canadian missionaries and other persons concerned with safeguarding the maximum human rights and the freedom of loyal persons of Japanese descent during the time of war,’ and it noted that the most recent Toronto meeting on deportation had been attended by delegates from forty concerned organizations. The brief then mentioned King’s policy speech of July 1944 and congratulated him for demonstrating ‘respect for human rights.’ As it pointed out, the San Francisco Charter (which had created the United Nations in June, and which Canada had signed) included a pledge ‘to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, language, religion or sex.’ Ottawa’s deportation policy, the brief added, was a violation of human rights, a sort of ‘Nazi treatment of an innocent and highly reputable minority.’41 The brief then suggested that those who had asked for repatriation had done so within the context of a Hobson’s choice: either continue in a manifestly inhospitable country, moving to new areas in the east that were, for the most part, unknown, or give up and go to Japan. Those who opted for Japan had, in many cases, submitted to the ‘temptation to give up the weary struggle for equality.’ A better approach, the CCJC argued, would be to permit the Japanese Canadians to withdraw their original ‘repatriation’ applications

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if they desired. At the same time, Ottawa could make the choice easier by taking a number of steps, including granting all Japanese Canadians full citizenship rights, providing aid for rehabilitation and permanent resettlement outside British Columbia, removing the restrictions that still made it difficult to purchase property, and indemnifying those who had lost property as a result of the relocation policy. To present this brief, a delegation soon travelled to Ottawa. Since almost the entire executive of the Japanese Canadian Committee for Democracy (JCCD) had recently demonstrated their loyalty to Canada by enlisting as interpreters in the Canadian army for overseas service in Asia, the Japanese delegate was the JCCD president and editor of its newly minted newsletter, Nisei Affairs, a young Nisei called Kinzie Tanaka, who spoke little Japanese and, in any case, could not volunteer because he was not Canadian-born. (Tanaka had been born in Japan, but raised in Canada by parents who wanted him to assimilate rather than hold onto his Japanese language. As a result, in 1942, he was interned as an ‘enemy alien,’ and it was only with some difficulty that he was able to get permission to leave the internment camp and come to Ontario to seek employment. By 1945 he was working for an electronics firm, and he later demonstrated his considerable organizational skills by becoming the manager of several companies in that field.)42 The non-Japanese delegates represented a fairly wide spectrum of ‘respectable’ society. In addition to Donalda MacMillan, they included B.K. Sandwell, representing CLAT, and Eugene Forsey, representing the Canadian Congress of Labour. Other delegates included J.H. Fowler (of the national YMCA), Don Franco (president of the Humanist Club of the University of Toronto), and George Reany (president of the Hamilton branch of the CCJC). The delegation met with both Norman Robertson, the deputy minister of external affairs, and Arthur Brown, a lawyer for the Department of Labour. The delegates dealt with a number of issues, but primarily the deportation policy. They argued that deportation was inappropriate for Japanese Canadians, even those who had been disloyal. Moreover, they stressed that most Japanese who were raised in Canada, whether or not born in this country, were loyal citizens, and those who had signed the ‘repatriation’ request had been under ‘a mental and emotional strain.’ Signing the form, in other words, was not necessarily evidence of disloyalty.43

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The delegates also made an argument which suggests either that Canadian churches were not as principled as one might believe or that they were attempting to win over the government by appeals to realpolitik. They noted ‘that Canadian churches have a considerable investment of energy and money in Japanese missions, and that if undue and unjust pressure is put upon Japanese citizens in Canada, and they are sent out of the country with a sense of injustice, irreparable harm will be done to missionary enterprise.’ In other words, federal policy threatened the long-term interests of the missionary societies. The interviews with Robertson and Brown were not fruitful. The officials defended Ottawa’s policies and furthermore claimed that they were not aware of any public opposition to the deportation plans. Even worse, a massive deportation had moved suddenly from the realm of a relatively distant possibility to an immediate probability, for the American use of nuclear weapons had brought the war in the Pacific to a sudden close. By 15 August all hostilities had ceased, and by 2 September Japan had surrendered unconditionally. If the Canadian government wished to send its ‘disloyal’ citizens to Japan, there was nothing that the Japanese government could do to stop it. Moreover, Norman Robertson, who often took a liberal position on issues and who has been described as a man of ‘brooding humanity and compassion,’ in this case seemed to be wearing emotional blinders. According to Nisei Affairs, he remarked that ‘Canada had done rather a poor job with the whole matter of the Japanese ever since they have been in Canada, so therefore, it might be better for them in their own interest to go to Japan.’ With friends like that in high places, who needed enemies?44 Meanwhile, the CCJC executive had decided that it was necessary to reach the government indirectly by rousing public opinion. They began communicating with organizations not already part of the coalition, issuing press releases, and sending out copies of a pamphlet, ‘What About the Japanese Canadians?’ written by VCC activist Howard Norman. This laid out in detail most of the same arguments raised by the delegation: most Japanese were loyal to Canada, deportation was wrong, and the Canadian government needed to encourage the Japanese Canadians to relocate in provinces outside British Columbia.45 Copies of this pamphlet were distributed both to the public and to all members of Parliament, including the prime minister and his cabi-

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net. They were accompanied by a letter that once again adopted the new discourse of human rights: ‘It is no exaggeration to say that the manner in which we deal with this problem determines the measure of our ability to fulfil the pledge made with other nations at San Francisco.’46 Although government documents reveal that the federal mandarins were concerned about the way in which public protests and newspaper editorials were now ‘embarrassing’ the government, Ottawa remained unsympathetic to the CCJC argument. For one thing, it was hard to demonstrate that many Japanese Canadians had acted under duress when they asked for ‘repatriation,’ and there is no doubt that a few of them had been convinced that Japan would never be defeated, changing their minds only after the sudden capitulation. In addition, a confidential memorandum to Prime Minister King stressed that there had been ‘no duress whatever,’ although it admitted that the notice in March announcing the policy was unfortunately not worded as clearly as it might have been, thereby creating a possible unintended threat. The memorandum added that a Red Cross delegate had recently investigated this point, and ‘he could find no evidence whatever of duress or undue influence.’ The memorandum admitted that ‘he [the delegate] said that many probably signed out of a fear that there was little future for them in Canada, and this has undoubtedly been an important factor. However, the delegate said that this was an entirely different matter from the threats that had been suggested by some.’ In short, the author of the memorandum argued that the government was not directly responsible for any duress. That it might be responsible indirectly, because of its earlier policies and its reluctance to make Japanese Canadians feel welcome, did not seem to have occurred to him.47 In addition, the government was still under considerable political pressure from what the memorandum called ‘large and influential groups in British Columbia, many of whom are determined that the Japanese shall never be allowed to return to that province.’ An amusing exchange on this matter took place in the spring of 1945 when a CCF member of the Legislative Assembly (and VCC member), Laura Jamieson, responded to allegations about the inassimilability of Japanese Canadians by making a tongue-in-cheek remark that many Scots were also not yet Canadianized. A Progressive Conservative member, R.C. ‘Claymore’ MacDonald, responded by having himself piped into the House, wearing his traditional Highland costume.48

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Meanwhile, another Scot was still exerting a malign influence in the federal cabinet. The minister of veterans affairs, Ian Mackenzie, a man whose Gaelic accent was so strong that it had been said he spoke neither of Canada’s two languages, had recently campaigned in the federal election under the slogan of ‘no Japanese from the Rockies to the sea.’ As long as Mackenzie remained in the cabinet and was King’s adviser on things pertaining to British Columbia, it was unlikely that the government would back down.49 On 3 October a CCJC ally, the National Interchurch Advisory Committee on the Resettlement of Japanese Canadians, wrote to the federal government asking it to abandon its deportation policy, but a few days later the government introduced Bill 15 – the National Emergency Transitional Powers Act – to replace the War Measures Act, which was due to lapse at the end of the year. Clause G of the legislation was intended to give cabinet the emergency power to control ‘the entry into Canada, exclusion and deportation, and revocation of nationality’ of any group of peoples. While there was no specific mention of Japanese Canadians, it was clear that this was aimed directly at them and would permit the government to proceed with its deportation plans. As Ottawa had realized, the Immigration Act did not provide authority for massive deportation, and therefore it became necessary either to amend the legislation or give the government the power to proceed by means of executive fiat. Since Ottawa wished to ‘reduce the numbers’ of Japanese Canadians as quickly as possible, it decided on the latter approach.50 The CCJC, of course, opposed this legislation, and encouraged all cooperating groups to protest; a flood of letters began to inundate the government. At the same time, the CCJC sent copies of its pamphlet ‘From Citizens to Refugees – It’s Happening Here!’ to all MPs, and also sent copies to its affiliated groups, urging them to distribute it as widely as possible. In all, 75,000 copies were printed and sent out.51 The title of this pamphlet was especially timely. Just a few days earlier, Secretary of State Paul Martin had introduced Bill 20, the Canadian Citizenship Act. Increasingly, people were beginning to consider what were, and should be, the rights of Canadian citizenship. At the same time, the pamphlet also tapped into the emergent democratic human rights discourse, referring to the Atlantic Charter and the Charter of the United Nations as signposts for the treatment of Japanese Canadians. The end of the war, coupled with these new human rights concerns, was creating a dramatic turnaround in the public’s attitude

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concerning the deportation policy, one that surprised many observers at the time. For example, by October 1945, the government had received seventy-seven letters opposing the deportation policy, thirtyseven of which had arrived since the end of the war, and only seven letters favouring the policy. In addition, the CCF leader wrote to the prime minister in the middle of October and advised him that his party would be levelling strong criticism against the government on this matter.52 The opponents of deportation also helped to stimulate public interest by holding open forums. For example, in late October Dr Jarvis McCurdy, a professor of philosophy at the University of Toronto and a CLAT member, spoke on this issue to an Ottawa meeting. He asked those attending to protest individually, and they produced a collective resolution to be sent to the prime minister, ‘asserting the right of Japanese Canadians to free choice in repatriation’ and urging that those remaining in Canada ‘be admitted to full rights of citizenship.’53 In addition, a number of Canadian newspapers began to oppose Ottawa’s deportation policy. The Toronto Star, for example, paid close attention to the activities of the CCJC and supported their cause with a series of editorials which relied heavily upon the democratic antiNazi discourse, as well as references to the United Nations Charter and the concept of human rights. It even published articles showing the human and personal costs of deportation. While some other newspapers – the Halifax Herald, for example – still were locked into an implicitly racist world-view which identified all people of Japanese ancestry as essentially the same, and therefore pointed to war-time Japanese atrocities as evidence that even Japanese Canadians were somehow inferior, the Star attempted to rebut these facile generalizations.54 Opposition to the government’s deportation policy was no doubt especially serious for King and his cabinet when it came from newspapers that were both liberal and Liberal, such as the Winnipeg Free Press. A close reading of Hansard suggests that the Free Press was perhaps the most influential media critic of Ottawa’s policy on Japanese Canadians; on several occasions its editorials were quoted approvingly by CCF MPs. The Free Press had begun to support Japanese Canadians when Ottawa attempted to disenfranchise them in 1944, and it soon began to argue in favour of voluntary dispersal and assimilation, even urging the Manitoba government to release Ottawa from its earlier promise that the wartime relocation of Japanese Cana-

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dians from British Columbia would not be permanent. It then provided substantial coverage of the deportation issue, including information about the CCJC supporters in Winnipeg, and criticized government policy by using democratic anti-Nazi discourse as well as more traditional liberal arguments about freedom and the rule of law. At the same time, it began to link this issue to broader problems of the rights of citizens in a liberal democracy, attacking the principle of broad delegation of powers by Parliament to cabinet and later using the deportation issue as part of its campaign for a Canadian bill of rights, a concept still new to most Canadians.55 It was therefore becoming clear to Ottawa that deportation was not going to be easy. According to a confidential memorandum from Gordon Robertson, secretary to the cabinet, the government would suffer considerable ‘embarrassment’ unless it reviewed its policy. He noted the large number of submissions favouring a ‘moderate’ policy on deportation, especially from ‘church groups,’ the Winnipeg Free Press, the Toronto Star, and the Ottawa Citizen, and he pointed out that a 1944 Gallup poll indicated a shift of opinion in the direction of tolerance – the percentage of Canadians in favour of deportation had dropped from 54 per cent to 33 per cent. Even in the recent federal election, he added, the Liberals and Conservatives in British Columbia had chosen not to make an issue of the CCF’s traditional support for Japanese-Canadian rights. Robertson also noted that the government’s ‘embarrassment’ over the previous year’s disenfranchisement issue indicated that Canadians wanted nothing less than fair treatment. Finally, he admitted what the CCJC had argued all along: ‘There is no doubt but that in many cases the applications for “repatriation” reflected, not a desire to go to Japan, but despair of ever securing a livelihood or fair treatment in Canada in the future.’56 Nevertheless, in November the cabinet was informed that there now existed adequate shipping to send Japanese Canadians to their ancestral country, and Labour Minister Humphrey Mitchell publicly stated that the government was committed to expelling most of those who had signed the forms; their loyalty, he maintained, was suspect. He conceded that Ottawa would accept any withdrawals of ‘repatriation’ requests made prior to the surrender of Japan on 2 September, but it would merely review the cases of those who had requested withdrawal after the surrender. Moreover, he insisted that there had been no coercion of those signing repatriation requests, and mentioned the Red Cross investigation that had found no evidence of intimidation.57

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The CCJC was not appeased, and a few days later it sent a telegram to the prime minister asking that all applications for cancellation of deportation, regardless of when they were requested, be submitted to the courts. By now, some of the civil liberties groups outside Toronto had begun to join the struggle. For example, the Winnipeg group sent a letter of protest attacking Bill 15, the National Emergency Transitional Powers Act, as an illiberal document which undermined the ‘integrity of Canadian citizenship,’ and it also sent a petition to all senators and MPs from Manitoba, arguing that the measure was incompatible with the traditional British liberties of Canadians. The Vancouver branch of the CLU also sent off a formal protest, after first holding a mass meeting to protest Bill 15 which was attended by at least one thousand people. The speakers at this meeting included a wide variety of liberal ‘influentials’ on the West Coast, including representatives of several churches, CCF MLA Dorothy Steeves, and Vancouver Sun columnist (later Liberal MP) Elmore Philpott.58 In the House of Commons, neither the Conservatives nor the Social Credit members attacked the government on Bill 15, but the CCF called the policy a violation of democratic tradition, Christian principles, and the human rights concepts enshrined in the United Nations Charter. Most of the criticism came from British Columbia MP Angus MacInnis, who had a long tradition of supporting equal rights for Asians, despite the dangers of political extinction that accompanied such a position. Along with his wife Grace, he had recently issued ‘Oriental Canadians: Outcasts or Citizens,’ a pamphlet calling for an end to antiAsian discrimination.59 As a result of this pressure, the government quietly amended Bill 15, and when the House gave third reading to the National Emergency Transitional Powers Act on 7 December, there was no granting of deportation powers to the government. For a short while it looked as if the CCJC had won its battle. However, on 15 December the government issued a number of orders-in-council pursuant to the broad grant of powers it still enjoyed in the twilight days of the War Measures Act. The orders permitted deportations as an emergency measure, but only for Japanese nationals and naturalized Japanese Canadians. (The government was not sure that it had the legal power at that time to deport Canadian citizens.) To effect this policy, the orders made it possible to revoke the Canadian citizenship status of any naturalized Japanese Canadians, and authorized the creation of a special loyalty commission with the power to investigate the allegiance of

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Japanese nationals and naturalized Canadians of Japanese origin and to recommend their deportation where warranted.60 Ottawa’s solution to the Japanese deportation issue resonated ominously for those worried about ‘executive despotism’ (albeit not of the welfare-state variety). Maclean’s magazine referred to the ploy as ‘indefensible,’ and a Saturday Night editorial called it ‘one of the most astounding defiances of the will of Parliament that this country has ever witnessed.’ As a subsequent chapter will demonstrate, this decision helped convince a number of Canadians that a bill of rights was necessary to restrain the powers of the federal cabinet.61 A second result of the decision was that the opponents of deportation now had to think about an alternative way of fighting Ottawa, especially because the deportations were scheduled to begin on 6 January 1946. As a result, in late December a special CCJC committee met several times to consider strategy.62 The CCJC was no longer dominated by former missionaries and other church people. Aside from its secretary, Donalda MacMillan, and JCCD representatives Kunio Hidaka and Kinzie Tanaka, most of the committee members were representatives of CLAT. There was (as usual) B.K. Sandwell, as well as the new CLAT president, George Tatham (a pacifist FOR member who taught geography at the University of Toronto), Jarvis McCurdy (associate professor of philosophy at the University of Toronto), and Margaret Gould (a left-leaning journalist at the Toronto Star). Special mention should also be made of Andrew Brewin. As the previous chapter has pointed out, Brewin was a founding member of CLAT when it replaced the Toronto branch of the CLU early in the war. The son of an Anglican clergyman whose parishioners numbered many members of the Canadian ‘aristocracy,’ he attended public school in England, studied law at Osgoode Hall, and articled with the respected J.C. McRuer (also a member of CLAT during the early part of the war). Over time, he became one of the central figures of the Ontario branch of the CCF, and his presence in CLAT immeasurably enhanced its image of a respectable organization spanning the ideological spectrum from the moderate right to the moderate left. He played a key role in the CCJC campaign, not only as a lobbyist but also as the organization’s lawyer.63 The committee decided to launch a multi-pronged attack against Ottawa. First, in the last few days of 1945 a special CCJC committee decided to follow the advice of Andrew Brewin and challenge the

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legality of the government’s policy. Acting on behalf of Yutaka Shimoyama, a Canadian-born citizen, and Yae Nasu, a naturalized Canadian, the CCJC announced that it was beginning legal proceedings to determine that the deportation orders-in-council were ‘invalid, illegal, and beyond the powers of the governor-in-council.’ Interestingly, the announcement in Canadian newspapers did not mention the CCJC but stated that ‘a voluntary citizens’ committee’ had taken this action. The sponsors included CLAT members B.K. Sandwell, George Tatham, and Andrew Brewin, as well as J.E. Atkinson, the reform liberal owner of the Toronto Star, and George V. Ferguson, editor of the Winnipeg Free Press, a member of the Liberal press establishment who also had ties to the Civil Liberties Association of Winnipeg.64 (Meanwhile, an affiliated all-Japanese-Canadian group in Winnipeg called the Civil Rights Defence Committee had an action scheduled in Court of King’s Bench on behalf of a Japanese national, a naturalized Japanese Canadian, and a Canadian-born citizen of Japanese extraction. The group decided to postpone the case because of the CCJC litigation.)65 The CCJC also stepped up the political pressure on Ottawa, holding public meetings and encouraging supporters to lobby the government. For example, on 10 January 1946 the CCJC and CLAT jointly held a meeting in Toronto to protest the ‘condemnation of Canadians without trial or justice’ and to send Ottawa a formal telegram of protest. Over six hundred people attended the meeting, which was chaired by Sandwell.66 The guest speakers at this meeting illustrated how the anti-deportation movement had now gained the support of a wide range of ‘influentials.’ To begin with, there was Cairine Wilson. She is famous for being Canada’s first female senator, but she should also be remembered as a staunch human rights supporter. In the 1930s she was involved with the League of Nations Society and also with the Canadian National Committee on Refugees and Victims of Political Persecution, attempting to persuade the federal government that it should take in Jewish refugees from Nazi Germany. Then, in 1944, she had been among the minority of senators who voted against the disenfranchisement of Japanese Canadians, and her interest in human rights continued throughout her career as a politician.67 The movement also benefited from the public support of Senator Arthur Roebuck, another politician whose career demonstrated a strong attachment to human rights. Roebuck had been a well-known labour

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lawyer who had often defended unpopular clients; for example, in the early 1930s he had been hired by the Canadian Labor Defense League to defend the Finnish-Canadian editor Aaro Vaara against charges of sedition. A man ‘of patrician appearance, with a pince-nez on a black ribbon and an old-fashioned high collar, he was an unlikely-looking advocate for an immigrant Communist in a mining town,’ but he had deep sympathy for the downtrodden. Communist Party leader Tim Buck once described him as a ‘very liberal liberal.’68 Roebuck was, however, no outsider. In 1934 he served first as minister of labour and then as attorney general in the Liberal government of Mitchell Hepburn, although he achieved a certain amount of progressive fame when he was expelled from the cabinet for taking a tooliberal position during the Oshawa strike (quipping that ‘I would rather walk with the workers than ride with General Motors’). His record as a supporter of human rights grew when he became involved in the struggle to admit Jewish refugees, and during the war he was one of the few Liberal MPs to take a civil libertarian stand in opposition to the DOCR. Later, in 1944, he had been the only Liberal MP to denounce the disenfranchisement of Japanese Canadians, and after the war he played a minor but important role in the campaign to obtain a Canadian bill of rights. Now, recently elevated to the Senate, he was once again at loggerheads with the Liberal Party, sending a letter to the government that demanded adherence to principles of ‘British Justice.’69 The third influential speaker was Toronto Rabbi Abraham Feinberg, a liberal activist par excellence, a nodal actor who joined together many strands of the Toronto-area human rights community. Born and educated in the United States, he was a profoundly sensitive man who in early life had been exposed to the worst side of racism when he witnessed a group of white boys stoning and drowning a young black youth. A brilliant scholar who became a rabbi at the age of twentythree, Feinberg abandoned his calling in the 1930s to become ‘Anthony Frome, the Poet Prince,’ a successful radio crooner. Within a few years he returned to the rabbinate, however, because of his worries about Hitler and anti-Semitism, and in 1944 he became rabbi of Toronto’s respectably middle-class Holy Blossom Temple (the same Reform synagogue which Rabbi Eisendrath had used as his basis for social-political activism). Having cast his first vote in the United States for the socialist Eugene Debs, Feinberg was perhaps not temperamentally ready for conservative Toronto; as he wrote in his memoirs, ‘Ca-

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nadian afternoon-tea society is a disintegrating bastion of AngloSaxondom engaged in a rearguard battle to preserve some remnants of its moth-eaten ermine.’70 Described somewhat maladroitly in a Maclean’s article as the ‘The Impulsive Crusader of Holy Blossom,’ Feinberg was an exponent of the Jewish version of the Social Gospel, defending his political activities as ‘fighting for the Kingdom of God on Earth.’ He often preached the emerging doctrine of human rights, and he had recently railed against the ‘fascist’ attempt by Ottawa to deport the Japanese Canadians. As later chapters will indicate, Feinberg soon became a key member of the Canadian human rights community, serving on the executive of the Toronto civil liberties group, but at this point his most important role was chairing the Joint Public Relations Committee (JPRC), a body that the Canadian Jewish Congress and B’nai Brith, a Jewish service organization, had formed to deal with anti-Semitism and other forms of discrimination. At the meeting in Toronto, Feinberg demonstrated his usual eloquence, saying that he appeared at the rally on behalf of the entire Toronto Jewish community and ‘as a trembling instrument of six million Jews who have been slaughtered in Europe for no other reason than that they were Jews.’71 The same meeting also sent a resolution to the Ontario government, asking Premier George Drew ‘to state publicly Ontario’s responsibility and willingness to accept the citizenship and residence of Canadians of Japanese origin on a basis of equality with Canadians of other national origins.’ The purpose of this was to demonstrate to Ottawa that the British Columbia ‘problem’ could be solved without recourse to deportation. As noted earlier, Ottawa’s promise that dispersal from the West Coast would be only temporary engendered fears in British Columbia that the Japanese Canadians might return in significant numbers. The pressure had eased somewhat earlier, on 20 December, when the Manitoba government issued a press release stating that it was in favour of full citizenship rights for Japanese Canadians, including the right to live in any province. Yet by far the largest group had relocated to Ontario, so the CCJC was therefore moderately pleased when the Ontario attorney general responded by stating that he had no power to exclude Japanese Canadians from his province. This was not exactly an enthusiastic welcome, but it opened the door to permanent settlement. (The CCJC, however, still had to combat local anti-Japanese prejudice and exclusionist municipal policies.)72 Although Ottawa had been receiving letters about its deportation policy since the summer of 1945, it was now swamped with almost a

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thousand protesting letters and telegrams from a wide variety of CCJCaffiliated groups, many at the grass-roots level, as well as a delegation from the Canadian Council of Churches which met with the prime minister. In short, the CCJC had created a short-term mass movement, with all sorts of ordinary Canadians, aroused by injustice, committing themselves to endless hours of organization and political pressuring. At the same time, and in part because of their activities, it became apparent that Canadian public opinion now opposed the government’s policy. In early January the Gallup organization announced that 62 per cent of Canadians believed that those Japanese Canadians who were also citizens should be allowed to stay.73 The liberal press, including the Toronto Globe and Mail, the Toronto Star, the Winnipeg Free Press, the Canadian Forum, and Saturday Night, continued the pressure. As the Globe put it, ‘the upsurge of public conscience against the discriminatory treatment of Canadians of Japanese origin shows how deep are the democratic instincts of the Canadian people.’ It added that ‘it would bring lasting disgrace on the Canadian people if a temporary hysteria, inflamed by war, were to result in a wholesale deportation, Nazi fashion.’74 These liberal and social-democratic periodicals were natural supporters of the anti-deportation movement, but they were also responding in part to pressure from the CCJC. As Sidney Olyan has pointed out, the CCJC made effective and sophisticated use of the newspapers (although not radio) during its political phase, monitoring their coverage and frequently sending out press releases as well as information kits in order to stimulate favourable editorial comment. The executive also attempted to develop close ties with a number of newspaper editors and reporters. These manoeuvrings helped to keep the issue in the public eye.75 Another route pursued by the CCJC was the sending of a delegation in early January 1946 to meet with the acting minister of justice and his deputy minister. The group, consisting of Sandwell, Tatham, Brewin, and Donalda MacMillan, argued out that the deportation policy was not only morally wrong but also unconstitutional. Ottawa, Brewin suggested, had the power to deport only aliens, and he asked Ottawa to submit this matter to the Supreme Court as a reference case.76 Previously intransigent, the government now offered a compromise – if the CCJC would withdraw its legal challenge then Ottawa would send the matter to the Supreme Court, and it would also suspend deportations pending a decision by that body. (Almost three thousand Japanese Canadians had already been sent to Japan, all at least osten-

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sibly voluntarily.) By now the cabinet had seen that public support for the CCJC could not be ignored, but it was still under considerable pressure from British Columbia to keep Japanese Canadians from returning. Prime Minister King, a well-known practitioner of creative procrastination, no doubt hoped that somehow things would all work out in the end.77 The CCJC executive realized that it would be expensive to participate as an intervener in a reference case. They had already decided to offer Donalda’s husband, the Reverend Hugh MacMillan, the job of full-time paid secretary (he had recently returned from San Francisco as a member of a British government mission), and they now agreed to hire Andrew Brewin as legal counsel. Soon after, they also agreed that John R. Cartwright would argue their position before the Supreme Court. A member of Ontario’s social and economic elite who was one of the foremost lawyers of the period and would become chief justice of the Supreme Court of Canada in the 1950s, Cartwright was a valuable addition to the CCJC’s legal arsenal, but not one who came cheaply. The organization’s immediate financial goal was therefore the raising of $7,000.78 The money was acquired in a number of ways. One source was the network of CCJC member groups which had developed across Canada, from Montreal to Vancouver. In addition, the CCJC central committee in Toronto took advantage of the support of Edith Fowke, best known to Canadians today as a collector of folk songs but at that time an active supporter of the Fellowship of Reconciliation, a CCF true believer, and (most important) an editor of Canadian Forum. During the campaign she produced an article on the deportation issue for the January 1946 issue of her journal; this was reprinted as a pamphlet, a thousand copies of which were sent out to organizations targeted as probable sources of financial assistance.79 Meanwhile, Hugh MacMillan began a nation-wide tour to generate more public support for the cause, and money began to pour in from the forty or more national and local organizations of the CCJC, as well as its affiliated groups, such as the JCCD (which was in touch with other Nisei organizations outside Toronto). Other money was raised by CLAT and a number of religious bodies. Yet this was not just a ‘grass-roots’ effort; Toronto Star owner J.E. Atkinson gave the organization $1,000 and lent it another $1,000, which was in turn matched by a second loan from J.S. McLean of Canada Packers.80

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Just as important as money was the spontaneous outpouring of indignation from influential individuals and organizations. For example, in early 1946 a number of prominent lawyers in Winnipeg, including CIIA president Edgar Tarr and the radical MLA Lewis St George Stubbs, issued a public criticism of Ottawa’s deportation policy. Then, writing on behalf of the Winnipeg civil liberties group (now reborn as a Manitoba organization), Professor Arthur Lower engaged in a little quiet diplomacy by writing to British Columbia MP Howard Green and asking him to be more liberal on the issue of Japanese Canadians. Meanwhile, a new organization, the Ottawa Civil Liberties Association, had been cobbled together by a number of activists who, among other things, roundly condemned the federal government’s deportation plans.81 Also, in Quebec, activists had just formed the Montreal Committee on Canadian Citizenship, the long-term goal of which was ‘full civil rights for all Canadian minorities irrespective of racial origin or creed’ but which in the short run devoted itself to raising money to fund the Supreme Court challenge. This moderately bicultural organization included a number of prominent civil libertarians. One was Frank Scott, who privately protested the deportation with a letter to the press that was sent to fifty-five newspapers (but only published in eleven). The group also included a number of prominent francophones with civil libertarian inclinations, such as Jacques Perrault, Roger Ouimet, and Thérèse Casgrain.82 Perrault, a veteran of the Montreal CLU, was connected to moderate left-wing Québécois politics during the war and over the next few years would teach law at the University of Montreal, help to run the newspaper Le Devoir, and take on a number of important cases involving the civil liberties of unpopular clients – the labour radical Kent Rowley, the Communist John Switzman, and the Jehovah’s Witness Frank Roncarelli. Casgrain was a member of the Quebec francophone social and political establishment who also happened to be a feminist and a social democrat; in 1951 she became the leader of the provincial CCF. Ouimet was perhaps the most respectable of these members. The son-in-law of federal Minister of Justice Lapointe, he was a prominent Liberal lawyer who would later become a judge.83 At the other end of the country, the VCC was also raising money for the cause. It issued a broadsheet called ‘Orders-in-Council Threaten Your Citizenship!’ which not only emphasized the ‘racialist’ nature of

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the orders-in-council but also stressed that they had been issued in apparent defiance of the will of Parliament. It exhorted its readers to write the prime minister, to arrange for public meetings (using guest speakers from the Vancouver branch of the CLU), and to send contributions for the test case to the VCC.84 It is worth noting that no support came from the Chinese community, which was busy with its own human rights campaign. In 1946 a group called the Committee for the Repeal of the Chinese Immigration Act (CRCIA) began to lobby against the ‘inhuman’ portion of the immigration law which prevented Chinese men from bringing in wives and children to join them in Canada. Members of the CRCIA met with federal government officials, organized a cross-country tour to drum up support, sent a brief to the federal cabinet as well as to all members of Parliament, and presented a lengthy brief to the Senate committee on immigration and labour in 1948. Although the CRCIA involved a number of ‘white’ activists, most notably its co-chair, Dr A.E. Armstrong, secretary of foreign missions of the United Church, it had no connection to the Japanese community. The divisions between the two groups of Asian Canadians were still too strong to generate any mutual support.85 When the Supreme Court heard the Japanese Canadian Reference case, support for the deportation policy came, of course, from the lawyers representing the federal government, as well as from the counsel for British Columbia. Opposition came from the CCF government of Saskatchewan (represented by Andrew Brewin) and the CCJC (also represented by Brewin, as well as by J.R. Cartwright and another lawyer, J.A. MacLennan). In the absence of any bill of rights limiting Parliament, it was not possible to challenge the policy by referring to civil liberties, so the CCJC used a number of other approaches, including an argument that the War Measures Act had not given the cabinet sufficient authority for the deportations. In February 1946 the court handed down a decision that satisfied almost nobody. On a split decision the court said that Ottawa indeed had the power to deport any adult male Japanese Canadians who had asked for ‘repatriation,’ but it could not deport their wives and children. In their Solomon-like wisdom, the judges had given Ottawa free rein to pursue its policy of deportation, but only if it was willing to suffer the political fallout that would ensue from the cutting apart of families. And, as B.K. Sandwell remarked, calling this decision ‘a partial victory for the forces of liberalism,’ the forcible separation of

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parents from children would not be tolerated by Canadian public opinion.86 The CCJC immediately decided to appeal, arguing that the separation of families would be ‘a policy of inhumanity.’ Its executive therefore began a second fund-raising campaign, this time with the goal of $10,500 to take the case to the Judicial Committee of the Privy Council in London. The JCCD agreed to raise $4,000 from the Canadian Japanese community, the Toronto committee of the CCJC pledged $1,000, and similar or lesser amounts were expected from the numerous regional committees. The centrepiece of this second campaign was a new CCJC pamphlet titled ‘Our Japanese Canadians: Citizens Not Exiles,’ written by Forrest E. La Violette, a professor of sociology at McGill and a member of the local CCJC branch who had been providing support to the Japanese-Canadian community since at least the disenfranchisement struggle.87 Over the next few months, 50,000 copies of the pamphlet were distributed, and money quickly poured in, including $1,000 from the government of Saskatchewan. By the time the case was over, the CCJC and its supporters had raised over $17,000, more than enough to cover the $11,600 it spent on litigation as well as on salaries and literature, travel, and office supplies.88 Meanwhile, two days after the Supreme Court decision, Andrew Brewin obtained an interview with Gordon Robertson, the cabinet secretary, and suggested that the government should consider withdrawing the deportation orders-in-council. Failing that, said Brewin, the government could consider having its loyalty commission hear all the deportation cases individually. At the very least, it should agree not to carry out any involuntary deportations before the Privy Council handed down its decision. The government made no commitments at the time, no doubt because it had urged its legal counsel in London to resist the CCJC application for leave to appeal to the Privy Council, and it was hoping that it might still be able to deport Japanese nationals and naturalized Canadians of Japanese origin. After all, the attorney general of British Columbia had called for immediate deportations following the Supreme Court decision.89 Within two weeks, however, the government made a slight change in course. First, it decided to facilitate an appeal to the Privy Council and to defer appointing a commission to review cases until after the appeal was decided. In addition, it agreed to help the relocation of those Japanese Canadians who truly wanted to leave the country, and

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to facilitate the resettlement within Canada of ‘loyal’ Japanese, including removing the prohibition on purchase of land.90 The reasons for this shift are clear. First of all, the British Columbia cabinet minister, Ian Mackenzie, had gone into a decline and was drinking heavily; his anti-Japanese influence in King’s government was diminishing. More important, memoranda from the cabinet secretary to the prime minister show that the authorities were now paying close attention to groups like the CCJC, as well as to the letters which it had urged Canadians to write. In the past three months the government had received from seven hundred to one thousand letters of protest on this topic, the strongest outburst of public opinion that it had ever received on a controversial policy. In addition, it was obvious that the Supreme Court decision had substantially weakened the government’s position. There now existed a fear that many potential deportees would refuse to take their children with them, thereby making it impossible to ship them off. Finally, the logistical problems of deportation were taking longer to solve than had been anticipated, for the American authorities in Japan were creating difficulties about the matter of Japanese Canadians bringing funds into the country. As the cabinet secretary remarked, ‘in view of this it was felt that the time involved in an appeal might be an advantage rather than an embarrassment.’91 Then, a few weeks later, Hugh MacMillan obtained an audience for the CCJC with the prime minister, several cabinet ministers, and a number of high-ranking bureaucrats. The members of this delegation demonstrated, once again, that the anti-deportation issue had gained the support of a wide range of ‘respectable’ members of the socialpolitical elite. Sandwell was, for once, unable to attend, but the liberal/business perspective was represented by E.J. Tarr. In addition, Charles Millard served as the spokesman of organized labour, and the CCF was officially present in the person of the national party leader, M.J. Coldwell. The delegation even included a Liberal MP, David Croll. As his obituary years later put it, Croll prided himself on being in the vanguard of political reform, and in many ways he was a social democrat in Liberal clothing. Before the war he had come into conflict with Ontario Premier Mitchell Hepburn, who removed him from the cabinet (along with Arthur Roebuck) because he did not support the premier’s policy during the 1937 Oshawa strike. Now, as a federal Liberal, he had not broken ranks with the government in the House, but he had recently made a speech at the University of Toronto (along

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with CLAT member Andrew Brewin and JCCD activist Kinzie Tanaka) in which he argued that Ottawa’s deportation policy violated the principles of the newly created United Nations Charter.92 At the meeting with the prime minister, Andrew Brewin laid out the main CCJC arguments against the deportation policy. Some were legal points (for example, the emergency wartime situation no longer existed), but most of them were moral: the policy discounted Canadian citizenship, it was racially discriminatory, and it was unjust and inhumane. Brewin also stressed once more that many of the repatriation requests had not been truly voluntary, and he emphasized how the policy violated the commitments of human rights laid out in the United Nations Charter. On the same day as the meeting with the prime minister, the CCJC also sent all MPs a copy of a memorandum which criticized Ottawa for proceeding through executive fiat in a manner that violated the human rights values of the United Nations Charter by employing ‘the methods of Naziism.’ However, neither this nor the meeting with the prime minister had any immediate effect. The government continued to wait until the Privy Council decided the case.93 The government waited, but it was not passive. In the summer of 1946, Ottawa implemented what Ann Sunahara calls ‘the second uprooting’ – a policy of involuntary dispersal for most Japanese Canadians still living in British Columbia. Within a few months, Ontario had more Japanese Canadians than did British Columbia, and, as Saturday Night reported to its readers, most of these internal immigrants had ‘entered new fields of employment and ... made steady progress towards becoming accepted members of their new community’; they were not likely to return to the west coast. (This article, written by Frank Moritsugu, whom Sandwell called ‘one of the most able and brilliant of the Japanese-born Canadians,’ shows how Sandwell was able to combine his liberal values with both political lobbying and sound business practices. The article not only talked about assimilation but was a practical example of it – and helped launch Moritsugu into a career in journalism.)94 Meanwhile, the deportation issue had attracted unfavourable attention abroad. According to Hugh MacMillan, in a letter published in Saturday Night, Americans were asking the CCJC for information, and papers such as the Washington Post were writing critical editorials. MacMillan pointed out that the Post had called the Canadian government’s policy ‘an odious manifestation of Canadian racialism.’95

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When the Privy Council heard the appeal, in July, Andrew Brewin was once again the CCJC lawyer, this time assisted by two eminent British lawyers. As before, he challenged the validity of the deportation on a number of grounds, but he now added a new argument – that Ottawa was unconstitutionally interfering with provincial jurisdiction. There were two aspects to this question. First, could Ottawa legitimately take action in the absence of an emergency? The Privy Council had usually held that Ottawa could use the ‘peace, order, and good government’ clause of the BNA Act to justify intrusions into areas of provincial jurisdiction such as ‘property and civil rights’ only if there was an emergency, but a recent Privy Council decision suggested that Ottawa might also be able to intrude in situations of strong national interest. A decision that followed this recent precedent would strengthen federal power, while a decision that pursued the more traditional understanding of the constitution would somewhat weaken it. The second aspect of this matter was whether Ottawa, if using the emergency doctrine to justify its actions, had to prove the existence of such an emergency. Obviously, such proof might be difficult, since the war was clearly over. The decision of the Privy Council, handed down in early December 1946, was a sort of bad news, good news decision from the point of view of Ottawa. The bad news was that the Privy Council chose to ignore the recent ‘national powers’ precedent which broadened the ability of the federal government to justify legislation, and followed the more traditional ‘emergency powers’ doctrine. The good news was that it gave Ottawa the benefit of the doubt in determining the existence of an emergency. As Lord Wright noted, speaking for the entire Privy Council, ‘very clear evidence that an emergency has not arisen, or that the emergency no longer exists, is required to justify the judiciary ... in overruling the decision of the Parliament of the Dominion that exceptional measures were required or were still required.’ As a result of this, and because the Privy Council rejected the other arguments presented by the CCJC, Ottawa had the power to deport even the native-born wives and children of Japanese Canadians. The fact that there was, in practical political terms, no emergency at all was completely ignored.96 The decision was unwelcome for the CCJC, but perhaps not unexpected. The executive had already stated that, if they lost the case, they would immediately ask the government to abandon its deporta-

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tion plans. They also had been told that the government was eager to find a solution to the matter but did not want to be seen as capitulating to political pressure. As a result, when the decision was announced, the CCJC did not launch another campaign other than to request, once again, that Ottawa abandon its deportation policy, arguing that ‘the hard feelings of war time have died down’ and that there were ‘altered circumstances since the orders were passed.’ (The CCJC also called on Ottawa to remove the remaining travel restrictions on Japanese Canadians and to give them ‘fair compensation’ for property losses.) It privately told Ottawa, however, that the VCC was quite willing to embarrass the government and was proceeding with the publication of a new pamphlet, 40,000 copies of which were to be released as quickly as possible.97 The liberal press, once again, supported the CCJC position. The Globe, for example, noted that there is a distinction between legal right and moral correctness and added that the deportation policy was ‘wrong, unjust, and un-Canadian’ as well as an attack on the rights of Canadian citizenship. More important, the Vancouver Sun, perhaps the most intolerant of west coast newspapers, carried an editorial that argued for toleration, as long as most Japanese Canadians stayed dispersed throughout the country. As the prime minister’s secretary remarked in a memorandum to his boss, this was ‘a significant indication of the change in attitude in Vancouver, which may well have a bearing on future policy.’98 The CCJC prepared to lobby the prime minister with yet another delegation, but within a month it became clear that the organization had won. On 24 January the government stated that its deportation policy was ‘no longer necessary,’ although it maintained that the success of its resettlement program for Japanese Canadians within Canada necessitated the continuation of restrictions on travel and west coast fishing licences.99 The CCJC congratulated the government for repealing the orders-incouncil but continued to battle for the end of these above-mentioned restrictions, as well as for a just settlement of Japanese-Canadian property claims. However, these issues did not have the immediacy that could generate the high level of public involvement which emerged just after the war, and the CCJC began to lose its position as the central player within the Canadian human rights community, at the same time diminishing in size from a large coalition protecting civil liberties to a small committee focusing entirely on property repara-

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tions. By the early 1950s, most of these issues had been settled (albeit not to everyone’s satisfaction in the Japanese-Canadian community), and the CCJC wound up its affairs.100 The CCJC was the first major human rights coalition of the immediate post-war period and exemplified the new interest in human rights that was emerging out of the struggle against totalitarianism. Although it is proper that Canadians remember with shame the treatment of Japanese Canadians in the 1940s, it is also appropriate to recall how a great many non-Japanese citizens were appalled at Ottawa’s policies, especially its deportation plans, and that they rallied together in opposition. There is, of course, room for debate about how effective the CCJC coalition actually was. Ottawa did not end its deportation plans entirely because of pressure from the CCJC and its supporters. By 1947, the government could afford to be magnanimous because of both ‘voluntary’ repatriation (involving 3,964 persons, some of them Canadian citizens)101 and the two waves of internal relocation, in 1942 and 1946. This, along with their loss of property on the west coast, plus fairly successful assimilation in other provinces, as well as the continuation of discriminatory travel restrictions, meant that for most Japanese Canadians a return to British Columbia was highly unlikely. The British Columbia ‘problem’ had largely been solved. The CCJC, however, certainly could claim credit for having helped to slow down the ‘repatriation’ process and forcing the government to consider that there would be significant political costs to a policy of large-scale involuntary deportation. As the issue slowly wended it way through the courts, Ottawa proceeded only with voluntary deportation (although it was not entirely voluntary or pleasant for the Canadian-born children of those who returned to Japan). By the early 1947, only about 1,000 Japanese Canadians remained on the involuntarily deportation list, and these numbers were too small for Ottawa to risk any further public criticism.102 It has been alleged that CCJC support for the Japanese-Canadian community was not an unalloyed blessing. Peter Nunoda has argued that the interests of Japanese Canadians were sometimes ill-served by the largely ‘white’ leadership of the CCJC who, after all, saw the situation from a somewhat different perspective than did the Japanese Canadians themselves. There is certainly some evidence that the organization might have been more effective if it had taken a stronger stance earlier, enabling the liberals in the federal cabinet to stand up to the

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anti-Japanese demands of British Columbia MPs, especially Ian Mackenzie. But it is far from clear that an organization dominated by Japanese Canadians would have avoided this mistake.103 A more serious aspect of this criticism involves the point that the CCJC activists, like virtually all liberals in Canada, were convinced that Japanese Canadians would be best served by relocation from British Columbia. But this view was supported by many of the Nisei at the time, and, given the prevailing social and political realities, it was probably the ‘least worst’ solution. In an interesting passage that has been ignored by recent historians writing about Japanese Canadians, the CCJC supporter Forrest La Violette briefly compared the treatment of Japanese Americans in the post-war era with the treatment of their Canadian counterparts, and noted that there had been considerable post-war anti-Japanese violence in the United States. He concluded that ‘the absence of violence ... [in Canada] makes Canadians feel that their method of handling the Japanese problem has been superior. In efforts to avoid such open conflict, the Canadian people require a greater length of time, and it may be that over a long period “better” results may be achieved.’104 In any case, as Nunoda concedes, the Japanese Canadians could not possibly have fought so effectively against the federal government if they had done so without their allies.105 Only a ‘white’-dominated organization like the CCJC, with links to the Canadian establishment and support from a number of well-known respectable and largely middle-class citizens, many of them connected to the civil liberties movement as well as rooted in the Social Gospel tradition, could have exerted much pressure on Ottawa. In the years immediately following the war, the plight of Japanese Canadians continued to concern the nation, with liberal activists and periodicals demanding that they, as well as those of Chinese and East Indian extraction, be given full citizenship rights. For example, Pierre Berton, the Maclean’s writer who took a strong interest in human rights (sometimes working behind-the-scenes with activists in Toronto), wrote an article in 1948 called ‘They’re Only Japs,’ which discussed sympathetically the problems still facing this group of Canadians – such as the difficulty of rebuilding careers after losing almost everything during the war, the continuation of discriminatory laws in British Columbia (limiting their ability to fish, mine, work on crown lands, or enter certain professions), the denial of the franchise, and racist myths that perpetuated discrimination in some quarters. By the end of the de-

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cade, however, Japanese Canadians across the country were able to enjoy the same civil liberties as other citizens. In subsequent years they became one of the most assimilated minority groups in the country, with a high level of intermarriage and economic success.106 Berton also wrote about the way in which the ‘voluntary’ JapaneseCanadian exiles were adjusting to their new reality in Japan. In a somewhat luridly titled article, ‘Marie Went Back to the Dark Ages,’ he focused primarily upon one particular Nisei, Marie Kawamoto, who at the time of the article had been living in Japan for five years, ‘a foreigner in the land of her ancestors.’ The article pointed out that Marie had moved to Japan only because her elderly parents, at the end of the war, ‘were told they had two choices – go east and work on the sugar-beet farms or make their own way in the strange cities, or go back to Japan.’ Feeling that they were too old for farm work, and fearing to relocate in the big cities of eastern Canada, they reluctantly decided to return to the country of their birth, and their daughter had felt obliged to accompany them. The article explained how foreign Japan seemed to the young girl and to the three thousand other Canadian Nisei living in that country, although it also demonstrated that she was managing to cope with the experience of being a stranger in a strange land.107 (As a footnote to this, it should be added that Marie and her husband, a Nisei born in the United States, lived in Japan until the late 1990s, raising two children and also successfully pursuing their own careers, his as a businessman, and hers as a translator. In 1997 they decided to return to North America and settled in Vancouver, Marie’s old home town. Today, neither of them seems to be bitter about the unforeseen turn that their lives took as a result of the Second World War. Given the situation into which they were thrust, they did the best that they could and managed to prevail.)108 Meanwhile, other issues were starting to dominate the post-war human rights community. One of them was the effect upon libertarian rights of a renewed split between Communists and anti-Communists. The other was a struggle to fight discrimination and make Canada a more egalitarian society. As the following chapters will indicate, these two issues were separate but intertwined, and they had a profound impact upon the history of human rights for the fifteen or so years following the Second World War.

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4 The Gouzenko Affair, Civil Libertarians, and the Shugar Case

As the Second World War drew to a close, there were mixed messages about what this would mean for civil liberties. The DOCR were about to expire, and Canada’s participation in the newly created United Nations suggested a commitment to the emerging concept of human rights. On the other hand, one contemporary observer, finishing his doctoral dissertation in 1945, argued that ‘the future of freedom in Canada does not look bright ... in view of the general lack of a public consciousness of the degree to which liberties have been infringed. Authority once exercised by government is seldom entirely relinquished.’1 It was not just the wartime experience that provided grounds for pessimism, especially when it came to the civil liberties of those on the radical left. As this book has noted, the early years of the twentieth century were replete with attacks upon the ‘British liberties’ of individuals and groups challenging the nature of capitalist democracy: repression of the Wobblies’ rights to hold public meetings on the west coast, the suppression of dissidents during the First World War, the smashing of the Winnipeg General Strike, the creation of section 98 of the Criminal Code, limitations on political protest during the Depression years, and the passage of the Padlock Law in Quebec. Yet there was some cause to believe that this tradition had come to an end. The Russians had suddenly become our anti-fascist allies, and Stalin the tyrant had been transformed into ‘Uncle Joe,’ the friend of both Churchill and Roosevelt. One result had been the creation of the National Council for Canadian-Soviet Friendship (NCCSF); far from being a disreputable organization of radical leftists, it was founded with Prime Minister King as its official patron, Ellsworth Flavelle as its chair, and department store executive John David Eaton as one of

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its vice-chairs. Moreover, by 1945, according to one poll, 46 per cent of the population expressed confidence that Canada could ‘get along’ with the Russians after the war, while only 34 per cent believed that it was impossible – not a resounding vote of confidence, but at least one reflecting a sort of cautious optimism.2 Meanwhile, Canadian Communists had been encouraged to come out of hiding and interned radicals had been released; many of them served overseas in the Canadian armed forces. The hard-line rhetoric of class conflict had withered away, replaced by a new language of domestic cooperation. In the words of the inveterate anti-Communist civil libertarian B.K. Sandwell, the Communists had ‘decided to abandon for the time being all effort to overthrow the capitalist system,’ and the USSR had become ‘a full and regular member of the comity of nations.’ By 1945, Canadians were faced with the unprecedented situation of Communists working together with Liberals in both Ontario provincial and national elections, usually at the expense of CCF candidates.3 On the other hand, there was no reason to believe that the Marxist antithesis between capitalist and proletariat had come to the end of its dialectical dance. There was considerable evidence that the Communist Party in Canada (now called the Labor Progressive Party) was quite capable of abruptly changing its own tactical dance patterns according to whatever new tune was played by Moscow. At the same time, there was no evidence that the government in Ottawa had changed its attitude towards either Canadian Communists or Russia. (Indeed, throughout the war, Canada intercepted communication signals between the Soviet embassy in Ottawa and the USSR, even when that country was our ally.) Nor was there any indication that the antiCommunism of Quebec and the Catholic Church had abated – one reason why the government had been unwilling to withdraw its ban on the Communist Party. In retrospect, one can argue that future conflict between the authorities and the radicals was inevitable. It was only a matter of time before something set it off.4 On 5 September 1945, only a few days after the unconditional surrender of the Japanese and the end of the Second World War, an obscure Soviet cipher clerk named Igor Gouzenko defected in Ottawa to the Canadian government, bringing with him information about a Soviet spy ring operating in North America. The following day, Prime Minister King was told that a ‘most terrible thing had happened,’ for, as he later wrote in his diary, Gouzenko ‘had enough

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evidence there to prove that instead of being friends the Russians were really enemies.’5 Ottawa feared that one of the alleged spies, Alan Nunn May, a British atomic scientist working in Canada, might at any moment be returning to England. Consequently, as Mackenzie King wrote, the government passed ‘a special O[rder] in C[ouncil], very secretly which would enact certain clauses of the Defence of Canada regulations, so far as May was personally concerned, which would enable us to have him watched by the police and if necessary arrest him, also to see that he did not get away with papers, etc.’ Such a secret order was unprecedented, a reflection of how much the Gouzenko revelations worried King. It was kept secret not only from the Canadian public but also from most federal cabinet ministers; only the prime minister and three other members of the cabinet were aware of its existence.6 Nevertheless, Alan May was allowed to return to England, although he was kept under close surveillance by MI5. When it became clear to the Canadian government that the British were about to arrest May, and that the espionage issue might become public, Minister of Justice and acting Prime Minister Louis St Laurent authorized a second secret order-in-council on 6 October, PC 6444, giving the Canadian police broad powers to detain and question people suspected of espionage. No formal charges had to be laid, and the traditional rights of access to legal counsel and habeas corpus were suspended.7 This order-in-council was a legal blunderbuss, capable of enormous damage to the traditional rights of both the guilty and the innocent alike. However, the civil liberties implications of the order do not seem to have overly worried the cabinet. When the issue was much later raised in the House, St Laurent at first claimed that no such order-in-council existed; the following day he retracted the statement, claiming that he had completely forgotten about PC 6444 and inadvertently misled the House.8 Yet, although Ottawa had created a powerful legal weapon, the authorities were not immediately ready to pull the metaphorical trigger. Secret investigations (but no arrests) proceeded throughout the fall of 1945 and early 1946, and a small group of senior civil servants continued to discuss the case. Known as the ‘Corby committee,’ because the files were kept in a Corby’s whisky case (and because the members used the name ‘Corby’ as a code name for Gouzenko), the group soon concluded that extraordinary measures were necessary. A ‘Top Secret’ recommendation written to the Department of Justice by

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one of the members, the distinguished lawyer E.K. Williams, stated that ‘criminal proceedings at this stage are not advisable’ for the existing evidence provided hope for only a few successful prosecutions. Williams therefore recommended setting up a royal commission which would have ‘full control over its own procedure ... It need not be bound by the ordinary rules of evidence if it considers it desirable to disregard them. It need not permit counsel to appear for those to be interrogated by or before it.’ The commission, he suggested, could consist of two judges of the Supreme Court of Canada, sitting in camera, and it ‘should make its enquiries in the widest possible way, should not be bound by the strict rules of evidence, and should not allow counsel to appear for those summoned before it.’9 This was a Draconian recommendation, but Williams and the other members of the committee had obviously been badly rattled by Gouzenko’s revelations. As the report noted, the evidence indicated that ‘it is comparatively simple for an organization of the kind with which we are dealing to infiltrate into all Government Departments, even into positions of the greatest trust and responsibility.’ Something had to be done to stop the rot from spreading. The government vacillated, however, until a leaked news story in Washington forced its hand. Fearing that information about the Soviet espionage efforts would soon become public, the government appointed a royal commission in early 1946. Usually known as the KellockTaschereau Royal Commission, it consisted of two Supreme Court judges, and its mandate was ‘to inquire into and report upon which public officials and persons in positions of trust or otherwise have communicated, directly or indirectly, secret and confidential information, the disclosure of which might be inimical to the safety and interests of Canada, to the agents of a Foreign Power, and the facts relating to and the circumstances surrounding such communication.’ It began work – in secret – on 6 February 1946.10 Appointing a judge to a royal commission was not unusual. By 1946, in fact, it was a time-honoured Canadian tradition, and the previous year the prime minister had appointed Mr Justice Roy Lindsay Kellock as a one-man royal commission to investigate the Halifax V-E riots. What was unusual in 1946 was that the Kellock-Taschereau commission was intended, from the very beginning, to extract the maximum amount of damaging information from the alleged spies, with minimal concern for their civil liberties. The government was well

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aware that civil liberties would be violated, but it felt that this was warranted by the nature of the situation. The judges appointed to this royal commission were not known for their civil libertarian proclivities, but there was no doubt they were experienced members of the Canadian legal elite. Kellock had been practising law for over twenty years as a member of a large Toronto law firm. He had been elevated to the Ontario Court of Appeal in 1942 and appointed to the Supreme Court in 1944 at the age of fifty. He should not be remembered, however, as a rock-ribbed authoritarian conservative. In the years after the Gouzenko affair, he helped settle a number of cases in which the Supreme Court took a relatively activist stance in favour of civil liberties, and he normally was on the side of the liberal anglophone majority.11 Robert Taschereau, on the other hand, was a typically conservative member of Quebec’s political elite. The son of L.A. Taschereau, the Quebec premier in the 1920s and early 1930s who had headed a regime well known for both its authoritarianism and its political corruption, he had practised law since 1920, but without much distinction. He served as a Liberal member of the Quebec Legislative Assembly from 1930 to 1939, whereupon he was then appointed to the Supreme Court at the fairly young age of forty-three, an apparent demonstration of the primacy of good connections over talent. He did, it is true, ultimately become the chief justice in 1963, but probably more because of seniority than ability, and in terms of civil liberties his track record in the coming years was consistently conservative.12 Both judges had already proven their usefulness to an authoritarian regime. As Reg Whitaker has pointed out, they frequently served on the Second World War advisory committees which served primarily as ‘courts’ of appeal for internees but which in many cases were also ‘sometimes used as fishing expeditions for further names, and featured occasional appearance by ex-Communists to finger the guilty parties, accusations based on guilt by association, the probing of private beliefs, and other investigative techniques soon to be familiar in the coming years of the Cold War.’13 On 13 February, Kellock and Taschereau, assisted by E.K. Williams (who had now been promoted from government adviser in the Corby committee to chief counsel of the royal commission), began their duties by hearing testimony from Igor Gouzenko. They were told that a number of Canadians had agreed to hand information over to agents

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of the Soviet Union, and the following day Williams wrote to the minister of justice asking that twelve suspects be taken into custody. When the cabinet discussed the matter the next day, it was told that the commissioners recommended that these people be detained by means of the secret order-in-council of 6 October 1945. The circumstances of the situation were ‘exceptional,’ the cabinet learned, for ‘the full extent of the ramifications of the disloyal practices and the persons engaged therein might be even greater than was already known and might be continuing.’ The cabinet agreed to the use of the orderin-council, and the first detentions took place on the morning of 15 February.14 Note that these people were ‘detained,’ not ‘arrested.’ Since the detainees were not arrested, they were not charged, and no warning about self-incriminating statements was necessary. They were not held in jail, but at Rockcliffe RCMP barracks in Ottawa, in solitary confinement, with the lights on day and night and the windows nailed shut. At first they were not allowed any visitors (including lawyers), nor any mail; they were not permitted to communicate with anyone, including even their guards; and they were told little about the reasons for their incarceration. After a while, they were permitted to send off letters, but subject to censorship.15 While the stories of some of the suspects have been told in detail, none of the cases aroused as much interest among civil libertarians as that of a Polish-born naturalized Canadian named David Shugar who was subsequently exonerated in court. A graduate of McGill University with a doctorate in physics, Shugar (whose name, incidentally, is pronounced with an emphasis on the second syllable) was thirty-one years old at the time of his incarceration. During the war he had first worked for a crown corporation called Research Enterprises, but in 1944 he entered the Canadian navy as an electrical sublieutenant serving as an ultrasonics specialist dealing with submarine-detection research. By early 1946, he had been discharged from the navy and was working for the Department of National Health and Welfare. (Even as a graduate student in physics he had been interested in biology, and he was now doing medical-related research for the government.) He had no idea that he was about to detained by the police on suspicion of conspiring to hand over state secrets to another country, the USSR.16 Yet from the Manichean perspective of a conservative, where people were either ‘Communist’ or ‘anti-Communist,’ Shugar was perhaps a suspicious character. Having grown up during the Depression in an

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immigrant family, he had seen the flaws of the capitalist system at first hand. Forced to begin work at age eight, while still in school, he had laboured in factories for five dollars a week. He had also seen how the quasi-fascist government of Maurice Duplessis could suppress local support for the Republicans in the Spanish Civil War and utilize the Padlock Law to suppress any form of alleged ‘Communist’ thought. As a result, Shugar was not just an other-worldly physicist, devoted only to science and cut off from political ideas. To begin with, he had served as Canadian secretary of the National Association of Technical Employees, and then had been fired from Research Enterprises for attempting to organize his fellow workers into a trade union. (The company made optical glass, an important product in the creation of cathode ray tubes at a time when the field of radar was still in its infancy. Shugar did not realize at the time how militarily sensitive the field was, and how the authorities might believe that organizing scientific workers could threaten the war effort.) None of this, however, indicated that he was a Communist, any more than criticism of capitalism made J.S. Woodsworth or Frank Scott Communists, but it certainly did not help his case when he fell under suspicion as a result of Igor Gouzenko’s revelations. Moreover, Shugar’s political concerns also took him into murky waters which seemed safe enough during the period of Soviet-Canadian alliance but which proved dangerous when Gouzenko helped to propel the world into the Cold War. For example, Shugar had served on the executive of the National Council for Canadian-Soviet Friendship. As noted, this was not at that time seen as a subversive organization but Shugar’s membership certainly weakened his credibility when the royal commission examined allegations that he had promised to hand over military secrets to the Russians.17 Shugar was also, as it happened, associated with internationalism, a dangerous position in a world in which ideological divisions were about to reinforce national differences between former allies. As a member of the NCCSF’s science committee, he was expected to promote ‘the free of exchange of scientific data between Canada and the USSR.’ In addition, his work with the Canadian branch of the International Association of Scientific Workers (CASW) could be misconstrued. Aside from fighting as a sort of trade union for the rights of scientists, and supporting progressive political causes (for example, the CCJC anti-deportation campaign), the CASW was committed to an interna-

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tionalist ideal – ‘to combat all tendencies to limit scientific investigation or to suppress scientific discoveries’ In retrospect, this could look like an exhortation to share information with the USSR, and it was unfortunate for Shugar that two of CASW’s executive members, Raymond Boyer and Alan Nunn May, were accused and later convicted of handing over secrets to the Soviet Union.18 These affiliations, however, were not the proximate cause of Shugar’s arrest, no matter how important they may have been later in persuading the royal commissioners of his guilt. (In fact, the evidence led the commissioners to conclude that he was ‘a convinced and ardent Communist.’) The real problem was that Shugar had talked in general terms about his naval job to an acquaintance named Sam Carr, the national organizer of the LPP who was also in the business of funnelling secret information to the Soviet embassy in Ottawa. According to Gouzenko’s papers and testimony, Carr had informed his contacts that ‘Prometheus,’ the alleged code name for Shugar, had promised to provide the Soviets with classified information. This claim, which Shugar completely denied, was the basis for his fall into a Kafkaesque experience.19 Dr Shugar’s ordeal began at five in the morning of 15 February when he was wakened abruptly by a posse of RCMP officers ‘reeking of alcohol’ who carted him off to the detention centre at Rockcliffe barracks. He was at first not informed of the reason for his incarceration, nor was he permitted to leave a note for his wife, who was out of town when the police arrived. In addition, for the first few days he was not permitted to get in touch with a lawyer.20 Some sense of what Shugar experienced is captured in a protest letter he sent to the minister of justice: ‘In response to repeated requests for information, I was finally informed, last night, that mail between my wife and myself is being withheld at your orders, because of complaints included in my letters. As a result, I was left without news of my wife for five days; this action is, in my opinion, not only arbitrary and unjust, but inhuman as well.’21 Over the next few days Shugar also demanded that he be given access to a lawyer; he sent six requests to the royal commission and thirteen protests to the prime minister and minister of justice. Meanwhile, for fifteen days he was kept under constant guard in a small stifling room with a naked 200-watt light-bulb burning continually. To protest this treatment, he went on a four-day hunger strike.22

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Shugar also did his best to protest publicly. As soon as he was allowed to communicate with his wife, Grace, she sent a letter of complaint to the prime minister and released it through her lawyer as a public statement to the press. (Throughout this period, Grace Shugar protested alongside Phyllis Poland, a friend who was married to one of the other suspects.) She charged that ‘Gestapo methods’ had been used by the police, who took away much of the family’s private correspondence, as well as her childhood diaries, and had repeatedly refused to tell her the grounds on which her husband was being held. She also informed the public about the way that her husband had at first been denied both counsel and communication with his wife. Then, a few days later, Shugar’s lawyer, A.W. Beament, protested publicly that the authorities had prevented him from asking Shugar whether or not to proceed with an application for habeas corpus.23 These early newspaper stories did not mention the Shugars by name, but a few months later, when he was no longer detained and could speak to the press himself, David Shugar made a public statement about his horrible confinement. Clearly, this was a man who felt outraged about his treatment and had no intention of submitting quietly and deferentially to the authority of the state. For a while he became a minor cause célèbre, mentioned in newspaper editorials and House of Commons speeches.24 Many of the detainees were more easily intimidated than Shugar. After a few days of incarceration, four of them – Emma Woikin, Gordon Lunan, Edward W. Mazerall, and Kathleen Mary Willsher – were individually questioned by the RCMP and asked whether they had given any information to the Soviets. During the interrogation, which of course took place without any lawyers present, the prisoners were subject to verbal harassment and intimidation in order to elicit full confessions. As one of the accused recalled, almost forty years afterwards, ‘the very first thing that was said to me was, “You are under oath and you will answer all questions.” I wasn’t given any indication that I had any right whatsoever not to answer questions. Those of us who appeared before them in the first group had no knowledge that we had a right to counsel, or that we were in any danger because we had no counsel.’ According to June Callwood, who interviewed some of the internees years later, at least one of the prisoners was told that they could be shot. In addition, ‘prisoners were told that there had been suicide attempts, information calculated to increase their despair

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and terror. Those who were Jewish were subjected to racial taunts. Those who protested the questioning were advised that they wouldn’t be allowed to see their families until they cooperated.’25 These four prisoners all confessed, which then made it possible for the government to consider laying charges under the Official Secrets Act, an illiberal piece of legislation passed in May 1939, when Canadians were preparing for full-scale war with Germany. (The accused could not be charged with treason, since the USSR was an ally of Canada at the time that they handed information over to it.).26 When Shugar was brought before the royal commission he was understandably not cooperative. By then he had been permitted to communicate with his lawyer, and he told the commissioners that Beament had informed him that he did not have to answer all questions. The commissioners responded by stating that Shugar had no alternative but to reply to all questions put to him. When he balked at this treatment, Kellock threatened him with punishment, at one point shaking his fist at him. As Shugar later wrote in a letter to the minister of justice, ‘If I am to judge by the treatment accorded to me yesterday afternoon before your Royal Commission, I can only come to the conclusion that, as a Canadian citizen, I have been completely stripped of all my rights before the law.’27 Did the commissioners deny Shugar and the others their legal rights? In their final report, the commissioners included a section devoted to ‘Law and Procedure’ which constituted an after-the-fact defence of their behaviour. As they pointed out, their duties were set out under the Inquiries Act, which gave commissioners the power to compel witnesses to testify. The real problem was whether or not another statute, the Canada Evidence Act, obliged them to inform the accused that they had a right to counsel. The commissioners maintained that it imposed such an obligation only when a criminal charge had already been laid, and that it did not apply to the Gouzenko investigations. As a result, they concluded, ‘in some instances we considered it expedient, in the exercise of the discretion given to us, not to accede immediately to the request of a witness for representation, although in most instances we did so upon the request being made.’28 As the judges must have been aware, this was an effective means of securing confessions. Indeed, several key government civil servants later justified the unorthodox treatment of the suspects as a necessary evil. Especially in the case of the first four interrogations, the commission obtained much information which helped the crown to prosecute

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and obtain convictions. Later, when some civil liberties were restored, the inquiry was less fruitful.29 Keeping the suspects insulated from legal advice was especially useful because of section 5 of the Canada Evidence Act. This stated that, if a witness objected to a question on the grounds that the answer might later prove incriminating in a criminal trial, the witness was legally obliged to provide an answer but that answer could not later be used as evidence in any criminal proceeding against the witness (except in a prosecution for perjury). Without a lawyer to advise the importance of such an objection, a suspect could unwittingly provide information that could later lead to a criminal conviction. The decision of the royal commission to keep some suspects separated from legal counsel was certainly legal, and no doubt ‘expedient,’ but it was hardly ethical. Yet the decision was not without precedent. In the so-called Eldorado affair, the government had been faced with a situation about a year earlier in which a commission of inquiry into the fate of a mining company had been unable to obtain any evidence from certain suspects because their lawyers had advised them to stay silent. As a result, the government had passed a secret order-in-council which gave the commissioner extremely broad powers of investigation, including the right to exclude counsel. According to the well-connected Ottawa columnist Blair Fraser, in the Gouzenko affair the government had decided to take this route once again, even though a number of high-ranking public servants were hesitant about the extreme measures being implemented.30 The prime minister, also, was not entirely happy about this infringement of traditional civil liberties. On 13 February King had written in his diary, ‘I can see where a great cry will be raised, having had a Commission sit in secret, and men and women arrested and detained under an order-in-council passed really under War Measures powers. I will be held up to the world as the very opposite of a democrat. It is part of the inevitable.’31 Over the next few months, the Kellock-Taschereau commission continued to investigate and report to the government, and King continued to worry privately. He was upset at the length of time the suspects were being detained, and angry that some of the wives had written to him and not received any answer. As he wrote in his diary, ‘people will not stand for individual liberty being curtailed or men being detained and denied counsel and fair trial before being kept in

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prison. The whole proceedings are far too much like those of Russia itself.’32 However, the civil liberties issue was obfuscated by fears about nuclear weapons. Although the government did not mention the atomic bomb when it first released information about the spy scandal, the public initially believed that the spies had handed over information involving atomic secrets. The Globe, for example, carried banner headlines: ‘Atom Secret Leaks to Soviets.’ Initially the government did nothing to contradict this, and for about a month the Canadian public was given little further official information. The result, of course, was what one observer called ‘a flood of hearsay and gossip.’33 On 2 March the commission issued its first interim report, and for the first time most of the federal cabinet ministers, as well as the Canadian public, learned officially about Igor Gouzenko as well as the names of the first four suspects: Woikin, Lunan, Mazerall, and Wilsher. Shortly afterwards, Emma Woikin appeared before a magistrate and was sent to trial.34 The LPP responded by claiming that the whole affair had been contrived to discredit their cause. As Tim Buck said at the time, ‘the “spy scare” is being blown up to fantastic proportions – with the obvious aim of damaging beyond repair our cooperation and friendship with the USSR.’ In addition, a number of prominent labour leaders, not all of them Communist, were initially sceptical of what looked like a ‘spy scare witch hunt.’ Most Canadians, however, were shocked, feeling betrayed by their wartime ally. Almost overnight the Russians had been transformed into enemies.35 But the interim report of the commission revealed more than the ‘perfidy’ of a former ally; it also spoke of dangers deep within Canadian society itself. Some of the suspects, like Emma Woikin, worked within the public service. Others had connections with the ruling elite. Norman Robertson, King’s deputy minister for external affairs, was appalled to learn that he was acquainted with several of the alleged spies, one of whom was the associate secretary of the Ottawa branch of the Canadian Institute of International Affairs. Blair Fraser, the influential Ottawa editor for Maclean’s, noted with anguish that he personally knew six of the accused and had ‘a considerable mutual acquaintance’ with four others. This was proof of what he called ‘the Communist flair for infiltration.’36 On 15 March the prime minister tabled in the House the second interim commission report, which revealed the names of four more

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alleged spies. It was at this point that the public first learned about David Shugar, but for most people the important news of the day was that the police had picked up Fred Rose, the LPP’s sole MP. Because the facts were just beginning to appear, the opposition said little about the civil liberties implications of the arrests and detention that day, although the leader of the Conservative opposition, John Bracken, noted that ‘the refusal of habeas corpus proceedings, the holding of men without a legal charge against them, without the right of bail and without the right to have counsel, is a serious matter to all who pride themselves on the principles of British justice’; he added that only the ‘safety of the state’ could justify this. Of course, even the government could agree with that view.37 Over the next few days, the government made further statements to the House, including a declaration that no atomic secrets had been revealed by the spy network, and an explanation as to why minister of Justice St Laurent had inadvertently misled the House when in December he had said that there were no secret orders-in-council. St Laurent also claimed that the government had never really abrogated the right of habeas corpus: ‘all that the habeas corpus statute provides for is that anyone who is detained may require that he be brought before a judge so that the judge will determine whether or not there is a legal case for his detention. Any one of these persons could have applied for and obtained a writ of habeas corpus, but it would have done him no good, because as soon as the judge would have been shown the order-in-council under which such person was detained, and the order-in-council which authorized it, he would have said “You are legally detained.”’38 This was a masterpiece of political weaseling. When the Conservative MP Davie Fulton then asked how a person held incommunicado could apply for a writ of habeas corpus, St Laurent admitted that it would ‘not have been easy’ but affirmed that such a person would still have had a legal right. In short, there had been no breach of the rule of law. This explanation exemplifies what the historian Paul Romney calls ‘legalism,’ defined as ‘the justification of alleged infringements [of civil rights and liberties] by invoking the lawfulness of the authority by which such actions are taken.’ It is quite different from an alternative perspective which he calls ‘constitutionalism’ and which evaluates alleged civil liberties violations by appealing to ‘standards of state conduct that are supposedly sanctified by long usage, implied contract, or

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both.’ There is no doubt that the government was acting legally, but it is equally true that it was violating the customary British constitutional tradition of respect for the rights of the accused. Or, to put it in the language of a much later decision by the Supreme Court of Canada, the government was acting in a way that was unconstitutional ‘in the conventional sense.’39 Nevertheless, the government still welcomed criticism in the House. As St Laurent said, ‘it is good, when extraordinary measures are taken, that they should be looked at very closely, and that those who venture to take them should feel that they have to respond to the tribunal of public opinion.’ Given his earlier explanation, this could be seen as a patronizing addendum, the throwing of a bone to the watchdogs in the House of Commons.40 The House responded by savaging the government from both sides of the ideological spectrum. For example, Solon Low of the Social Credit Party made a speech that roundly criticized the government, but more for being soft on Communism than for any civil liberties violations. Most of the right-wingers, however, were French Canadian and often members of the Liberal Party. Liberal backbencher Wilfrid LaCroix, a notorious ‘red basher,’ recommended that Ottawa outlaw all Communist activity, as he himself had attempted with a private member’s bill in 1940. Frederic Dorion (an Independent) and Pierre Gauthier (a Liberal who had previously been a Bloc Populaire MP) wholeheartedly supported the government, contrasting the ‘good’ RCMP with the ‘bad’ Communists.41 The civil libertarian criticism in the House came primarily from three individuals: M.J. Coldwell, the leader of the CCF; John Diefenbaker, at that time a relatively obscure Conservative backbencher; and C.G. (‘Chubby’) Power, a Liberal backbencher who until recently had been a member of King’s cabinet. Coldwell was the first to voice serious doubts about the government’s policy. Noting that the Liberal government had a wartime tradition of civil liberties violations, he referred to allegations by some of the detainees that they had been held in brightly lit rooms without any access to relatives, friends, or legal counsel. Some of this, he stated, ‘savours of the totalitarian system.’ He then went on to draw the attention of the government to the importance of legal safeguards of ‘British liberty,’ using as ammunition the maiden speech of Wilfrid Laurier in 1874.42 But the major criticism of the government came from John Diefenbaker. According to historian Arthur Lower, who corresponded

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frequently with Diefenbaker, the majority of the Conservative MPs were at first unwilling to attack the Liberals on this matter. Authoritarian Tories, they were quite willing to limit civil liberties in an emergency, especially where the spectre of communism allegedly stalked the nation. Diefenbaker, on the other hand, was more of a prairie populist, and although his wartime support for human rights had been somewhat weak, recent developments had partially stiffened his civil libertarian spine.43 On 21 March, Diefenbaker made a speech that joined together the Gouzenko Affair, the Japanese deportation issue, and the continued internment of some Jehovah’s Witnesses. All of these civil libertarian violations, said Diefenbaker, indicated the need for a bill of rights that would restrain government. Since cabinet had, the day before, introduced its Canadian citizenship bill into the House for first reading, Diefenbaker asked that the legislation be amended to include a list of citizens’ rights.44 Notwithstanding this call for a bill of rights (an idea proposed earlier by CCF MP and CLAW activist Alistair Stewart), as well as a laudatory reference to the American system, Diefenbaker’s view of civil liberties was primarily Diceyan, using the ‘British liberties’ discourse with numerous references to Magna Carta and the rule of law. Moreover, his speech revealed not so much a liberal concern for the rights of individuals to enjoy free speech and free association as a fear of ‘executive despotism.’ As he said: ‘Parliament abdicated many of its rights during the war, and today the government is endeavouring to perpetuate this temporary abdication. We placed our rights in pawn during the war as security for victory. Today we are asking that those rights be restored to us and that parliament be assured of the prestige to which it is entitled by reason of our democratic development and the heritage that is ours.’ Diefenbaker also pointed out that this was not the first post-war example of executive despotism, recalling that not only was the government proceeding to deport Japanese Canadians by means of an order-in-council but it was doing so in apparent violation of the will of Parliament. Most Liberals, of course, supported the government; party discipline prevented them from saying anything about the despotism of either the state or the executive. However, party consensus was broken by C.G. Power. According to B.K. Sandwell, writing in Saturday Night, Power had been a moderating voice within the cabinet during the war, opposed to the more flagrant violations of civil liberties. Now,

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on the same day that Diefenbaker spoke, Power made a strong and well-publicized speech in Parliament which criticized the government for subverting traditional ‘British liberties.’ Beginning with a comparison of Magna Carta and PC 6444, he went on to quote from the 1944 report of the civil liberties committee of the Canadian Bar Association. As he noted, the report had explicitly affirmed some of the fundamental rights of Canadian citizens, including their ‘almost sacred’ criminal law protections, such as the right ‘not to be detained at the mere arbitrary whim of the Crown,’ the right ‘not to be coerced to give any information or evidence against oneself,’ and the right to counsel.45 After a few more remarks, including a lament about the lack of ‘a Canadian spirit,’ Power returned to the importance of liberal traditions, saying: ‘As for me, brought up in an atmosphere wherein a framed photograph of Magna Carta was on almost every wall, accompanied with a warrant for the execution of Charles I, and steeped through my reading in the traditions of the martyrs of liberty and freedom, I cannot wish to turn back the pages of history seven hundred years and repeal Magna Carta. I cannot by my silence appear to approve even tacitly what I believe to have been a great mistake on the part of the government. If this is to be the funeral of liberalism I do not desire to be even an honourary pall-bearer at the funeral.’ Power’s speech, which one law school dean suggested was ‘the most vigorous criticism’ of the government on this issue coming from any politician, stands as an excellent example of the ‘constitutionalist’ reaction to civil liberties violations. While Ottawa maintained throughout the Gouzenko affair that it had acted scrupulously within the law, Power was taking the position that the government had acted in violation of the spirit of the constitution.46 Meanwhile, the royal commission’s second interim report had recommended the prosecution of David Shugar, for ‘there would seem to be no answer on the evidence before us to a charge of conspiring to communicate secret information to an agent of the USSR.’ The report maintained that there was evidence in the Gouzenko papers that Shugar had told LPP organizer Sam Carr that he was willing to provide him with information about his ultrasonics research.47 True, there was no hard evidence, other than Soviet faith in Carr’s statement that Shugar had indeed agreed to help the USSR. However, the commissioners said that they had found Shugar to be uncooperative; he quibbled about what constituted a definition of a ‘Communist,’ and he balked at some questions, claiming that his legal counsel

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had informed him that he had the right not to answer. This clearly frustrated the commissioners, who were especially interested in his political ideas, given Shugar’s connection to what the commissioners believed was a Communist-dominated organization, the Canadian Association of Scientific Workers. There was also the serious allegation by fellow scientist and CASW activist Raymond Boyer that Shugar was a member of the LPP. Shugar denied this. He did admit to having attended ‘a study group on socialism,’ but he refused to provide names of all the people he had known in that group.48 The commissioners did not say explicitly that they considered Shugar to be guilty because of his association with Communists, but they did report that they ‘were not impressed by the demeanour of Shugar, or by his denials, which we do not accept. In our view we think he knows more than he was prepared to disclose.’ As one group of contemporary civil libertarians observed, such reliance upon character judgment rather than upon a weighing of the evidence in determining guilt was an unfair deviation from the traditional model of British justice.49 (In defence of the royal commission, however, it needs to be pointed out that the Official Secrets Act stated that a conviction was possible if, from the proven ‘known character’ of the accused, it appeared that his purpose was ‘a purpose prejudicial to the safety or interests of the State.’ In other words, the law was here strongly tilted in favour of the state.)50 On the basis of the commission’s report, Shugar was suspended from his position with the Department of National Health and Welfare, and in April the government charged him under the Official Secrets Act with conspiring to communicate secret information to an agent of a foreign power. The initial hearing aired further allegations by Shugar that his civil liberties had been flagrantly violated by the government, and in the end the magistrate dismissed the charges for want of sufficient evidence. The first of the Gouzenko affair suspects to be exonerated in court, an event that the liberal Toronto Star proclaimed in huge headlines, Shugar was then interviewed by reporters who reminded him that the Kellock-Taschereau commissioners had, in their second interim report, written that ‘we were not impressed by the demeanour of Shugar or by his denials, which we do not accept.’ Still obviously smarting over the way he had been treated, Shugar replied, ‘I definitely wasn’t impressed with their demeanour either.’ Soon reinstated in his job and reimbursed for the period of his suspen-

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sion, he now believed that, except for a lawsuit for defamation which he had begun against the Ottawa Evening Citizen, he had no more legal problems.51 All the while, Kellock and Taschereau continued their investigations. By 29 March, when the government released the commission’s third interim report, all the detainees had been thoroughly examined. Shortly afterwards, having used it to the fullest, the government repealed PC 6444. Ottawa no longer possessed any residual wartime emergency powers to suspend traditional liberties.52 Nevertheless civil liberties organizations were still alarmed, although with some reservations. Most important, the Civil Liberties Association of Toronto, which one might have expected to be in the forefront of the protest, chose discretion rather than confrontation. While its April annual general meeting decided that the organization should take immediate action, its council did nothing other than send a letter of protest to the prime minister. CLAT then remained quiet until it issued a report in June, noting that it had decided to do nothing more ‘until more facts are known and the trials in the courts are over.’53 There are several possible reasons for this pusillanimous response. June Callwood has argued that CLAT board member Sandwell served as a moderating influence on this matter, and she wrote that ‘Mackenzie King took care to keep Sandwell informed of the reasons the government required the War Measures Act, and why he thought the detentions in the barracks were necessary. Sandwell, flattered and sympathetic, influenced the decision of CLAT to support the government and disapprove of protesters.’54 It is quite true that Sandwell had some influence on King, having known him ever since their university days, but it is not so clear that he was as deferential to authority as Callwood suggests. After all, Sandwell once described himself and his journal as liberal but never, never Liberal. At first, dubious about the commissioners’ assurances that the accused had voluntarily foregone their right to counsel, Sandwell pointed out in Saturday Night that a denial of counsel was ‘a flagrant violation of the fundamental principles of liberty as conceived in British countries.’ He reminded Canadians once again that the CBA’s civil liberties committee had stated in 1944 that these principles had acquired ‘almost sacred significance.’55 Within a few weeks, Sandwell had become aware that things were even worse than he had feared. He pointed out in a lead editorial that order-in-council PC 6444 was more authoritarian than anything passed

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during the war. As he noted, there had been certain safeguards in Regulation 22 of the DOCR, such as an obligation to inform a person of the grounds of detention, to inform the detainee’s family, and to permit that person to obtain legal counsel. He added that he was dismayed that some newspapers, such as the Montreal Gazette and the Toronto Telegram, were supporting the government on the grounds that the civil liberties of the accused had been violated ‘in accordance with the terms of the law enacted by Parliament.’ As he said in a later editorial, ‘it is ... constitutional theory, that Parliament should not interfere with rights so sacred as Habeas Corpus without the gravest of reasons.’ In short, he adopted the ‘constitutionalist’ position rather than the ‘legalist’ position underlying Ottawa’s defence of its civil liberties violations.56 Nevertheless, Sandwell suggested that there was little point in continuing to flog the government after it had repealed PC 6444 in March, and he suggested that the accused were receiving fair trials despite their ‘unjustifiable’ treatment by the royal commission. Therefore, he explained, he could not join with former members of CLAT to raise a fund for ‘removing the prejudice caused to the defendants in the espionage case.’57 These former members of CLAT had formed a subgroup in April called the Emergency Committee for Civil Rights (ECCR). This body increasingly distanced itself from the parent organization and became a tenacious critic of the government. From almost the very beginning, there were allegations that it was a ‘Communist front’ organization, but such a label was overly simplistic and misleading. While some of its members were no doubt part of ‘the movement,’ they were not necessarily supporters of the LPP. Indeed, even Sandwell acknowledged that CLAT was ‘abandoned not only by the Communists, but also by a number of people who thought that the courts could not be trusted to do justice to the accused.’58 One of the non-Communist founders of the ECCR was Dr E.A. Corbett, a leading intellectual social reformer with ‘a burning social conscience fired by the Social Gospel theology.’ From 1936 to 1950 he was director of the Canadian Association for Adult Education (CAAE), which often played a role in human rights issues, including support for the CCJC’s fight against the deportation of Japanese Canadians. A nodal actor in the human rights community, he served also as a vicepresident of CLAT when it was formed in 1940 and remained active in civil liberties groups throughout the war and for years afterwards.59

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Similar concerns motivated Martyn Estall, one of the ECCR executive members. Estall, who at the time was assistant director of the CAAE and national secretary of its Citizens’ Forum, was also steeped in the Social Gospel/radical Christianity tradition and had worked during the war with the Fellowship for a Christian Social Order. He knew several of the accused, including David Shugar, and was deeply angered at the way in which the government had violated their basic civil liberties.60 Many of the ECCR executive were professors at the University of Toronto. C.A. Ashley was a professor of commerce; A.T. DeLury, a former dean of arts and science, was emeritus professor of mathematics (as well as a former colleague of David Shugar on the executive of the National Council for Canadian-Soviet Friendship); and J.D. Ketchum was an associate professor of psychology. Some of these members also came out of the Social Gospel tradition; Ketchum, for example, had been the chair of the Student Christian Movement in the 1920s. Others were sympathetic to Communist ideals although probably not members of the LPP.61 Take, for example, Leopold Infeld, a physicist and mathematician who had left his native Poland because of anti-Semitic persecution and then taught in the United States for a few years before coming to Canada to teach at the University of Toronto. Infeld had been a close colleague of Einstein and he had written several books which shed light on the latter’s life and theories. Like his mentor, he displayed a strong interest in social-justice issues and considered himself a ‘progressive.’ It was Infeld who publicized, by means of an article in the Canadian Forum, the unjust treatment of Dr Samuel Levine, a victim of the DOCR mentioned in the previous chapter. His activism attracted the attention of the RCMP, especially after he co-founded the National Council for Canadian-Soviet Friendship (where he and David Shugar both served on its science committee) and helped sponsor a pro-Russian national unity rally in Toronto in 1942.62 Infeld supported a variety of human rights causes. He and his wife (Dr Helen Infeld) joined the Committee for the Repeal of the Chinese Immigration Act, and he also began speaking out on the dangers of nuclear war. As was often the case with progressive thinkers of that period, he was something of an internationalist. Before and during the Gouzenko affair, he publicly warned that only international peace and the outlawing of the atom bomb could limit the dangers of nuclear war. Then, a few years later, he became a subject of much speculation

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when he decided to return with his family to Poland for a year’s sabbatical. This prompted a wave of hysterical right-wing attacks in which a number of people, most noticeably the national Progressive Conservative leader George Drew, publicly stated that Infeld might carry atomic bomb secrets to the enemy if he were allowed to visit Poland. It was also revealed that Infeld had been under RCMP surveillance. The controversy resurfaced a few months later when Infeld, appalled at the criticism he had received, decided to resign from the University of Toronto and live permanently in Poland. In the context of Cold War rhetoric, this decision probably solidified public opinion that he was a ‘red,’ and Infeld confirmed that impression in Canada when he spoke at the World Peace Conference in Warsaw a few months after he returned to Poland. It certainly helped to persuade the Canadian government; when he arrived in Poland, he was asked by the Canadian embassy to surrender his passport, and later the government reached new depths of vindictiveness and pettiness by stripping his two children of their citizenship through a special order-incouncil.63 Another academic member of the ECCR executive who was not a party member but definitely had a Marxist perspective was C.B. Macpherson, a political philosopher at the University of Toronto. It was Macpherson who, as a member of the left-leaning Canadian League for Peace and Democracy, had arranged for R.L. Calder to come to New Brunswick to speak publicly about the evils of the Padlock Law. By 1946, he and his wife, Kay, later to become a well-known Canadian feminist and president of the National Action Committee on the Status of Women, were good friends of some of the people who had been picked up by the police. (One of the interesting common denominators of many people involved in the Gouzenko affair was their previous employment in the Wartime Information Board in Ottawa. Members of the ECCR who had worked there, in addition to Macpherson, included Estall, Ketchum, and Frank Park – Macpherson’s New Brunswick colleague in the CLPD. Among the accused who had worked there were Gordon Lunan and Fred Poland.) As Kay Macpherson has written in her memoirs, she and her husband stood by their friends during the Gouzenko affair, even in the face of considerable pressure from the university board of governors, and were gratified that these friends – unlike some of the others – were finally exonerated.64 At first the Macphersons had worried that they, too, might be arrested. While C.B. Macpherson was too critical a thinker ever to be

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bound by the narrow doctrines of party dogma, many of his friends, including no doubt some of the accused, believed in the moral superiority of the Soviet Union. He himself maintained that the defects of Stalinism were overrated. In a review of Igor Gouzenko’s memoirs, This Was My Choice: Gouzenko’s Story, published in 1949, Macpherson called it yet another of the genre of works ‘purporting to disclose the total baseness of the Soviet regime.’ Much of this is ‘fantasy,’ he asserted, noting that the gullible public was unfortunately swallowing it holus-bolus.65 Macpherson taught political science from a Marxist perspective, melding together socialist beliefs about economic planning with liberal views about personal freedom and democracy. It is true, as LPP theoretician Stanley Ryerson has admitted, that some activists on the far left regarded democracy as ‘merely a formal, tactical-instrumental device in the class struggle.’ But it is also true, as Ryerson added, that others such as C.B. Macpherson held firm to ‘democracy-as-content, as a fundamental human value.’ In short, Macpherson’s commitment to the ECCR, and later to its successor, the Civil Rights Union, suggests that they were more than simply ‘Communist front’ organizations intent upon bamboozling the public. Rather, activists like Macpherson were deeply committed to promoting the civil liberties that they believed to be essential to a well-functioning democratic political system.66 Not all of the other ECCR activists were academics. One of the executive members was A.Y. Jackson, the famous Canadian painter. Another was Jefferson Hurley, whom the group referred to as a Toronto business executive, but who also seems to have had close ties with C.S. Jackson’s United Electrical Workers. Perhaps the most interesting member, however, was the first chair of the organization, Margaret Spaulding. A wealthy and well-connected divorcée with a university education and grown children, she was not content to devote all her time to ‘respectable’ good works (although her philanthropic activities during the war had netted her an honorary MBE – ‘Member of the British Empire’). There is no evidence that she ever joined the LPP, but she was sympathetic to much of what the party stood for. She, too, admired the Soviet Union as a progressive force, and for a while she served as a vice-chair of the National Council for Canadian-Soviet Friendship. By early 1946, Spaulding had also been associated with CLAT for a number of years, even serving as one of its vice-presidents, but its timid stance on the Gouzenko affair drove her to help create a more robust civil liberties organization.67

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Another interesting person connected to the ECCR was Margaret Gould, the well-known Toronto Star journalist and member of CLAT who had for a while served on the board of the CCJC as well as on the executive of the NCCSF. A good friend of Margaret Spaulding, Gould was a member of the Star’s editorial board at the time of the Gouzenko crisis, and she was responsible for at least some of its editorials criticizing the government in extremely strong language. In addition, she may have informally lobbied the owner of the Star, Joseph Atkinson. (According to legend, he was notoriously deaf, and her voice was often the only one that could penetrate.) Perhaps not coincidentally, Atkinson made a contribution of over a thousand dollars to the ECCR.68 Unofficially associated with the ECCR but no doubt influential was Frank Park, the lawyer who, along with Macpherson, had been an active opponent of the Padlock Law while living in the civil libertarian hinterlands of New Brunswick during the late 1930s. A close friend of the Macphersons and several of the accused, Park initially provided legal advice to some of the arrested, and later attended some of the ECCR meetings. While not an admitted member of the LPP, he was an enthusiastic supporter of that organization, served as the director of the NCCSF in the post-war period, and occasionally wrote pseudonymous articles for the Canadian Tribune. Years later, in the Canadian Forum, he wrote a review of a book on the Gouzenko affair that demonstrated how he had never abandoned his radical left-wing and civil libertarian values.69 During the 1940s Park was regarded as a Communist ‘fellow traveller.’ Indeed, when the Kellock-Taschereau commission interrogated John Grierson, his former employer at the Wartime Information Board, it suggested that he had perhaps hired Park because of his Communist sympathies. Moreover, like Macpherson, Park refused to admit that Stalin was a totalitarian dictator. As director of the NCCSF, he maintained that Gouzenko had given an erroneous picture of life in Communist Russia, and a few years later he produced (with his wife) an account of a trip to the Soviet Union which can only be described as an uncritical panegyric. He saw the Gouzenko affair as having created an unfortunate level of anti-Soviet public antipathy, and he wrote in the CIIA International Journal that ‘to restore Canadian-Soviet relations to some degree of normalcy may not be easy. It can be done. It has to be done in the interests of Canada.’70 Mention should also be made of Ken Woodsworth, the executive secretary of the ECCR. Nephew of the recently deceased leader of the CCF, Woodsworth had been the chair of the Canadian Youth Con-

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gress in the 1930s and also chair of the Canadian Youth Committee to Aid Spain. According to Ivan Avakumovic, ‘unlike his more famous relative, he did not find it difficult to collaborate with the Communists either before or after the outbreak of the Second World War,’ so it is not surprising that he was able to work with the radical ECCR board members.71 Of all the organizations protesting the Gouzenko affair, the ECCR was by far the most active, quickly raising and spending over $9,000 for an office, a paid secretary, a detailed analysis of rights violations, the frequent lobbying of the government, and the mailing of 15,000 pieces of literature. These mailings consisted primarily of copies of the group’s ‘Civil Rights’ bulletin, as well as copies of four large full-page newspaper advertisements which criticized the authorities and asked for donations. (The ads were written in the language of traditional ‘British liberties,’ one advertisement beginning with a quotation from Magna Carta and reminding Canadians that the CBA, in its 1944 report, had viewed these rights as having ‘almost sacred significance.’)72 The response of other civil liberties groups was mixed. Research in the fragmentary and scattered papers of the Vancouver branch of the CLU has not revealed any protest, although the organization was definitely active at this time, taking an interest in the Japanese deportation case. Similarly, there seems to have been no protest from the Montreal branch of the CLU, partly because the organization had emasculated itself after Hitler’s invasion of the USSR, and perhaps also because many members of the organization had been implicated by Gouzenko’s revelations: Gordon Lunan, Raymond Boyer, Agatha Chapman, Samuel Burman, and Eric Adams.73 However, out of the ashes of the old Montreal group rose a new organization, the Montreal Civil Liberties Association (MCLA). Bearing in mind the history of its predecessor, the new group made membership contingent upon approval by the executive, a means of forestalling ‘Communist domination,’ and the bulk of its members were therefore liberals or social democrats, including a substantial number of francophones. Some of the members – such as Thérèse Casgrain, Frank Scott, Roger Ouimet, and Jacques Perrault – had already come together in the anti-deportation Montreal Committee on Canadian Citizenship. They were then joined by the Reverend Angus de M. Cameron, a Unitarian minister (as chair), Constance Garneau, the wife of a prominent Montreal businessman (as vice-chair), and the Reverend Claude de Mestral, a liberal-minded United Church minister originally from Switzerland (as the secretary-treasurer).74

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The MCLA was created in the late summer or early fall of 1946, so it could not have responded to the earliest developments of the Gouzenko affair, but one of its first public statements was a newspaper advertisement in November attacking a number of current civil liberties violations, including the Kellock-Taschereau commission as well as Ottawa’s Japanese-Canadian deportation policy.75 The remaining wartime civil liberties groups had, by that time, made public a number of different criticisms concerning the Gouzenko affair. In early 1946 the Civil Liberties Association of Winnipeg underwent a name change, calling itself now the Manitoba Civil Liberties Association (although demonstrating admirable parsimony by still using its old letterhead well into 1947). In March, Arthur Lower was exchanging worried letters about the Gouzenko affair with both F.R. Scott and Blair Fraser, but it was not until May that the new organization, through philosophy professor David Owens, began lobbying the government about the Gouzenko trials in general and David Shugar in particular. Owens first wrote to John Diefenbaker, deploring Ottawa’s violation of Shugar’s civil liberties and praising Diefenbaker as ‘the spokesman of true liberalism’ in the House. Shortly afterwards, he wrote the prime minister, criticizing the ‘third degree’ treatment of Shugar and noting that ‘as a liberal of long standing, I am deeply pained by all this. The latest events make a sort of paralysis enter one’s soul.’ He also sent off several letters to Paul Martin, the federal government’s secretary of state, in which he noted that both the deportation issue and the Gouzenko affair demonstrated that Ottawa had unfortunately ‘developed a temper favourable to arbitrary methods.’ The government’s policy, he said, ‘is a shabby kind of liberalism, if it is liberalism at all.’76 The Gouzenko affair also helped to spur a number of citizens in Ottawa into planning the creation of a new organization – the Ottawa Civil Liberties Association (OCLA). Unlike the ECCR, this body was supported by a broad spectrum of the Canadian elite, the list of sponsors including Liberal senators Arthur Roebuck and Cairine Wilson, A.R. Mosher (president of the Canadian Congress of Labour), and H.S. Southam (publisher of the Ottawa Citizen). When OCLA’s inaugural meeting was held, on 15 May, the keynote speakers included such luminaries as Senator Roebuck, CCF leader M.J. Coldwell, Conservative MP John Diefenbaker, and Blair Fraser.77 By summer, OCLA had about two hundred members, led by an elected council of twenty-one. It appears to have been one of the last attempts to create a civil liberties organization which spanned the

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increasing ideological gulf between the far left and those further to the right. The non-Communists in the organization included such influentials as the publisher Harry Southam, Eric Morse (the national secretary of the United Nations Association in Canada), Morris Fyfe (a lawyer working in the firm of Shugar’s lawyer), and Wilfrid Eggleston (a prominent freelance journalist and the Ottawa editor of Saturday Night, who called himself a liberal in the mould of John Stuart Mill and who, ironically, had served as the chief wartime censor for the federal government). Elected in absentia and under duress as OCLA’s first president, Eggleston resigned in the fall of 1946 and was replaced by J.P. Erichsen-Brown, an Ottawa lawyer who served as counsel for Emma Woikin, the first of the accused spies to be tried in court. Erichsen-Brown came from a family with strong social-democratic and civil libertarian tendencies, and he was fundamentally opposed to the membership of Communists in a civil liberties organization.78 Nevertheless, there were a number of radical leftists involved in the Ottawa association. In fact, according to one of the council members, Communists made up about a quarter of the general membership and by 1947 controlled about eight of the twenty-one council seats. The chair of the organizing committee was Stanley Rands, a socialist who had lost his job in the field of adult education because of his alleged Communist tendencies. The first secretary, Lukin Robinson, was a demographer at the Dominion Bureau of Statistics and a ‘radical socialist’ who later described himself as a ‘fellow traveller’ of the LPP.79 Two other members of the original council were David Heaps, parliamentary secretary to M.J. Coldwell, and Agatha Chapman, a radical-left economist and former CLU member who testified before the Gouzenko commission, was charged, but then acquitted. Both Heaps and Chapman wanted not just to protest the way in which the Gouzenko affair had violated civil liberties but also to repair the damage that had been done to the image of the Soviet Union.80 OCLA’s members leaped into action with great enthusiasm. The interim organizing group formally appointed a fact-finding committee, which even before the 15 May meeting had produced a report thoroughly criticizing the government and the royal commission. (Not long afterwards, Morris Fyfe refashioned the report into an article published in the Canadian Bar Review.) This document agreed with the ECCR that the Kellock-Taschereau commission had gone beyond its fact-finding role to act as a quasi-court in declaring certain people guilty and ‘implanting in the public mind, by this method, the cer-

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tainty that these untried persons were guilty.’ At the same time, the report argued that several elementary procedural rights had been violated, such as the right to counsel and advice about the right to remain silent. The OCLA report also emphasized a number of other violations of civil liberties. For example, it claimed that the detainees had been subjected to a campaign of verbal brutality and vilification by the RCMP, and it argued that the commission had appealed to prejudice by referring to the birthplace of a Polish-born suspect (David Shugar) while omitting to do so in the cases of those born in Britain.81 On the basis of this report, on 13 June, the OCLA executive council approved a ‘resolution of protest’ as well as a second resolution condemning the federal government for its plans to deport Japanese Canadians. The council decided that both resolutions should be sent to the cabinet, MPs, senators, other civil liberties groups, and all daily newspapers in Canada. At the same time, however, the council decided not to work closely with the ECCR. According to the council minutes, ‘It was felt that since the Emergency Committee had been set up for a special purpose, whereas our Association had taken a “middle” stand concerning the breaches of civil liberties which had occurred in connection with the espionage enquiry, we would be better advised to carry on our work on our own.’ This particularly opaque summary may have meant that OCLA saw the Toronto group as focusing primarily upon the rights of left-wingers.82 Press and political commentary on the Gouzenko affair reflected, as one would expect, ideological divisions between left and right. As one conservative critic pointed out caustically (but awkwardly) in the Dalhousie Review, ‘one cannot help noticing how the so-called “LeftWing” Party in Canada has, during these last weeks, shown far more concern lest those accused of espionage should be roughly handled than lest their own country should be betrayed.’ But this was not yet simply a Cold War cleavage between Communists and non-Communists. Instead, a variety of opinions was emerging in reaction to the new post-war reality. On the far right stood the authoritarian conservatives, some of whom were Liberal Party caucus members from Quebec while others were members or supporters of the Conservative Party. Although the Gouzenko affair was on the whole given cursory attention by the French-language papers (so that civil liberties were, one might say, damned by faint praise), a number of English-speaking newspapers, especially the Toronto Telegram and the Montreal Gazette, generally supported the government’s strong medicine. The latter jour-

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nal, described by one contemporary observer as ‘the traditional Canadian exponent of conservatism,’ eschewed its normal policy of attacking the Liberal government and instead decried the way the Conservative opposition raised ‘legalistic objections’ to Ottawa’s policy. According to the Gazette, the Conservatives were guilty of ‘untimely constitutional pedantry.’ From this newspaper’s perspective, the demands of order and state security – especially in the context of the Soviet Communist ‘menace’ – legitimized any emergency violations of traditional civil liberties.83 Moreover, the civil libertarian position embraced a wide diversity of approaches. Consider, for example, the classical liberal Toronto lawyer R.M.W. Chitty, who chaired the Ontario subcommittee of the CBA’s civil liberties committee. In late February he publicly protested the ‘Gestapo tactics’ of the federal government and stated that he would pressure the CBA into taking a public stand at its annual meeting in August. As editor of the Fortnightly Law Journal, Chitty was nicely poised to snipe at the federal government. During the immediate postwar period, his editorials showed no interest in such egalitarian civil liberties issues as the deportation of Japanese Canadians, but they often fulminated against Ottawa’s decision to replace the War Measures Act with the National Emergency Transitional Powers Act; Chitty saw this as part of a general slide into the totalitarianism of bureaucratic state control.84 When Chitty turned his editorial attention to the Gouzenko crisis, his strongest diatribes were launched against the dangers of the newly emerging welfare state, providing a perfect example of the tendency of some classical liberals to conflate their fear of governmental power with their fear of big government. His most famous attack on executive despotism was an article that was reprinted approvingly in both the Globe and Saturday Night. According to Chitty, who never shrank from hyperbole when riding his favourite hobby horse, the Gouzenko revelations were an excuse ‘for Ottawa after six years of bureaucratic orgy ultimately to pass beyond the pale of mere bureaucracy and adopt the final role of dictatorship by tearing up [Magna Carta,] the most venerated document in the proud history of the British people.’ The fact that the accused had not been given access to lawyers and brought before the courts immediately upon their incarceration, Chitty said, swept away ‘all the fruits of the struggle of the British peoples for freedom and democracy’ and now consolidated ‘the transition in Canada from the appearance of democracy to totalitarianism in fact.’

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He continued on in this vein at some length, warning of the dangers to judicial independence engendered by the appointment of Supreme Court justices to the royal commission, and going so far as to decry ‘the shadow of fear [which] lengthens across the country as the hand of the political police reaches out to snatch men and women from their homes into the concentration camp.’85 While Chitty’s rhetoric was extreme, and the Rockcliffe barracks were hardly Auschwitz, his worries about the dangers of bureaucratic despotism were not unusual. John Diefenbaker, for example, had roundly criticized the government in the Eldorado affair, and he continued to bring up this incident in later years as an example of how the grasp of the executive branch could exceed its legitimate reach. He was even more alarmed about the Gouzenko affair and soon began calling upon Canadians to join in a crusade to re-establish freedom in Canada. Speaking at a meeting of a Montreal Progressive Conservative riding association in May, Diefenbaker suggested that the Liberal government was wedded to the notion of government by order-incouncil, and he referred to the Liberal regime as a ‘dictatorship of bureaucracy.’86 However, not everyone feared that the Gouzenko affair was the harbinger of Big Government. Those who saw the matter from the reform-liberal perspective (as opposed to a classical liberal view) usually avoided references to ‘bureaucratic despotism’ and concentrated on how the cabinet and royal commission had violated the substantive civil liberties of Canadian citizens without the explicit consent of Parliament. This was the position taken by B.K. Sandwell in Saturday Night. In many ways the attitudes of Sandwell exemplified classical liberalism, for he was at this point opposed to the passage of anti-discrimination legislation, preferring to keep the state out of the marketplace. However, he never linked the Gouzenko affair to the dangers of the welfare state the way that Chitty and Diefenbaker did. Instead, he saw it as part of a worrisome trend towards cabinet despotism. As noted earlier, his editorials had decried the way in which Japanese Canadians had been stripped of their rights through orders-in-council rather than through legislation, and he later referred to ‘the vicious principle involved in all government by secret orders.’87 Yet it was not just the deportation issue and the Gouzenko affair that worried Sandwell. His magazine also expressed concern, as did also Maclean’s, about yet another secret order-in-council in the imme-

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diate post-war period – PC 6577, which abolished habeas corpus for any person picked up by the Canadian armed forces because he was suspected of being a deserter from the U.S. forces. This order, like the one used to arrest the suspected spies in the Gouzenko affair, and the Japanese Canadian deportation orders, was passed in the fall of 1945, after the wartime emergency had ended. Sandwell conceded that PC 6577 had been cancelled as soon as the issue had been raised in the House, but he argued that it never should have been issued in the first place.88 Fear of the executive (rather than a fear of Big Government) also emerged in the editorials of the liberal newspapers of the time. For example, a Winnipeg Free Press editorial by Bruce Hutchison deplored the ‘Star chamber’ tactics of the federal government, which he said had denied the ‘oldest of our liberties,’ the right to a fair and public trial. He added that this was done without consulting Parliament and lamented that the cabinet could act so irresponsibly, suggesting that neither the public nor Parliament (with the exception of C.G. Power) was interested in stopping government from adopting the methods of a ‘totalitarian state.’ A few weeks later, just after the magistrate refused to commit Shugar to trial, the Free Press again attacked the government for its intolerable ‘Star chamber methods,’ arguing that they violated British principles such as Magna Carta and were the methods of a police state rather than a democracy. Then, some months later, in an editorial exhorting the CBA to take a principled civil libertarian stance, the Free Press continued these themes, claiming that Ottawa had subverted ‘British freedom and Canadian justice.’ It also stated that part of the problem was an excess of governmental discretion, and suggested that part of the solution might be a bill of rights.89 The Toronto Star was another newspaper lamenting both the violations of traditional civil liberties and the dangers of an unchecked cabinet. About ten days after the first arrests in February, the Star expressed ‘concern’ that the state was prohibiting the thirteen suspects from having access to legal advice, and it added that ‘only a military emergency such as does not exist would warrant the undemocratic and, in fact, dictatorial course which such a detention involves.’ Two days later it published a second editorial, pointing out that Ottawa’s behaviour was contrary to British tradition and ‘savours too much of totalitarianism.’ Later editorials fretted about the granting of excessive powers to the police, suggested that the federal cabinet should divest itself of those special lawmaking powers which were

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inappropriate in a peacetime situation, and approved of Diefenbaker’s suggestion that Canada create a bill of rights.90 Although one might have expected an equally vigorous attack against the government by the social-democratic Canadian Forum, there was little protest in this periodical. Aside from two editorials that attacked ‘this startling departure from the methods of British justice,’ the main comment was more of a defence of social democracy than a broadside against Ottawa. Written by Donald C. MacDonald, a board member of the Ottawa Civil Liberties Association who is now better remembered as the leader of the Ontario wing of the CCF during the 1950s, the piece suggested that the post-war civil liberties movement was divided not only between Communists and non-Communists but also between the social democrats and classical liberals. MacDonald denigrated the civil libertarian position of Chitty, suggesting that his type of concern for civil liberties was ‘basically an economic interest, repeating a determination to block, if possible, the advance toward a planned direction of our economy.’ From MacDonald’s perspective, the more important civil liberties issue was not the necessity of reining in the executive but the need to exert democratic control over the state – not only ensuring respect for traditional legal freedoms but also developing protections for new economic rights, such as the right to join unions, to strike, and to picket. These, he stressed, were just as important as traditional property rights, and he took umbrage at another liberal, B.K. Sandwell, who had recently suggested that the social democrats’ denigration of property rights made them inadequate defenders of civil liberties.91 Some of the most important criticism came from Maclean’s magazine. Although this national middle-brow journal claimed – rather sycophantically – that King’s government had a good track record on questions of personal liberty, and also warned that Communist infiltration was a serious danger, its editorials consistently suggested that Ottawa’s responses to the Gouzenko revelations were unjustified and outrageous. Moreover, the treatment of David Shugar warranted a separate editorial, with the magazine asking rhetorically, ‘How can any government which cares about the liberty of the citizen justify what this young man has gone through?’92 On the far left, the LPP and the Tribune continued to view the entire affair as a ‘red’-bashing scheme, but in May it became clear that what they called the ‘spy scare’ was becoming inextricably intertwined with a Russian peace initiative. The Tribune carried stories which pointed

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out that the Soviet press saw Canada as the leader of an anti-Soviet campaign. It also claimed that this undermined the cause of world peace, since the Russians had recently suggested that the world community should ban atomic weapons.93 The Gouzenko affair intersected with the Communist-inspired peace movement in another way – support for view of the Canadian Association of Scientific Workers (and David Shugar) that the world would be best served by the free international sharing of scientific information. For example, in March the Tribune carried a story in which the science editor of the Herald Tribune in the United States claimed that ‘the Canadian spy scare is a “trumped up” plan to aid legislation which will ... cover up the failure of the military to make atomic power available for civilian uses.’ Then in May the British Association of Scientific Workers, with which the CASW was affiliated, publicly condemned the ten-year sentence handed down by the British authorities to Dr Alan Nunn May. As the British organization put it, the sentence was too harsh, because Dr May shared his ‘fundamental data with a country that was not only friendly, but a fighting ally,’ and it added that the association stood for the ‘fullest discussion and interchange of scientific knowledge.’ Then, the following month, the CASW held a meeting in Toronto in which a number of scientists, including Leopold Infeld, warned that only world peace could control the recently unstoppered genie of atomic destruction.94 Meanwhile, of course, the Communists and their press paid considerable attention to the way in which the Gouzenko affair had jeopardized civil liberties. The Tribune, for example, was careful to give press coverage to the exoneration of David Shugar, as well as to the activities of civil liberties organizations, especially if they criticized the Kellock-Taschereau commission. Above all, the Communist press supported LPP MP Fred Rose, who claimed to be innocent. This in turn created a subsidiary civil liberties issue (which also attracted the attention of the liberal press) when the Montreal police broke up public demonstrations and arrested LPP supporters who were distributing tracts criticizing the government’s treatment of Rose.95 Public protests took place in many venues. For example, Lewis St George Stubbs addressed a large meeting in Winnipeg in support of Fred Rose after he had been convicted. Stubbs was a political maverick on the left – but not a Communist – who often criticized the government; he was one of a number of lawyers in Winnipeg who publicly condemned Ottawa’s Japanese-Canadian deportation policy. Speaking of Rose, Stubbs stated that ‘he was a Jew, a Communist, and

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an MP from Quebec, in short, an ideal victim for the bigshots. When the big powers make up their minds to get you, nothing will stop them.’96 A more temperate but equally gloomy criticism of the government was delivered in an address to the Saskatchewan Law Society by Dean F.C. Cronkite of the province’s law school. Cronkite made an impassioned but dispirited evaluation of the state of civil liberties in Canada. While he noted that some protests had been made, he maintained that most of these came either from the LPP or from the legal profession. He was heartened by the objections raised by some members of the House, especially Diefenbaker and Power, but believed that they had little impact on what he considered to be the rising tide of authoritarianism. He quoted with disapproval the vitriolic anti-Communist remarks of Liberal MP Pierre Gauthier but was most depressed by the results of a recent public opinion poll. On 15 May the Canadian Institute of Public Opinion (Gallup) revealed that 93 per cent of Canadians over the age of twenty-one had heard of the ‘Russian spy reports,’ but that only 16 per cent of the population disapproved of the policy of the government and a substantial 61 per cent believed that the government had ‘acted wisely.’ Moreover, of those who disapproved of the government, only 20 per cent – about 3 per cent of the total population – disapproved of the suspension of the rights of citizens; the rest either disapproved of the publicity (15 per cent) or felt that the government had been too lenient (65 per cent). No wonder that Blair Fraser argued at the time that the Liberals could have won a ‘smashing victory’ if an election had been called on their handling of the affair, and that, although Louis St Laurent was perceived as having ‘a touch of astigmatism on civil liberties,’ it did not really hurt his chances of becoming the next prime minister.97 Like other civil libertarians, Cronkite worried about this ‘lethargy’ of the Canadian people and suggested that the country was ripe for creeping fascism. While he was careful to say that he did not think that anyone in the government had plans to create a dictatorship, he said that during the war Canadians had become accustomed to the ‘habit of executive legislation,’ and in a country ‘filled with fear and hatred’ this was a dangerous combination. Finally, he said, ‘in my opinion we are in for it ... I can see only fascism ahead or chaos followed by fascism.’ In the middle of all this, on 27 June, the royal commission sent the government its fourth and final report, which turned out to be as contentious as anything that had so far transpired. It was a self-serv-

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ing document that justified the government’s approach by making frequent references to Gouzenko’s testimony about the dangers of a Soviet ‘fifth column’ in Canada. As the commissioners put it, ‘essentially what has happened is the transplanting of a conspiratorial technique, which was first developed in less fortunate countries to promote an underground struggle against tyranny, to a democratic society where it is singularly inappropriate.’98 Whether or not this information justified the recent civil liberties violations, as the royal commission suggested, still remains a matter of dispute. What is not contentious is that the commissioners had put their collective fingers on a real phenomenon. Memoirs of Canadian Communists during this period clearly indicate that there was extensive infiltration of trade unions and other civil society organizations. One of the key elements of this was the Canadian Communists’ Section 13, a ‘closed section’ made up of middle-class teachers, professionals, and scientists who were not openly affiliated with the party but who were supposed to lead united front groups, such as the Montreal Civil Liberties Union, as well as a number of other cultural and professional organizations, including the Canadian Association of Scientific Workers. The main contact between the party and Section 13 was Fred Rose, and at least two of the people accused in the wake of the Gouzenko revelations, Scott Benning and Raymond Boyer, were also part of Section 13. Although they did not know its official name, the royal commissioners seem to have been quite sure that some of the other accused were also members of this secret organization.99 It was also quite true that these Communists were willing to break the law. To some degree this was the inevitable result of their idealism. Filled with a passionate intensity that they could replace the injustices of capitalism with a better, more humane alternative, they were hardly going to be respectful of bourgeois rules. But, paradoxically, the Canadian state had helped them to stay the course. Some of them had become accustomed to law-breaking, first under the Padlock Law and then under the War Measures Act.100 As a result, the royal commission also denounced or declared guilty a number of people who had not yet been tried, including several who could not be tried because of lack of evidence. (Three people were denounced on the basis that ‘they did not take part in subversive activities but would have done so if required.’) A number of civil libertarians therefore complained that the release of this report harmed

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the administration of justice, especially because these allegations were made on the basis of what seemed to be hearsay evidence and opinion, with the commissioners claiming that their findings were valid no matter what was decided in any court of law.101 One of the most powerful criticisms of the report came from Arthur Roebuck, who had represented one of the accused (Israel Halperin) when he appeared before Kellock and Taschereau. Speaking at the annual meeting of the Ontario Police Association, Roebuck attacked the general principle of using judges in commissions of inquiry and castigated the two Supreme Court justices in particular for disregarding ‘the great beacons in English law which light the way to freedom and security, the Magna Carta of 1215, the Petition of Right of 1627, the Habeas Corpus Act of 1679, the Bill of Rights of 1689.’102 Civil libertarians were particularly upset with the royal commissioners’ treatment of David Shugar, for Kellock and Taschereau had taken the unusual step of disagreeing publicly with the magistrate who had refused to send him to trial. The report presented new information that had not been available at the time of Shugar’s court appearance, testimony to the effect that, long before the Gouzenko revelations, Shugar had acted in ways that were allegedly highly suspicious – in particular, asking questions about ultrasonics research which were completely outside his technical field. On the basis of this new information, the commissioners reaffirmed their conclusion that Shugar had conspired to communicate secret information, charging that he had also breached section 4 of the Official Secrets Act by using secret information entrusted to him by the state in a way that was ‘for the benefit of any foreign power or in any other manner prejudicial to the safety or interests of the State.’ In effect, this was a recommendation that he be prosecuted a second time.103 Although the report had not yet been made available to the press or the general public, the government quickly forced Shugar to take a leave of absence with pay, and then a few weeks later it terminated his services, ‘in view of the Report of the Royal Commission.’ Shugar immediately wrote Minister of Justice St Laurent, saying, ‘I now find myself in the position of having been deprived of my employment, and my name blackened to such a degree as would probably exclude me from obtaining other suitable employment.’ He added that ‘I therefore feel that it is only common justice that my name should be cleared by the Crown and that I should be re-instated in my employment; or,

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failing that, that the Crown should immediately prosecute me for any offences that the officers of the Crown feel I may have committed and thus give me an opportunity to clear my name in the courts.’104 At about the same time, Shugar also wrote for help to the Ottawa Civil Liberties Association. He pointed out that both Gouzenko and the chief crown prosecutor had testified in court that the Soviet embassy had never received any information from him. He again pointed out that he had been unjustly dismissed from his employment and that his name had been unfairly besmirched.105 OCLA appears to have been split as to whether or not to support Shugar’s case. One board member, Paul Gardner, pushed hard for the group to take up what he saw as ‘the absolutely clear case of the character assassination of Dr. Shugar,’ a kind of persecution that might have been rooted in the fact that the original acquittal ‘annoyed the Commission by preventing its report from acceptance as accurate in every particular.’ Other members, including Wilfrid Eggleston, wanted to move slowly for fear that they did not have all pertinent information. Interestingly, some OCLA members mistrusted Gardner, suspecting that he was a Communist – not a card-carrying member of the LPP, but probably a member of ‘the movement.’ In short, the Cold War was starting to divide Communists from non-Communists in OCLA just as it had done in CLAT. As a result, the Ottawa group found it much easier to take a strong stand on the Japanese-Canadian issue than on the questions raised by the Gouzenko affair.106 Nevertheless, OCLA did protest, making public two resolutions at the end of July. The first was a reaction to the final report of the royal commission and the way in which it made extrajudicial decisions about guilt and innocence. The second resolution protested the dismissal of David Shugar and said, in part, ‘We demand that the British and Canadian principle of “innocent until proven guilty” be upheld by restoring to Dr. Shugar his means of livelihood unless and until he is found guilty by due process.’ Both resolutions were sent out to all MPs and formed the basis for an advertisement published in the Ottawa newspapers.107 The Ottawa group may have doing ‘splendid work,’ as William Irving, a CCF MP, wrote to Wilfrid Eggleston, but the government nevertheless continued with its plans to cut its ties to David Shugar. Soon OCLA was moved to protest yet again when Shugar informed them that the minister of veterans affairs had now refused, without providing any explanation, to grant his veteran’s out-of-work allow-

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ance. The association sent off a resolution calling for the reinstatement of his allowance ‘unless and until he is found guilty by due process of law.’108 Another group that supported Shugar was the Canadian branch of the Association of Scientific Workers, which wrote to the acting minister of national health and welfare, pointing out that Shugar should not have been dismissed on the basis of charges which were ‘insufficient even to warrant his committal for trial.’ It is not surprising that this organization protested. As noted earlier, not only was Shugar a member of this professional trade union, but its national chairman was Raymond Boyer, one of the Gouzenko accused who was later found guilty and incarcerated. Support from the CASW, however, may have been counter-productive. As noted earlier, the royal commissioners believed that the organization was Communist-dominated.109 Meanwhile, the federal government had risen to Dr Shugar’s challenge. On 7 August he appeared in court for a second time, before the same magistrate who had earlier refused to commit him for trial. On this occasion he was charged with conspiring to violate section 4 of the Official Secrets Act (the improper use of secret information entrusted to his possession). The magistrate decided that the case should proceed, and Shugar elected trial by jury, was released on bail, and had his preliminary hearing scheduled for early September. First, however, the royal commission released its final report to the press on 15 August, and Shugar found that it had devoted a full thirty-eight pages to his case. His public response, which exemplifies the anger of a man who felt unjustifiably hounded by the authorities, was that the allegations were absolute ‘rubbish.’110 At about this time, the ECCR took up his case. Unlike the Ottawa group, which was plagued by a number of resignations over the summer and fall, and which in early 1947 was badly divided between Communists and non-Communists, the ECCR was thriving. This was more than just a group of Communist supporters and left-liberals occasionally meeting to discuss the issues of the day. By the middle of August it had published the first issue of what was to become a regular newsletter, ‘Civil Rights,’ and had received a total of over $7,600 in contributions. The group had also printed 3,500 copies of its newsletter for wide distribution and stated that from now on it would not limit itself to discussions of the Gouzenko affair; it intended to carry articles on ‘all aspects of civil rights and their violations’ and invited readers to make submissions on the need for a Canadian bill of rights.111

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On the specific matter of David Shugar, the ECCR wrote directly to the Department of National Health and Welfare about the termination of his employment. It also sent a brief to Ottawa, using this as an excuse for publicly denouncing the commissioners. There are no names appended to this document, ‘Justice and Justice Only?’ but it appears to have been written by someone with legal training (probably Frank Park), and it extensively criticized the government and the KellockTaschereau commission on a number of specific grounds. It argued, first of all, that there was no need to appoint the commission in the first place. ‘If a secret, confidential job had to be done, it should not have been done by a Royal Commission. The job was a police job and any investigation by the police which disclosed grounds for a prosecution should have been followed by immediate action. Those accused should have been brought before the courts and charged in the ordinary way.’ In the eyes of the ECCR, ‘the Commissioners were simply being asked to give their O.K – the approval and prestige of two Supreme Court judges – to the conclusions already reached by ... the RCMP.’112 Second, the ECCR claimed that the commission itself improperly acted as a court of law, finding some people guilty rather than simply collecting evidence. Moreover, after usurping the functions of a court, the commission compounded the injustice by departing from the normal rules of evidence binding on the courts. Since the alleged spies were already incarcerated, and faced the imminent possibility of prosecution, they were as much entitled to a warning that they were not obliged to speak as would be any person apprehended by the police under normal circumstances. Finally, the ECCR pointed out that there was also, in hindsight, no pragmatic defence of these civil liberties violations. As the author of the brief said, ‘it does not appear that any material of much importance to the safety of the state was uncovered by the process of detention as might, in time of emergency, justify the exercise of such arbitrary powers ... The chief result of the detention has been, as was pointed out in the [1 July ECCR] ‘open letter to the Prime Minister of Canada,’ to intimidate those detained and induce them to incriminate themselves.’ The ECCR report does not appear to have had much effect, at least at the obvious level of public debate. For example, the association sent a copy to John Diefenbaker, asking for comments, but Diefenbaker did not reply, and at no time did he mention the report in any of his

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speeches. References to the ECCR and its report were virtually nonexistent in Hansard and in the contemporary press. At a time when paranoia about communism was blossoming, ‘respectable’ members of society appear to have suddenly become careful not to associate themselves with the radical left.113 Nevertheless, the Gouzenko affair, civil liberties, and David Shugar remained a hot topic. Shugar continued to fight his former employer, clearly outraged by what he considered to be cavalier and arbitrary treatment, and he appealed for help to a variety of organizations: the Canadian Legion, the Canadian Congress of Labour, the Ottawa and Montreal civil liberties associations, and the ECCR. The latter monitored his dismissal case carefully and noted that Ottawa seemed to be giving him the bureaucratic ‘run around’ on the issue of his veteran’s out-of-work allowance when it claimed that he was not entitled to it since there was surely work available somewhere for a man of his calibre.114 Meanwhile, OCLA wrote about Shugar’s dismissal to CCF MP William Irvine, who first wrote back that he agreed with the organization’s concerns and then raised the issue in the House of Commons. As noted earlier, Shugar had been informed that he was being dismissed ‘in view of the Report of the Royal Commission,’ but the government had later stated – in response to a letter from the CASW – that because he had simply been hired for a special assignment, his services were now no longer required. Irvine referred to the correspondence between the government and the CASW and asked the government to explain, ‘Just what was the reason for the discharge of Doctor Shugar?’115 In response to Irvine’s question, Justice Minister Louis St Laurent intimated that Shugar was indeed let go because the spy allegations had shaken the government’s confidence in him, and he added that ‘I know of an interview between Dr. Shugar and the minister [of health and welfare] in which the attitude of Dr. Shugar was such that even if there had been nothing else, his minister would not have considered retaining him in his employment. Dr. Shugar was perhaps convinced, because of the depth of his feeling in the matter, that what he was saying was so, but he stated there that the Royal Commissioners had deliberately falsified evidence. I would not retain in the service of my department anyone who expressed to me the opinion that two of the Justices of the Supreme Court of Canada had deliberately falsified evidence.’116

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Aside from the attitude behind this explanation, a perspective that reflected an almost feudal conception of employer-employee relationships, there was another problem about Shugar’s dismissal. According to the ECCR newsletter, presumably on the basis of information provided to the committee by Dr Shugar, the above-mentioned interview took place on the afternoon of 18 July, after the dismissal of Shugar. As the newsletter pointed out, the espionage charges may have been a convenient excuse for dismissing a troublesome employee. This was corroborated by the Canadian Congress of Labour organ, the Canadian Unionist, which noted that Dr Shugar had been dismissed on two previous occasions for union activity, although on each occasion the dismissal had been successfully protested. In short, he was an ardent union activist and a thorn in the side of his employers.117 Of course, not all Canadians were disturbed by the Gouzenko affair in general or the plight of David Shugar in particular. Another Gallup poll demonstrated that a majority of Canadians were not fully aware of all their rights concerning such matters as the requirement of a warrant for arrest, the right to a lawyer, or the right to refuse to answer questions, and they also had little understanding of Magna Carta or the principle of habeas corpus. For civil libertarians, this was all the more alarming because some people were proposing permanent limits on certain rights. The Chief Constables Association of Canada, for example, was suggesting that the country would be well served by the fingerprinting of all citizens, and the influential conservative journal in Montreal, Rélations, called for the complete banning of the LPP.118 Authoritarian tendencies also surfaced in the proceedings of the Canadian Bar Association. As noted earlier, C.G. Power’s parliamentary speech in March referred to the 1944 report of the CBA civil liberties committee, a report that had been mildly critical of the government’s wartime limitations on civil liberties. In the summer of 1946 the same committee delivered a report on the Gouzenko affair, criticizing the government’s handling of the matter and recommending that the CBA pass three resolutions: the first giving ‘uncompromising support of the Rule of Law’ and ‘strongly disapproving’ any governmental action which infringed upon freedom under the law; the second advocating an amendment to the Canada Evidence Act that would give a witness the right to claim ‘absolute privilege’ (immunity from future prosecution) for any evidence he might provide, unless at the time that he was compelled to give evidence he was

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informed of his right to claim such privilege and chose not to do so; and the third calling for a cessation of the practice of using judges as commissioners and publishing their reports prior to any trials.119 The committee report was not unanimous, and when it was submitted to the CBA annual general meeting the dissenting committee member told the audience that the government’s actions had been necessary because it had been ‘a moment of peril and of crisis.’ Some other members of the audience went even further in supporting the government and the royal commission; one member argued that Canada was ‘in the midst of the greatest struggle of the human race – the struggle between the system of free enterprise and that of the controlled economy.’ A substantial number of members therefore called for an expurgated report which made no explicit reference to the commission.120 This CBA debate illustrates an important general truth about civil liberties. Many studies of public attitudes towards rights and liberties have maintained that the better-educated members of society, especially lawyers, are more likely to support these principles than are members of the general public. This has provided evidence for the socalled theory of ‘democratic elitism,’ which argues that the continued health of a democracy is dependent upon the existence of powerful but tolerant elites. However, a study published in 1991 argues that ideology plays a more significant role; the authors note that, in the modern age, social-democratic elites are extremely civil libertarian, but conservative elites are no more committed to these rights than the conservative masses. The CBA debate supports this revisionist interpretation. While lawyers as a group in Canada were well versed in the rhetoric of the British liberties tradition, and showed a reflexive obeisance to Magna Carta, they were also part of the economic-political elite and therefore frequently authoritarian. Since the CBA was dominated by what one contemporary report referred to as the ‘old guard,’ it is not surprising that in 1946 many of its members were reluctant to criticize the government.121 The law-and-order principles of these CBA members were also buttressed by considerations of self-interest. The Supreme Court judges who made up the royal commission were, of course, respected former members of the association, which also included the minister of justice. In addition, the current CBA president was none other than E.K. Williams, the key adviser to the Corby committee who had then served as the commission’s chief counsel. As well, several other prominent

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members of the association had either worked closely with the commission or acted as prosecutors. For example, Gerald Fauteux, the honorary secretary of the CBA (and later chief justice of Canada), was assistant counsel for the Kellock-Taschereau commission.122 On the other hand, the ‘old guard’ was opposed by some young (or perhaps middle-aged) Turks. The outspoken and rhetorical Chitty, for example, took the position that ‘the lawyer stands for the rule of law between subject and subject, and between subject and government. Even if the state be in direst peril, we are still a democracy and we must still adhere to democratic principles. If we adopt totalitarian methods to save democracy, we kill democracy.’123 In the final analysis, the CBA members chose to have their cake and eat it too. A large majority voted to reject the report while still accepting its principles. In the words of the Canadian Bar Review, ‘the report made it clear that the members, while desiring to go on record in favour of the specific recommendations of the report, were not prepared to include therewith any criticism of the government in its handling of the espionage matter.’ In short, conservatism dominated the association, which leaned more in the direction of law and order than of individual liberty.124 Trials continued into the fall of 1946 and the spring of 1947 (except for Sam Carr, who had escaped to the United States and was not apprehended for some time). One of the more interesting cases involved Dr Boyer. As mentioned previously, Boyer had been a proCommunist member of the CLU in the early years of the war. An independently wealthy physicist, he had worked as an explosives expert with the National Research Council. By all accounts, he was attracted to communism for idealistic reasons and believed that, since the USSR was Canada’s ally, he was doing no harm by handing over minor classified information about RDX, a new kind of explosive. (This, of course, fitted nicely into the internationalist perspective espoused by the organization of which he was national chairman – the CASW.) In later years he became a criminologist and worked with the Montreal-based Ligue de droits de l’homme in the 1970s. He was the first president of the Quebec prisoners’ rights organization, l’Office des Droites des Détenu-e-s, and from 1974 to 1976 he was a member of the executive of a national human rights group, the Canadian Rights and Liberties Federation.125 Boyer’s defence proved only partially effective; he was found guilty but given two years in the penitentiary, the shortest sentence handed

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down to any of the guilty parties. The trial judge summed up the position that his brethren unanimously adopted throughout this period – respect for parliamentary supremacy and judicial deference to executive authority trumped all other considerations of justice, fair play, and traditional British liberties. As he noted, ‘wartime emergency sets a pattern of conduct alien to the usual amenities of peaceful existence, which may impinge upon the common rights and liberties of the subject. It can scarcely be otherwise when the very life of the nation is in jeopardy.’ He also quoted with approval the statement of a Supreme Court of Canada justice in the First World War: ‘Our legislators were no doubt impressed in the hour of peril with the conviction that the safety of the country is the supreme law against which no other law can prevail.’126 It still remained to be seen whether or not the legal system would protect David Shugar, and his trial began in November 1946. The first time in court, Shugar had been faced with the crown’s chief prosecutor, J.R. Cartwright, the same eminent lawyer who had acted on behalf of the CCJC in its recent case before the Supreme Court of Canada. This time, however, Cartwright refused to take on the job, perhaps a bad omen for the federal government. Nevertheless, the trial was somewhat of an ordeal for Shugar. To begin with, the courtroom was packed with thirty young RCMP officers, who were supposedly on hand to obtain first-hand experience of court proceedings. In addition, some of Shugar’s colleagues testified that they had started to suspect his loyalty long before Gouzenko defected. (The newspaper reports of the trial included headlines in which Shugar’s behaviour was called ‘disgusting’ by one witness.) In addition, Shugar’s own testimony at one point was described by the trial judge as ‘very, very lame.’ A casual reader of the newspapers would probably have concluded that Shugar was clearly guilty.127 Why did some of Shugar’s colleagues testify that they had started to suspect him long before Gouzenko defected? One of the strangest points of the trial, echoing comments made before the KellockTaschereau commission, was that Shugar had asked all sorts of questions about ultrasonics, questions that went far beyond his field of expertise. On the face of it, this could look like a person trying to ‘snoop’ around and garner unauthorized information, and Shugar’s former supervisor had intimated that at the time he thought that Shugar was perhaps interested in some petty industrial espionage. On the other hand, Shugar’s questions could just as easily indicate the fasci-

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nation of a man with a boundless source of scientific curiosity. Given that Shugar began his academic career as a physicist, was doing biological-related work for the government when he lost his job, and then went on to become a world-renowned geneticist, the latter explanation is clearly the better of the two. In fact, reading between the lines, one gets the impression that Shugar’s radical political values marked him as somewhat ‘different’ and therefore suspicious for more conservatively minded people. Moreover, there was also the fact that he was Jewish. Although this was not mentioned in court, Canada in the 1940s was a country in which antiSemitism was a fact of life, and it was also an important subtext of the Gouzenko affair. Maclean’s editor Blair Fraser pointed out, shortly before Shugar’s trial, that ‘Anti-Semites have been gloating over the fact that of the 17 persons named [by Gouzenko], six are Jews and two others are married to Jews. Anti-Semites have no cause to gloat – quite the reverse. As the [Kellock-Taschereau] Commission pointed out, it’s precisely because of anti-Semitism in Canada that many of these people transferred their loyalty to the USSR.’128 In any case, even the crown attorney had to agree in court that there was no evidence that Shugar had ever handed over any material to the Soviets. He was also unable to prove that Shugar had conspired to do so, despite Carr’s claims that this was the case. Indeed, in the final analysis, the entire matter rested upon Carr’s word against that of Shugar. According to Gouzenko’s testimony and evidence, Carr had informed the Soviet embassy that ‘Prometheus,’ allegedly David Shugar, had said that he was willing to cooperate in obtaining secret information. Shugar, on the other hand, maintained (and still maintains to this day) that he made no such commitment. He did admit that he had spoken rather openly to Carr about his activities, including his visits to a number of military bases in Canada and the United States, and he also agreed in retrospect that he had perhaps been a bit incautious, but he absolutely denied ever promising to hand over secret information.129 Shugar was found not guilty on 7 December. Considering that the Official Secrets Act contained a ‘reverse onus’ clause to make convictions easier, this seemed to be a complete exoneration. Shugar therefore wrote to Paul Martin, the secretary of state, asking to be reinstated in his old job and pointing out that he was eager to finish some of the projects on which he had been working. He also emphasized that he had been informed that his dismissal was caused by the final

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report of the Kellock-Taschereau commission; he considered that the court decision now rendered the commission’s allegations nugatory and suggested that reinstatement would go even further in clearing his name.130 The minister did not reply, and Shugar then wrote to the prime minister, explaining his situation in detail. This time he asked for more than reinstatement. He requested that the government disassociate itself from the parts of the Kellock-Taschereau report which alleged that he had violated the law, that the report should be withdrawn from circulation, and that all those who already had obtained a copy of the report be informed that he had been exonerated in a court of law. He also asked for reimbursement for his legal costs, as well as an indemnity for the damage done to his reputation.131 Shugar was never reinstated, and the government neither cleared his name nor reimbursed him. Perhaps his attempts to fight publicly did nothing to further his case. Indeed, Liberal MP David Croll told Shugar, ‘Why don’t you leave them alone? They want to forget about you.’ Shugar, however, was determined that he should obtain redress, and he also launched lawsuits against six journals, including Time magazine, claiming that he had been libelled. In every case he obtained a retraction and in some cases compensation (which he badly needed to pay his legal fees).132 Shugar also instituted an action against the RCMP, claiming damages for false imprisonment. However, at that time it was necessary to obtain the consent of the government to sue any servant of the crown. Had the lawsuit proceeded, the government would have had the right to cross-examine Shugar in court and attempt to shake his story, but it declined the opportunity to do further battle. Moreover, the lawsuit further alienated potential allies within the government. Shugar was informed curtly by the new minister of justice (J.L. Ilsley) that, ‘in view of this action, on your part, I assume that you do not expect consideration to be given to any of the several requests contained in your letter.’ Once again, Shugar’s standing up for his rights was unacceptable to people who preferred their workers servile and acquiescent.133 Unable to find any kind of scientific work, reduced to writing pseudonymous scientific articles for a popular journal called Magazine Digest, and still barred from collecting his veteran’s benefits, Shugar enlisted the support of Margaret Spaulding’s group, the Civil Rights Union, and also the Civil Liberties Association of Manitoba, but their efforts came to naught. He then attempted to interest John Diefenbaker

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in his case, but, after exchanging a number of letters, ‘Dief’ decided that he could do nothing.134 Government insiders continued to believe that they had treated Shugar fairly, even when, like Minister of Health and Welfare Brooke Claxton, they were far from being right wing. Claxton later stated (after his retirement) that Shugar was under suspicion for espionage even before the Gouzenko revelations, and he maintained that the decision not to rehire Shugar was justifiable on security grounds. He asserted that the only reason for hiring Shugar was his specialized knowledge, which could be useful only if he were given access to classified information.135 Claxton’s argument is at first glance surprising, for there was nothing that Shugar was doing in the Department of Health that could be remotely connected to Canadian security. Moreover, the KellockTaschereau commission never suggested that Shugar was under suspicion of espionage before the Gouzenko revelations. On the other hand, Shugar’s outspoken views and labour-union activism may well have made the RCMP suspicious of him during the war, and possibly the government had placed an official question mark beside his name. In the anti-‘red’ climate of the Gouzenko period, any such doubts would have been enough to justify dismissal.136 Claxton’s decision, moreover, was typical of the approach taken by the Canadian government towards suspected ‘commies’ in the public service – that is, easing people out quietly so as not to create any fuss. (Claxton himself endorsed this approach in his memoirs.) This ideological cleansing of Canada’s public service had begun in May, even before the final report of the Kellock-Taschereau commission had been made public, and was defended on the grounds that it safeguarded the interests of the state without destroying the careers of the suspects. Obviously, Shugar was one of the first to go, but in his case the publicity generated by the royal commission made it impossible for him to slip quietly into a new position.137 In addition, just like the other cabinet ministers, Claxton may also have been offended by Shugar’s refusal to be cowed. According to David Shugar, when he met with Claxton, the latter became upset and abruptly terminated the meeting, saying that Shugar had made derogatory remarks about Supreme Court justices. Shugar pointed out, correctly, that they were acting not as judges but as royal commissioners, but this did nothing to assuage the angry cabinet minister.138

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For his part, David Shugar came to believe that the government simply did not want to admit publicly that it, and the royal commission, had made a mistake. (The government’s conduct was similar to the way in which it never admitted that its attempt to deport Japanese Canadians was an error.) Shugar’s job with the Department of Health and National Welfare had no security ramifications – he was doing biological and medical research at the time – and therefore Claxton’s official reasons for letting him go were wholly spurious. Meanwhile, the ECCR changed its name in October. As the Civil Rights Union, this new organization intended ‘to set forth the basic civil rights of Canadians; to protect every Canadian from the arbitrary suspension of these rights; and to raise funds for the above purpose and for legal and technical assistance where needed.’ It addressed a number of issues, including Japanese-Canadian deportation, but it continued to speak out on Gouzenko-related matters, including the treatment of David Shugar. By early 1947, it was proposing to circulate a petition asking the federal government to set up a parliamentary inquiry that would investigate the civil liberties violations that had resulted from the Gouzenko affair.139 The executive of this new organization was once again a mix of radical social democrats and people who could be classified as at least Communist ‘fellow travellers,’ and it included most of the previous ECCR activists – Ashley, DeLury, Estall, Hurley, Infeld, Jackson, Ketchum, and Macpherson, with Spaulding once again acting as the chair. Within a year or so, the letterhead of the organization included several new board members, including Clare Pentland (an economic historian with radical left-wing leanings) and two other executive members of the National Council for Canadian-Soviet Friendship, Barker Fairley (professor of German at the University of Toronto) and C.S. Jackson (the well-known leader of the United Electrical Workers).140 The Gouzenko affair could still arouse the ire of middle-of-the-road civil libertarians. As noted earlier, the Kellock-Taschereau report maligned the reputation of the alleged spies who had been exonerated in court, saying, ‘Whatever the view there taken [i.e. in the courts] the findings of the Commission, arrived at under its own procedure, and on the evidence before it, are not affected and remain valid.’ Then, on 30 January 1947, the royal commissioners added a note to their report – ‘It should not be assumed that in any case the evidence before the Royal Commission and that adduced in the criminal proceedings were

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the same.’ (Mr Justice Kellock has been described as a man ‘known for his industriousness and for the tenacity with which he held a viewpoint once arrived at.’ It is tempting to suggest that this addendum was a reflection of Kellock’s inability to admit that he might have been wrong.)141 These statements were seen by civil libertarians as wholly unjustifiable. Without referring specifically to Shugar, although his case must have been on their mind, the Manitoba Civil Liberties Association said: ‘We submit that this statement by the Commissioners and the note taken together can only mean that, regardless of the decision of the Courts, in the opinion of the Commissioners – two justices of the Supreme Court of Canada – these persons, who were acquitted by the Court, are nevertheless guilty. In view of this we see no reason to revise our opinion that an injustice is being done by the continued circulation of the Report, and an affront offered to the administration of justice in Canada.’142 By the spring of 1947, however, the Gouzenko affair was essentially over. The government quietly continued to screen civil servants for security reasons, a policy that had intensified as a result of Gouzenko’s revelations, but it also announced early in the year that it was going to set up a parliamentary committee to examine ‘questions of human rights and fundamental freedoms and the manner in which those obligations accepted by all members of the United Nations may best be implemented.’ This was a reference to the draft version of the Universal Declaration of Human Rights, adopted in 1946 and reputedly soon to be presented to the world in its final form. The resulting committee, which was established later in the spring, received interest-group criticisms about the Gouzenko affair, but it also broadened the range of debate so that other human rights issues began to share the spotlight.143 In addition, by March 1947 all the Gouzenko trials were over, except that of LPP organizer Sam Carr, who had yet to be apprehended. In the final tally, twelve people were convicted (although two were freed on appeal), six people (including David Shugar) were acquitted at trial, and two people were freed when charges were withdrawn. Of the people convicted, Fred Rose, the LPP MP, and Sam Carr (sometime later) received the longest sentences, six years in prison. Most of the others received sentences from two to five years.144 As Dominique Clément has pointed out, the Gouzenko affair had at least one positive impact – stimulating the growth of civil liberties

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groups in a period when many of them had either died or become moribund. But this was a thin silver lining within a large cloud of governmental authoritarianism. While the Soviet spy ring was smashed, and the government obtained more convictions than it might have without its recourse to extreme tactics, the question remains as to whether these tactics were excessive, a sledgehammer used to crush a peanut (to adopt the phrase used by Tommy Douglas in 1970, when attacking Trudeau’s invoking of the War Measures Act)?145 Aside from the argument that the conviction of a few spies in Canada was far less important than the information Gouzenko brought to decode future Soviet telecommunications, the answer to this question is in part a matter of ideological perspective. The liberal view, either classical or reform, emphasizes the traditional freedoms of the individual and would limit them only in extraordinary circumstances. The authoritarian conservative view, on the other hand, defends public order over individual freedom. In the words of C.W. Harvison, one of the police officers in charge of interrogating the suspects held at Rockcliffe (and who later became commissioner of the RCMP), ‘much more important than the punishment of the offenders was the fact that Soviet espionage methods had been exposed. That exposure was made possible by the decision of the Government, reached only after long delay, deep consideration, and reluctance to take stern measures to uproot treason. Those who were thoroughly familiar with the affair knew that the Government had only one alternative to the Gouzenko exposure – that of leaving the door wide open for treachery unlimited.’146 Yet such defences of the government are few, especially among people who were not personally involved. Even the relatively conservative scholars J.L. Granatstein and Robert Bothwell have written that ‘it is difficult to avoid the conclusion that the Canadian government, confronted with an extraordinary situation, reacted with arbitrary and harsh measures that threatened to ape the standards of the society that the Soviet spies were serving.’ (One might add that, in doing so, the government was also rushing to placate right-wing politicians, especially certain Quebec members of the Liberal Party.)147 In part, evaluation also depends upon whether one adopts a ‘legalist’ or ‘constitutionalist’ viewpoint. It is true, as the government was fond of repeating in the House of Commons, that everything was done with a punctilious regard for legal niceties. The rule of law, so beloved of conservatives and liberals alike, was scrupulously followed.

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(Years later, Burton H. Kellock used this approach to defend his father after the commissioners had been attacked in a newspaper article.) Yet this ‘legalistic’ defence seems inadequate, especially in the light of the impact that internment and interrogation had upon the suspects. From the perspective of someone like David Shugar, the authorities had violated his ‘almost sacred’ common law rights, rights that were supposed to prevent civilization from descending into despotism. In this sense, the government and the royal commission betrayed not only David Shugar but all Canadians.148 Of course, it is always possible to invoke the principle of state security to justify measures that violate the spirit of the constitution, and clearly some of those convicted would have been declared not guilty if they had been allowed early access to legal aid. But there is no evidence that the state was ever really endangered. No atomic secrets were revealed, and the information provided to the Soviets, still our allies, was on the whole fairly innocuous. For example, Raymond Boyer, who received two years in prison, had not handed over the formula for the manufacture of RDX; rather, he merely supplied information that would enable the Russian technical mission to know what to ask for when they were visiting establishments in Canada. Looking back years later, Boyer argued, ‘I didn’t realize it was the beginning of the Cold War.’149 In fact, the Soviet spy network was a small group of naive idealists rather than a deadly efficient conspiracy. Unless one takes the position that the real point of the Gouzenko trials was, as some leftists have argued, ‘preparing the public for a major switch of policy, shortly to become known as the Cold War,’ it is hard to see how a few convictions under the Official Secrets Act could justify the treatment of the prisoners in Rockcliffe barracks. The entire affair seems in retrospect to have been a massive example of authoritarian overkill. In the final analysis, the Canadian government traded its ‘precious British liberties’ birthright for nothing more than a mess of pottage.150 Meanwhile, what happened to David Shugar? As noted, he found his name tarnished, his reputation in tatters, and his work prospects rapidly dissolving. However, his commitment to labour organization, which had once lost him a job, now provided him with employment. The Canadian Association of Scientific Workers was part of an international organization with branches in several countries, and he turned to the British members for support. They in turn got in touch with colleagues in France, who arranged for Shugar to receive a French

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government sessional fellowship at the Pasteur Institute of Paris in 1948. He ended up spending one year there, and then one year at the Sorbonne.151 Interestingly, Shugar’s stay in France was also facilitated by a behind-the-scenes change of heart in Ottawa. Shortly before he left for Paris, he was informed by the Department of Veterans Affairs that he was eligible for his benefits after all. Since this was worth about three times as much as he received from his French fellowship, it turned out to be a financial godsend. It was also a sort of consolation prize, perhaps awarded because he was finally leaving the country and no longer embarrassing the government. However, his reputation continued to haunt him, for the French police ordered him to leave the country because of ‘his association with Communist activities in Canada.’ The reason for this is not entirely clear, although Shugar was told, unofficially, that it was the result of American pressure on the French government. What is clear is that even his own government still viewed him with considerable suspicion. Although the Canadian authorities preferred to have him living abroad rather than returning home, Ottawa told its ambassador in Paris not to make any representations on Shugar’s behalf, ‘in view of the findings of the Royal Commission.’152 For a while, Shugar managed to obtain a postponement of the order to leave France, especially after he obtained support from a French human rights group, La Ligue des droits de l’Homme, but eventually he moved to Belgium where he hoped that his scientific reputation would take precedence over his political past. Yet Belgium turned out also to be no more than a temporary refuge. A sensationalist newspaper article about the Gouzenko affair gave him unwanted publicity which made his position increasingly precarious. Feeling somewhat like a man without a country, unofficially exiled from Canada and bearing the unfair stigma of the Kellock-Taschereau allegations, he therefore began to look for employment elsewhere. In 1952 help came through the good offices of Leopold Infeld. The physicist had known Shugar at the political level, for both of them had worked for the NCCSF, and Infeld had then become a charter member of the ECCR before he decided to leave Canada and return to his native Poland. Shugar wrote to Infeld about his plight, and Infeld helped arrange a job offer for Shugar to teach and do research in Poland. This was an appealing offer, but not one without difficulties. Although Shugar had been born in that country, he had left with his

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parents at the age of three and could no longer speak Polish. Nevertheless, the country seemed to offer a refuge, and he decided to move once again. It is a testament to the resiliency of both Shugar and his wife that the two of them not only managed to adapt to life in Poland but developed successful careers. They both learned Polish, and Grace obtained a PhD in psychology from the University of Warsaw, later teaching at that institution. Her husband helped to set up a Department of Biophysics at the same university, teaching graduate students and doing pioneering research. He was elected a foreign member of the Polish Academy of Sciences, and well into his eighties he remained a full professor at the University of Warsaw and the Institute of Biochemistry and Biophysics. Shugar made certain, however, that he did not cut his ties to Canada. When, in 1957, he received a letter from the government saying that it was impossible for him to renew his Canadian passport, he believed at first that his Gouzenko connection had once more caught up with him. Faced again with unwanted publicity, he appealed the decision, pointing out to the government that he had kept close ties with his native land, not only with family and old friends but also with the local scientific community. His arguments prevailed, and he was granted his passport renewal.153 Yet life in Poland was not easy. Paradoxically, the Communist regime considered Shugar to be suspiciously right wing, for he refused to join the Communist Party, foregoing the perks that would go with such status, and he and his wife resisted pressure to take out ‘permanent resident’ cards because they always saw themselves as Canadians living temporarily in exile. However, his stature in the local scientific community provided him with some degree of protection, and his position became more secure when the country made the transition from communism to liberal democracy. On his eightieth birthday the government honoured him by awarding him the Commander’s Cross of the Polonia Restituta Order, the highest award that can be given to a foreigner. The Shugars still live in Warsaw, although there are no legal barriers to returning ‘home’ to Canada. After fifty years in exile, they have put down roots in Poland, and no longer consider a permanent move. Yet, between 1968 and 1983, David Shugar was two or three times a year a visiting professor at the medical faculty of the Université de Laval in Quebec, and he has also been a visiting professor at a number

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of the nation’s universities, as well as writing and publishing many scientific research papers. Moreover, in 1999 the Royal Society of Canada inducted him into its ranks. Dr Shugar has, in the words of the Royal Society’s announcement, made a ‘unique contribution’ to the study of photochemistry, done ‘groundbreaking work’ in the chemistry and enzymology of DNA biosynthesis, and engaged in ‘pioneering work’ on the chemistry of pre-DNA matter. The induction proceeded quietly, with no mention of the political issues that had dogged him in the 1940s, and he continues (as of the year 2005) to do important research.154 David Shugar was, of course, only one of many people whose lives were profoundly affected by the Gouzenko affair. Others were also hurt, and some had their lives destroyed. In a short summary of the detainees’ lives after the trials, June Callwood outlined a number of painful stories. Raymond Boyer, for example, ‘could talk about what happened to him with some dispassion, but bore an underlying soreness.’ Israel Halperin, one of the people tried and found innocent, continued to enjoy a distinguished career at the University of Toronto, but he ‘was still so sensitive about the pain and indignity he suffered that one afternoon, when a young law student approached him in his office to ask about Gouzenko to assist her research in a legal action, Halperin didn’t pause to be civil. He jumped to his feet, opened the door and asked her to leave.’ Ned Mazerall, one of the people found guilty, had his career and marriage destroyed, and he ‘is still so wracked by quiet fury at what happened to him that he sometimes finds himself shaken by fantasies of violent revenge.’155 The Gouzenko affair was an unsavoury period in the history of Canadian human rights. Just as many Canadians believe that racism is something that tends to happen in the United States rather than here, so, too, do many Canadians think that the Cold War spawned antiCommunist excesses in the land of Senator McCarthy rather than in the ‘True North strong and free.’ The reality is less palatable. The federal government overreacted to Igor Gouzenko’s information, and the result was both a set of legal convictions and a collection of injustices. The latter, moreover, were not just abstract violations of the principle of the rule of law or the concept of fair play; they were concrete instances in which people’s lives were damaged. The shabby treatment of Dr David Shugar serves to remind us of the fragility of our freedoms.

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5 The Canadian Jewish Congress and the Human Rights Community

As this book has noted, in the mid-1940s Canadians began to shift from the traditional language of ‘British liberties’ to the new discourse of ‘human rights.’ This development, which in large part was a reaction to the horrors of Nazi policies and subsequent references to human rights in the UN Charter, was connected to a greater respect for egalitarian rights than had been previously the case. The Japanesedeportation issue exemplified the early stages of this sea change. There were two major aspects to this. First, people’s attitudes altered. Although many Canadians retained their prejudices, racism and anti-Semitism became less and less acceptable. For example, when in 1944 the federal government was disenfranchising those Japanese Canadians who no longer lived in British Columbia, the prime minister found it necessary to state (albeit mendaciously) that ‘it was never the intention to exercise racial discrimination,’ to which the radical leftwing MP Dorise Nielsen responded, ‘Race discrimination is a fascist trend which should have no place in our country.’ Before the war this might have been seen as empty Communist rhetoric, but the deaths of thousands of Canadians in the war against the Axis powers gave new force to the argument.1 The second aspect was the legal prohibition of certain forms of discrimination. Beginning in 1944, lawmakers began to experiment with the law as a resource for combatting prejudice. Anti-discrimination laws were created at the municipal, provincial, and federal levels, and by 1960 there were some anti-discrimination provisions in a Bill of Rights. The present chapter deals primarily with the struggle for provincial anti-discrimination in Ontario, the Canadian pioneer in this field.

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One of the major human rights lobby groups during this period was the Canadian Jewish Congress, an organization that began by fighting anti-Semitism and ended up espousing the principle of egalitarian human rights for all. Unlike most other minority-group organizations, it was relatively well funded, while its leadership also possessed excellent political and organizing skills. Consequently, it enjoyed a fair measure of success. Indeed, the CJC and certain other Jewish organizations played such an important role in all this that the historian James Walker has referred to the immediate post-war years as ‘the Jewish phase’ in the movement for racial equality in Canada.2 Of course, the Jewish community did not suddenly discover Canadian anti-Semitism in 1945. At the time of Confederation there was no ‘Jewish problem’ in Canada, partly because there were so few Jews in the country. It was only in the late nineteenth century that significant levels of anti-Semitism emerged, when Jews added themselves to the waves of non-British immigrants. Like many of these new Canadians, Jews threatened the nation’s ethnic equilibrium and sense of identity, especially as the percentage of Jews in the country increased sevenfold in the years between 1881 and 1901, most of them concentrated in the urban centres of Montreal, Toronto, and Winnipeg.3 These new outsiders were feared and resented in anglophone Canada, but they were also seen as threats in conservative Catholic francophone Quebec. The years immediately preceding the First World War saw a number of incidents in Montreal and Quebec City involving physical attacks on Jews and the smashing of windows belonging to Jewish-owned shops. When, in 1910, the owner of the newspaper La Libre Parole (Freedom of Speech) made an inflammatory speech that sparked an anti-Semitic riot in Quebec City, the local Jewish community reacted by suing him for group defamation. The Jews won, in the landmark case of Ortenberg v. Plamondon, but their victory occurred only on appeal and with great difficulty.4 The Jewish immigrants were seen as inassimilable aliens not just because they were non-Christian but also because they appeared different in other ways. As Stephen Speisman has noted, the Jews in nineteenth-century Toronto were middle-class merchants of English extraction who fitted nicely into polite Canadian society, but the new Jews were different, ‘Yiddish-speaking, often bearded, poorly dressed slum-dwellers who emerged to hawk their wares or otherwise make their living from the discards of “respectable” citizens.’5

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Jewish immigrants continued to enter the country in the years immediately before and after the First World War, and during the Depression of the 1930s anti-Semitism rose to new levels. The problem was exacerbated when, in the spring of 1933, Hitler came to power in Germany. The Jews of Montreal immediately sponsored a public meeting to protest Nazi policies in that country, but Hitler’s successes also stimulated anti-Semitic fascism in Canada. In Quebec, for example, Adrien Arcand (soon the leader of the National Social Christian Party) set up a weekly periodical, Le Patriote, the principal goal of which was ‘to disengage our race from anti-Christian poison and help us to return to the sources of our strength in the past.’ In Ontario, there suddenly appeared a number of Swastika Clubs, the members of which harassed Jews in public places, while in Manitoba a brown-shirted Canadian Nationalist Party took root and flourished.6 Sometimes these tensions burst forth in conflicts, such as the ‘race riot’ at Christie Pits in Toronto, where a number of Jewish and ‘Christian’ youth clashed violently over the issue of access to a public beach. Underlying these publicized news events, however, lay thousands of daily acts of prejudice and discrimination, with Jews excluded from certain fields of employment, refused rental accommodation, and prohibited from entry to the ‘exclusive’ clubs of the British-Protestant elite. Moreover, this was not what today would be called a ‘glass ceiling’ of invisible discrimination. As the historian Gerald Tulchinsky has put it, ‘Jew baiting remained a popular Canadian past-time,’ and anti-Semitism was often highly visible, as people erected signs warning ‘Gentiles Only,’ ‘No Jews Need Apply,’ or even ‘Jews and Dogs not Admitted.’7 (There were bizarre aspects to this wave of anti-Semitism. For example, an Italian Canadian remembers being barred from a swimming pool despite his protests that he was not Jewish. When he protested that the sign excluding Jews did not apply to him, he was told by the guard that it was all the same to him – as a non-Anglo-Saxon, the young lad seemed to be an ‘honorary’ Jew, and his entry was still forbidden. Also, a British official in Ottawa noted, with his tongue no doubt partly in his cheek, that he was at first quite concerned about all the signs limiting access to Christians; because he was an atheist, he believed that the signs might apply to him. He did not realize that they were manifestations of Canadian anti-Semitism!8) Yet Jews were able to respond to this metastasizing of anti-Semitism because they were now starting to wield some political ‘clout’ at the

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municipal and provincial levels. For example, John J. Glass, a Jewish member (and chair) of the Toronto Parks Commission, prodded the city council into looking at the problem of religious discrimination. In those days the city leased out a number of Toronto Island properties, which in turn were sublet during the summer but often in such a way as to exclude Jews. The council therefore voted to insert a no-discrimination clause in its property leases and also prohibited the posting of discriminatory signs on city-owned property.9 Toronto Jews were also represented by a Conservative Party backbencher, Frederick Singer, the member for St Andrew’s riding. Some insurance companies charged higher premiums for Jews than they did for Gentiles, and some refused to insure them at all, so Singer introduced an amendment to the provincial Insurance Act forbidding such practices. This was not a popular move in certain circles. As the Toronto Telegram put it, ‘there can be no toleration of the oppression of any race or faith in public affairs. In the eyes of the law all men are equal. But that equality does not warrant the Legislature coercing the conduct of private business.’ Nevertheless, the amendment passed. Although limited in its scope, and difficult to enforce, this seems to have been the first anti-discrimination law in Canada.10 Jews also tried, through the efforts of Argue Martin, another Conservative legislator representing an urban constituency with a large number of Jews, to obtain legislation that prohibited notices and signs indicating discrimination on the basis of race, religion, or ancestry. Martin’s bill did not pass the legislature. At this time, and over the course of the next thirty years or so, the opponents of anti-discrimination legislation raised a number of arguments. Sometimes these were rooted in prejudice; the Orange Lodge, for example, was wedded to the notion that some forms of discrimination were essential for safeguarding the very essence of Protestant Ontario society, and many conservatives considered discrimination against Asians an important defence against the ‘Yellow Peril.’ Other arguments were rooted (at least ostensibly) in logic. Sometimes they involved denial – an almost wilful blindness, a refusal to admit that racism existed or was a serious social problem in Canada. At other times they were based in scepticism – doubts that such laws could be effective, given the natural reluctance of people to change their values. And sometimes they were ideological arguments – either majoritarian democratic claims that minority rights are not worthy of special protection in a free society, or classical liberal arguments that free speech is a higher value

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than equality and that not only does a state have no business in the bedrooms of a nation, but it also has no business in its boardrooms. For classical liberals, the right of a business to discriminate was balanced and legitimized by the right of consumers to refuse to do business with it.11 Shortly after the failure of Martin’s bill, John Glass, now a member of the provincial legislature, tried to obtain legislation that would prevent group defamation. (The Ortenberg case was an inadequate precedent, largely because it dealt only with civil law in Quebec.) Like both Singer and Martin, Glass represented a riding in which there lived a large number of foreign-born voters, especially Jews. Yet, although Glass’s proposal was popular with his constituents, it engendered considerable criticism, and not only from hardened anti-Semites. The moderately liberal Globe called it ‘mischievous, undemocratic and antiBritish,’ adding that such a law might also prevent criticism of Communists. As a result, the government persuaded Glass not to introduce his bill.12 Meanwhile, Jews in other provinces also attempted to obtain passage of statutes prohibiting group defamation. Although two Jewish members of the Quebec legislature were unsuccessful, a Jewish parliamentarian in Manitoba did manage to obtain the passage of such a law. This, however, was an unusual exception to the British legal principle that only individuals, not groups, should be able to claim damages for defamation in a court of law. No other provinces followed Manitoba’s example.13 These attempts, whether successful or not, indicated a rising tide of concern within the Canadian Jewish community. As a result, a number of central Canadian Jewish leaders resuscitated the Canadian Jewish Congress in the early 1930s. This body had been created in 1919, primarily to deal with Britain’s promises to create a Jewish state as well as immigration issues, both of which were to be discussed at the Versailles Peace Conference. Yet, within a few years, the organization became moribund, a victim partly of the relatively good times of the 1920s and partly of community parochialism. As one author puts it, ‘the Jews of Canada, still predominantly foreign-born, unused to democracy, failed to give the organization continued support. They were often too preoccupied adjusting to the new environment, or else, if active in the community, involved primarily with their own small groups and organizations.’14

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The call to reconstitute the CJC went out in late 1933, and in early 1934 a number of delegates convened the ‘second’ Canadian Jewish Congress. The first president, S.W. Jacobs, an MP from Montreal, warned about the rise of anti-Semitism in Quebec, linking it to Germany and exhorting the delegates to prevent it from spreading any further in Canada. Although the Jewish community in Canada was still not cohesive during this period, and the congress a fairly weak organization, it nevertheless immediately began to undertake an antipropaganda campaign, as well as creating a boycott of German-made goods and services. In time, it also joined forces with B’nai Brith, a Jewish service organization, forming an anti-discrimination committee known as the Joint Public Relations Committee. The JPRC had equal representation from the two constituent groups, but all public statements were to be made by the CJC, acting as the official voice of Jews in Canada.15 The JPRC was essentially decentralized, with little coordination between the regions and the national headquarters in Montreal. Its most active segment was the central branch, which had its headquarters in Toronto, and on some issues there was considerable communication between the Toronto group and other regional JPRC bodies in Winnipeg and Vancouver; together they constituted a national network. For the sake of convenience, any references in this book to the JPRC pertain to the central branch, unless otherwise indicated.16 The CJC pursued a number of options during this period. For example, it persuaded several Gentile politicians, including the famous Henri Bourassa, to speak out against anti-Semitism. It also distributed literature denouncing Naziism and explaining why the infamous antiSemitic Protocols of the Elders of Zion was a hoax. Moreover, it helped to create the Toronto-based Committee on Jewish-Gentile Relations, an early form of intergroup solidarity headed by Dr Claris E. Silcox of the United Church of Canada and Rabbi Maurice N. Eisendrath of Holy Blossom Temple.17 One of the problems facing Jews in Canada was the discriminatory restrictive covenant. A restrictive covenant is a legal agreement that places limits on the usage of a property by any of its owners. In many cases such covenants are relatively innocuous; a covenant may guarantee that a property owner provide the use of a roadway or it may impose limitations on future construction. In some cases, however, a covenant can incorporate the principle of discrimination, an agree-

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ment that the owner will not sell the property to members of a certain ethnic group or religion. It is impossible to arrive at an accurate estimate of how many discriminatory restrictive covenants existed in Canada in the 1930s, but they were not uncommon. Of course, Jews were not the only victims of such discrimination. In British Columbia, for example, the main target was people of Asian extraction, and in Hamilton, Ontario, the restrictive covenants often reflected a remarkably broad scope of bigotry, typically stating that ‘none of the lands described herein shall be used or occupied or let or sold to Negroes or Asiatics, Bulgarians, Austrians, Russians, Serbs, Romanians, Turks, Armenians, whether British subjects or not, or foreign-born Italians, Greeks or Jews.’18 In 1938 the CJC discovered that twenty miles of choice residential street frontage near Toronto were covered by restrictive covenants. This spurred the organization to prepare a brief asking that such covenants be outlawed, and a delegation presented it to the provincial attorney general. The government, however, took no action, probably because it believed in the majority’s right to discriminate against unpopular minority groups. A legal prohibition, like earlier attempts to outlaw discrimination, would be an illiberal and unwarranted interference with property rights.19 Much of the CJC’s energies in that period went into immigration work – trying to get the Canadian government to moderate its ‘None Is Too Many’ policy which kept out almost all Jews fleeing Nazi persecution. Creating a strategy that it followed many times in the post-war era – forming alliances with sympathetic Gentile groups – the CJC joined forces with a number of bodies, including some of the liberal Christian churches, to create the Canadian National Committee on Refugees and Victims of Political Persecution. Under the direction of Senator Cairine Wilson, this organization tried not only to open up the immigration gates to more Jewish refugees but also to combat Canadian anti-Semitism in general. However, in an age of widespread acceptance of anti-Semitism, the coalition enjoyed only limited success; as Irving Abella and Harold Troper have noted, of all the countries accepting immigrants during this period, Canada had the worst record of offering sanctuary to European Jews.20 When dealing with government officials, the Canadian Jewish community tried to avoid ‘rocking the boat’ as much as possible. As David J. Bercuson has put it, ‘lobbying was to be done through friends at court, Jewish or otherwise, and was to be undertaken in a way that

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did not focus attention on the Jewish community and so wear out its welcome in an overwhelmingly Christian country.’ Although this approach was in fact not very effective in dealing with Jewish concerns about immigration, or lobbying for Gentile support for a Zionist homeland, Canadian Jews at first also adopted it when attacking domestic anti-Semitism. The CJC usually went no further than using ‘friendly persuasion,’ asking politicians if they could remove discriminatory signs in their jurisdictions or suggesting to employers that they voluntarily adopt fair-employment practices. At other times, it lobbied only indirectly, supporting groups when they promoted ethnic and religious equality. For example, the CJC made financial contributions to the Canadian Legion’s ‘Magna Charta week’ celebrations; by the late 1930s, the Legion had taken a strong stand against fascism (and communism), and was staging annual celebrations aimed at ‘arousing our people to take up the offensive on behalf of the British System of Government which is based upon the maintenance of law and order.’21 The Second World War eroded some of the domestic anti-Semitism. True, there were some allegations early on that Jews were not pulling their weight in the war effort, but the CJC dismissed these canards and called on all Jewish groups to suspend their normal activities in favour of helping Britain win the struggle. And when the organization referred to anti-Semitism as ‘the Trojan horse of Nazism,’ it was tapping into a powerful symbolism. With Hitler now officially the enemy, Nazi ideology, including justifications of racial and religious discrimination, was deeply discredited. In addition, the flow of domestic anti-Semitic propaganda was abruptly cut off in 1940, as Ottawa interned Adrien Arcand and declared his fascist party an illegal organization.22 As a result of these changes, much of what the CJC did during the war was aimed at saving European Jews rather than fighting domestic discrimination. Part of the time the congress tried to assist the roughly 2,000 Jews among the ranks of the Germans, Austrians, and Italians who had resided in Britain, been interned there in 1940, and then sent to Canada as ‘friendly aliens.’ Instead of welcoming these as refugees from fascism, Ottawa had interned them, and the CJC subsequently worked closely with the Canadian National Committee on Refugees to persuade Ottawa to release some of these refugees and then allow them permanent entry into the country. Meanwhile, the CJC also created the United Jewish Refugee and War Relief Agencies, a federation

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of different organizations that lobbied the government to admit Jewish victims of Nazi persecution. Not long after, it managed to obtain the admission of a number of Jewish war orphans to Canada.23 But the CJC also fought domestic anti-Semitism by reaching out and forming alliances with the Christian churches. In 1940 it helped to create, and subsidize, the Canadian Council of Christians and Jews, an organization devoted to toleration and understanding between the two religious traditions, which published a monthly bulletin, Fellowship, that explained the flaws in anti-Semitic ideas. While some churches had already worked with the Jewish community on the issue of prewar refugee immigration, the events of the war stiffened their resolve to oppose prejudice. In 1944, for example, the newly constituted Toronto branch of the Christian Council on Palestine immediately announced that one of its main goals was fighting anti-Semitism in Canada, and at about the same time the heads of four Canadian churches (Anglican, Baptist, Presbyterian, and United) issued an open letter which stated that ‘prejudices based on race or colour have no place within the Church of Christ. The evil forces of ignorance or ill-will must be promptly and effectively combatted.’24 The CJC became increasingly effective during the war years and then developed even more political sophistication in the post-war era. One reason was Samuel Bronfman, the ‘Montreal whisky tycoon’ who served as CJC president from 1939 to 1962. Another was Saul Hayes, a middle-class professional who was employed as executive director from 1941 until 1959. According to one insider, ‘as a native Canadian, a trained lawyer and social worker, Hayes brought novel talents to the organization, giving it new dimensions within the context of Canadian society.’25 Under this leadership, the congress also began to work even more closely with members of what today are called ‘visible minority’ groups. For example, in the middle of the war it joined forces with some black activists to change the policy of Ottawa’s Selective Service Bureau. Partly because of CJC pressure (but also because there was a serious labour shortage), the bureau issued an order forbidding officials to inquire about the religion or race of job applicants, as well as forbidding any employer using the bureau to make discriminatory stipulations.26 The Selective Service issue illustrated a fundamental point – that the people who discriminated against Jews often discriminated against other minority groups. It therefore demonstrated to the Jewish com-

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munity that the wisest course of action might be to fight against discrimination and prejudice in general, rather than simply targetting the problem of anti-Semitism. In 1943 the CJC joined with the Toronto Labour Council to support the protest of some black youths against the discriminatory policies of a local dance hall, and by the end of the war the CJC’s Joint Public Relations Committee was working closely with a number of organizations, including the Toronto black community’s Home Service Association, the Toronto civil liberties group, and Social Gospel bodies such as the Fellowship for a Christian Social Order and the Student Christian Movement. While this was formally justified as a way of bringing about better Jewish-Gentile relations, there was considerable discussion about broader issues, including the need for anti-discrimination legislation.27 This was a radical idea, a proposal to limit the freedom of some citizens in order to promote the equality of others. But in 1943 it was proposed at least three times. First, the black community of Toronto called on the government of Ontario to ‘enact anti-discrimination legislation for the benefit of all social groups.’ Then, John Glass, the same Liberal Ontario legislator who had tried unsuccessfully to introduce an anti-defamation law about ten years earlier, introduced an antidiscrimination bill intended to protect ‘the rights of residents to equal and unfettered access to public places,’ including places of employment. Neither the black community nor Glass, however, was able to persuade the government to act, but they had at least opened up the topic for discussion. Then, Fred Rose, an LPP candidate, promised that if elected to the federal constituency of Cartier (Quebec) in a byelection, his first act would be to introduce a bill making anti-Semitism a crime.28 Although Rose’s promise was obviously intended to attract Jewish voters, the other two proposals indicated the development of a sort of human rights ecumenism – a willingness to launch demands couched in terms of general principles rather than particular self-interest. As suggested in an earlier chapter, this was tactically sound, a recognition of the old adage that it is better to hang together than to hang separately. But James Walker has argued that it was also based upon philosophical developments. During the pre-war years, people frequently assumed that anti-Semitism was the result of ignorance, but over time it became clearer that intelligent and well-educated people could also be prejudiced. Prejudice therefore came to be regarded as a psychological aberration, a sort of contagious disease, and anti-Semitism

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was seen as simply one symptom of the problem. It therefore made eminent sense for Jews to join together with other minorities and ‘rightthinking’ members of the liberal establishment in order to develop methods of inoculating the population against the spread of this social plague. As we shall see, although the CJC was by definition not a universalist all-inclusive organization, it soon began to espouse certain universal principles, a major step in the direction of the development of the modern human rights community.29 It also soon became clear that, although initially many of the human rights activists had considerable faith in the power of the legal system, legislation rather than litigation was the most promising route to take. Litigation seemed to be for the most part a dead end because of a 1940 case called Christie v. York. This involved a refusal of service to a black man at the Montreal Forum beer parlour, but the Supreme Court of Canada decided that there was no legal right to service, and no protection for minorities; freedom of contract took precedence over any concern about egalitarian human rights. In short, this case demonstrated that the courts were unwilling to expand existing law so as to provide new forms of protection against racial and religious discrimination.30 The CJC’s first success came not from its direct lobbying but from a unique combination of political circumstances with which it was only indirectly connected. In 1943 the Conservative government of George Drew just managed to win a minority of seats in the Ontario legislature, and the premier subsequently felt compelled to steal the thunder of the left by introducing a number of bills that were more ‘red’ than Tory. One of these was the Ontario Racial Discrimination Act, a bill that had been originally championed by the LPP legislator J.B. Salsberg. A leading member of the JPRC, as well as a highly respected member of the Toronto Jewish labour community, Salsberg had originally studied to become an Orthodox rabbi. At the same time, however, he worked as a cutter in a leather-goods factory and soon found his calling in radical socialism, becoming the Canadian organizer for the Capmakers and Millinery Union. He won his first election in 1938, as a Communist member of Toronto city council, and then was elected to the Ontario legislature in 1943. Running against John Glass in the St Andrew’s riding, he made the need for anti-discrimination legislation a major plank in his campaign platform, and then lobbied Drew after the election, sending him a long list of recent examples of discriminatory practices in Ontario.31

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Salsberg’s interest in stamping out racism and anti-Semitism was not surprising. Aside from the fact that he himself was Jewish, and represented a constituency with a large number of Jews, there was also the fact that he was a member of the LPP. As pointed out earlier, with a few exceptions, Communists in Canada had taken a strong stand against discrimination, and the Communist-leaning Canadian Tribune had harped on the notion that the USSR was a beacon of interracial and minority group brotherhood. Needing support from the left, Drew soon introduced a bill to outlaw some public manifestations of racial and religious discrimination. It was opposed by many conservatives (especially those of the Orange persuasion), including the Globe and Mail and the Tory Toronto Telegram. Nevertheless, the Ontario Racial Discrimination Act became law in March 1944, a milestone in the development of Canadian human rights law and a clear break with the classical liberal notion that the state should not intervene in the marketplace simply because human rights were at risk.32 Still, it was a limited panacea. In the first place, it did not actually prohibit discrimination per se; it prohibited only ‘any notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against any person or any class of persons ...’ Second, as was typical of that period, it ignored the problem of gender bias, prohibiting discrimination only ‘because of the race or creed of such person or class of persons.’ Third, it made the law a quasi-criminal offence (subject initially to a penalty of $100). In other words, it assumed that the problem could be dealt with by individuals making complaints and the police laying charges. There was no understanding that a regime of administrative law might be a more effective way of prohibiting this type of anti-social behaviour.33 Within a week another anti-discrimination bill was in the news. Angus MacInnis, the CCF MP well known for his support of the rights of Asians, introduced a private member’s bill to prohibit what is today usually called hate propaganda – uttering or publishing statements ‘of a nature intended or likely to expose any person, or body of persons, belonging to a certain race or professing a certain creed, to hatred, contempt, ridicule, insult or injury on account of such race or creed.’34 Here also the CJC does not seem to have played a major role, although the bill was introduced ‘to deal with the Fascist weapon of antiSemitism.’ It was a reaction to a recent rise in the number of discriminatory signs in Quebec as well as Ontario, along with the importation

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of several thousand copies of the misleading but highly inflammatory and anti-Semitic Protocols of the Elders of Zion.35 Like most private members’ bills, this proposal came to naught, and the only major anti-discrimination law in Canada remained the Ontario Racial Discrimination Act. But, because the law did nothing to stop discrimination itself, over the next few years the newspapers gave considerable coverage to a number of troubling incidents, some involving anti-Semitism but many involving acts of racial discrimination against blacks in public facilities and employment opportunities. For example, not only was the singer Marian Anderson denied entry to the Toronto Granite Club in 1944, but in the next few years a young ‘negro’ youth named Harry Gairey was refused admission to the city’s Icelandia skating rink, the American Contract Bridge League attempted to exclude a black Trinidadian, Leon Beard, from a tournament being held in Toronto, and a nursing hospital in Owen Sound said that it would not allow Marisse Scott, a young black woman, to train in the institution. Many people were also shocked at a case in Nova Scotia, where Viola Desmond, a young woman who had refused to submit to the segregationist policy of a local movie theatre, and sat defiantly in the ‘whites only’ section, was hauled into court and fined for the patently absurd charge of attempting to evade the local entertainment tax. While many Canadians still maintained that racial prejudice and discrimination was something that happened only in the United States, in the face of such incidents it was becoming harder to deny that the violation of minority rights was as Canadian as maple syrup. As the title of one article put it, in a not-so-oblique reference to the antifascist novel by Sinclair Lewis, ‘It Can Happen Here.’36 Stories of anti-Semitic incidents were less common, but the CJC knew only too well that discrimination against Jews could and did often happen in Canada. Amazingly, a Gallup poll in 1946 demonstrated that Canadians preferred almost any immigrants, even Germans, more than Jews. Moreover, as Joseph Fine, the JPRC chair, said in 1947, ‘wartime legislation forbidding the dissemination of subversive, anti-democratic, anti-Canadian propaganda has lapsed. Under cover and guise of liberty of speech, hate mongering against minorities and particularly against our people is beginning again to rear its ugly head.’ Fine noted that Adrien Arcand had been released after the war and was carrying on his anti-Jewish campaign as fervently as before. He also alleged that the Social Credit party had recently helped publish a Canadian edition of the Protocols of the Elders of Zion.37

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At the same time, the reality of day-to-day life involved more than ‘headlines history.’ Minority-group members (especially blacks, Jews, and Catholics) frequently encountered discriminatory practices in Ontario. Unless a person was prominent, or managed to ‘make a fuss,’ these barriers to full equality were not usually publicized. They did, however, add up to a pattern of injustice. According to a delegate from the Council of Jewish Women, speaking in 1947 to a Race Relations Institute (an annual educational forum organized by human rights activists), Jews were often treated like ‘second class citizens,’ and many Jewish girls were forced to go to the United States for nurse training. Two years later, at another Race Relations Institute, a CCF representative in the Ontario legislature maintained that discrimination in employment was widespread in Toronto. ‘Worst offenders are the financial houses, the banks, insurance companies and trust companies. But they are not the only ones.’38 The CJC’s first major post-war achievement in attacking antiSemitism actually originated in 1944. In the summer of that year the Workers’ Educational Association in Toronto decided to buy a piece of property on which it would erect a model home to be raffled off as a fund-raising ploy. The organization then found that the property was subject to a restrictive covenant; if it purchased the land, the WEA would have to agree never to sell the property to ‘Jews or persons of objectionable nationality.’ To sign such an agreement would have violated the underlying principles of the WEA, which was a non-partisan organization devoted to ‘education for citizenship’ within the labour movement.39 Not surprisingly, then, the WEA members were (in the words of a pamphlet that they later published) ‘deeply shocked’ to find such a restriction placed on the property, and they ‘resolved not only to have the infamous clause removed but to protest strongly against the incipient Fascism it exemplified.’ As they claimed, this was a case that involved ‘the struggle against group hate and all anti-democratic movements.’ Even when it developed that neither the owners nor the neighbours of the property were willing to contest the case, the WEA decided to continue as a matter of principle.40 Rather than fight the covenant on its own, however, the WEA took its problem to the Joint Public Relations Committee, which agreed to provide ‘all financial assistance’ for testing the covenant in court and guaranteed that the WEA would suffer no financial loss if it had to abandon the property and build its model house elsewhere. The JPRC

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then asked the Canadian Jewish Congress to become publicly involved, since it was the official representative organization of Canadian Jews.41 The CJC agreed to cooperate and also began to look for other allies. However, it did not form a coalition, as it did when pursuing some of its later human rights projects, such as the struggle for legislation guaranteeing fair-employment practices; in dealings with the courts, strong arguments are more effective than strong community support. But the CJC did turn for assistance to at least one organization – the United Church Board of Evangelism and Social Service. This body had a good record of speaking out on human rights issues, and in the next few years often supported egalitarian rights causes, but in 1944 it declined to help. In a letter that demonstrated how the Social Gospel tradition could, in some cases, be a barrier to human rights activism, the Reverend J.R. Mutchmor wrote to the CJC on behalf of the board, expressing his dismay that the WEA intended to raffle off the house. As he concluded, ‘the action of the Canadian Jewish Congress in going to the courts to get fair treatment is one that we can understand and support, but we cannot do much to help you when you publicly set yourselves against us on a gambling project.’42 Moral (and perhaps financial) support would have been beneficial, but it was not essential. The CJC decided to proceed, asking the Ontario Supreme Court for the right to intervene. Today, having another organization become involved as an intervener is common enough in Canada, especially in cases involving the Charter of Rights and Freedoms, but it was relatively unknown in Canada at that time. Meanwhile, the WEA had hired Irving Himel, a twenty-nine-yearold second-generation Canadian who had considerable interest in social justice. Born in 1915, the son of a Russian-Jewish immigrant shopkeeper, in the 1930s Himel, then a young newsboy, had come under the influence of Alan Coatsworth, a devout Methodist and firm believer in the Social Gospel. Appalled by the anti-Semitism that was so common in the Toronto of this period, Coatsworth created an informal group he called the Young Maccabbees in order to break down some of the barriers between Jews and Gentiles. Every two weeks, the group, which included Himel and other poor Jewish newsboys, would convene at Coatsworth’s home and meet with a wide variety of clergymen, artists, musicians, and even philosophers. In addition, Coatsworth, who, although not wealthy, had personal ties to Toronto’s elite, also managed to integrate some of his boys into heretofore ‘exclusive’ baseball and basketball leagues. One result of all this was a decision by

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Himel that he, too, would some day do something about prejudice.43 He was successful. Shortly before he died, in 2001, the Canadian government decided to make Irving Himel a member of the Order of Canada for his human rights work. When Himel entered law school in 1942, he became friends with Kew Dock Yip, a young Chinese Canadian who wanted to do something about the 1923 Chinese Exclusion Act, widely regarded by his community as a gross ‘humiliation.’ In 1946 Himel began to lobby for an end to this injustice, helping Yip and others to form the Committee for the Repeal of the Chinese Immigration Act. As legal counsel for the CRCIA, he came into contact with the Civil Liberties Association of Toronto and soon became the lawyer for that organization also, as well as for its successor, the Association for Civil Liberties (ACL). Moreover, he became involved in the anti-discrimination campaigns of the Canadian Jewish Congress and the JPRC. As a result, Himel was a major player in many provincial and national human rights activities until the early 1960s, when he helped found the ACL’s successor, the Canadian Civil Liberties Association. (In addition, in later years he and other Young Maccabees raised enough money to create an annual Alan Coatsworth Lecture, to be given in Toronto each year as a way of furthering racial harmony.) In 1944, of course, all this lay in the future. As a junior lawyer working on the WEA litigation, Himel brought in some elite legal help in the form of J.R. Cartwright, the lawyer who shortly after the war represented the Japanese Canadians in their deportation case and also acted as government counsel in the Gouzenko affair. The JPRC, for its part, brought in as its lawyer J.M. Bennett, the chairman of the JPRC legal subcommittee, assisted behind the scenes by three other members of the subcommittee: Professor Jacob Finkelman of the University of Toronto Law School (also chair of the Ontario Labour Relations Board and later chair of the federal Public Service Staff Relations Board), Bora Laskin of Osgoode Hall Law School (later chief justice of Canada), and Charles L. Dubin, also of Osgoode Hall (and later chief justice of Ontario). This was clearly a high-powered legal team.44 Counsel for the WEA appeared in May before Mr Justice Keiller Mackay of the Ontario Supreme Court (trial division). Although a member of the Orange Lodge, Mackay was a liberal and distinguished member of the Ontario legal community who later became lieutenant governor of the province. He also served, in the 1960s, as the first president of the Canadian Civil Liberties Association. In the Drummond

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Wren case (named after the director of the WEA), Mackay had to deal with the WEA claim that the restrictive covenant on the disputed property should be declared invalid on one or more of four grounds: the restrictive covenant went against public policy, it was a ‘restraint on alienation’ (that is, an unreasonable limit on the freedom of the vendor to sell to whomever she chose), it was ‘void for uncertainty’ (in other words, it was not sufficiently clear as to what was meant by the term ‘Jew’ or ‘persons of objectionable nationality’), and it contravened the Ontario Racial Discrimination Act.45 On 31 October Mr Justice Mackay struck down the restrictive covenant, agreeing with Drummond Wren’s lawyers on three of their arguments (public policy, alienation, and uncertainty) and avoiding the fourth (that it contravened the Racial Discrimination Act). Of the three main points, his argument about public policy was the most interesting, for he crafted a ground-breaking decision which reflected the emergent human rights discourse of the immediate post-war era. As he pointed out, under the common law a judge is not supposed to uphold a contract that is contrary to public policy, that is, a contract that undermines the values reflected in the legal system. (A contract between a prostitute and a pimp, for example, would be such a contract.) Mackay then argued that ethnic/religious discrimination was now contrary to public policy. He referred to the fact that the Toronto land registry office had already stopped registering any deeds which contained restrictive covenants, but his strongest evidence was a number of explicitly political decisions. At the international level, he mentioned the human rights references of the United Nations Charter, as well as the earlier Atlantic Charter. He also found evidence of changing public policy at the provincial level, referring specifically to the Ontario Racial Discrimination Act, an anti-discrimination measure in the province’s Insurance Act, and similar regulations passed pursuant to the Community Halls Act. Mackay then turned to the question as to whether or not this particular covenant violated the policy of non-discrimination. The covenant was, he said, ‘offensive’ to public policy because ‘nothing could be more calculated to create or deepen divisions between existing religious and ethnic groups in this Province than covenants of this sort.’ He reinforced his argument by noting the role that anti-Semitism had recently played in the ideology of the Nazis, and quoted extensively from speeches by Roosevelt, Churchill, and De Gaulle in support of the rights of Jews. Finally, he referred to a number of anti-

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discrimination measures taken outside Canada, including even Article 123 of the Soviet constitution. The immediate result of the Drummond Wren decision was jubilation on the part of the Jewish community and support from even classical liberals. It was front-page news in the Toronto Globe, which printed lengthy portions of the decision as well as comments from J.M. Bennett, the JPRC lawyer, and Abraham Feinberg, the rabbi of Holy Blossom Temple, who was also serving as JPRC chair. Feinberg referred to the ruling as a ‘triumph for Canadian democracy’ which emphasized the ‘moral foundations of this postwar democratic world,’ and he used anti-Nazi discourse to connect the decision to ‘the young men of all creeds who fought and bled together overseas in a fellowship of danger.’46 On the following day, the Globe ran an editorial on the decision. At this point the newspaper had the second-largest circulation in the city (and in the country), trailing behind only the reform-liberal Toronto Star. Along with the Telegram (which was number three in the city), it appealed to the conservative, sober, and respectable British-Protestant ‘establishment’ and had begun to switch its alliance from the Liberal Party to the Conservative Party at both the federal and provincial levels. It was, therefore, significant that the Globe provided enthusiastic support for the decision. In an analysis that mixed together the traditional British liberties discourse with the newly emerging rights talk, it referred to the United Nations’ support for fundamental human rights and excoriated race prejudice as ‘a poison which perverts the personality, corrupts human relationships, and eventually destroys the institutions of society.’ Then it added that the decision stood ‘on the noblest level of jurisprudence ... in the main stream of the humane tradition of British justice.’ Although the Globe supported wiping out racial prejudice through education rather than law, and later staunchly opposed provincial anti-discrimination legislation, it was not alarmed by common law legal reform by a progressive activist judge.47 There may be another reason why the Globe writers could support the Drummond Wren decision – unlike the debate over the Ontario Racial Discrimination Act, this issue did not involve a clear-cut conflict between freedom and equality. While Mackay’s decision could easily be seen as supportive of the equality rights of minorities, at the expense of the libertarian rights of those wanting to exclude them, it could just as easily be interpreted as supporting the libertarian right of freedom of contract for the venders and purchasers of property. (In-

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deed, this was at the core of Mackay’s argument about the alienation of property.) The classical liberal and socially cautious Globe could therefore find some solace in what was, in other ways, a radical judicial decision. But as ‘impact analysis’ of judicial decisions indicates, one should be sceptical about claims that litigation can easily solve social problems. Indeed, one student of the judicial process has argued that ‘a court’s contribution ... [to social change] is akin to officially recognizing the evolving state of affairs, more like the cutting of the ribbon on a new project than its construction.’ Mackay’s activism was arguably a premature celebration of a yet inchoate human rights consciousness and therefore of only limited value for the activists of the CJC. True, the Drummond Wren decision was not appealed, and therefore remained the law of Ontario, but it certainly did not lead to a flood of litigation (although Mackay’s arguments did have some limited influence in a subsequent American case decided by that nation’s Supreme Court). Moreover, within a few years, its legal impact was severely qualified by another Ontario Supreme Court decision involving a second case where the Canadian Jewish Congress challenged the validity of a discriminatory restrictive covenant.48 Before this, however, the CJC decided to help the WEA move deeper into the field of human rights. With financial support from the congress, Drummond Wren’s organization produced a pamphlet about the case titled ‘A Victory for Democracy.’ This set out the essentials of the case and explained how the organizations had come to fight this particular manifestation of ‘incipient fascism.’ Both the WEA and the CJC profited from the publicity generated by this pamphlet, which was widely distributed in both Canada and the United States.49 But, although Wren wanted to work more closely with the congress, by 1947 the CJC had began to worry about allegations that Wren was a Communist. Although they received reassurances to the contrary, these rumours probably scared them off, and there is no evidence that the CJC did any more work with Wren and the WEA. Indeed, the latter almost disappeared from sight as an active player in the Canadian human rights policy community.50 The CJC, however, certainly wanted closer ties to Canadian workers. Shortly after the war ended, the organization had hired a Montreal lawyer, A.H.J. Zaitlin, to do some preliminary research into ‘anti-defamation work’ among organized labour. This was a reflection of an underlying value shift and a corresponding policy change. As noted earlier, the congress was moving away from the narrow issue of anti-

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Semitism and identifying the real enemy as prejudice in general. Moreover, pursuing the broader goal would facilitate what is now known as ‘networking’ and the building of alliances. Canadian Jews were a small minority and needed all the support they could obtain from other minority groups.51 Yet there were still other reasons for this shift. In an interesting speech to the CJC, given in 1947, Rabbi Feinberg discussed the complex intertwining of principle and pragmatism that lay behind his activism. He argued that the world was entering a period in which liberal democracy was fighting for its life. Without actually using the term ‘Cold War,’ and being careful to denigrate ‘anti-Communist hysteria,’ he suggested that an attack on any minority group was an attack on the principles of a free society. (Interestingly, by this time the CJC exhibited Cold War anti-Communist nervousness, distancing itself not only from Drummond Wren but also from one of its own most impressive members, the LPP legislator J.B. Salsberg.)52 Feinberg also appealed to Jewish traditions of toleration. ‘Once we condone cruelty or gross violations of elementary liberties,’ he said, ‘we prepare the shackles for ourselves.’ Moreover, he added, ‘are we not Jews? Are we then strangers to social justice? Shall we wait until our own toes are trampled? If we do, we deserve the disdain of our friends. The suspicion has too often been justified, in liberal circles, that Jews are concerned only with their own skins. A Public Relations policy which regards the defense of other minority groups as foreign to its purpose, has lost both idealism and a practical sense of reality.’ Feinberg also might have mentioned that, as the CJC was well aware, the large majority of Canadians were by this time in favour of tolerance, at least in the abstract. In 1946 the Gallup organization had found that only 20 per cent of their respondents were in favour of excluding blacks from publicly licensed establishments such as skating rinks and dance halls, and an even lower 12 per cent thought that it was acceptable to exclude Jews. True, some Canadians were quite ready to discriminate, and indeed, an important study done by Pierre Berton for Maclean’s magazine a few years later demonstrated that anti-Semitism played a major role in the employment practices of a number of selected Toronto firms, as well as in the field of housing. But it was also clear that relatively few Canadians were willing to admit publicly that they were prejudiced.53 (Pierre Berton, as most Canadians are aware, went on to be a popular television personality on the news quiz show Front Page Challenge. He also became a prolific writer of popular history and a recognizable

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national figure in English Canada. His constant support for human rights and civil liberties is less well known, however. Although Berton does not seem to have played a central role in the struggle for early anti-discrimination legislation, he frequently lent his name to the cause, as well as his talents in writing and speaking.) The Canadian Jewish Congress began to turn its attention to other forms of discrimination besides restrictive covenants. As already indicated, legislation rather than litigation appeared to be the answer, given the conservative nature of the Canadian judiciary, although Drummond Wren had provided hope for limited progress through judicial lobbying. But it was one thing to decide that Ontario needed anti-discrimination legislation; it was another thing to decide what kind of law would be the most appropriate. One option was a bill of rights, a wide-ranging piece of legislation that would ban all sorts of discrimination and limit the legislature and government and perhaps also the private sector. Another option was to take a more incremental approach, asking for legislation that would simply prohibit discrimination in a particular area of activity, such as the provision of services normally available to the public, or in the field of employment relations. Such legislation, moreover, would not necessarily be binding on the legislature. The congress soon made a commitment to the incremental option rather than the more radical bill of rights approach, deciding by the summer of 1946 to lobby for a statute that would prohibit discrimination in the field of employment – a Fair Employment Practices (FEP) act. Such a law had already been passed, the previous year, in the state of New York, and J.B. Salsberg (at that time a member of the JPRC) had proposed similar legislation in Ontario. His draft bill went nowhere, however, primarily because, two days later the government was defeated in the provincial legislature, thereby precipitating an election which Drew and the Conservatives won hands down. From this point on, there was no further need to pander to the left, and indeed within a few months the Canadian Tribune was claiming that the Ontario Racial Discrimination Act was being poorly enforced.54 Whether or not there were obstacles at the enforcement level, the law was clearly inadequate. Besides being limited in scope, it was fairly easily circumvented. In 1948, when the CJC commissioned a survey of discrimination in Ontario’s summer resorts, it found that the Ontario Racial Discrimination Act had not prevented racial and religious discrimination in these resorts but simply forced people to mask

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their prejudices. In short, rather than advertising that they were for ‘Gentiles Only,’ about one-third of the resort owners included in their brochures the terms ‘Exclusive,’ ‘Restricted,’ or ‘Selected,’ a ploy that seemed to avoid the dangers of prosecution.55 Moreover, a few other American states were creating FEP laws, beginning with Massachusetts in 1946 and Connecticut in 1947. Much of the pressure for these statutes came from the American Jewish Congress, and the Canadian Jewish community was well aware of this organization’s successful efforts. The CJC often communicated with the AJC, and for a while the executive director of the latter organization was a Canadian. It made sense to follow the American examples, especially because the new laws seemed to be successful.56 Having set up a provincial FEP act as its goal, the CJC now had to find the appropriate means. It began with some ‘quiet diplomacy’ – CJC representatives meeting in 1947 with government ministers and backbenchers in order to present arguments and a brief in favour of an FEP act. This was to some degree facilitated by Edwin (Eddy) Goodman, a prominent Jewish lawyer who had become an important organizer and fund-raiser for the Conservative Party, but it was also a result of legwork by Ben Kayfetz, the full-time salaried executive director of the JPRC.57 Kayfetz, like many of the Jewish activists of this period, was a second-generation Canadian (but able to converse in Yiddish) and relatively well educated, with a language degree from the University of Toronto and one year of law school. Just after the war he had worked for two years with the Control Commission for Germany, and, on returning to Toronto he had been appointed the local JPRC’s executive director. He was told that his main job was to lobby for anti-discrimination legislation, but it was also understood that he was to work primarily behind the scenes. Even when he wrote public statements for the JPRC (presented formally as CJC pronouncements), it was always the executive members who read them to the press.58 At first the government was not sympathetic to this lobbying. Although a Conservative backbencher with whom the JPRC met, Kelso Roberts, would later turn out to be a valuable ally, at the time he was unconvinced of the need for anti-discrimination legislation. Nor was Attorney General Leslie Blackwell moved by their arguments. Moreover, when Rabbi Feinberg asked the minister of labour for a meeting, offering to send him information about the American FEP laws, the minister, Charles Daley, would promise only to meet at some vague

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future date, arguing that although people in Ontario had their preferences, they were not practising racial discrimination. As he wrote to Feinberg, ‘in my opinion, in these days, racial discrimination is to a great extent imaginary ... I do not believe racial discrimination is being practiced to any extent in this country and that it can be overcome by legislation.’59 Meanwhile, although the CJC did not abandon quiet diplomacy in its quest to obtain a provincial FEP act, it developed other approaches, including the formation of alliances with other organizations. For example, it subsidized the Canadian Council of Christians and Jews to the hefty tune of $15,000 dollars. It also began to work with the Fellowship of Reconciliation, joining forces on the Icelandia skating-rink issue and co-sponsoring a Race Relations Institute in Toronto in 1947. In sponsoring this institute, the CJC connected with other groups, including the Japanese Canadian Committee for Democracy, the Home Service Association (a Toronto black organization), and the Torontobased Provisional Labour Committee to Combat Racial Intolerance. The congress revealed to the institute delegates that it had been working for some time on an FEP brief to be presented to the Ontario government, and then obtained their support.60 Support for the CJC’s proposal sometimes came from unexpected sources. In 1947 the Canadian Legion adopted a resolution calling for an Ontario anti-discrimination law. This no doubt demonstrated how returning war veterans had come to embrace the anti-Nazi discourse of racial equality, but it also reflected some clever lobbying. The Orde Wingate branch of the Legion, a Jewish unit subsidized by the CJC, had presented the resolution and helped to ensure that it pass.61 However, not all the CJC’s natural allies were convinced that an FEP act was the best solution to discrimination. For example, the secretary of the Provisional Labour Committee to Combat Racial Intolerance (shortly afterwards transformed into the Joint Labour Committee to Combat Racial Intolerance), Les Wismer, was not initially enthusiastic about the idea, preferring a more broadly based bill of rights. Early that year T.C. Douglas’s CCF government had created the Saskatchewan Bill of Rights. This legislation not only attempted to protect traditional civil liberties such as freedom of conscience, association, and the right to freedom from arbitrary imprisonment but also guaranteed certain egalitarian rights, including the right not to suffer racial or religious discrimination in the fields of employment and the provision of services to the public, including discrimination in the sale, lease, rental, and occupancy of land (which presumably, there-

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fore, prohibited discriminatory restrictive covenants). This was primarily quasi-criminal legislation, with fines from $25 to $200 for breaches, but it also permitted aggrieved parties to seek injunctions against any persons depriving them of their rights under the act.62 As a result, rather than wholeheartedly supporting the CJC campaign for an FEP act, the Ontario CCF introduced a draft provincial bill of rights in 1947. In making this proposal, and a similar one the following year, the CCF referred to some well-publicized recent examples of racial prejudice against blacks in Ontario, including the Marian Anderson, Marisse Scott, and Harry Gairey incidents. Nevertheless, the bills were both defeated by the Tory majority in the legislature, with Premier Drew’s government maintaining that Ontario was one of the most tolerant societies in the world. Moreover, the government claimed that any statute which purported to bind the legislature would limit parliamentary sovereignty. For the Tories, steeped in the perspective of British constitutional tradition, this was a definitive flaw in the CCF proposals.63 A provincial FEP law, by contrast, would limit the powers of employers, not the legislature, and therefore might be more palatable to the government. Moreover, support for this innovation was growing. In the summer of 1947 the CJC helped to fund a Gallup poll which found that 64 per cent of the respondents were in favour of an FEP law. If this was an idea whose time had not yet come, it was certainly on the way.64 In fact, some important subterranean social and value changes were taking place. As Desmond Morton and J.L. Granatstein have put it, ‘until the 1940s, Canada had been a poor country, with much of the meanness poverty tends to produce. Pre-war Canadians often knew little beyond their own distractions and neighbourhoods, which were small, largely homogeneous, and exclusive. There was usually no room in them for Japanese or Chinese Canadians, and scant tolerance for Jews or blacks or those with “different” attitudes or beliefs.’ This was obviously changing as the country became more urban and more affluent. While Canada in the immediate post-war period was certainly not yet what the political scientist Ronald Inglehart calls a ‘postmaterialist’ society, the country was certainly experiencing the sort of economic stability that would later underpin its entry into the modern ‘age of rights.’65 Canada was also, of course, influenced by developments in the United States. As noted, anti-discrimination legislation in some of the northern states was a beacon for Canadian liberals, but they could also

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take heart from some of the cultural changes sweeping across the border. It was in 1947 that Hollywood produced the film Gentleman’s Agreement, starring Gregory Peck as a reporter who explores antiSemitism by pretending to be a Jew. The film won three Oscars, including the prize for best film. The Jewish community in Canada was heartened by this moderate blow for toleration, and rights activists sometimes used the film as an educational tool.66 All things being equal, the CJC might have concentrated now upon obtaining the passage of an FEP act. However, in April 1948 J.B. Salsberg himself introduced a Fair Employment Practices Act into the Ontario legislature. Like almost all private members bills, this proposal soon died, but it had the unfortunate effect of helping to link together communism and FEP legislation in some people’s minds.67 The CJC, moreover, had another rights issue to worry about. The same month that Salsberg introduced his bill, a businessman in London, Ontario, named Bernard Wolf entered into a real estate agreement which was to have a profound effect upon the tactics of the CJC – and also, ultimately, upon the laws of Canada. The real estate was a piece of property at a Lake Huron resort called the Beach O’Pines, and Wolf intended to buy it from its owner, Annie Noble. Unfortunately, when Noble had purchased the property in 1933, she had signed an agreement that she would not later sell the property to ‘any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood.’ Because Bernard Wolf was Jewish, he was concerned that the covenant might invalidate his purchase of the property, and on the advice of his lawyer he insisted that Noble obtain a court order declaring the restrictive covenant invalid. She prepared to do this, with her lawyer using the same arguments in support of the motion as had been used by the WEA lawyers. But in the Drummond Wren case the motion had been unopposed. In this instance several property owners in the Beach O’Pines resort raised objections and wanted the covenant to be respected.68 Bernard (Pinchas Baer) Wolf was a leading member of London’s Jewish community. Born in the Ukraine, he was both rich (with assets of over $2 million) and committed to Jewish philanthropic, social, and cultural causes, including the London Jewish Community Council and the Canadian Friends of the Hebrew University. More important, as far as the issue of human rights went, he also felt that he had a ‘mission’ to improve the legal status of Jews. As a result, rather than simply walk away from this affront to his dignity, Wolf decided to fight.

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He began by turning to Edward Richmond, a young lawyer in London who had recently graduated from law school and who was also a member of the city’s Jewish community as well as secretary of the London branch of the CCF.69 Richmond in turn sought assistance from John Cartwright, the eminent lawyer, but when the case was taken before the Ontario Supreme Court (trial division), in May 1948, Mr Justice Walter Schroeder refused to invalidate the restrictive covenant, in effect overruling the earlier decision of Mr Justice Mackay. As he said, in a not-so-subtle criticism of MacKay, ‘for a Court to invent new heads of public policy and found thereon nullification of established rights or obligations – in a sense embarking upon a course of judicial legislation – is a mode of procedure not to be encouraged or approved.’70 Soon after Schroeder’s decision was handed down, the head of the CJC wrote to Ben Kayfetz of the JPRC. Pointing out that it was important to the Jewish community that the decision be appealed, he asked Kayfetz to get in touch with Cartwright and Wolf and arrange for a meeting – at the CJC’s expense – with a lawyer who was said to be the best authority on restrictive covenants in American law. This marked the beginning of the process by which the CJC increasingly came to encourage Bernard Wolf in his legal struggle, and with their support he decided to appeal.71 This meant, however, that there was debate as to what arguments should be used in the appeal. Some of the JPRC lawyers argued that Mackay’s ‘public policy’ argument should be stressed and that it was inappropriate for a Jewish organization to take the position that the covenant was void for uncertainty. After all, the CJC was based on the idea that the Jewish identity is clear and must be protected; it would be paradoxical to argue that the term ‘Jew’ in a restrictive covenant is uncertain. Cartwright, however, argued forcefully that judicial conservatism would likely prevent the successful use of the public-policy argument and that technical arguments such as the one about ‘void for uncertainty’ were far more likely to succeed. He said that the public would not pay attention to the reasons why the covenant was defeated, but would simply focus on the result. It was this approach that the CJC adopted when it went to the Ontario Court of Appeal in early January 1949.72 Meanwhile, the CJC also proceeded with its campaign for an Ontario FEP law. Indeed, Schroeder’s statement about the inappropriateness of judicial legislation had spurred the CJC to step up its efforts at

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lobbying politicians. After co-sponsoring the first Race Relations Institute in 1947, the CJC joined a permanent ad hoc committee committed to repeat the event yearly. It then commissioned a survey of discrimination in Ontario, and sent out information about the survey to around fifty organizations, asking them if they would like to become involved in anti-discrimination lobbying. This involved some hard slogging. As Ben Kayfetz noted at the time, ‘much remains to be done in impressing the churches and others that this is as urgent a social need as prison reform, social welfare, liquor reform, and cost-of-living.’ However, the CJC had soon persuaded a number of groups that an FEP law was desirable, so much so that it was beginning to see that this was no longer a CJC project but the campaign of a growing human rights community.73 While many organizations joined the struggle, the congress and its JPRC came to rely primarily upon two groups. One was the Jewish Labour Committee, which, as will be explained in greater detail in chapter 7, was a radical social-democratic workers’ group that in the late 1940s and early 1950s persuaded the two trade-union federations to set up a number of egalitarian rights groups in cities across Canada. One of them was the previously mentioned Toronto Joint Labour Committee to Combat Racial Intolerance. This committee, located in Toronto, was a valuable ally for a number of reasons. First of all, like the JPRC, it employed a paid executive secretary who could devote full attention to constructing coalitions and lobbying the provincial government. Second, it was part of a network, with a paid full-time national secretary at the top, providing advice and overall coordination of activities. Third, it had extremely strong social-democratic and labour connections. Several supporters were CCF members of the provincial legislature, who helped to advise the committee on the appropriate lobbying strategy, and it also had the ear of organized labour on human rights issues, an important political consideration in a period when the trade-union movement was becoming increasingly powerful. Indeed, when the Ontario government finally did introduce FEP legislation in 1951, a political analyst suggested that the proposal was part of an attempt by the premier to ‘cuddle up to organized labour.’74 The CJC, however, needed more than well-organized allies with secure funding and volunteers; it also required a mantle of ‘respectability.’ The congress was Jewish, in a society that was overwhelmingly Gentile. Moreover, notwithstanding its rhetoric of commitment

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to human rights in general, its prior concerns with anti-Semitism suggested to many that it had a particular axe to grind. It therefore needed support from people who could appeal to the government from a position of principle rather than one of pragmatic self-interest. The perfect candidate was the CJC’s second major ally, the Toronto Association for Civil Liberties. Created in 1949, out of the ashes of CLAT, the ACL was a primarily liberal and social-democratic organization with close ties to many other groups, as well as to the social, political, and intellectual elites of the nation. For example, its first president, from 1949 to 1954, was Reginald Sidney Kingsley Seeley, an Anglican minister with a Social Gospel bent who also served as provost and vice-chancellor of Trinity College at the University of Toronto. In addition, board members included such nodal actors as B.K. Sandwell and Malcolm Wallace, the principal of University College in Toronto, as well as Andrew Brewin, Charles Millard, and George Tatham. The board also included Maude Grant, formerly a dean of women at the University of Manchester and then at McGill. A person who, according to her friend Eugene Forsey, ‘could have run the whole British Empire at the height of its power single-handed,’ she was related by blood and marriage to some of the most prominent families in Ontario. (Today she is perhaps best known as the mother of the eminent philosopher George Grant.)75 The Jewish community had developed extremely close ties with the Toronto civil libertarians. Both Sandwell and Wallace were active members of the Canadian Council of Christians and Jews, and the former, of course, had been active in the National Committee on Refugees and Victims of Political Persecution. Ellsworth Flavelle had also supported this group, and in 1945 he became the national chairman of the Canadian Palestine Committee, an organization of Christians supporting the creation of an independent Jewish state. In addition, the first JPRC secretary, Ben Lappin, had been a council member of the Toronto civil liberties group before it became the ACL, and for a while its secretary had been S.J. Midanik, a JPRC member. Then, when the ACL was created in 1949, the JPRC was extremely well represented; founding member Irving Himel was secretary, and its council included Rabbi Abraham Feinberg, Irving Oelbaum, S.J. Midanik, and David Croll.76 The ACL, in turn, needed the two Jewish networks. Drawing its membership from the ranks of the Toronto cultural-intellectual elite, the ACL never generated the membership fees that would have come from a grass-roots mass organization, and it also remained a wholly

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voluntary body, precariously founded on secretary Irving Himel’s ability and willingness to run it out of his law office. These three entities – the ACL, the CJC network, and the JLC network – were intimately connected. Indeed, they have been dubbed the ‘triumvirate’ which formed the core of the post-war Canadian human rights movement. The organizational buckle that held them together was a committee on group relations within the ACL. This committee included not just representatives from the Toronto Jewish community but also Japanese-Canadian and black activists, and its key positions were held by the ACL’s two most important allies – its secretary was also the secretary of the CJC’s Joint Public Relations Committee, while its chair was the secretary of the Toronto labour committee. This ensured that, while the ACL was usually the official voice of the human rights community in Toronto, much of the work was done by the local paid executives of the CJC and JLC networks.77 Meanwhile, the political situation in Ontario was changing. Although the Conservatives remained in power, George Drew had stepped down as leader and premier, and in April 1949 he was replaced by the more liberal Leslie Frost. As a result, the CJC stepped up its efforts to lobby the government. It began by helping the Toronto section of the National Council of Jewish Women to hold a public meeting attended by an estimated 450 people representing a large number of organizations. The audience voted in favour of a resolution calling upon the new government to study the possibility of an FEP law.78 Next, the CJC provided most of the funding for, and participated in, a delegation of about thirty-five people who met with Frost and his attorney general, Dana Porter (a very progressive Conservative who, incidentally, had at one time been associated with the ACL’s predecessor, CLAT). While this ad hoc group including a number of organizations, it was formally an ACL delegation, with Irving Himel presenting an ACL brief. Although no one foresaw it, this was the first of six anti-discrimination delegations headed by Himel over the course of the next ten years or so. Each time the ACL acted as an umbrella organization for a large number of groups.79 The delegation and brief provide a valuable picture of the human rights community as well as a summary of the state of human rights in central Canada in the late 1940s. In some ways the membership was similar to the groups that formed the Cooperative Committee for Japanese Canadians, although it had the flavour of a Toronto-centred group rather than a provincial or national coalition. For example, the delega-

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tion embraced a number of religious institutions, including Bathurst St United Church, the Church of All Nations, the First Unitarian Church, and Rabbi Feinberg’s Holy Blossom Temple. Moreover, at least one of the major spokespersons, ACL President Seeley, had close ties with the Student Christian Movement. But there was no representation from the Catholic Church. Although Catholics in Ontario were often discriminated against by the Anglo-Protestant majority, and although they participated in the Brotherhood Weeks organized by the Canadian Council of Christians and Jews, they seem to have been reluctant to participate in the kind of political lobbying organized by either the CCJC or the ACL. Another similarity between this group and the earlier CCJC coalition was that a number of trade unions were represented, although at this point in the Cold War none of them had any ‘taint’ of communism. Some of these, such as the United Packinghouse Workers Union and the TLC-affiliated Toronto and District Trades and Labour Council, were strong allies of the JLC-connected labour committee, which, of course, was also part of the coalition. But there were also differences between the CCJC and this FEP delegation. In the mid-1940s the Japanese-Canadian community had been supported primarily by ‘waspish’ organizations, although the CJC had played a minor role. Now, only a few years later, it appeared that ethnic communities had learned the value of coalition-building. The Japanese Canadian Citizens Association was a supporter, supplemented not only by the Jewish community (represented by the CJC, B’nai Brith, the JLC, and Rabbi Feinberg’s Holy Blossom Temple) but also by the Canadian Polish Congress, the Chinese community of Toronto, and Toronto blacks. As was usually the case during these early years of human rights activism, however, people of aboriginal origin were not involved. Nor was there much representation from women. Although the CCJC had been joined by the National Council of Women and the Women’s International League for Peace and Freedom, these groups were not part of the 1949 delegation and the only names that were clearly identifiable as women participants were those of Vivien Mahood and Mrs W.L. Grant, both of whom represented groups that were not especially interested in women’s issues – respectively, the Toronto labour committee and the ACL. Interestingly, the WEA was not part of the 1949 coalition, although it had played a minor role in the Co-operative Committee on Japanese

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Canadians. As noted, the CJC had become worried about the alleged Communist leanings of Drummond Wren. This was also no doubt the reason why the Civil Rights Union was not part of the delegation. Even in 1946 some members of the JPRC had been worried about what they saw as the Communist leanings of Margaret Spaulding’s group, and they were concerned that CRU support for the FEP program would be the kiss of death. Clearly, the Cold War was marginalizing Communists in matters concerning both egalitarian and libertarian rights.80 Another important group in the coalition was the Canadian Association for Adult Education. While at first glance one might not think of an adult-education organization as a likely candidate for the active promotion of human rights, in fact this support was a logical corollary of the group’s commitment to educate adults about social issues, as well as its Social Gospel roots. As noted earlier, E.A. Corbett, the CAAE’s director, was firmly committed to this brand of social activism, which made him a long-standing civil libertarian. He was also, moreover, profoundly concerned about egalitarian rights. He supported both the CCJC and the Canadian Council of Christians and Jews, and under his leadership CAAE’s magazine, Food for Thought, dealt with a number of human rights topics. By 1947, the Canadian Jewish Congress had persuaded Corbett that an FEP act was desirable, and together with the Societé Canadienne d’Enseignement Postscolaire, his organization had set up a committee on group relations in Canada which immediately focused on obtaining anti-discrimination legislation in Ontario. It hired a field worker to educate the public about the need for an FEP act and to organize a political campaign following up on the work of the 1949 delegation.81 The 1949 brief presented Frost with a picture of contemporary discrimination in three areas – employment, the use of public places, and the sale of property – and then recommended governmental responses such as an FEP act, a law explicitly permitting municipal antidiscrimination measures, and a law invalidating discriminatory restrictive covenants. Legislation of this nature, the authors of the brief suggested, would be consistent with the fundamental principles of Canadian democracy, and would also uphold the nation’s obligations under the recently created Universal Declaration of Human Rights. Speaking on behalf of the ACL, Rabbi Feinberg argued that Mr Justice Schroeder’s recent decision clearly demonstrated the need for legislative reform. Yet Feinberg’s comments were surprisingly am-

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bivalent, a demand for minor tinkering rather than revolutionary change: ‘I cannot object to the fact that a Jew cannot purchase or use certain summer resort property; but I do resent the fact that groups of people gather together and sign a property deed definitely based on the idea that my people are unworthy of association.’ The Jewish community, it seems, was not entirely in favour of integration; Feinberg’s approach could be described perhaps as support for a policy of ‘separate but equal,’ except that the phrase has negative connotations.82 Another speaker was the Reverend W.C. Perry of the Grant AfroMethodist Episcopal Church in Toronto, who spoke eloquently about the treatment of blacks in that city as well as in southwestern Ontario. According to a reporter who was present, Frost was ‘visibly moved’ by this speech. In the face of such first-hand accounts, it was hard to deny the existence of racism in Ontario, and the premier promised to give serious consideration to the notion of anti-discrimination legislation.83 On the other hand, Toronto labour committee secretary Vivien Mahood did not have great hopes that the government would soon take action. As she wrote in a report, ‘I must say I was not favorably impressed with the Premier’s attitude. He was half an hour late for his appointment, and slumped in his chair in an indifferent fashion. He responded in trite phrases, seemed little interested, and made few comments. In essence one might say his attitude was lip service, with a quite apparent intention of doing nothing what so ever. I would not, of course, say that the delegation was wasted. Far from it. It is only the opening gun.’84 What was actually going on in the Ontario government? In political science there are two main theories of policy making. ‘Society-centred’ theory argues that the state normally responds to external pressures, but ‘state-centred’ theory suggests that the state can act independently of such pressures. Moreover, among those who favour society-centred theory, there are two alternative views: class analysis, which argues that the capitalist class drives the process, and pluralism, which claims that the process is largely determined by ordinary individuals and interest groups. Brian Howe and David Johnson, two political scientists who have looked carefully at the legislative history of Canadian human rights, argue that although the state took a larger role in the 1960s, events in the immediate post-war period are best explained by ‘the pluralist version of society-centred theory.’ In other words, early anti-discrimi-

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nation legislation was a response by government (after some initial resistance) to public pressures, especially the lobbying of a number of interest groups such as the CJC, the JLC, and the ACL.85 There were several reasons for this. To begin with, Premier Frost had a naturally conservative bent for cautious progress rather than precipitous change. People, he believed, needed time to adjust to new ideas and policies. Moreover, he often said that he could no more obtain immediate acceptance by his caucus of minority rights than a parent could cajole a child into eating a large meal. As free-market conservatives, many of his party members were unsympathetic to the notion that the state should limit the ‘freedom’ of individuals to discriminate. Moreover, almost 70 per cent represented rural constituencies, which often had few visible minorities, and about 16 per cent belonged to the Orange Lodge, an organization rooted in a tradition of discrimination, especially against Catholics.86 Many of these legislators were opposed to human rights reform for one or more of the reasons touched upon earlier: either prejudice or ostensible appeals to logic that were rooted in denial, scepticism, or ideology. For example, it was Frost’s minister of labour, Charles Daley, who, just a few years previously, had told Rabbi Feinberg that racial prejudice in Ontario was largely ‘imaginary.’ But an even more extreme case of Tory ethnocentrism was that of the legislator J.W. Murphy, who had created a restrictive covenant intended to keep his property out of the hands of ‘any person wholly or partly negro, Asiatic coloured or Semitic blood, nor to any person less than four generations removed from that part of Europe lying south of latitude 55’ and east of longitude 15' east.’ This ruled out all people except those whose ancestors came from an area roughly limited to Scotland, Denmark, and Norway!87 A few days after the ACL meeting with Frost, the Ontario Court of Appeal handed down its decision in the Noble and Wolf case. In a refutation of Mackay’s Drummond Wren ruling, the five judges unanimously upheld the validity of the restrictive covenant, siding with Mr Justice Schroeder on the issues of alienation, uncertainty, and public policy. They were unwilling to make new policy, and chief justice R.S. Robertson echoed Schroeder’s concerns about judicial activism, warning against creating ‘rules of law to enforce what can only be of natural growth.’88 The JPRC responded with a brilliant but inflammatory criticism of the court. Rabbi Feinberg said that the covenant differed ‘only in de-

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gree from the dangerous nonsense and blood-worship of naziism,’ and argued that such covenants were a threat to fundamental democratic principles. He also claimed that the decision was a blow against cooperation and ‘spiritual one-ness,’ pointing out that one of the judges on the court had within the last few years insisted that Canada is a ‘Christian country.’ He ended his statement with a rhetorical question; noting that members of so-called inferior races had recently given their lives for their country during the war, he asked, ‘Shall a military cemetery be the chief symbol of the Canadian community, the only place where Canada’s citizens can dwell in the complete companionship of equality?’89 By now the Noble and Wolf decision had become a major public issue, supported by some newspapers and opposed by others. For example, the Globe abandoned its support of the Drummond Wren decision and applauded the Court of Appeal judgment in a long editorial. A restriction that excluded certain groups from joining with a collection of like-minded associates had ‘dangerous implications,’ said the editor, and would do nothing to promote the tolerance which can come only through ‘natural growth’ – the same phrase used by Chief Justice Robert Spelman Robertson. Indeed, added the newspaper, any limitation on the right of free association might actually add to ‘social tensions.’90 As might have been expected, the Toronto Star disagreed. On libertarian issues the Star strongly supported individual freedom, but on egalitarian rights issues it was more reform liberal than classical liberal, willing to sacrifice some measure of personal freedom for the goal of increased social equality. Of course, since the Star was the purported voice of Toronto’s minority groups, such as Catholics and Jews, this was an obvious position for it to take. On discriminatory restrictive covenants, the Star argued that tolerance could also be the result of ‘cultivated growth’ and that ‘the law can be made a powerful implement in its cultivation.’ It pointed to the success of anti-discrimination legislation in New York, and suggested that if the Supreme Court of Canada were to uphold the Ontario decision the government of the province should consider prohibitory legislation.91 Yet not all Jews supported the CJC position. As Ben Kayfetz wrote to Richmond, Bernard Wolfe’s lawyer, members of the Montreal Jewish community, who lived in a more conservative milieu than did Ontario Jews, were sceptical about ‘rocking the boat.’ But even in Ontario, there were reasons for hesitation. As noted, Rabbi Feinberg

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was somewhat ambivalent about ‘exclusive’ resorts, and the Hebrew Daily Journal of Toronto was even more explicit about the problem. In an editorial that supported the court’s decision, the Journal pointed out that some Jewish organizations discriminated in selling or renting their own property. It suggested that there is a ‘democratic right’ to choose one’s neighbours, and argued that Wolf had no justification in forcing himself into an area where he was not wanted. Clearly, the competing values of minority autonomy versus minority integration meant that, even in the Jewish community, the struggle for equality was not a clear-cut matter of right versus wrong.92 Nevertheless, the tide of opinion was turning in favour of the CJC. When a Gallup poll asked the public, ‘If you were buying a home and the neighbours asked you to sign an agreement promising not to sell or rent it later to people of certain races or colour, would you be willing or not willing to sign such an agreement?’ over two-thirds of the respondents were opposed to restrictive covenants. After this, even the Hebrew Daily Journal supported the CJC’s efforts.93 But to get the law changed was not going to be easy. After having lost in court once again, Bernard Wolf was understandably disheartened, and Edward Richmond confided privately that Wolf ‘would like to wash his hands of the whole matter.’ Noble was even more unenthusiastic, and quite understandably concerned about the financial implications of the case. However, by now it had become even less a simple dispute between two parties and even more a publicly contested policy issue, with a variety of groups taking a keen interest in the outcome. Therefore, shortly after the appellate decision, the CJC agreed to finance an appeal to the Supreme Court of Canada. Bernard Wolf was happy to be relieved of the financial burden of carrying the litigation, and Annie Noble also agreed, as long as she was reassured that she would not suffer any financial loss from what was becoming an interminable series of manoeuvres. Yet the nature of the compensation became something of a stumbling block, since Noble insisted on receiving not only a rent for the duration but also an interest payment on the income she had temporarily foregone. While Bernard Wolf and the CJC agreed that these were ‘onerous’ terms, they felt that they had no choice but to agree, believing that her continued participation as a litigant was essential.94 By this time, organized labour was wholly behind the campaign. In September 1949 the Trades and Labor Congress held its national con-

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vention in Calgary, and, through the report of its standing committee on racial discrimination, it outlined a number of human rights issues in Canada, including the unsatisfactory nature of the law in the wake of the Noble and Wolf decision. The report also referred to positions taken by the Toronto District Labor Council and the Toronto Joint Labour Committee to Combat Racial Intolerance, and called upon all the provinces, and Ottawa, to pass legislation barring discriminatory restrictive covenants.95 The ACL also kept up the pressure, working closely with the secretary of the committee on group relations, which, as mentioned previously, had been set up by the CAAE and subsidized by the Canadian Jewish Congress. (It was also now being subsidized by the Jewish Labour Committee.) Then, in January 1950, the ACL spearheaded a second delegation to request human rights legislation in Ontario, bringing together about seventy organizations and over three hundred people in a massive show of support for legislated change. This included most of the usual players in the human rights community, although the delegation was somewhat broader than the 1949 coalition, with far more representation from outside Toronto, including the National Council of Women.96 Pulling this together was a complicated task, organized by staff members of the Toronto labour committee and the JPRC. Vivien Mahood, the secretary of the former group, had called primarily on organized labour but also got in touch with Christian churches, the provincial Teachers Federation, and even local YWCAs. Meanwhile, Ben Kayfetz of the JPRC had sent out special kits on the subject to Jewish organizations and synagogues across the province, encouraging them to lobby the government, legislators, newspapers, and community leaders. As Carmela Patrias and Ruth Frager have pointed out, because Jews in smaller towns had access to local politicians and elites through their stores and membership in local chambers of commerce, the Jewish activists had ‘a province-wide communication network unparalleled by any other minority group.’97 Seeley of the ACL presented the brief. This time the delegates temporarily abandoned their incremental approach, calling for a broadranging law that would deal with ‘discrimination as it affects people in employment, in public places, in housing and ownership of property.’ In addition, they called for the creation of a regulatory body, modelled loosely after the New York State Commission against Dis-

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crimination, a body that would investigate complaints, attempt to conciliate, if necessary prohibit the discrimination, and engage in public education.98 Notwithstanding the political pressures brought to bear by this 1950 delegation, Premier Frost was still somewhat dubious about the desirability of anti-discrimination legislation, saying that he needed to discuss the issue with his cabinet ministers. No doubt the human rights activists were asking for too much, too quickly, running counter to Frost’s incrementalist preferences. However, the premier did listen to a suggestion from Attorney General Porter that the government should at least deal with discriminatory restrictive covenants. As a result, early in the year, the Tories introduced such a bill, along with another bill that declared void all collective-labour agreements discriminating on the basis of race or creed. In short, Frost began his foray into antidiscrimination legislation by avoiding undue offence to conservatives and placating them with a promised limitation on trade unions.99 Even so, the property legislation was a prospective bill only, leaving alone all current discriminatory covenants. According to Premier Frost, there existed tens of thousands of property deeds, a substantial number of which contained ‘all sorts of little reservations.’ To cast into doubt the legal validity of all these agreements, even when many of them were not a significant problem, would be ‘a very drastic step’ which would not be in the best interests of economic development. It would also, the government admitted privately, not be in the best interests of the Conservative Party to run the risk of angering too many property owners.100 On the other hand, Frost maintained, a prospective invalidation of discriminatory restrictive covenants would actually promote economic development. He indicated that he was concerned about problems of urban growth and community planning, both of which might be impeded by even a few people erecting racist barriers to property ownership. Should past covenants turn out to obstruct economic growth, then the government might step in again and deal with such restrictions on a case-by-case basis.101 Frost’s emphasis on the need to promote economic growth can be explained in several ways that are not mutually exclusive. First, he may have been trying to persuade his caucus that such legislation was desirable. As noted earlier, a large number of his members were rural conservatives, often members of the Orange Lodge, and not usually given to warm feelings about the universal rights of man. While Frost

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ruled his caucus and cabinet with a firm hand, he no doubt was also appealing to them in a language of ‘business interest’ which they could easily understand.102 Yet there is also some indication that Frost himself saw discrimination as threatening the class interests of those who, like himself, were interested in speedy economic development. Knowing that immigration from Britain was drying up, he believed that discrimination against new arrivals from countries such as Italy or Greece might interfere with immigration rates, as well as contribute to domestic social problems. His concern was therefore not entirely with barriers against Jews or blacks but rather embraced the broader problem of ‘ethnic’ prejudice. Or, to put it in the language of class analysis, past ideas about race relationships were abandoned because they were no longer useful for capital; discrimination in the immediate post-war period had far less utility than in earlier times.103 At the same time, the legislation also reflected other aspects of life in Ontario. First, the CJC and other groups were abandoning the narrow discourse of ‘British liberties’ and defending their position in the language of democracy and human rights, including frequent references to the newly minted Universal Declaration of Human Rights. Second, there was probably some truth to the argument, presented by Sandwell in an editorial, that by now only a small minority of employers were prejudiced. Unfortunately, discrimination on the part of this bigoted minority often forced the majority to reluctantly follow suit in order not to lose customers, and anti-discrimination legislation would ‘free’ the majority from this dilemma. Third, people were increasingly accepting state involvement in the marketplace as Canada developed into a welfare state; laws protecting people from discrimination were no more radical than laws protecting them from poverty or disease. Fourth, it may also be the case, as Brian Howe has suggested, that Ontario’s ‘red Tory’ political culture made it more receptive than other provinces to protecting society through anti-discrimination legislation.104 Moreover, although Frost kept an eye on the ‘bottom line’ of economic health and development, other considerations filtered his perceptions. For one thing, he had a sophisticated view of communism. While on the one hand he had considerable admiration for the intelligence of both Salsberg and his LPP colleague in the legislature, A.A. MacLeod, and was not likely to condemn an idea just because they supported it, he was also attuned to the anti-Communist values of his

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day and saw things from a Cold War perspective. Legislation that improved the human rights record of Canada demonstrated, in his eyes, the moral superiority of capitalism over communism.105 There is also evidence that Frost was considerably more liberal than many of his political contemporaries. For example, shortly after Schroeder handed down his decision in the Noble and Wolf case, an Ontario judge and occasional fishing companion of the premier privately wrote to Frost that he was opposed to any law that limited his right to an exclusive neighbourhood: ‘I do not want a coon or any Jew squatting beside me, and I know way down in your heart you do not.’ Frost responded by saying that the law did not compel action but merely prohibited ‘unnecessary and outdated’ acts of intolerance. He also pointed out tactfully that the General Synod of the Anglican Church was on record as supporting a law against discriminatory restrictive covenants, and added, ‘I know you will be greatly interested in the position of your church.’106 The government came under heavy fire for not making the legislation retroactive. Both the CCF and the LPP representatives in the House attacked it, but the government stuck to its guns, although the attorney general did listen to a small delegation of JPRC representatives who maintained that the original bill was too narrow in its list of prohibited discriminations. The government therefore altered the bill so that discrimination was prohibited not only on the basis of race and creed but also where it involved colour, ancestry, nationality, and place of origin. In March 1950 the Conveyancing and Law of Property Amendment Act came into effect, the first statute in Canada that explicitly prohibited discriminatory restrictive covenants and the first Ontario anti-discrimination law since the 1944 Racial Discrimination Act. Shortly afterwards, in April, the Manitoba legislature passed a similar law. Here, too, the legislation was prospective rather than retrospective, almost word for word a duplication of the Ontario initiative. This meant that, including Saskatchewan, three Canadian provinces now had curtailed discriminatory restrictive covenants by legislative fiat.107 Meanwhile, the Ontario legislation, being prospective, did not make Noble and Wolf’s case moot, but it posed an interesting legal question – should the CJC lawyers refer to the new legislation in their arguments to the Supreme Court? Since John Cartwright had been appointed to the court in December 1949; the CJC had replaced him with J.J. Robinette, already well on his way to becoming one of the most

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highly respected and famous trial lawyers in Canada. Robinette came to the conclusion that, since the Ontario Court of Appeal had not considered the soon-to-be-passed legislation, it would not be desirable to refer to the statute.108 The case went before the Supreme Court in June 1950. Mr Justice Cartwright, of course, did not participate, so it was heard by a panel of seven judges. When, in November, the Supreme Court handed down its decision, the appeal was allowed, with costs. In other words, the covenant was struck down, and Bernard Wolf had finally won. (Although appeals to the Privy Council in Britain had been abolished in 1949, the case had begun prior to this, and therefore the Beach O’Pines litigants could have carried on with the litigation. They chose not to, however, so the Supreme Court decision settled the law.)109 The win was based on only two of the CJC lawyers’ arguments. A majority agreed that the covenant was void for uncertainty, and an even larger majority agreed with an argument that the lawyers for Wolf had developed after the original trial but for technical reasons had not been considered by the Court of Appeal – that the covenant was unenforceable because it did not ‘run with the land.’ In other words, it applied only to the people who had originally signed it, and not to anyone, such as Annie Noble, who had subsequently purchased the land. But none of the judges was willing to follow the lead of Mr Justice Mackay by relying upon the argument of public policy; like Mr Justice Schroeder and the Ontario Court of Appeal, the Supreme Court was reluctant to engage in what might be considered judicial legislation. The Noble and Wolf case soon became a staple of law school textbooks on constitutional law, but these seldom discussed whether or not its importance was symbolic or real. What, in fact, was the impact of this decision? First, it meant that Bernard Wolf could finally purchase the property from Annie Noble, free from any fear that the other property owners of the Beach O’Pines resort would challenge his title. Yet by this time he was not interested at all in the property, and when he was approached by one of the people who had opposed him in court he decided to sell. It is one of the ironies of the case that the property remained, at least for a while, totally free of Jews and other ‘objectionable nationalities.’110 Of course, as far as Wolf was concerned, the case had become a fight more for a principle than for a particular summer cottage. Indeed, although the litigation had proved costly for him, his final act

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was to donate $1,000 to the CJC to help the organization pay for any expenses not recovered through the court costs allocated by the Supreme Court. He recognized that, without the support of this organization, he might not have taken the case all the way to the top.111 The second impact of the case was its effect upon other discriminatory restrictive covenants. The decision did not invalidate all such contractual arrangements. If an original vendor were willing to sue a purchaser who had signed a covenant but now wished to sell it to someone in the ‘wrong’ category, if the terms of this covenant were more precise than the one examined by the Supreme Court, and if this covenant was also one that predated the Ontario or Manitoba legislation, or had been drawn up at any time in any other province other than Saskatchewan, then such a covenant might indeed still be upheld in court. As a result, the CJC was on guard for future cases, and was actually planning to find another test case in British Columbia until learning that in that province a court had ruled many years earlier that discriminatory restrictive covenants were unenforceable. But in fact there seem to have been few subsequent attempts to use discriminatory restrictive covenants, and almost no legal cases before the courts. As a human rights issue, this soon died away, with most people apparently believing that the Supreme Court had made this form of discrimination completely impossible.112 (In an interesting historical footnote, however, it turns out that for years afterwards the discovery of ‘archaic’ restrictive covenants could produce considerable bitterness. As recently as 1968 the British Columbia Civil Liberties Association lobbied the provincial government to disallow discriminatory restrictive covenants in that province, even though they had been declared unenforceable by a judicial decision as early as 1911. Meanwhile, the noted environmentalist David Suzuki was one day appalled to find out that one of his colleagues was living in a house subject to a restrictive covenant. Suzuki wanted to sue, but the colleague refused to show him the deed. ‘I’ve hated his guts ever since,’ said Suzuki. It was only in 1978 that the Social Credit government of Bill Bennett, in an act of legislative housecleaning, voided all discriminatory covenants, both retroactively and in the future.113) The case also had an impact on the broader plans of the Canadian Jewish Congress. The Supreme Court decision came at the height of the Korean War, and the CJC emphasized once again that its human rights work was more than simply a struggle for the interests of op-

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pressed minorities. Drawing upon the increasing fear of international communism, Rabbi Feinberg described the decision in his usual hyperbolic fashion as ‘a potent weapon in the cold war of ideology between communism and the West,’ and he referred to Annie Noble’s covenant as an ‘iron curtain of snobbery and segregation.’114 To the extent that Canadians were willing to agree with Feinberg’s position, the plans of the CJC for anti-discrimination legislation were clearly coming closer to fruition. There still remained, however, some opposition to limits on freedom of contract. While most editorials were supportive of the Supreme Court decision, it was not a significant deviation from classical-liberal values. Indeed, the Globe and Mail cautiously approved the decision on the grounds that it imposed no restrictions on individual freedom the way that anti-discrimination legislation would, and it claimed that the decision actually affirmed the right of an individual owner to dispose of property in whatever way he or she wished. Although, as mentioned, the Globe had earlier seemed to agree that anti-discrimination legislation might be acceptable, it now had apparently recanted, arguing that ‘tolerance is an individual trait and can be cultivated only by education. No law can impose mutual understanding; and if a common ethic promotes a broad social sympathy, no law is necessary.’115 Nevertheless, the CJC was steadily gaining converts to its goal of a provincial FEP act. For example, in early 1950 the Ontario Federation of Labour (TLC) made a presentation to Ontario Premier Frost which called for both a provincial bill of rights and an FEP law. Shortly afterwards, a delegation of youth groups met with the premier and the attorney general, asking them to develop anti-discrimination legislation.116 Moreover, municipal politicians were dipping their big toes into the waters of race-relations remediation. In 1944 Windsor passed an antidiscrimination measure, and Toronto followed suit in 1947. In response to a series of demonstrations against the discriminatory practices of the Icelandia skating rink, which was excluding both blacks and Jews, the city of Toronto passed a motion introduced by a Jewish alderman (and future mayor), Nathan Phillips; it withheld city licences from ‘any owners of public halls and places of amusement that practiced discrimination.’ Then, in the summer of 1950, a number of civic groups, including the CJC, the JPRC, and the ACL, persuaded the city to ban racial and religious discrimination by all city-licensed personal-service establishments such as barbershops, swimming pools, and lending

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libraries. The favourable publicity accorded to these events by the news media ensured that the provincial government remained aware of not only the existence of racism but also the political benefits of listening to human rights activists.117 Meanwhile, the ACL’s committee on group relations met in September 1950 to plot FEP strategy. The Toronto labour committee agreed to seek support from the trade unions (although its efforts went far further than this, sending its secretary to speak to any voluntary organization interested in the topic), and the JPRC agreed to organize local Jewish groups across the province, asking them in turn to meet with local MPPs and also to engage the support of non-Jewish community organizations. In addition, the JPRC engaged in some more ‘quiet diplomacy,’ sending a small delegation to meet with the attorney general. Dana Porter was impressed by their arguments about the utility and political popularity of an FEP law, and shortly afterwards the premier asked the delegation to meet with him.118 According to Premier Frost, speaking behind closed doors to this delegation, the development that finally stiffened his resolve was a speech to the Toronto Empire Club by Oregon Senator Wayne Morse. The CJC was responsible for bringing Morse to Canada in early January 1951, and he did not disappoint them. Noting that anti-discrimination legislation had been good for business in his home state, Morse also stressed that it constituted a democratic bulwark against Communist ideas. The premier was so impressed with this speech that he informed the JPRC delegation that he had decided to introduce an FEP act in the coming session of the legislature. He then asked one of the JPRC members, Jacob Finkelman, to help draft a proposal that he could take to cabinet.119 Did Morse’s speech actually make a difference? No doubt, but Frost was subject to a number of forces. First, there was the public campaign of the CJC and its supporters – the TLC and the CCL both lobbied for an FEP law when they made their annual presentations to the premier and his cabinet; the Catholic Church had finally joined the rights community, with Cardinal James McGuigan asking to meet with Frost to discuss the necessity of an FEP act; the ACL had met with the premier privately; and the government had received many positive letters from a diverse range of sources. Second, there was support from the press, including a Toronto Star editorial calculated to appeal to Frost, which argued that an anti-discrimination act could help to prevent the exploitation of new immigrants. Indeed, Frost did not

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formally announce his decision until after surveying media support for an FEP law and finding that a majority of newspapers would support such a bill. Third, Frost had also been influenced, as he told the Ontario legislature, by the governor of New York, Thomas E. Dewey, who told him during the summer of 1950 that his state’s legislation was working well. In short, Morse’s speech perhaps did no more than apply pressure to what Malcolm Gladwell has called ‘the tipping point,’ and also provided Frost with a way of justifying innovation to his conservative Tory caucus.120 In addition, Frost was contemplating an election. According to one contemporary observer, he had decided to reach out to organized labour in order to steal the thunder of the CCF, at that time his most dangerous set of opponents. One ploy was a proposal, in the Throne Speech in early February 1951, for provincial rent controls. Another was a promise, in the same document, for an FEP act.121 Once again, Frost had nicely calculated his levels of political support. Within a few days, B.K. Sandwell’s Saturday Night had warmly endorsed Frost’s initiative, claiming that ‘the new law will place Ontario in the forefront of the Canadian Provinces in the effective adoption of a principle which is a basic concept of the United Nations organizations, a prime doctrine of modern humanitarianism, and a most important step towards the unification of the human race.’ Such an endorsement from the classical-liberal Sandwell indicated a paradigm shift in thinking, a recognition that this type of state interference with property rights was entirely justifiable. Even the Globe accepted the inevitability of the bill, merely cautioning the government to introduce it early enough to provide adequate study in committee.122 The new bill also turned out to be part of a package. Although Frost’s FEP act did not prohibit sex discrimination, the CCF had been lobbying for such a bill, and even the cautious Globe had editorialized in favour of including protection for women in the government’s proposed statute. As well, there were arguments that the Korean War was about to necessitate increased female participation in the workplace. Frost therefore introduced not only the Fair Employment Practices Act but also the Female Employees Fair Remuneration Act (FEFRA), a weak version of a pay-equity law demanded by a number of women’s groups in a separate campaign.123 Although passage of a government bill is usually a foregone conclusion, especially when the government has a strong majority, the human rights activists left nothing to chance. The JPRC sent out to the

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legislators and the press a package of newspaper and magazine articles in favour of the legislation. In addition, the Community Conference for Public Relations, a collection of Jewish groups in Toronto, mailed a barrage of letters supporting the proposed bill. Finally, a small ACL deputation met with the premier, suggesting certain possible improvements to the draft legislation, and the Toronto labour committee also sponsored a meeting in which proposals for improving the legislation were made. Most of these recommendations, such as a request that complaints be taken be taken out of the hands of the Labour Department and put into a newly created Fair Employment Practices Commission, were then proposed in the legislative committee by the CCF members who were affiliated with the Toronto labour committee.124 The government redrafted the bill, bearing in mind a number of the lobbyists’ suggestions but refusing to create a commission. The new legislation soon passed and received royal assent in the spring of 1951. It began with a preamble that partially vindicated Mackay’s decision in Drummond Wren, stating that it was now ‘contrary to public policy’ to discriminate on the basis of race, creed, colour, nationality, ancestry, or place of origin, and adding that this prohibition was in accord with the 1948 Universal Declaration of Human Rights. The legislation then went on to ban any such discrimination in the hiring or employment of workers, balancing this with a prohibition against discrimination in union membership. It did not, however, prohibit discrimination on the grounds of sex, although the opposition had attempted an amendment to this effect. As Frost put it, the legislation was solely intended to protect ‘the stranger within our gates.’125 No doubt to allay the concerns of those who saw this statute as a violation of freedom of commerce, the law also moved away from the approach taken in 1944 when the Ontario Racial Discrimination Act prohibited discriminatory signs. That statute had made the act of displaying such a sign a quasi-criminal offence. The Ontario FEP act, however, moved the field of discrimination into the ambit of administrative law; to obtain satisfaction a complainant had to overcome a series of bureaucratic obstacles. First, a ‘conciliation officer’ would investigate a complaint. Second, the officer was empowered, providing that he had found evidence of discrimination, to effect an informal settlement. Third, if no such settlement could be reached, the minister of labour could appoint a conciliation commission. Fourth, the law also permitted the labour minister, at his discretion, to allow a pros-

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ecution under the law. (The law, however, was still based on the assumption that discrimination was primarily the result of individual behaviour and could best be fought by letting individuals lay complaints. There was no recognition of what today would be called the problems of ‘systemic discrimination.’) For the Ontario human rights activists, several things now remained to be done: using Ontario as an example to persuade other jurisdictions to pass their own FEP laws, and next working to obtain the passage of fair accommodation practices (FAP) acts which forbade discrimination in the provision of services to the public. At the same time, of course, they hoped to monitor the enforcement of these acts, to ensure that they were effective, and to educate the public about their new legal rights and obligations. Still later in the decade, they began to argue that all anti-discrimination legislation should be brought together into a single human rights code in each province and in Ottawa, with provision not only for the enforcement of egalitarian rights but also for the general education of the public. This campaign was successful by the early 1960s, and the Ontario model was over time adopted across the country. The modern regime of human rights law in Canada has its roots in these early statutes.126 Over the next few years the Canadian Jewish Congress made signal contributions to the evolution of egalitarian human rights protection in Canada. As Saul Hayes, the director of the CJC once put it, it was not until the 1960s that Jews finally became accepted as ‘white’ and could feel that prejudice for them at least was now less of an urgent threat than before. Not only did the CJC help to improve the scope and range of anti-discrimination legislation, including the passage of an Ontario FAP act (discussed in more detail in chapter 7), but it also managed to obtain federal legislation that made it more difficult for people to defame minority groups – the so-called hate-propaganda amendment to the Criminal Code – and it participated in the campaign to obtain a national bill of rights (discussed in more detail in chapter 8).127 The CJC also became involved in a number of other issues, including a matter of minor significance to most Canadians but something extremely important to Orthodox Jews – ensuring that federal legislation on the humane slaughter of food animals did not violate ‘kosher’ religious principles.128 However, by 1960, the point at which this book ends, the so-called ‘Jewish phase’ of the human rights struggle in Canada was over. While the Canadian Jewish Congress (and the Jew-

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ish Labour Committee) remained interested in egalitarian rights, they were no longer taking such central roles as had been the case in the immediate post-war period. New issues were emerging, and new groups were becoming involved. The nature of the Canadian human rights community continued to change.

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6 Civil Liberties Groups and the Cold War

Canada has never had a truly comprehensive and national civil liberties group analogous to the American Civil Liberties Union in the United States. As noted, the pre-war Canadian Civil Liberties Union was never more than a loosely affiliated collection of independent organizations, and post-war attempts to create a national body came to naught. An organization called the League for Democratic Rights (LDR) was active in the early years, but this was seen by most people as a Communist-front organization and largely ostracized by other more mainstream groups, which in turn could never manage to transcend their geographic separateness. Even today, in the early years of the twenty-first century, although the Canadian Civil Liberties Association claims to be a national group it does not embrace other bodies, such as the British Columbia Civil Liberties Association or the Ligue des droits et libertés of Quebec. Ideological and geographical divisions have long been barriers to national organization. In the spring of 1946 B.K. Sandwell noted in Saturday Night that the country urgently needed ‘a central office or clearing-house’ for autonomous civil liberties groups in different parts of the country, so that they could from time to time form a ‘united front’ on national issues. He therefore asked any interested organizations to get in touch with him. It was a sign of the fragmented nature of the civil liberties movement that Sandwell, a key member of the Toronto civil liberties organization, does not seem to have had a list of individuals and groups to whom he could write personally.1 Sandwell’s suggestion bore fruit, for in late December 1946 delegates representing four of Canada’s civil liberties groups came together in Ottawa for an ‘exploratory conference.’ This included people

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from the Civil Liberties Association of Toronto, the Ottawa Civil Liberties Association, the Montreal Civil Liberties Association, and the Civil Rights Union. No doubt because of the problems of travel, there were no representatives from the Winnipeg (soon to be Manitoba) Civil Liberties Association, and, with typical central Canadian tunnel vision, the organizers seem not to have even considered inviting the Vancouver branch of the otherwise defunct Canadian Civil Liberties Union.2 The delegates represented the traditional ideological divisions within the civil liberties community – the CRU members were mostly radical leftists, while the others were almost entirely liberals or social democrats. One member of the Ottawa group, which hosted the meeting, objected to the very idea of inviting Communists to a national conference, adding that ‘there was no place for them in a national civil liberties organization.’ According to the minutes of the meeting, these remarks ‘precipitated some heated debate.’ Yet, despite their ideological differences, the delegates were largely united as to what constituted the major civil liberties issues of the day. In addition to the Japanese-Canadian deportation issue and the Gouzenko affair, they expressed concerns about Quebec’s ‘war without mercy’ against Jehovah’s Witnesses, the continued existence of the Padlock Law, the use of injunctions and the Criminal Code to suppress strikes, censorship of books, and the endangered rights of civil servants in the new era of security screening. In addition, they showed a growing concern for egalitarian rights, decrying a number of recent instances of racial discrimination. They also discussed what was to become one of the major post-war issues – the need for a bill of rights. No conclusions were reached on any of these matters, however, and on the issue of a bill of rights there was considerable disagreement as to whether or not Canada really needed such a constitutional innovation. The delegates also agreed to set up committees that would work towards the creation of a national conference in the near future, as well as drafting a constitution for their as yet unnamed new national organization. They hoped to include the Winnipeg and Vancouver civil liberties groups in future discussions, as well as, ‘if it turned out to exist, the Quebec City Civil Liberties Association.’ There was also talk of forming ties with several other rights-related groups: the Cooperative Committee on Japanese Canadians, the Committee for the Repeal of the Chinese Immigration Act, the civil liberties section of the

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Canadian Bar Association, the Quebec and Ontario Committees for the Defence of Trade Union Rights, and the Ukrainian Civil Liberties Committee. Their ideological barriers notwithstanding, at this stage the Civil Rights Union and the Civil Liberties Association of Toronto were still capable of cooperation, and in late January they jointly sponsored a public meeting on civil liberties. The audience agreed to send Ottawa a resolution which urged that a parliamentary committee be set up ‘to investigate violations of civil rights in Canada, to hear representations from individuals and organizations on means of preventing future violations, and to make recommendations for a Canadian Bill of Rights.’3 At about the same time, Morris Fyfe of the Ottawa association was busy drafting the constitution for a national civil liberties organization, working closely with members of all the main groups: Frank Scott from Montreal, C.B. Macpherson of the CRU, George Grube of the Toronto organization, and David Owens of the Manitoba body. The planners this time included Hunter Lewis, an English professor at the University of British Columbia who represented the Vancouver branch of the CLU; as he wrote to Frank Scott, the VCLU had already decided on its own that Canada needed a national organization. In late April, representatives of most of these groups met in a second conference in Ottawa and approved in principle a draft constitution for a national civil liberties organization, to be called the Canadian Civil Liberties Council.4 The council remained only a proposal. For one thing, when Ottawa did indeed create a parliamentary committee to examine how our legal system could better reflect our international human rights obligations, many human rights activists saw this as a window of opportunity to lobby for the creation of a national bill of rights, a more pressing issue than the long-range plans for a national council. Toronto civil libertarian Andrew Brewin recommended to Frank Scott that the nascent council would not be able to organize a presentation and that the different organizations should create an ad hoc lobby group. His advice was followed, and civil libertarian energies were poured into a new entity, the Committee for a Bill of Rights (CFBR).5 In addition, the delegates to the civil liberties convention in the spring had split badly on the issue of open versus closed membership. Those who wanted a closed membership, the non-Communists, argued that the organization should be open only to those groups ‘un-

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selfishly interested in civil liberties,’ and they worried about losing public support if the proposed organization was seen as ‘being a front for the specific group which has an axe to grind.’ By contrast, the advocates of open membership claimed that ‘we cannot afford to make distinctions between those who are defending their own rights and those who are disinterestedly interested in civil liberties as a whole. They are all defending civil liberties. To refuse the latter the right to admission would deny to the national association valuable accessions of energy and funds.’6 This crucial division was rooted in differences of opinion about both strategy and ideology. As mentioned earlier, in the 1930s Frank Scott had argued in favour of creating a small organization focused on litigation and education rather than a mass movement capable of large protest meetings. Although Scott did not mention it, the tactics he suggested were tailor-made for influential liberals and social democrats, but not for Communists. The latter could rely upon thousands of dedicated members to turn up for a demonstration. Academics like Frank Scott, on the other hand, could be relied upon to write to politicians on a first-name basis, to argue the morality of certain laws in the public forum of the mainstream press, and to provide legal advice pro bono. It is not surprising that the non-Communists at the national conference were strong advocates of a closed system of membership. Of course, the non-Communists also feared that their organizations might be taken over by dedicated revolutionaries who trimmed their tactical sails to the shifting political winds of the Soviet Union. The wartime fate of the Montreal branch of the CLU was fresh in their memories. Like Sandwell, they had ‘no faith whatever in the honesty of any professed interest in civil rights by persons who believe in Marxism, the dictatorship of the proletariat, the one-party system of government, and the Leninist principle of the revolutionary vanguard.’ In its strongest form, this antipathy was phrased in terms of a suspicion of loyalty. For example, Sandwell’s growing scepticism about Communist loyalty was summed up in an editorial ‘Canadians or Communists?’ in 1948, when the Cold War international divisions had clearly gelled. This editorial was accompanied in the same issue by a cartoon showing a circus stuntman riding two horses, one labelled ‘Canada’ and the other ‘USSR,’ and proclaiming to a dubious audience, ‘You see, I can ride them both.’7 Finally, there was the issue of ‘respectability.’ As noted earlier, it was common for liberals or social democrats to fear that their reputa-

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tion, and ability to influence the authorities, might be limited by any taint of communism. The CCF activists were especially vulnerable to this, since many politicians (Duplessis being perhaps the best example) frequently confused social democrats with revolutionary socialists. But even liberals found it necessary to watch their step. Arthur Lower, newly relocated to Ontario, attended the public meeting at the end of January that had been jointly sponsored by the Civil Rights Union and CLAT. He later wrote to a good friend and civil libertarian colleague in Winnipeg, David Owens, that ‘it was a joint affair, but the Emergency Committee were the most prominent ... it was rather amusing to see good communists drinking a good deal of very bourgeois whiskey afterward in a big house in Rosedale.’ (This was almost certainly Margaret Spaulding’s home.) He warned Owens, however, that he (Lower) was playing a dangerous game, and that he would disassociate himself from the CRU members at the first whiff of public opprobrium: ‘I myself think that there is room for a good deal of tactical manoeuvring in such situations. It is best to keep completely clear of them [the Communists]. But as second best, it may pay to work with one of their “front” organizations until just before the point at which it is due to be “ticketed.” Once the label is put on an organization, its usefulness is ended, insofar as political circles, and the general public too, are concerned.’8 Nevertheless, it is hard to believe that the CRU could have worked with the non-Communists in any national civil liberties organization. The same kind of debate over open versus closed membership that had split the national conference on civil liberties also prevented the CRU from reconnecting with CLAT in early 1947. Moreover, the Cold War was engendering more of the ‘weak’ civil libertarianism that originally caused the ECCR/CRU to split from CLAT over the Gouzenko affair.9 Consider, for example, Sandwell’s Saturday Night editorial, written in the summer of 1947, about the refusal of Great Lakes shipping companies to employ members of the Canadian Seamen’s Union. (That the CSU was Communist-dominated became clear after former CSU leader Pat Sullivan confessed, in March 1947, that he had been a secret member of the LPP.) On this occasion, Sandwell presented an argument that stretched his civil libertarian principles to the point of rupture. He noted that he was worried about attempts to exclude Communists from trade unions, but his concerns were not that this was a violation of fundamental free speech or free association rights; rather,

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Sandwell used the classical liberal rule-of-law argument, noting that it was dangerous to limit the rights of those who belonged to a lawful organization. But then he added: ‘we are therefore inclined to think that a restoration of Section 98 of the Criminal Code, purged of some of its more outrageous provisions as to the methods of enforcement, would be a better way of dealing with the present admittedly dangerous situation. We were never opposed to the provision which made membership in the Communist party (in its proper definition of a tight secret society with revolutionary aims) an offence against the law.’10 While Sandwell was advocating serious limits on the rights of Communists, the CRU rolled up its sleeves and plunged into the fray. When the shipping companies locked out the CSU, angry protests by its members resulted in over fifty seamen charged with violations of the Criminal Code and the Canada Shipping Act. Because a number of these sailors had spent over a month in jail, unable to raise bail, the CRU arranged to provide $5,000 for the release of five of them and began working with other groups to raise further bail. Later, when the union members went out on strike against the shipping companies, and a number of seamen were again charged, the CRU supported the union in several ways, including invitations to explain their case at CRU-hosted public meetings. (This support, moreover, was reciprocal; in 1949 the CRU moved its headquarters into the Seamen’s Union office.) Between the classical-liberal civil libertarianism of people like Sandwell and the radical left-wing civil libertarianism of the CRU there stretched an enormous gulf.11 The CRU soon emerged as the most active and successful of the early post-war Canadian civil liberties groups. By 1947 it had a budget of almost $10,000 for newspaper advertisements, bulletins, legal assistance, and salaries. Then, in the spring of 1948, just as the Cold War was congealing, the group opened a campaign against civil liberties violations, taking out a full-page advertisement in a number of Canadian newspapers. Titled ‘This Is a Free Country,’ the advertisement referred to several current human rights violations, including the egalitarian rights issue of continued travel restrictions on Japanese Canadians, as well as a number of libertarian rights abuses, such as the harassment of Jehovah’s Witnesses in Quebec, the Prince Edward Island trade-union legislation that severely limited freedom of association, the sedition trials of radical unionists Madeleine Parent, Kent Rowley, and Azelus Beaucage in Quebec, the denial of school halls for LPP

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public meetings in Toronto, Duplessis’s renewed use of the Padlock Law, and the anti-Communist LaCroix bill. Above all, the advertisement also opened a CRU campaign for a national bill of rights.12 In addition, the CRU became increasingly concerned about the arrival of what Reg Whitaker has called a ‘national security state.’ According to Whitaker, ‘the national security state is a set of institutional arrangements, along with a set of attitudes appropriate to the working of those arrangements that re-create in peacetime many of the conditions that made national mobilization possible in wartime. The prerequisite is an acceptance of a state of continuing emergency: the national security state is founded upon permanent national insecurity.’13 One manifestation of the security-state mentality was Ottawa’s policy of ‘security’ testing, designed to weed out left-wing subversives from the public service. While mainstream civil libertarians either accepted or ignored this, the CRU strongly opposed it, although with little effect, partly because the government was able to implement the policy with minimal publicity.14 The rigorous defence of libertarian rights during this period also meant coming to the support of Communists or Communist fellow travellers, many of whom were alleged to be in the peace movement. For example, the CRU publicly objected to the muzzling of the great (but pro-Soviet) American black singer Paul Robeson; it intervened against the attempted deportation of Reid Robinson, the international vice-president of the Communist-dominated Mine, Mill and Smelter Workers of America; it protested the American government’s barring of Canadian trade unionists with a radical background who wished to attend international union conferences in the United States; it objected to police harassment of the Union of Unemployed Workers in Toronto; and it developed close ties with James Endicott and his Canadian Peace Congress, an allegedly Communist-front organization.15 One case in particular seems to illustrate the interests, problems, and activities of the CRU in the late 1940s – the William Patterson incident, arising out of a civil rights rally on 15 December 1948 in Toronto. The meeting was chaired by C.B. Macpherson of the CRU, and there were to be two speakers: Morris Biderman, the national director of the radical-left United Jewish People’s Order (UJPO), and William Patterson, an Afro-American civil rights activist who was the national executive secretary of the Civil Rights Congress, a Communist-dominated rival of the American Civil Liberties Union. Patterson had recently returned from a meeting in England of the Provisional

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Committee for a World Conference on Human Rights, and local activists were interested in hearing his report.16 William Patterson never gave his speech. When he arrived at the Ontario airport he was refused entry to Canada and held overnight. The following day he was released on a $500 bond, the condition of which was that he would refrain from making any speeches pending an examination by a board of inquiry. He appeared at the CRU-sponsored meeting but did not speak. Instead, his speech, which had been mailed before his departure, was read to the audience, and the CRU provided the press with a picture of Patterson wearing a gag as he stood beside Margaret Spaulding.17 At Patterson’s hearing the government relied on the testimony of its RCMP expert on communism, Inspector John Leopold. Well known as the officer who had once infiltrated the Communist Party and then testified at the trial of Tim Buck, Leopold maintained that the American Civil Rights Congress was a ‘subversive organization’ and that Patterson was a member of the Communist Party of Illinois. Patterson, who was represented by Norman Borins (one of the lawyers in the Noble and Wolf case), denied both allegations, but the board decided that he should not be admitted to Canada, on the grounds that he ‘believes in and advocates the overthrow of the government of Canada by force and violence, and of constitutional law and authority, and he advocates and teaches the unlawful destruction of property. He is a member of and affiliated with an organization entertaining and teaching disbelief in and opposition to organized Government and advocating and teaching the unlawful destruction of property.’18 Patterson then left the country, although the CRU retained as its lawyer the Liberal MP David Croll, who attempted to appeal the board’s decision to the minister responsible. The CRU, meanwhile, announced a national appeal for funds to pursue this case. With its customary attachment to the use of hortatory phrases, upper-case letters, and hyperbolic punctuation, the CRU ‘Information Bulletin’ referred to this as a ‘special and urgent appeal,’ concluding with the words: ‘DEFEND THE RIGHT OF FREE SPEECH IN THE PATTERSON CASE! GIVE YOUR CONTRIBUTION NOW! URGE YOUR FRIENDS TO SEND DONATIONS! COLLECT FUNDS FROM YOUR ORGANIZATION!’ Patterson’s appeal does not seem to have been successful, for the issue soon disappeared from the pages of the CRU ‘Information Bulletin.’ However, the group did manage to bring the incident to the attention of the Provisional Committee for a World Conference on

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Human Rights, which held a meeting in London in November, attended by delegates from a number of countries, including Canada. (Interestingly, the Canadian delegate was Agatha Chapman, the federally employed economist who had been tried but acquitted as a result of the Gouzenko revelations and who now was working in England.) As a result, the president of the Provisional Committee in London sent a protest, apparently futile, to the government in Ottawa.19 The Patterson incident illustrates the swiftly growing Cold War split between ‘left’ and ‘right’ civil libertarians. None of the other civil liberties groups protested against Patterson’s treatment, nor did the Canadian Forum address the issue. B.K. Sandwell devoted a short editorial to it, but he argued that since Patterson had no legal right to enter Canada there was no injustice. He also reiterated his belief that Communists were not entirely principled civil libertarians – ‘our Communist friends are most vociferous to the effect that no “Fascist beast” should be permitted to enter.’20 Nevertheless, during these early years of the ‘Red Scare,’ when many Canadian radicals still believed that stories about Stalinist excesses were merely capitalist propaganda, and before most of the Communists had been driven out of Canada’s trade unions, the CRU seems to have been a moderately successful organization. It was not, of course, ever considered a completely ‘respectable’ group, but it was certainly active. Its volunteers and paid staff managed to produce a regular bulletin, ‘Civil Rights,’ as well as a weekly ‘Information Bulletin’ going out to 4,000 trade union locals and other groups. It also ran fullpage advertisements in newspapers and, of course, lobbied governments, held public meetings, and wrote letters.21 One reason for the CRU’s success is that it attracted those in ‘the movement.’ A person reading only the Communist Canadian Tribune would have concluded that the CRU was almost the only civil libertarian organization in Canada. Moreover, the RCMP reports on the CRU contain many translations of articles from the Communist ethnic press which strongly encouraged people to support the CRU and its later umbrella organization, the League for Democratic Rights. The benign neglect and occasional criticism by the mainstream Canadian press was thus offset by articles for the true believers within the movement.22 Support from certain Communist-dominated trade unions no doubt also shored up the CRU. As noted earlier, CRU executive member C.S.

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Jackson was the president of the United Electrical Workers, and the organization also had close ties to the Canadian Seamen’s Union. Moreover, at least in the early stages of the Cold War, before the outbreak of hostilities in Korea, some organizations and people had not yet succumbed to the rhetoric that identified all radical left-wing organizations as enemies of freedom. The records of the CRU indicate, for example, that in addition to the above-mentioned public meeting which it co-sponsored with CLAT in January 1947, it also took part in a large delegation to the Toronto police commissioner’s office, asking for a ‘no discrimination’ policy in licensing restaurants, theatres, skating rinks, and dance halls. Then, in 1948, it joined with a number of clergymen to protest the arrest of radical union organizer Ross Russell, and the same year it cooperated with the Fellowship for a Christian Social Order in providing a venue for a speech by the radical pacifist Harry Ward. In addition, in early 1949 it hosted a ‘Freedom Festival’ at which the CBC broadcasters Lister Sinclair and Lorne Greene were to appear, and in 1950 one of the guest speakers at a CRU meeting protesting the padlocking of the headquarters of the United Jewish People’s Order in Montreal was none other than E.B. Jolliffe, the leader of the Ontario CCF.23 Another strength of the CRU was its use of rhetoric in advertisements and broadsheets. Although initially the ECCR advertisements and language had employed the traditional concept of ‘British liberties,’ using ‘Magna Carta day’ as its symbolic hook, the CRU tended to avoid this fundamentally conservative discourse. For example, one of its pamphlets was titled ‘Freedom Is Your Affair, and So Are Civil Rights!’ Instead of any mention of British liberties, it contained a number of references to ‘civil liberties’ or ‘civil rights,’ as well as the new concept of ‘human rights.’ All of this was presented as part of a democratic discourse: ‘We believe that Canada needs a strong united Civil Rights organization alert to infringements of human rights, to defend and extend the democratic rights of all Canadians.’ These were words with which most Canadians could identify, not just those of British extraction.24 There were other reasons why the CRU was one of the most active civil liberties organizations in Canada from 1946 to 1949 – the commitment of its members, its central location in Toronto, and the weakness of the alternatives. In the late 1940s the other Toronto civil liberties organization was a social-democratic/liberal rump, finding it increasingly difficult to achieve a quorum at meetings. Despite the

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efforts of president George Tatham, it had become virtually moribund, except for the activities of one subsection, the Committee for a Bill of Rights.25 But it was not just the emasculated CLAT that was in decline. All of the non-Communist civil liberties groups either disappeared or weakened. Tensions between Communists and non-Communists in the organizations often erupted into bitter internecine squabbling. Moreover, increasing fears in Canadian society about ‘the enemy within’ – alleged Communist infiltration – served to erode the commitment to libertarian rights. Finally, after the Gouzenko affair there was little that inflamed the passions and generated massive public support. The Vancouver organization, for example, provided further support to Japanese Canadians in British Columbia, took a strong stand on the status of native Indians in Canada, and joined the campaign for a bill of rights. Occasionally it supported the rights of radicals, criticizing the treatment of the Communist-dominated Canadian Seamen’s Union or protesting the firing of an allegedly left-wing music teacher by the Vancouver Parks Board, but its commitment to civil liberties was undermined by Cold War tensions. Although it took action in the Martin case (where the British Columbia Bar Association refused to allow a Communist to practise law), and even set up a ‘Gordon Martin Fund’ to pay for litigation, it later dropped the case altogether, apparently in part because it became too controversial.26 There was a new civil liberties group in Vancouver by this time, but it was not much more active than the established one. By February 1947, students at the University of British Columbia had formed their own branch of the largely defunct Canadian Civil Liberties Union, the UBC-CCLU. They first campaigned for the enfranchisement of Japanese Canadians and then turned their attention to the struggle for a bill of rights. Sometimes the organization also dealt with Cold War issues, such as the Martin case or the problems of John Marshall (a librarian in Victoria who was hounded out of his position because of his activities in the peace movement), but there is no evidence that it was ever effective.27 The Civil Liberties Association of Manitoba also continued to operate in a low-key fashion. Much of its interest was focused on the struggle for a bill of rights, but it was also concerned with such matters as the treatment of Japanese Canadians and the LaCroix bill, as well as certain local issues, such as the arrest of a local Canadian National Railways train operator (following a railroad wreck) and dis-

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crimination against Hutterites. It does not, however, seem to have played a major role comparable to its activities in the war and early post-war period.28 The Ottawa Civil Liberties Association seems to have disappeared from view altogether. Although it had about two hundred members in 1946, its ranks soon dwindled. The Ottawa group found it difficult to retain support in a town of civil servants, at a time when political activity by bureaucrats of any sort was frowned upon by government, and an OCLA plan to launch a campaign for the rights of civil servants was unsuccessful. Moreover, the group became the focus for bitter infighting between Communists and non-Communists. In early 1947 the organization’s president, J.P. Erichsen-Brown, wrote to Frank Scott, telling him that ‘the Commies turned out all their cohorts in town’ for the last general meeting, and voted him off the OCLA council. He noted that the association was still controlled by non-Communists, including the new president, Morris Fyfe, but he remained worried. He added, ‘No civil liberty association can be organized in Canada to perform a really useful function and have any long term of life unless it has a selected membership with strong constitutional guards against Communist infiltration.’29 Perhaps OCLA never created such a constitutional firewall; the records are not complete. In any case, for some reason the organization appears to have died in 1948 or the following year, and although it was temporarily revived in 1950, it died once and for all soon afterwards.30 The Montreal Civil Liberties Association was also a failure. In 1947 it had taken in membership fees of almost six hundred dollars and spent double that on newspaper advertising. However, by 1948, the executive of the organization noted that it was less active than in the past and was having considerable difficulty recruiting in the francophone sector of the city. The organization was still in existence in 1950, but Frank Scott lamented that there were few members. Part of the problem seems to have been the impossibility of long-term cooperation between the left and the right; Scott’s organization was being supplanted by a CRU-affiliated ‘Communist front’ organization, the Montreal Civil Rights League (later renamed the Montreal Civil Liberties Union [MCLU]), a group created in 1948 in response to the renewed use of the Padlock Act by Premier Duplessis. Radical left crusaders were replacing middle-of-the-road volunteers.31 Only in Toronto did the latter finally make a comeback. The rag-tag remnants of CLAT decided that they would, once again, try to create a

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national civil liberties organization. In preparation, Irving Himel asked the ACLU to send him current materials, including a copy of its constitution, and in March 1949 several activists in the Committee for a Bill of Rights called a founding meeting of a new group with a subtle name change – the Toronto Association for Civil Liberties. Informally (since they had pretensions to national status in the near future), they usually referred to it as the Association for Civil Liberties.32 As many as three hundred people turned up at the founding meeting of the ACL. Like its antecedent, the ACL was a ‘respectable’ organization; its first chair was R.S.K. Seeley, the Anglican minister at Trinity College; its treasurer was W.P. Jenkins, a Unitarian minister; and the chair of its Committee for a Bill of Rights was the ubiquitous B.K. Sandwell. Among its list of vice-presidents were Mrs W.L. Grant and Joseph Sedgwick (‘an eminent lawyer of impeccable Tory credentials’), and the Liberal MP David Croll consented to serve on its council.33 The organization also attracted the usual smattering of social democrats; its executive and council included such well-known people as Charles Millard, Andrew Brewin, E.A. Corbett, George Tatham, and the economist Harold M. Cassidy. It also included a number of CCF politicians: E.B. Jolliffe, Eamon Park, and Lloyd Fell. The ACL’s membership indicated strong connections to the postwar egalitarian rights community and minority ethnic groups. For example, one of its vice-presidents was the JPRC activist Rabbi Feinberg, and other important members included the Reverend James Finlay of the CCJC and George Tanaka, national executive secretary of the recently formed Japanese Canadian Citizens Association. But the ACL was not a completely open organization. Fear of Communists ensured that membership was constitutionally forbidden to members of other civil liberties groups. In addition, the real power was held by its executive council; the members were to have no say in the day-to-day administration of the organization. As a result, as long as the ‘respectable’ liberals and social democrats could turn out enough members each year to elect their candidates to the council, the ACL would be relatively free of suicidal wrangling between the left and right.34 Much of what the ACL did over the next few years involved support for the campaigns demanding anti-discrimination laws. Yet it was concerned with a number of other libertarian rights issues: the Professor George Hunter academic freedom case (involving the dismissal of a biochemist from his university position on the grounds

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that he had made ‘radical’ and pro-Soviet statements in the classroom); international support for the Universal Declaration of Human Rights; freedom of political speech on the CBC; freedom of speech for the controversial ‘Red Dean’ of Canterbury who was touring the country, and for the Toronto Symphony Six who were banned from entry to the United States because of allegedly pro-Communist sympathies; federal amendments to the Criminal Code directed against subversion; the Ontario penal system; and the Padlock Law and other egregious civil liberties violations in Quebec such as the treatment of Jehovah’s Witnesses. In addition, its briefs to government included references to a number of other civil liberties issues, including censorship of the National Film Board in both Quebec and Alberta, federal import prohibitions against books by prominent authors such as Norman Mailer, James T. Farrell, and James Joyce; mob violence against both Jehovah’s Witnesses and Baptists in Quebec; anti-union legislation in both Prince Edward Island and Quebec; individual cases where criminal justice rights had been violated by the police in Ontario, including unjustifiable denial of the right to bail in strikes involving the Steelworkers and the Canadian Seamen’s Union; the continued disenfranchisement of aboriginal peoples; and governmental discrimination against the Hutterites in the west.35 Throughout this period there was one single unifying thread in the ACL – the continued presence of its voluntary secretary, Irving Himel. As noted earlier, Himel had worked with CLAT in the 1940s and then participated in the process by which it was reborn as the ACL. He was the new organization’s secretary until the early 1960s, when he once again took part in an institutional transformation, this time helping to produce the Canadian Civil Liberties Association, an organization which has continued until the present.36 The ACL’s strength was also its weakness; usually running it out of his law office, Himel was an indefatigable worker who kept the organization alive even when other volunteers fell away, but at times it appeared to be a letterhead organization run mostly by a single man. Unlike the Canadian Jewish Congress, or the Jewish Labour Committee network, the ACL lacked professional staff, a large pool of volunteers, and secure funding. Yet it did have one important financial source, the Sarco company in the United States, a business that manufactured ‘steam traps’ and had set up branch plants in a number of countries, including Canada. In the late 1940s the sole owner, Clement Wells, was in the process of

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handing over his companies to his employees, and he also wanted some of his profits to go towards the cause of civil liberties. As a result, in 1949 Wells’s brother, of Sarco Canada, wrote to McGill University asking for help in distributing the funding. The principal of the university handed the letter to Frank Scott, who recommended that the money go to the ACL. In early 1950 Himel wrote to Scott, thanking him for his recommendation, and noted that the association had ‘received a very generous contribution ... which brings us a little closer to our goal of establishing a permanent office for our work, with a permanent executive director in charge.’37 For reasons that are not clear, this never came about. Perhaps the ACL was hoping that it would first become the nucleus of a national organization. The word ‘Toronto’ had been eliminated from the organization’s letterhead, and the members were calling themselves ‘the Association for Civil Liberties.’ In addition, Himel was asking groups such as the Canadian Jewish Congress and the Japanese Canadian Committee for Democracy to become affiliate members, and suggesting to Frank Scott in Montreal that his organization join in the formation of a national association. As Canada entered the second half of the twentieth century, it looked as if the country might indeed be on the verge of developing a Canadian equivalent of the ACLU.38 However, the CRU had its own plans to create a national civil liberties organization. By 1950, it was obvious that there was no chance of a reconciliation between ‘right-wing’ civil liberties groups and the CRU. Moreover, the Senate committee on human rights and fundamental freedoms was soliciting input from organizations, an opportunity for any national group to state its case. As a result, on 21 April 1950, the CRU executive convened a meeting in Toronto, along with the Communist-front Montreal Civil Liberties Union and another group called the Labour Defense Committee of Timmins. The result was a national body called the League for Democratic Rights, the purpose of which was ‘to act as a coordinating unit to draw together all the organizations all over Canada that were fighting to defend and extend our civil rights.’ Four days later the LDR presented its first brief to the Senate committee.39 From the beginning, the LDR was largely shunned by the non-Communist civil liberties organizations, but seventeen months later its letterhead claimed twenty-four affiliated branches, from Sydney, Nova Scotia to Vancouver. In 1953 it boasted ‘branches, committees, or affiliates in 31 centres across the country.’ This latter figure may have been

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somewhat inflated, but an examination of the LDR’s financial reports indicates that the organization expected, and received, regular donations of money from most of these groups, with Montreal and Toronto giving the most, followed by the Vancouver branch. In addition, it received regular infusions of money from a number of radical leftwing groups and unions, such as the United Jewish People’s Order, the United Electrical Workers, the Mine-Mill trade union, and the United Mine Workers of America. In short, the LDR could legitimately claim to be Canada’s only national civil liberties organization, although one severely truncated by the absence of the ‘right-wing’ organizations in Montreal, Toronto, Winnipeg, and Vancouver.40 The LDR’s public face was that of a ‘non-partisan, national organization concerned solely with helping to defend and extend democratic rights in Canada,’ but it was commonly regarded as a Communistfront organization. After all, it frequently came to the aid of Communists, it received considerable publicity in the pages of the Canadian Tribune, and it was able to call upon the LPP for volunteers to help organize meetings, pass out pamphlets, and so on. Moreover, it adopted some of the nationalist symbolism of the LPP, which was eager to woo the workers with references to the two nineteenth-century Canadian radicals who represented both of the ‘founding races’ – the rebels of 1837, William Lyon Mackenzie and Louis-Joseph Papineau. According to an RCMP report, at the LDR’s 1951 annual general meeting, two large pictures of these icons were predominantly displayed, and the LDR pamphlet ‘Our Heritage of Liberty’ also opened with pictures of Mackenzie and Papineau. Above all, the local leaders of the party were frequently exhorted by the national leadership, through letters and memoranda, to get the rank and file firmly behind the LDR.41 In addition, some of the LDR executive members were also members of the LPP. Beckie Buhay, for example, served as the chair of the LDR organizing committee. A leading member of the CPC/LPP in Toronto who had come to Canada just before the First World War, who had been the second-in-command of the Canadian Labor Defense League in the 1930s, and who during the war had co-chaired the CLDL’s successor, the National Council on Democratic Rights, she usually remained in the background at LDR meetings, no doubt so as to maintain the image that it was a truly non-partisan organization. Moreover, her name never appeared on any of the LDR’s pamphlets or letterhead.42 Another person working with the LDR was David Kashtan. (Unfortunately, several histories of Canadian communism have confused him

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with his older brother, Bill Kashtan, who later served as leader of the Communist Party after the retirement of Tim Buck.) David Kashtan had been active in the Communist movement since his teenage years. In the 1930s he served as national secretary of the Workers’ Sports Association of Canada, a Communist-dominated body that struggled against the tendency of organized sports to draw people away from the class struggle, and he was also for a while the national secretary of the Young Communist League. In 1931 he was one of the people convicted in what Frank Scott called the ‘Montreal sedition cases’ and spent a year in Bordeaux jail. During the Second World War he managed to escape the authorities until the alliance with the USSR made it safe to come out of hiding. Then, in the early 1950s, he served on the CRU executive and played a leading role in the campaign to free Ethel and Julius Rosenberg, the famous couple who were finally executed by the United States government for espionage.43 But the leadership of the LDR, like that of other Communist-front organizations, was not simply filled with party functionaries. Most of its activists were either members of ‘the movement’ or people who were undeterred by Cold War ideological schisms. For example, the first co-chair was Margaret Spaulding, the Rosedale socialite who had helped found both the ECCR and the CRU. As noted earlier, although Spaulding was certainly sympathetic to certain elements of Marxist ideology, she was by no means a weak-willed follower. The other co-chair was Edmond Major, who also served as the president of the Montreal Civil Liberties Union. Major referred to himself before a parliamentary committee as an insurance salesman, but one LDR pamphlet described him as a war veteran who had attended university and at different times been an organizer with the Canadian Congress of Labour in Montreal, the Industrial Workers of the World (IWW), and the United Electrical Workers. (The latter two unions were widely known as left radical.)44 The LDR executive secretary was Thomas Roberts, a former secretary of the Edmonton Labour Council (CCL) who had run for civic election in Edmonton as a member of the LPP. He had also been active in the Canadian Youth Congress and worked in several organizations, many of them fairly left wing, such the IWW, the Amalgamated Building and Construction Workers, Mine-Mill, the Alberta Farmers Union, and the People’s Cooperative Bookstore Association in Vancouver.45 Yet another activist in the LDR was Roscoe Rodd, who was co-chair by about 1951 and national chair by 1953. A lawyer and king’s counsel from Windsor who had been a member of the Fellowship for a Chris-

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tian Social Order before the war, he had been the national co-chair of the CRU and was married to Nora Rodd, an activist in the FCSO during the war and then in the Canadian Peace Congress during the 1950s. His own sympathies for the peace movement had increased his ties to the LPP, and the result was that he lost his position as county solicitor. Rodd then took a leading role in the LDR for some years; a number of his speeches may be found in different archival holdings, speeches that for the most part are verbose, legalistic, and full of the increasingly archaic ‘British liberties’ rhetoric.46 One of the LDR’s vice-chairmen in 1952 was James Garfinkle, formerly a member of the CRU. Garfinkle had been attracted to Communist ideas during the Depression and in 1936 he became involved with Norman Bethune’s Youth Club, which supported Canada’s unofficial anti-fascist troops, the Mackenzie-Papineau Battalion, fighting in the Spanish Civil War. He graduated with a degree in chemistry from the University of Toronto, but, instead of settling into a life of middleclass professionalism, he worked as a union organizer in the textile industry in Toronto. When war broke out he enlisted, went overseas, and was wounded. On his return, he went back to university and obtained a law degree. He was active in the Canadian protests against the execution of the Rosenbergs and spoke at their gravesite memorial on behalf of Canadians. Garfinkle was attracted to Marxism for idealistic reasons and left both the CRU and the LDR at some point in the 1950s when he felt that they were too favourably inclined towards the USSR, rather than acting as truly principled civil liberties organizations.47 Notwithstanding its radical leadership during the early 1950s, the LDR took on a wide variety of civil liberties issues. Some of them were matters eschewed by the non-Communist civil liberties groups: the rights of suspected Communists trying to enter Canada, the banning of Communists from the Toronto school system, the treatment of Paul Robeson, the execution of the Rosenbergs, and police harassment of peace activists. Others, however, were the same issues that were important to liberals and social democrats. For example, the separate briefs of CLAT and the CRU to the Senate special committee on human rights and fundamental freedoms in 1950 indicate that, in addition to a common support for a national bill of rights, both groups were concerned with discrimination against blacks in Dresden, Ontario, the treatment of Jehovah’s Witnesses in Quebec, and the running sore of Canadian civil liberties – the Padlock Law.48

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Perhaps the LDR’s most intensive campaign began when the federal government proposed a number of changes to the Criminal Code. Many were relatively non-controversial, but some of them generated considerable public debate for they touched upon basic rights of free speech and association, as well as more narrow-range rights such as labour’s right to strike and picket. The government’s proposals were another step in the creation of the ‘national security state,’ and as such they generated considerable opposition. While much of this came from liberal and social-democratic moderates, most of it came from the far left and the LDR. The political context of these proposals is important. The ‘big picture,’ of course, was the Cold War, which led to efforts by a number of countries, especially the United States, to trample on the civil liberties of their indigenous Communists. Most of this pressure came from those on the right. In Canada the Liberal backbencher Wilfrid LaCroix frequently proposed criminalizing the LPP, and George Drew, no longer Ontario premier but now federal Conservative leader, called for the criminalizing of ‘Communist and similar activities.’49 As Reg Whitaker and Gary Marcuse have pointed out, however, Canadian right-wingers were not unanimous in demanding the criminalization of the LPP. Such bastions of conservatism as the Financial Post and Canadian Business tended to agree with Solon Low, national leader of the Social Credit Party, who said that ‘[communism] is something that cannot be banned by an act of parliament ... It is only when that state of mind is translated into action which may be a threat to the security of the nation that we can get at it through process of law.’ Even the RCMP, traditionally one of the most anti-Communist elements of the government, argued against a blanket prohibition – permitting Canadian Communists to organize publicly made it easier to keep an eye on them by means of undercover agents and informers.50 This right-wing ambivalence about criminalization, along with the fact that Britain refrained from banning its Communist Party, made it unlikely that Canada would repeat its Second World War policy on communism. In addition, the most conservative of provinces, Quebec, resurrected its Padlock Law during the late 1940s and early 1950s; this reduced pressure on Ottawa to ‘do something’ about the LPP. And finally, it is important to remember that the executive dominates government politics in Canada. With a strong majority in the House of Commons, and the tradition of party discipline, the Liberal government of St Laurent was able to defuse any attempts by right-wing

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political entrepreneurs such as George Drew to propel the nation into a maple leaf version of ‘McCarthyism.’ Government amendments to the Criminal Code, were, as Whitaker and Marcuse have pointed out, more symbolic measures than anything else, mere ‘legislative bones to throw to the anti-Communist wolves.’51 The federal amendments to the Criminal Code, however, were preceded by a series of ‘emergency’ measures. As noted earlier, in the fall of 1945 the federal government created a National Emergency Transitional Powers Act, which, somewhat like the War Measures Act, granted Ottawa and the executive branch extraordinary powers. This legislation continued in force until 15 May 1947, whereupon Parliament passed a Continuation of Transitional Measures Act, which referred to a continuing ‘national emergency arising out of the war’ and the need ‘to ensure an orderly transition from war to peace.’ This legislation consequently gave Ottawa certain special powers, and it was continued in force by means of orders-in-council until March 1951. By then the Cold War was in full spate, with an all-out conflict taking place in Korea. (Stories about the perils of both international and domestic communism were frequently appearing in the press, including one in Saturday Night by the sports columnist Scott Young, an article provocatively titled ‘Should I Keep My Commie Friend?’)52 In response to the Korean situation, the government of Prime Minister St Laurent introduced the Emergency Powers Act in order ‘to regulate the economy of Canada to meet the needs of defence and to ... safeguard it from disruption.’ This bill affirmed that it was not desirable to use the War Measures Act to interfere with the ‘fundamental liberties of the individual,’ but it granted the cabinet the power to issue orders-in-council ‘for the security, defence, peace, order and welfare of Canada’ as long as they did not relate to arrest, detention, exclusion or deportation, or the censoring of publications.53 Ottawa then proceeded to tighten its control over subversive elements by means of ordinary legislation. For example, Canadians were not officially at war; the country was engaged in ‘hostilities’ only by virtue of its support for the United Nations in South Korea. This meant that the traditional law of treason, which in part prohibited assistance to any enemy at war with Canada, was inadequate to deal with those who might help the North Koreans or the People’s Republic of China. As a result, Minister of Justice Stuart Garson introduced Bill 391, which, among other things, broadened the definition of treason to include ‘assisting, while in or out of Canada, any enemy at war with Canada,

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or any armed forces against whom Canadian forces are engaged in hostilities whether or not a state of war exists between Canada and the country whose forces they are.’54 The fact that ‘assistance’ was not explicitly limited to actions rather than words worried a great many people, including the LDR. In the context of the times, it could be seen as a way of putting a chill on the right to express opinions, especially the opinions of people in the peace movement who were critical of the government’s involvement in the Korean War. Several other sections of Bill 391 were intended to change what the Criminal Code calls ‘Offences against Public Order.’ First, Ottawa proposed a law against sedition. At that time, the Criminal Code contained no definition of sedition, although it listed three different offences: uttering seditious words, seditious libels, or engaging in seditious conspiracies. The meaning of sedition was determined by the common law, which was not entirely clear but seemed to include two different aspects: using speech that either brought government into contempt or created ill-will and hostility among citizens. With Bill 391, the government planned to punish sedition more severely than previously by raising the maximum term of punishment from two to seven years and it also planned to create a new seditious offence – wilful interference with the loyalty or discipline of members of the armed forces or the RCMP. This new offence was to be punishable by five years’ imprisonment.55 Another part of Bill 391 dealt with sabotage and prohibited interference with property or machinery in any way that would endanger the safety or security of Canada. This also criminalized interference with property or machinery of any state ‘lawfully present in Canada’; it was obviously aimed at protecting United States armed forces stationed in Canada as part of the Cold War defence system. The penalty for a violation was a maximum of ten years’ imprisonment.56 The third element of Bill 391 that had implications for civil libertarians was not self-evidently connected to Cold War issues – it expanded the search powers of the police, giving them the right to enter and search any premises other than a dwelling house, without a search warrant, if they believed ‘on reasonable grounds’ that this would help investigation of firearms violations. Responses to the legislation demonstrate how the Cold War had polarized the civil liberties community in Canada. As B.K. Sandwell wrote in Saturday Night, the changes did not attract much attention

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‘from anybody except lawyers and communists,’ and Sandwell himself expressed only mild apprehension about the changes in the law. (He did, however, provide moderately strong approval of the LDR’s criticisms some time later.) Similarly, the Globe tended to support Ottawa, or at least downplayed the legislative defects, while the Ottawa Citizen was more critical but on the whole not very worried.57 In the House of Commons, although CCF MP Angus MacInnis worried that the legislation was being passed in an atmosphere of ‘hysteria,’ and John Diefenbaker warned that some of the changes were potentially ‘dangerous,’ neither of them could muster effective opposition. Indeed, Diefenbaker supported the general thrust of the changes and in some fields advocated even stronger powers for the state. The strongest dissent in Parliament came from Senator Arthur Roebuck, but he was largely ignored, except by the Communists, who made widespread use of his comments in their protest literature.58 In fact, the government was charting a rather moderate course that, while not entirely satisfactory to the civil libertarians within the House, certainly did not please the anti-Communist ‘hawks’ on the opposition benches. As federal minister of justice Garson noted, the term ‘assistance’ in the new section on sedition applied only to physical acts rather than to speech; this, he said, was the way in which the judiciary had so far interpreted the term in other similar sections of the Criminal Code. Garson also showed restraint when Conservative MP Davie Fulton asked him if the proposed new section could be used to prosecute Nora Rodd, the peace activist married to the LDR chair. Mrs Rodd had recently returned from Korea and then in a radio broadcast made remarks highly critical of the UN’s action. The minister indicated (albeit hesitantly) that the law would probably not apply to such a case.59 It is also worth noting that the government had originally planned to make the anti-sedition law even more Draconian, but its later moderate approach did not come about because of any tender concerns for civil liberties. It had seriously considered making mere membership in a seditious organization a criminal offence but was told by the RCMP that this would encourage widespread prosecutions of Communists which in turn would drive the party underground where it would be difficult to monitor.60 The legislation soon passed in the House, moved quickly through the Senate (notwithstanding Senator Roebuck’s strong dissent), and received royal assent on 30 June 1951. Publicly at least, the radical left was alarmed. LPP leader Tim Buck suggested that the bill was a seri-

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ous ‘internal threat against Canadian democracy,’ as well as part of a scheme to make Canada subservient to the United States and ‘plunge Canada into an aggressive imperialist war for the profit and aggrandizement of U.S. imperialism.’ At about the same time, the LDR and its constituent member organizations called the legislation ‘a most dangerous encroachment upon the rights of Canadians – rights considered to be inalienable.’ Over the next few months they attempted to rouse Canadian opinion against what they called the ‘Garson amendments’ to the Criminal Code, publicizing the changes by means of broadsheets, newsletters, advertisements, and public meetings, and drawing extensively upon the criticisms of the legislation that had been expressed in both the House of Commons and the Senate.61 LDR criticism, however, was frequently inflated, no doubt the better to get public attention and support. The LDR’s pamphlets never mentioned that in 1954 the government also eliminated certain offences against the state, although admittedly most of them were dead letters. For example, it did away with the section on the taking and administering of unlawful oaths for the purpose of committing a seditious offence, and it also abolished the anachronistic offence of publishing a libel that tended to degrade a foreign sovereign. Similarly, the amendments repealed the archaic treason offences of killing or forming an intention to kill either the eldest son of the sovereign or the queen consort, or violating a queen consort or wife of the eldest son of the ruling sovereign. It also was no longer a crime to instigate a foreigner to invade Canada (or the United Kingdom), to levy war if one were a foreign citizen of a state at peace with the sovereign (or to assist the foreigner), to form an intention to depose the sovereign or levy war against the sovereign, or to incite any foreigner to invade Canada (or the United Kingdom). The LDR could also be mischievously alarmist. For example, one broadsheet suggested that the legislation was passed with precipitous haste, MPs spending ‘less than ten minutes’ on the first reading of the bill. Since first reading is always pro forma, it is hard to take this remark seriously. Similarly, when the LDR suggested that the new law was a dangerous violation of free speech whereby criticism of the government might be construed as a form of ‘assistance’ to the enemy, it failed to point out the justice minister’s assertion that the term ‘assistance’ was traditionally applied only to non-verbal behaviour.62 On the other hand, the LDR’s concerns about the sabotage provision of the new law were grounded in a realistic fear that it might be used as an anti-strike provision. Over time the mainstream trade-union

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groups came to the same conclusion and later successfully pressured the government to amend the bill so that it could not be used to prosecute those engaged in legitimate strikes.63 Then, in 1952, the LDR was faced with a second set of Criminal Code proposals, some of which incorporated the 1951 changes and some of which presented new challenges. In 1949 the federal government had begun the first major revision of the Criminal Code since its creation in 1892, appointing a revision committee with a mandate to produce a draft bill. The committee report was tabled in the House in the spring of 1952, and the proposed Criminal Code changes were shortly afterwards introduced into the Senate as Bill H-8. Although the revision committee had been instructed not to make substantive changes to the criminal law, and simply to create a more streamlined and up-to-date codification, in some instances this proposed draft introduced major changes.64 The LDR was forced many times to redirect and rethink its attacks over the next few years, for the proposed new statute moved through an extremely lengthy and convoluted legislative process – it died on the order paper while in the Senate, was reintroduced as Bill 0 into the Senate, and became Bill 93 when it went back to the House of Commons. According to the LDR, some of the Senate amendments improved the protection of civil liberties, but some had the opposite effect. Senate changes welcomed by the LDR included: removing from the treason section the crime of conspiring with agents of a foreign power to do anything prejudicial to Canadian interests; deleting the RCMP from the section which gave that body, along with the armed forces, special protection against those who counsel any form of disloyalty or insubordination; and inserting the term ‘wilfully’ into the clause prohibiting any impairment of the ‘loyalty or discipline’ of an armed force. One of the changes especially disliked by the LDR imposed the mandatory death penalty for certain crimes of treason.65 Once back in the House, the bill was referred to a parliamentary committee which received briefs and held meetings with interested individuals and pressure groups. When the committee tabled its report in May 1953, it recommended several changes to the law. But the St Laurent government called an election, and therefore the entire process came temporarily to a halt. In November, with the Liberals back in power, yet another draft of the Criminal Code was introduced

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into the House of Commons, and in early 1954 Parliament was examining the details of the new legislation – now called Bill 7. By 26 June, the bill had finally passed through both houses and received royal assent, coming into force on 1 April 1955. This legislation was roundly denounced by the LPP (with one memorable Canadian Tribune headline announcing ‘Their Viciousness Shows Their Fear’), but the fight was primarily carried by the LDR. Throughout the two years between the first reading of Bill H-8 and the finalization of Bill 7, the LDR and its affiliates engaged in what was one of the largest and best-publicized civil liberties campaigns of the Cold War era. At the same time, this campaign was intertwined with at least two of the LDR’s other main causes. For example, the 1951 broadsheet, ‘The Recent Amendments to the Criminal Code,’ ended with an argument in favour of a bill of rights, while Thomas Roberts argued disingenuously at a ‘Save the Lives of the Rosenbergs’ rally in 1952 that if Bill H-8 passed there might be Canadian Rosenbergs executed by the state.66 In September 1952 the LDR national executive held a ‘special enlarged meeting’ to discuss the Bill H-8 campaign, involving the raising of at least $3,000 by the local associations, half of which was to be forwarded to the national office in Toronto. It was agreed that this campaign would include such activities as educational meetings with trade unionists, local conferences, visits to local MPs, and the distribution of literature.67 The LDR used a variety of techniques to get its message across. Sometimes it sent out letters to trade-union locals asking them to get involved in the campaign. At other times it issued press releases and paid for large newspaper advertisements, such as the one in the Globe on 14 June 1952, entitled ‘Canadians Will Never Be Silenced.’ Frequently the LDR distributed protest postcards and pamphlets such as ‘Strike Penalty – Ten Years in Jail,’ ‘It’s a Crime’ or ‘It’s Still a Crime,’ and ‘Protect Our Democratic Rights.’ The postcards were printed without the name of any organization on them, and the LDR claimed to have produced several thousand, many handed out at factory gates to Canadian workers and others ordered by local union leaders. The pamphlets, on the other hand, were clearly identified as LDR material, and the organization claimed to have printed and distributed hundreds of thousands of them in 1952 and again in 1953. In addition, when the House was going through its clause-by-clause analysis of

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the legislation in the spring of 1954, the chair of the LDR, Roscoe Rodd, made a speaking tour of western Canada, attempting to stir up opposition to the more objectionable elements of the bill.68 The LDR also presented a lengthy brief to the special House committee on Bill 93. This delegation, which included Thomas Roberts, Roscoe Rodd, and James Garfinkle, received a rather cool reception from the members of the committee, notwithstanding the fact that their brief adopted a tone and style different from that used in the LDR pamphlets and broadsheets, giving an extremely detailed and competent analysis of those sections of the bill that the LDR believed were either too harsh or too open to abuse.69 The LDR’s overall criticism of the Criminal Code amendments is difficult to summarize, because the organization occasionally shifted its focus, sometimes without any apparent reason, and also at times responded to changes introduced at different stages in the course of the legislation’s passage. The arguments concentrated, however, upon the sections of the bills dealing with treason, sedition, sabotage, mischief, and criminal breach of contract (especially where the remedy interfered with the right of transport and utility workers to strike). The LDR opposed the treason sections in the different versions of the legislation primarily for the same reason it had opposed the 1951 Criminal Code changes – the proposals extended the principle of treason as a capital offence to situations in which the country was not formally at war. However, with Bill H-8, the offence of treason was broadened once again, so that the law would now be directed at any person who ‘conspires’ to assist an enemy or even ‘conspires with an agent of a state other than Canada to communicate information or to do an act that is likely to be prejudicial to the safety or interests of Canada.’ These conspiracy clauses, along with another clause that made it a crime to ‘form an intention’ to conspire to do any of the prohibited treasonable acts, gave the authorities extremely wide-ranging powers. As the LDR pointed out, to make these activities peacetime crimes was bad enough, but it was unconscionable to attach the death penalty to them. (The LDR did not point out, however, that the subsection dealing with ‘forming an intention’ was explicitly qualified by the phrase that the intention must be manifested by an ‘overt act.’ This could be seen as a way of protecting freedom of speech.)70 When the upper house examined the legislation, the senators seem to have listened to the criticisms, for they decided that the offence of transmitting information to a foreign agent should be subject only to a

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fourteen-year penalty. However, the special House of Commons committee disagreed and insisted that a penalty of fourteen years should apply only where there was no state of war; in the case of war, life imprisonment should constitute the minimum sentence for that offence. Moreover, the offence of assisting hostile armed forces in peacetime continued to have a mandatory death penalty attached to it. As a result, Canadians lived with this capital-punishment overkill, although nobody was ever convicted, long after the worst period of the ‘Red Scare’ had ended. It was not until 1976, after the Canadian Parliament had voted to abolish capital punishment for ordinary criminal offences, that peacetime assistance to an enemy became ‘high treason,’ punishable by life imprisonment rather than death.71 The LDR also opposed the sedition sections of the proposed law. The group was concerned that the bill elevated the RCMP to the same level as the armed forces when it prohibited any wilful impairing of the ‘loyalty or discipline of a member of a force.’ In arguing against this, the LDR quoted Arthur Roebuck’s Senate speech, in which he asked rhetorically, ‘Are we living in this fine, free Canada of ours, or in Germany, where the ordinary citizen has to be careful about what he says to a policeman lest he encourage him to be insubordinate to his officers?’ Such arguments swayed the government, and the final version of the legislation contained no such reference to the RCMP.72 As for the sabotage and mischief amendments, the LDR maintained that they could interfere with the traditional rights of labour to strike and picket. Here again the government listened to criticism and the final law contained saving clauses to protect these rights.73 The other area of the legislation that the LDR opposed most strenuously, the section dealing with criminal breach of contract, criminalized any breach of a collective agreement which wilfully endangered human life, deprived citizens of utilities (such as light, power, gas, or water), or hampered the running of the railroads. This section was intended to deal with a drafting error in 1906 which had made the original 1877 prohibition unenforceable, and Minister of Justice Garson said that the error had been noted only when the authorities began their mid-century consolidation of the Criminal Code. Under pressure from the LDR, as well as from the major trade-union federations, the government introduced a saving clause to ensure that prosecution could not take place unless a strike occurred without the union complying with ‘all steps provided by law with respect to the settlement of industrial disputes.’74

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The LDR, however, argued that the proposal still endangered the bargaining rights of labour, pointing out that if a provincial government passed profoundly anti-labour and unfair dispute-settlement legislation, and a trade union felt the need to break the provincial law, the union would be subject also to the full force of the criminal law. Garson contemptuously dismissed this argument, partly because it came from what he called ‘a communist front organization.’ As he asked rhetorically, ‘What sort of argument is it that a provision of a federal law puts anyone at the mercy of a democratically-elected provincial legislature anyway? Is that argument a vote of confidence in democracy?’ Obviously, the opposition in the House had less confidence in the democratic nature of the provinces than did Garson, for the section was carried on division only after considerable debate. Soon the total package was passed, sometimes with significant changes, but for the most part without any governmental concessions.75 It is hard to say how much the LDR influenced this process. According to the Tribune, the LDR could be very effective – one issue carried a story about how the United Automobile Workers (UAW) at the Ford motorworks plant (Local 200) in Windsor decided to launch a campaign after hearing an address by LDR chairman Rodd. This report noted that the UAW workers were planning to issue 10,000 leaflets based on the pamphlet ‘Strike Penalty Ten Years.’76 Yet the Tribune was hardly a neutral reporter of events, and it shamelessly concentrated upon news stories that inflated the prestige and impact of the radical civil libertarians. Moreover, reports of parliamentary committee hearings indicate that the MPs were often rather hostile to the LDR, paying far more attention to the arguments of other groups, such as the major trade-union organizations as well as the Toronto Association for Civil Liberties and the Canadian Jewish Congress. Moreover, much of the strongest criticism of the government’s proposals came from the CCF, as well as Arthur Roebuck in the Senate.77 It is especially difficult to judge what impact the LDR may have had upon the legislative process because many of the group’s concerns about the potential threat of the legislation to the rights of trade-union workers were matched by the concerns of the three major labour groups. For example, it is evident from the debates in the House of Commons that the TLC, the CCL, and the Canadian and Catholic Confederation of Labour were as worried about the issue of criminal breach of contract as was the LDR. It is also clear, moreover, that the LDR was an outsider. Although its campaign aroused many rank-and-

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file trade unionists to demand action from their national umbrella organizations, the leadership tended to dismiss the LDR as ‘just another Communist-front organization.’ In addition, although the LDR was permitted to make representations to formal hearings of the special committee, it was not consulted at other times. By contrast, the government viewed the trade-union federations as important players and informally consulted them on a regular basis.78 The situation is also complicated by evidence that testimony from the far left about civil liberties issues was possibly counterproductive. As Whitaker and Marcuse have pointed out, during the Cold War era, ‘ideas of the Left that happened to coincide with the Communist line of the moment were frequently denounced as illegitimate,’ and this included civil libertarian concerns. For example, when the minister of justice referred to the testimony of LPP leader Tim Buck before the special committee, he said that ‘it is most unfortunate that the waters have been muddied to a certain extent.’ This suggests that Garson was tempted to dismiss civil libertarian concerns simply because they were being voiced by the wrong persons.79 On the other hand, representations by the LDR may have helped strengthen the hand of politicians with civil libertarian inclinations. For example, in the debates on the sedition section of the Criminal Code revision, a CCF MP referred to ‘the all-out campaign being conducted at the present time by what are, to my way of thinking, certain subversive interests in connection with the revision of the Criminal Code. As far as I am concerned, if we leave the section the way it is [with inadequate protection for free speech] we simply are handing these people ammunition.’80 If it is difficult to judge the degree of influence that the LDR exerted, it is also difficult to decide whether or not their criticisms of the proposed legislation were justifiable civil libertarian warnings. Certainly, the legislation that was finally passed did not result in an anti-Communist reign of terror. There have been, for example, no reported cases of sedition or treason prosecutions since 1954, although in the years before that date there were twenty reported cases of the former and five reported cases of the latter. Indeed, Whitaker and Marcuse claim that the purpose of the legislation was ‘cosmetic rather than substantive, since none of the Criminal Code amendments ever led to any charges against Communists.81 It is also true that some of the LDR’s concerns were overreactions, a kind of left-wing ‘hysteria’ to match that of the far right. On the other hand, some of its concerns were well-founded, especially those deal-

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ing with sedition and the RCMP (as the government subsequently recognized). Moreover, the legislation against rendering ‘assistance’ to a peacetime enemy may well have put a chill on free speech, making it less likely that left-wing peace activists such as Nora Rodd would risk making inflammatory speeches. Indeed, listing instances of the law’s application as an indicator of its efficacy is analogous to estimating the level of parental control in a family by counting the number of times a child has been punished. Of course, in a liberal democracy the power of the law is also determined to some degree by the attitude of the courts, and the Supreme Court of Canada demonstrated in the 1950s that it was sympathetic to civil liberties. Indeed, it also provided a broad definition of sedition that expanded the scope of free speech and served as a warning to the authorities not to undertake prosecutions lightly. But this case involved, like many of the civil liberties cases of the time, the persecution of a Jehovah’s Witness. Perhaps the major win for the radical left was the striking down of the Padlock Law.82 As noted in an earlier chapter, Maurice Duplessis, the architect of the Padlock Law, had been replaced as Quebec premier by the Liberal Adélard Godbout in 1939. In August 1944 Duplessis and his Union Nationale party swept back into power, and, although in 1946 he announced his intention to revive the law, he refrained from doing so later that year when the police raided Montreal Communist headquarters during the trial of Fred Rose. Indeed, ‘Le Chef’ did not resurrect the law until the sedition trials of union activists Parent, Rowley, and Beaucage. It was established in court that a newspaper supporting the strikers, Le Combat, was an LPP publication, and in early in 1948 Duplessis used this as the rationale for padlocking the newspaper’s offices, as well as the company that had printed it.83 This was the fourteenth property to be padlocked since 1937. Duplessis alleged that the newspaper offices had become the headquarters of the local Communist organization, and he declared that ‘the government of the Province considers and has always considered, that there cannot be any compromise with Communists or Communist propagandists ... In the Speech from the Throne this year we have declared that Communist propaganda is subversive, and has no place in the province of Quebec ... Communism is atheism, and our province is quite rightly attached to its religious and national traditions.’84 It took about a year, however, before the Communists could launch their first post-war challenge to the Padlock Law. The proximate cause

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of this development was a decision by the LPP in Montreal to increase sales of the Canadian Tribune; it stockpiled about 3,000 copies ready for distribution in the home of John Switzman, a war veteran who had attended McGill, become president of the university LPP club, graduated in the spring of 1948 with a BA in engineering, and was now an LPP organizer. In the rather dramatic prose of an LDR pamphlet: A bitterly cold night ... January 27, 1949. In a large third-floor on Park Avenue in Montréal’s North End, John and Iris Switzman were sitting down to supper. Valerie, 20 months old, had just been put to bed. It was about 7 o’clock. But John and Iris never did eat their supper that night. And little Valerie never finished her sleep in her own little room ... The sound of heavy footsteps came up the stairway. The door burst open and ten burly men rushed into the room. They spread out all over the flat, ransacked every room, opened dresser-drawers, cupboards. They grabbed every book, every newspaper and magazine, every piece of paper with anything written on it and tossed them into large cartons. Directing these ‘operations’ was a 250-pound man in a station-wagon coat and a black homburg. This was Paul Benoit, head of the ‘anti-subversive’ squad of the Quebec provincial police ... —Behind the police crowded a group of newspaper reporters and photographers who had been invited by Benoit to come along and see the ‘show’ ... —The Switzmans protested. They tried to phone a lawyer for advice. But the police prevented them from using their own phone in their own house! Then they urged the police to at least leave the rear part of the flat, where the bedrooms were, where the baby was sleeping. It was no use. The whole house was to be cleared and padlocked. ‘Get Moving.’ —John and Iris finally picked up their baby, dressed her, threw some clothes together in a valise and went to the house of John’s mother. It was now one o’clock in the morning. Everyone trooped out and Paul Benoit placed a large padlock on the outside door, stuck an official seal on the padlock and grinned.85

This was the padlocking that was heard around the country, for it led to the legal case of Switzman v. Elbling, in which the constitutionality of the Padlock Law was finally taken to the Supreme Court of Canada. Freda Elbling, the owner of the suite padlocked by the police, and the mother-in-law of John Switzman, decided to sue him for one year’s rent plus damages and the costs of restoring the property to its

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condition prior to the padlocking. (The case, therefore, was curiously reminiscent of the pre-war Fineberg case, where Fineberg had sued his son-in-law for damages resulting from a padlocking.) Switzman agreed that he had been using the property for purposes illegal under the Padlock Law; he had sublet part of the suite to the Canadian Tribune, as well as to the Federation of Labour Youth, a Communist organization. His defence, however, was that the law was unconstitutional and that therefore he was not responsible for Elbling’s financial woes.86 Switzman’s lawyers were Abraham Feiner and Albert Marcus, the same radical-left lawyers who had represented the plaintiff in the Fineberg case. In defending Switzman they were at first unsuccessful at both the trial level in 1949 and then at the Quebec Appellate Court in 1954. However, Justice Gregor Barclay of the latter court dissented, using the argument of the Alberta Press case that by interfering with the free expression of political views the legislation also interfered with the parliamentary institutions of Canada. On the basis of this, Switzman’s lawyers decided that he should appeal to the Supreme Court, and at this point they asked their former law school professor, Frank Scott, if he would help them with the case.87 Scott was at first somewhat hesitant about getting involved. He had been under attack for his activities in the CCF, and an editorial in the Montreal Star – which had traditionally supported Duplessis and the Padlock Law – had argued that professors had no right to engage in partisan political affairs. In addition, Scott was already involved in another important constitutional case, Roncarelli v. Duplessis, in which he was helping a Jehovah’s Witness sue the premier of the province for having caused, without any legal justification, the cancellation of his restaurant liquor licence. Finally, Scott was a strong anti-Communist, and the case was being backed not by his own organization, the virtually defunct Montreal Civil Liberties Association, but by the LDRaffiliated Montreal Civil Liberties Union, a group widely regarded as a ‘Communist front.’ Superficially, the MCLU did not seem to be very radical; it was headed by a former Presbyterian minister, Glendon Partridge, and Paul Normandin, its executive secretary, was doing post-graduate work under Scott at McGill University. As Scott was no doubt aware, however, Partridge’s sympathies lay very much with the far left. Working for a while as a school teacher in Montreal, but turning to factory work because his outspoken opposition to the Padlock Law made the authorities leery about keeping him on as a teacher, Partridge had

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served as national chairman of the Canadian Committee to Secure Clemency in the Rosenberg Case. His wife, moreover, was an active member of the LPP and had run for Parliament in the 1944 election. Less is known about Normandin, but he seems to have had a proclivity for Communist-front activity. In addition to his role in the MCLU, he also travelled, in 1954, to a Vienna meeting of a left-leaning group called the International Conference of Lawyers for the Defence of Democratic Liberties. He was accompanied by James Garfinkle, the Torontobased LDR lawyer.88 The MCLU, in short, was one of the leading groups in the Communist-dominated LDR, and anyone who cooperated with the organization was vulnerable to allegations of being a Communist fellow traveller. Scott, however, had both courage and principles, and despite his dislike of Communists, he nevertheless agreed to take the case. However, he stipulated that his name was not to be used by the MCLU in any campaign to raise funds for the legal costs in the case. It was clear that he was providing legal expertise to promote an important civil liberties principle, not political support for a Communist-front organization.89 So far, however, the ethnic balance of the case was clearly lopsided – a Jewish anglophone Communist as litigant, two Jewish anglophone radical-left lawyers, and a social democratic anglophone law professor with Anglican roots. To redress this, Marcus and Feiner also brought in a francophone lawyer, Jacques Perrault. As noted earlier, Perrault had worked with Scott on a number of issues, and he, too, was a social democrat, a civil libertarian, and a law professor. Recently he had helped with the Roncarelli case when it proved difficult for Scott to find any lawyers willing to take the risk of challenging the authority of Duplessis, and now once again he stepped in where most other lawyers feared to tread.90 Meanwhile, the LDR had agreed that the MCLU should begin to raise money on its own, and the latter organization soon announced a campaign to raise $10,000, partly through the sale of thirty thousand copies of the pamphlet ‘The Padlock Law Threatens You!’ to supporting organizations, which in turn would either sell the pamphlets or give them away. At the same time, the LDR encouraged its member organizations to contribute to the fund, while LPP supporters and fellow-travelling groups such as the United Jewish People’s Order were bombarded with requests for money by the national and ethnic Communist press. (The RCMP files on ‘subversive’ organizations of-

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ten noted LDR support from the Communist press and local ethnic communities. For example, according to one report, the Association of United Ukrainians in Port Arthur purchased a large number of copies of ‘The Padlock Law Threaten You!’ as well as anti-Padlock label tags to sell to its members, with the money going back to the MCLU.)91 Financial support also came from more ‘respectable’ sources. As one study of trade unions in British Columbia has pointed out, support for the campaign against the Padlock Law was strong even in a trade-union local not known for Communist sympathies. Moreover, no doubt in order to allay suspicions about Communist influence, Normandin set up an independent body called the ‘Trust Fund to Contest the Padlock Law,’ with himself as the secretary-treasurer and a board consisting of moderately prominent lawyers, apparently respectable businessmen, and a politician without any obvious radical taint. This arms-length approach seems to have worked well, but acquaintances wrote to Scott on a number of occasions asking if they should donate money to a cause championed by people such as Normandin and Partridge. (For example, Eugene Forsey wrote that he did not want his ‘money siphoned off into the Communist Party.’) Scott reassured potential donors that their money would be well spent, but he added that if they still had any doubts they could send donations to David Lewis in Toronto. As a result, the campaign was in part supported by people and trade unions quite opposed to communism but strongly committed to civil libertarian principles.92 Indeed, the Padlock Law had been so long reviled in English Canada that it perhaps would have been difficult not to raise money for Switzman’s case. Although the legislation was not applied as frequently after the war as it had been in the late 1930s, it still generated national publicity. The Globe, for example, opposed the resuscitated statute from the beginning, arguing that the initial padlocking of Le Combat struck a blow at press freedom and suggesting that this demonstrated once again the need for a Canadian bill of rights. Criticism also mounted when, in 1950, the police padlocked UJPO property and the highly conservative Montreal Star subsequently refused to publish a letter of protest signed by a number of anglophone clergymen.93 The MCLU and LDR were successful in raising enough money to fund the appeal, and the Supreme Court finally settled the case in 1957, eight years after the padlocking of the Switzman apartment and twenty years after the passage of the legislation. Elbling lost her lawsuit and Switzman did not have to pay damages. Using the so-called

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division of powers technique to strike down the Padlock Law, the anglophone majority on the Supreme Court ruled that it was in reality criminal law legislation and therefore outside provincial jurisdiction.94 This was one of the most important of the Supreme Court’s great civil libertarian decisions during the 1950s. As with the earlier Fineberg case, the decision rested in large part upon the ability of the judges to ‘distinguish’ the Bédard v. Dawson precedent in which, some years before, the judiciary had upheld the constitutionality of a Quebec law allowing the police to lock up any house being used as a brothel. Behind this, however, lay the civil libertarian values of a majority of the Supreme Court judges, perhaps best exemplified by Mr Justice Ivan Rand’s remark that freedom of expression is ‘little less vital to man’s mind and spirit than breathing is to his physical existence.’ Rand and his like-minded brethren probably had considerable sympathy for Scott’s argument before the court that the law was ‘thoughtcontrol legislation.’ Indeed, although the Supreme Court decision was based on the technical issue of the federal-provincial division of powers and the concept of vires, the case represented a fundamental split between the two main political cultures of Canada. As Conrad Black has written in his biography of Duplessis: Perhaps because of the acute awareness of its minority status, as well as the very authoritarian structure and attitude of the French-Canadian Church and state, the French-Canadian legislators and judiciary and most commentators have traditionally exalted the rights of the community over the ‘privilege’ of dissent. Thus, a Catholic province would not tolerate atheist propaganda, and the supposedly democratic province would not tolerate Communist incitements. To the English mind, it was illogical that a democratic right would be selectively suppressed in the name of democracy. To the French mind, it was illogical that an interpretation of democracy should extend to the toleration of the espousal of democracy’s destruction. It was this conundrum that was carried to the Supreme Court at the end of 1956.95

The political scientist Peter Russell, in a study of the Supreme Court of Canada from 1949 to 1967, came to a similar conclusion. He referred to Switzman as the Supreme Court’s ‘most significant confrontation with the political values of the Duplessis government in Quebec.’ But he also noted that it was simply one of a number of decisions, includ-

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ing the other famous civil liberties cases involving the Jehovah’s Witnesses, in which the Quebec judges on the Supreme Court saw things quite differently from the way in which the English Canadian judges did. As he says, ‘clearly a conflict of political and social values was operating in the diverging paths of legal reasoning followed by the two groups of judges.’96 Because the case had begun before appeals to the Judicial Committee of the Privy Council were abolished in 1949, Duplessis still had the legal right to carry the issue to the higher court. He chose not to do so, however, claiming that the really important judges made up ‘the grand tribunal of public opinion in Quebec.’ As the premier was aware, no matter how unpopular his Padlock Law was among English Canadians, the majority of Québécois saw it as a legitimate bulwark against the threat of communism, many of them agreeing with Duplessis’s aphorism that ‘Communism is atheism.’ Moreover, cases like Switzman also helped Duplessis portray himself as the nationalist defender of the rights of ‘fortress Quebec,’ and they certainly helped him at the ballot box. This case not only demonstrated a split between the Quebec and English-Canadian political cultures but also drove home the message that the latter was dominant. With only three out of nine judges from Quebec, it was unlikely that the values of that province would prevail, and, as Duplessis is alleged to have said, ‘the Supreme Court is like the Tower of Pisa, it leans always in the same direction’ – towards Ottawa. In the Switzman case Duplessis may have lost the legal battle but he gained political credit, something infinitely more valuable to a pragmatic politician.97 No doubt Duplessis was also aware that the war against the Communists had in any case already been largely won. Over the years the liberals and social democrats in Canadian trade unions had purged most of the Communists from their ranks, effectively weakening the LPP. Then, in the spring of 1956, Soviet Premier Nikita Khrushchev had made his famous speech to the Twentieth Congress of the Communist Party in which he acknowledged many of Stalin’s excesses, and the same year brought revelations about the official toleration of anti-Semitism in the USSR. This decimated the LPP, and most of the Jewish members resigned, including John Switzman, who then was the party treasurer in Quebec. When the Supreme Court handed down its decision, Switzman probably had no interest at all in the outcome. As former party stalwart Gérard Fortin recalls in his memoirs, ‘John Switzman ... walked out of the [LPP] Victory bookshop [in October

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1956], leaving thousands of dollars worth of books and records untended.’ What Duplessis could not do, Khrushchev had already achieved.98 Revelations about Stalinism seem to have had a similarly negative effect upon the LDR. Documents concerning the LDR and its affiliate groups are non-existent after 1957, and the RCMP no longer filed any reports on these organizations, claiming that the MCLU had closed its office that summer.99 Yet, despite the absence of competitors, the Toronto-based Association for Civil Liberties still did not manage to forge a national network. As noted earlier, it never managed to move from being a voluntary organization precariously founded on Irving Himel’s ability and willingness to run it out of his law office. This limited its effectiveness and made it hard to attract other organizations into its orbit. But the ACL also found it hard to connect with civil liberties organizations that for the most part were either dead or dying. It remained sporadically active into the early 1960s, when Irving Himel helped transform it into the Canadian Civil Liberties Association, the group that today is the closest thing that Canadians have to a national civil liberties organization. The other non-Communist civil liberties groups disappeared. This chapter has already touched on the demise of the Ottawa and Montreal civil liberties associations. The other groups lasted only a little longer. The Vancouver branch of the [Canadian] Civil Liberties Union, for example, sputtered along during the early 1950s, sporadically taking a stand on issues such as the treatment of the Doukhobors, and continuing its interest in the plight of native Indians, but resisting any attempts to link the organization with the LDR. According to one account, the group ended sometime in the early 1950s, allegedly because of a Communist takeover. It was certainly dead by 1963, when a new provincial group was formed, the British Columbia Civil Liberties Association.100 There was, of course, also the civil liberties group of the University of British Columbia. In the early 1950s it often served as an adjunct of the Vancouver labour committee for human rights, helping with tests to see how well people were obeying anti-discrimination legislation. It seems to have found few other causes to champion, however, and although it still existed in 1959 it was apparently not very active.101 The Manitoba Civil Liberties Association had a similar history. In 1952 it joined forces with the Winnipeg labour committee for human

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rights and lobbied for a provincial FEP law. The two organizations cooperated on a number of egalitarian rights causes, but by the late 1950s the Manitoba body seems to have disappeared altogether.102 Why did these organizations disintegrate rather than come together in a truly national association? Cold War tensions can take some of the blame, but there were probably other reasons. In part, civil libertarians were divided by the regionalism that is an integral part of Canadian politics. As one political scientist has argued, ‘the federal structure [of Canada] fragments social forces and inhibits their mobilization on a national basis ... It places major hurdles in the way of those who would mobilize national movements or seek national solutions.’ Many civil liberties issues seemed to fall under provincial jurisdiction, thereby suggesting purely local responses. On the other hand, a number of these problems were national. Changes to the Criminal Code, for example, fell under federal jurisdiction, while the Quebec Padlock Law was widely seen as a national disgrace. There were some strong incentives for local organizations to come together and unite.103 Most likely, the answer is that the civil libertarian impulse simply waned in the late 1950s. Most of the groups had emerged in response to, or been rejuvenated by, human rights issues that marked the immediate post-war years: the Japanese-Canadian deportation issue, the Gouzenko affair, the renewed application of the Padlock Law, and the Criminal Code amendments. Then, in the late 1940s and early 1950s, the Cold War had provided a sense of crisis which helped to sustain some of the civil libertarian fervour. After 1956, however, the threat of communism subsided, and a number of pressing rights issues were settled by a liberal Supreme Court. True, racism and prejudice remained significant threats to democratic equality, but these were the focus of egalitarian rights groups, and, although civil liberties organizations had begun to support them even during the war, the latter seldom played more than a supporting role. With the exception of the struggle for a bill of rights, which was more of a long-term goal than a response to a clear and present danger, the groups found themselves without a raison d’être, devoid of windmills at which they might tilt. The old problems of the 1950s had begun to disappear, and it would take a different generation of civil libertarians to create their own responses to the new issues of the 1960s.

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7 The Dresden Story: The Jewish Labour Committee and Blacks in Dresden, Ontario1

This book has already mentioned the contribution of the Jewish Labour Committee to the work of the Canadian Jewish Congress in the immediate post-war years. This chapter looks more closely at the JLC’s activities, with special attention to one of the main campaigns of its Toronto labour committee – obtaining an Ontario Fair Accommodation Practices act and ensuring that it would be effective. This legislation, along with its predecessor, the Ontario FEP act, was the precursor of analogous statutes in all the provinces and in Ottawa, helping to lead the way to both our modern human rights codes and the equality rights section in the Charter of Rights and Freedoms. In the early part of the century, most socialist Jews in Canada were members of the Workmen’s Circle, a radical left Jewish fraternal organization that had its origins in eastern Europe but claimed significant membership in both the United States and Canada. In the wake of the Russian Revolution, the ‘left’ Communists began to move away from the ‘right’ social democrats, and by 1926 the two factions had split completely, with the Communists leaving to create an organization called the Labour League (changing its name in 1945 to the United Jewish People’s Order) and the social democrats remaining in the Workman’s Circle. In the United States the social democrats then founded a Jewish Labor Committee, and this led in 1936 to the creation of an offshoot, a Canadian Jewish Labour Committee.2 This was a comparatively large organization. Many Jewish immigrants to Canada ended up working in the garment industry, the shmatte (or rag) trade as they called it in Yiddish, and many of these joined trade unions that were affiliated with the JLC. At its peak, the JLC claimed about 50,000 members, coming largely from such Jewish-

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dominated trade unions as the International Ladies Garment Workers’ Union (ILGWU), the Amalgamated Clothing Workers Union, and the United Cap, Hat and Millinery Workers Union. These unions were based in large urban centres, especially Montreal and Toronto. The latter city, for example, included almost 50,000 Jews in 1941, and by 1961 the total had risen to close to 90,000. Many of Toronto’s Jews worked and lived in the downtown Spadina area, but during this period a pronounced demographic shift was also taking place as the children of immigrants increasingly entered the professions, became middle class, and moved into more affluent areas of the city. As previous chapters have demonstrated, in the immediate postwar period, there were significant barriers to their upward mobility and integration, and the Jewish community was intent upon knocking these barriers down. The JLC was an obvious candidate for the demolition task.3 Moreover, the JLC had close ties with the CCF. Prominent CCF activists included, for example, Michael Rubinstein, the long-term national chair of the JLC; Bernard Shane, the treasurer of the JLC; Maurice Silcoff, a JLC vice-president; and Kalmen Kaplansky, the post-war director of the JLC’s human rights program. The secretary of the JLC, Morris Lewis, another Workmen’s Circle socialist, also made a profound contribution to the CCF – he was the father of David Lewis, the party’s first national secretary who later became the national leader of the NDP.4 The JLC seems to have done little in the field of combatting antiSemitism or pursuing human rights work before the Second World War, and during the war, like the CJC, it was primarily concerned with the plight of European Jews. After 1945 it continued to aid refugee resettlement while sending relief funds to Jews still living in Europe. However, when the American JLC headquarters set up a Division to Combat Racial Activities and began to create non-sectarian labour committees in a number of American cities, the Canadian branch of the JLC began to consider a parallel approach north of the border. This was, as with the Canadian Jewish Congress, to be a program against prejudice in general. In the words of an early JLC report, ‘antiSemitism, anti-Negroism, anti-Catholicism, anti-French or anti-English [sentiments] ... and union-smashing are all part of a single reactionary crusade of hatred and destruction.’5 The new direction was not only principled, it was also tactically clever. As Kalmen Kaplansky later wrote in his reminiscences, Jewish

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workers in Canada had far less union and political power than in the United States. As a result, ‘we had to reach out beyond the Jewish labour sector and make it a part of the overall involvement of the trade union movement. Otherwise, we would have remained a small, relatively insignificant group.’6 From the beginning, therefore, the JLC had to make it clear that labour solidarity should trump racial and religious identity. In a Trades and Labor Congress report written by Kaplansky in 1946, but presented by his ally in the trade-union movement, Claude Jodoin, there is a similar appeal to pragmatism as well as principle: ‘We feel that in order for our [trade union] movement to exist we must eliminate from our ranks any traces of racial antagonism and religious intolerance. These dangerous ideas are being used by our enemies to divide labour and to distract the attention of the working people of this country from the real issues facing them.’7 At first glance it might appear that one of the logical allies of the Jewish Labour Committee in this new kind of human rights work would have been the Canadian Jewish Congress. However, the two organizations had a rocky history in what Kaplansky called the ‘jungle’ of Jewish organizational rivalries. In the United States the American Jewish Congress recognized the American Jewish Labor Committee as the legitimate voice of Jews in the trade-union movement, but in Canada the CJC wanted to retain more control than the JLC was willing to give up. For example, shortly after the CJC began supervising the United Jewish Refugee and War Relief Agencies in the fall of 1939, it asked the JLC to leave because of a dispute as to how relief monies should be spent; the JLC wanted a certain degree of autonomy but the CJC was unwilling to grant it. Even after this ‘divorce,’ the CJC continued to see the JLC as a threat and managed to prevent the other organization from obtaining a fund-raising licence under the War Charities Act, maintaining that this would be desirable only if the CJC retained almost complete control of any expenditures.8 Finances were always a point of friction between the two organizations. In the United States the American Jewish Congress received most of its money from an umbrella group and did not have to compete with other organizations for funding. In Canada, by contrast, the CJC raised money through annual campaigns in different cities across Canada; it therefore saw the JLC, with which it competed for funding within the Jewish community, as a potential threat to its financial stability.9

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The two organizations were also divided by ideology. To begin with, the CJC saw the JLC as anti-Zionist, and, although the latter rejected this interpretation, its emphasis on class struggle certainly attenuated any commitment to creating a Jewish homeland in Palestine, at least before the Second World War and the Nazi Holocaust. In addition, the CJC executive had some doubt about the JLC’s ability to exert sufficient influence within the ranks of organized labour, especially because its social-democratic ideology and roots made it anathema to Communists in the labour movement. In the mid-1940s, before the Cold War had really begun, the fault lines between liberals and Communists had yet to harden completely. As a result, the Communistdominated UJPO was formally affiliated with the CJC, while the LPP member of the Ontario legislature, J.B. Salsberg, was an active member of the Ontario CJC, the leaders of which saw him as a natural pipeline to organized labour. Indeed, although the CJC denied it, many people in the Toronto labour movement came to believe that Salsberg had actually effected a Communist domination of the CJC in Ontario.10 Paradoxically, many members of the JLC also saw the congress as too bourgeois and right wing. Years later, the post-war director of the JLC rights network, Kalmen Kaplansky, recalled how it had angered him when the Congress attempted to pursue a human rights education program within the trade-union movement. He saw this as a primarily middle-class organization attempting to ‘raid’ the natural constituency of a working-class body. Moreover, he maintained that some CJC supporters ‘were engaged in union-busting activities and most of them did not share our faith in social democracy.’11 In the immediate post-war years, these divisions were enough to keep the JLC and CJC from uniting on human rights work. Although they had engaged in some discussions about cooperation as early as 1944, for a while they proceeded along two separate parallel tracks. The CJC, for example, began to develop its own ‘Labour Service’ program and obtained commitments from the two major labour federations that they would promote its educational materials within the ranks of organized labour. Moreover, when the JLC sent a field worker to Toronto in 1945, in order to organize a trade union ‘committee for racial tolerance,’ she was met with heavy resistance on the part of two predominantly Jewish unions. The JLC believed that this was the result of influence by a hostile CJC and temporarily dropped its plans for an anti-discrimination program. For a time it looked as if the larger

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organization might squeeze the smaller one completely out of the field of anti-discrimination work.12 The JLC’s success in human rights work began when its executive appointed Kalmen Kaplansky as its first director of public relations. (Within a year, the title had been changed to ‘national director.’) Polish-born, a war veteran with the rank of sergeant, Kaplansky had the requisite trade-union background – he was a member of the International Typographical Union and had served as a Montreal vice-chair of the JLC. He also had significant connections with the non-Jewish community through his activism in the CCF; he served on the party’s national council and even ran as a CCF candidate in a federal byelection in 1950. Moreover, he was bilingual – fluent in both English and Yiddish, a not unimportant consideration when working with first-generation Canadian Jewish workers.13 The historian Gerald Tulchinsky has pointed out that the Jews in pre-war Canada came to this country already committed to socialist and humanist ideals, which were then reinforced by their concentration in a ‘brutally competitive industry,’ the clothing trade. Notions of ‘social justice, humanism, and reform,’ brought with them from Europe and nurtured in the Yiddish-language press, in communal organizations, and on the shop floor, produced exactly the sort of political activism that was an integral part of Kaplansky’s life. His political beliefs and skills had been nurtured in the Workmen’s Circle, which gave him a passionate commitment to social justice and furthering the interests of the working class. Even later in life, when his skills and occupation had become fixed at the administrative level, he continued to maintain his trade-union membership as a symbol of his workingclass identity.14 But Kaplansky was not just a worker in a land of capitalist exploitation; he was also a Jew in a country of anti-Semitism. As noted earlier, prejudice against Jews was common in many Canadian cities, and discrimination permeated even the most respectable and intelligent ranks of society. McGill University, for example, was not unusual in imposing quotas on the number of Jews who could enter that institution. Kalmen Kaplansky never forgot how, as a young Jewish immigrant boy full of intelligence and ambition, he had been told by the registrar of McGill that ‘my job is to keep people like you out of this university.’ Small wonder that he saw discrimination as a social cancer.

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Of course, the lack of a university education is not necessarily a barrier to success, and it was clear that not only did Kaplansky have the right inclinations for the JLC but he also had the right talents. Shortly before he was offered the job, the JLC sent him to Winnipeg to raise funds. According to him, he was met at the station by a local JLC member, who told him bluntly that he was wasting his time and should get on the next train back east. Kaplansky, however, said that he would stay for a while, and just look around. To the delight of the JLC executive in Montreal, a few days later he returned with far more money than they had ever thought he could possibly raise. He was obviously the right man for the job. Yet, had Kaplansky attempted to gain trade-union support some years earlier, no doubt he would have failed. Before the war, organized labour was usually permeated by the same racist values as the majority of Canadians. As Canada industrialized, however, the conservative craft unions in Canada, primarily in the Trades and Labor Congress, came to be augmented by more progressive industrial trade unions, represented in Canada by the Canadian Congress of Labour. Much of Kaplansky’s strongest support came from the leaders of major CCL trade unions, such as Charles Millard, the Canadian director of the United Steelworkers of America, and Fred Dowling, the Canadian director of the United Packinghouse Workers.15 Kaplansky’s work also benefited from governmental protection of unions’ right to exist and engage in collective bargaining. By the late 1940s, the trade-union movement had been strengthened by legal recognition of the workers’ right to form unions, go on strike, and bargain collectively, as well as by the adoption of the ‘Rand formula,’ which encouraged union membership. At the same time, unions were becoming more ‘bureaucratized,’ and union leaders tried to channel worker energies into the new legally protected structures, while also devoting more energies to ‘social unionism’ – education courses, social-welfare work, and improving the place of trade unions within the larger community. These developments, moreover, took place within a favourable context of cultural and economic change. As noted in earlier chapters, Hitler had given racism a bad name and the world community had embraced the language of human rights. Meanwhile, race relations in the United States provided both negative and positive images. Many Canadians were repelled by segregation in the American deep south and at the same time encouraged by the pioneering anti-discrimina-

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tion legislation of the northern states. Not coincidentally, too, the tradeunion movement in Canada had begun to distance itself from discrimination. In 1944, for example, the delegates to a CCL convention had unanimously agreed to a resolution asking Ottawa to make antiSemitism punishable by law, and they had also unanimously recommended that their own constitution contain a clause condemning racial discrimination in all its forms. In the same year the TLC established a national human rights committee intended to grapple with the problems of racial and religious prejudice.16 In addition, post-war economic prosperity affected human rights in several ways. It raised the demand for labour, providing a rising standard of living and high levels of employment; ‘white’ workers were not as threatened by ‘foreign’ competition as they had been during the Depression, and governments were eager to facilitate their integration into the economy. Moreover, the fear of cut-throat competition and failure was attenuated by the development of the welfare state. All this, as well as increased urbanization and higher levels of education, meant that the country was becoming what Inglehart has called a ‘post industrial’ society, in which affluent and secure citizens showed an increased interest in values such as democracy and human rights. Or, as the authors of a book on Canada since 1945 put it, we became ‘a little more humane and a little less self-righteous.’17 Finally, Kaplansky also was able to learn from American examples. He began his tenure as JLC director by taking a three-week trip to New York, where leaders of the American JLC and other national Jewish organizations educated him about a number of their initiatives, including the creation of several local anti-discrimination labour committees, the secretaries of which were JLC representatives. When he returned to Canada, ‘determined to fashion a program tailored to Canadian needs and Canadian conditions, while “borrowing” from the American experience,’ he began to strengthen his position with the two major national trade-union organizations. First, he persuaded his friends in the Steelworkers to introduce at the 1947 CCL convention a resolution that called for ‘vigorous action’ on the part of the CCL and its affiliated unions in ‘the fight for full equality for all peoples, regardless of race, colour, creed, or national origin.’ The resolution passed, and Kaplansky then began to lobby for the establishment of a ‘permanent committee on racial tolerance.’ The Toronto Joint Labor Committee to Combat Racial Intolerance was formally constituted in 1948, and its members were all Kaplansky allies.18

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Kaplansky next turned his attention to the moderately conservative TLC. Although the TLC’s platform still demanded ‘exclusion of all races that cannot be properly assimilated into the national life of Canada,’ the organization had already begun to change. As noted, even before Kaplansky came on the scene, the JLC had persuaded it to set up a permanent national standing committee on racial discrimination ‘to promote the unity of Canadians of all racial origins, and to combat and counteract any evidence of racial discrimination in industry in particular and in life in general.’19 This committee proved to be a useful point of connection for Kaplansky. Its first chair was Claude Jodoin, an officer of the International Ladies Garment Workers Union and a disciple of Bernard Shane, the Canadian ILGWU manager who was also the JLC treasurer. Jodoin soon became, in Kaplansky’s words, his ‘closest ally and collaborator,’ an extremely useful contact even before the francophone was elected president of the TLC in 1953 and then the first president of the Canadian Labour Congress in 1956. In the fall of 1946 Kaplansky wrote the report of the TLC committee on racial discrimination committee’s report, and Jodoin delivered it to the TLC’s annual national convention. The report was a call to action based on the pragmatic argument that racial antagonism and religious intolerance were ‘dangerous ideas ... being used by our enemies to divide labor and to distract the attention of the working people of this country from the real issues facing them.’ Not surprisingly, it was sympathetic to the JLC’s aims and activities, although it did not mention the group by name. Sensitive about sparking anti-Semitism, Kaplansky chose to keep himself and the JLC in the background.20 The report also mentioned a new TLC publication, Canadian Labour Reports, which was intended to serve as an anti-discrimination educational forum within the labour movement. For some years this was a major source of information about human rights issues in Canada, and an important platform from which Kaplansky could proselytize to both his labour committees and the broader trade-union movement. Here, too, Kaplansky remained in the shadows; the report did not mention it, but Canadian Labour Reports was under his direct editorial control. In addition, Jodoin spoke in favour of an ILGWU resolution (also written by Kaplansky) condemning discrimination and urging support for ‘trade union committees for racial tolerance.’ The delegates voted overwhelmingly in its favour. This was an important step, for it

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provided Kaplansky with a mandate for setting up organizations in a number of Canadian cities.21 Meanwhile, Kaplansky had begun to work with Canada’s other major trade-union organization, getting the Steelworkers to introduce a resolution to the annual CCL fall convention which called for ‘vigorous action’ on the part of the CCL and its affiliated unions in ‘the fight for full equality for all peoples, regardless of race, colour, creed, or national origin.’ The resolution passed, and soon afterwards Kaplansky began to lobby for the creation of a ‘permanent committee on racial tolerance’ in the CCL similar to the racial discrimination committee of the TLC. This was done in March 1946, giving Kaplansky yet another set of human rights supporters within the ranks of organized labour. Kaplansky then began to initiate a number of local human rights labour committees. By January 1947, there was a Provisional Labour Committee to Combat Racial Intolerance in Toronto; by March, he had helped to create a Winnipeg committee, and he had also laid the groundwork for the establishment of a Montreal organization. In April, realizing that the moral legitimacy of these committees would be stronger if trade-union rank-and-file members had a chance to participate in their founding, Kaplansky convened a public meeting in Toronto to establish a permanent labour committee. This was opposed by Communist unionists, who considered Kaplansky, because of his JLC connection, to be a dangerous ‘red basher,’ but Kaplansky, a veteran of political in-fighting in the trade-union movement, had arranged that the chairman of the meeting was someone sympathetic to his cause. He managed to obtain a vote approving the establishment of a committee dominated by his allies – the Toronto Joint Labour Committee to Combat Racial Intolerance. This was the organization that, along with the Toronto civil libertarians and the Canadian Jewish Congress, played a central role in the struggle to obtain an Ontario FEP law.22 But formal grass-roots legitimation of a committee was not the same as rank-and-file support. In addition to trade union enemies on the radical left, Kaplansky had to deal with ignorance or bigotry within the right wing of the trade-union movement. As previously noted, TLC policy still called for the exclusion of immigrants who were members of ‘undesirable’ races, and many of the rank-and-file members in both the TLC and the CCL were hostile to notions of racial equality, feeling especially threatened by the ‘DPs’ (displaced persons) who were emigrating from Europe to Canada. While the national trade-

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union leaders such as Pat Conroy and Aaron Mosher were generally supportive, Kaplansky had to be careful to find or create allies within his local committees. His Toronto organization, for example, had two co-chairs, representing unions in both the TLC and the CCL. The representative of the latter was Murray Cotterill, publicity director of the Steelworkers, a member of the Committee for the Repeal of the Chinese Immigration Act, and an enthusiastic ally from the beginning. The TLC union representative was Ford Brand, business agent of the Printing Pressmen’s Union in Toronto. Although Brand also was a member of the CRCIA, and maintained close ties to the CCF, he was prominent in the Orange Lodge, an organization not known for its tolerant values. Nevertheless, Kaplansky found him to be an altogether decent man despite certain initial prejudices towards minorities; in time Kaplansky opened Brand’s eyes to the problems of discrimination and he became a strong advocate of the JLC program.23 While Kaplansky had firm support from some of the Toronto labour committee members, such as the CCF politician Eamon Park, several others were less enthusiastic about the struggle against discrimination and more difficult to persuade than Brand. However, Kaplansky knew that most people enjoyed being members of a committee which provided some measure of public recognition, especially at annual union conventions, and therefore they usually cooperated with him. In his view, asking certain unsympathetic members of the labour elite to join his committees was a good way to ‘neutralize’ potential opposition within the labour movement.24 Meanwhile, Kaplansky had also been struggling with the Canadian Jewish Congress. Because of the low-grade struggle between the CJC and the JLC to see who would retain control over anti-discrimination work with organized labour, Kaplansky’s initial courting of the two trade-union federations had been in part a campaign against the Canadian Jewish Congress. By early 1947, his patient lobbying had paid off, for both the TLC and the CCL sent letters to the Canadian Jewish Congress, pointing out that its nascent attempts to educate workers about human rights were competing against their standing committees on discrimination, and stating that any future cooperation was contingent upon the support of the committee chairs. Indeed, Aaron Mosher, the president of the CCL, even went so far as to say that ‘in view of the circumstances neither my name nor that of the Congress should be used in publishing material except when ap-

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proved of by our [human rights] committee and by the Jewish Labour Committee.’25 Kaplansky’s human rights work within the labour movement was therefore accelerating at the same time that the CJC program was stalling, and in November the larger organization capitulated. It agreed to work with the JLC in establishing a ‘public relations program in the labour field,’ with the Canadian Jewish Congress putting up half of the funding and the entire program headed by the JLC executive director, Kalmen Kaplansky. As a result, the way was open for the JLC to proceed with its plans for a network of human rights labour committees across the country.26 Whenever possible, these labour committees bridged the TLC/CCL division. As Kaplansky later argued, ‘ours was the only major continuous effort in which the two organizations participated jointly prior to the merger of the two in 1956.’ Toronto and Windsor had joint committees, but the Winnipeg committee was actually tripartite, involving the TLC, the CCL, and the locally influential One Big Union (OBU). In Vancouver, only the TLC unions initially supported the committee, but by 1950 Kaplansky had brought the TLC and CCL organizations together to form a Vancouver joint labour committee. Only in Quebec was he unable to create an all-inclusive committee. The Canadian and Catholic Confederation of Labour was reluctant to become involved with the Montreal group, perhaps because of fears of being submerged in a movement dominated by anglophone trade unionists.27 No doubt, if Kaplansky had been able to set up human rights committees the way a modern fast-food corporation establishes franchises, he would have adopted a uniform standard of names for all of the groups in his network. However, since he was working with a fragmented trade-union movement at the local level, the organizations evolved with a mixture of names that was sometimes confusing even to him: the Winnipeg Labor Committee to Combat Racial Intolerance, the Toronto Joint Labour Committee to Combat Racial Intolerance, the Montreal Labor Committee against Racial Intolerance (also known as the Comité du travail contre l’intolérance raciale), the Vancouver Joint Labor Committee to Combat Racial Discrimination, and the Windsor Joint Labour Committee for Human Rights. (In truly Canadian fashion, the organizations could not even agree on whether they should adopt the British or the American spelling of ‘labour.’) Moreover, some of these organizations changed their titles over time, often when

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they realized that there was an important difference between a name that symbolized opposition to racial intolerance or discrimination and a name that indicated support for the increasingly popular concept of human rights. For example, by 1954, the letterhead of the Toronto organization read, ‘Toronto Joint Labour Committee for Human Rights.’ Each labour committee had a full or part-time paid worker, usually called the ‘executive secretary.’ All these secretaries were formally hired by, and responsible to, their respective labour committee executives, so that Kaplansky’s influence was somewhat constrained. As he wrote of the Toronto group, ‘the Jewish Labour Committee did not “own” either the Committee or its Secretary.’ However, this was more of a de jure than de facto independence, for he was closely involved in the selection of secretaries and kept a tight rein on their activities. They answered directly to him on a day-to-day basis, and he expected regular written reports. He wrote to each secretary frequently, often several times a week and on some occasions even twice in one day.28 Kaplansky tried to keep expenditures as low as possible. To begin with, he was hired for $60 a week – the same as in his trade-union job – and other salaries were usually less; Kaplansky knew that there was never enough money to pay his committee secretaries what they deserved, and often they were able to work for him only because of other sources of income. For example, Sid Blum could work for the Toronto committee because his pay was supplemented by a small war veteran’s disability pension, and David Orlikow of the Winnipeg committee continued working for Kaplansky in the 1950s only because he was employed by the local branch of the Joint Public Relations Committee. Similarly, Knute Buttedahl, the Vancouver secretary, ended up also working as executive director of a local human rights organization called the Vancouver Civic Unity Association (CUA). (Buttedahl had managed, working as the labour committee secretary, to obtain long-term funding for the CUA from the local Vancouver Community Chest, and he then began working for them; in a sense he saw his CUA work largely as an extension of his position in the Kaplansky network.) When Buttedahl resigned, his successor was Bill Giesbrecht, a blue-collar worker who managed to operate as secretary only by precariously balancing his commitments with a full-time job and the problems of shift-work.29 What kind of people were these secretaries? They were a mixed lot. Most had close ties to labour, but not always. Only a few (such as

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Blum and Orlikow) were Jewish, a surprising number of them, given the status of women at that time, were female (Vivien Mahood and Donna Hill in Toronto), and not all of them were white; Harold Johnson, the first secretary of the Windsor committee, was black. Many of them were blue-collar workers, some were university educated (such as Johnson, Hill, and Buttedahl), and one (Sid Blum) had earned a master’s degree. However, as Kaplansky has noted, in hiring people ‘I never mentioned academic achievement and university degrees or even experience as prerequisites for the job. I insisted only on a “genuine interest,” pleasant personality, willingness to get along with people and meet the public and a sincere desire to be of service to the labour movement.’30 Most, but not all, of the secretaries also had close ties to the CCF. At the beginning, in 1947, all three secretaries were active in the party. Toronto’s Les Wismer was, in Kaplansky’s own words, a ‘wonderful find’ who possessed a wealth of political and trade-union contacts, was experienced in public relations, enjoyed good connections with the local press, and had recently served as a CCF member of the Ontario legislature. Unfortunately, however, he left the Toronto committee in 1948 when he was elected to the legislature once again. In Winnipeg, David Orlikow had already embarked upon what was to be a long career as a CCF activist and politician (municipally, provincially, and federally). The Montreal secretary, Romeo Girard, was also a CCF member and came recommended by his brother-in-law, the Quebec provincial secretary of the party. The three were also administratively competent – Wismer later became the legislative director of the TLC/CLC; in the 1960s Orlikow was the national director of the JLC; and Girard rose to become one of the top officials of the Quebec Teamsters.31 Kaplansky was often faced with a fairly high turnover in labour committee secretaries, and it is especially important to bear this in mind when discussing an issue such as the Dresden affair, which spanned a number of years. For example, when Les Wismer went back into politics in 1948, Kaplansky replaced him with Vivien Mahood, but she stayed only until 1950, when she left because her husband was moving to study in Britain. Kaplansky then hired Gordon Milling, who had just graduated from university with a sociology degree. He stayed on the job until 1953, when Kaplansky hired Donna Hill as his replacement. Kaplansky was probably impressed by Hill’s professional background and her sensitivity to racial issues. An American who had

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graduated from university with a BA in sociology, she had been active in the National Association for the Advancement of Coloured People and in Ohio had helped lobby for FEP legislation, both as a volunteer and as a paid activist for a citizen’s group. She was also married to Dan Hill, a black American graduate student who later became the first director of the Ontario Human Rights Commission.32 Donna Hill, however, worked as the Toronto labour secretary only briefly, until she became pregnant. (Soon afterwards she left she gave birth to Dan Hill, now a well-known Canadian musician and singer.) Her replacement in 1954 was Sid Blum, who became one of the major players in the Dresden story. Originally from New York, and afflicted or gifted with a heavy Bronx accent, he was married with five children. He came to Canada after the war, graduated from the University of Toronto in 1953 with an MA in sociology and economics, worked for a while as an assistant in the CCL’s education and welfare department, and in 1954 was hired by Kaplansky as his Toronto secretary. Blum served in this position until 1957 and then replaced Kaplansky as the executive director of the JLC when the latter become director of the Department of International Affairs of the newly formed Canadian Congress of Labour. While Kaplansky developed personal ties with many of the people working for him, he had a particularly close and trusting relationship with Blum. But Blum also had an exceptionally good rapport with his subordinates. The Canadian civil libertarian Alan Borovoy worked under Blum when the latter replaced Kalmen Kaplansky, and in his Uncivil Disobedience: The Tactics and Tales of a Democratic Agitator he has painted an affectionate picture of his mentor (to whom he also dedicated the book). As Borovoy writes, ‘he was an expert in deflating solemnity. On one occasion, for example, I expressed to him some concern I had about a new tactic that our organization was developing. I told him that I was afraid we would look like amateurs. He replied, “We’re not amateurs, we’re pioneers.”’33 It was not easy, however, to pay for the salaries and operating expenses of these pioneers, despite Kaplansky’s fairly tight-fisted supervision. The bulk of the funds came from the CJC and JLC, but this was not widely publicized; Kaplansky was always worried about possible allegations of a ‘Jewish conspiracy.’ As a result, he attempted to diversify the income sources, encouraging the committee secretaries to raise money on their own and tapping into a variety of sources: non-Jewish businesses (leaving the CJC to solicit funds from Jewish companies), Jewish-dominated unions, and (beginning in 1952) a number of other

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labour groups, especially the Steelworkers, the United Packinghouse Workers, the United Automobile Workers of America, and the Canadian Brotherhood of Railway Employees. Kaplansky also supplemented this income with significant donations from the two TLC and CCL national human rights committees. These cheques were not given directly to the JLC headquarters, but rather were made out to the local labour committees or to Canadian Labour Reports (formally a TLC publication but effectively under Kaplansky’s control). However, in order to maintain centralized control of finances, he engaged in a kind of ‘laundering’ of these funds, so that the local committee secretaries endorsed the cheques and sent them on to him.34 Trade unions also supported Kaplansky’s network in ways other than through donations of money. He later reminisced that he was grateful for ‘supportive delegations to governmental authorities at every level, free public relations work, free mailing lists, research facilities, purchase of pamphlets, free office and telephone facilities, inclusion in educational undertakings and the free and enthusiastic support of so many staff people and volunteers from both trade union Congresses.’ The Steelworkers, for example, provided the Toronto committee with free telephone use and office space in their building at 111/2 Spadina, and purchased bulk lots of Canadian Labour Reports, which they distributed to all their key members. In addition, the Autoworkers created FEP committees in their locals, members of which often provided volunteer labour for the Kaplansky network in Ontario. (One of them, interestingly enough, was Dennis McDermott, who served for a while as chair of the local 439 FEP committee and by 1953 was an active member of the Toronto labour committee. McDermott, who had strong feelings about racism, went on to become the head of the Canadian Labour Congress and later ended his meteoric career as Canadian ambassador to Ireland.)35 To summarize the activities of the labour committees is no easy task. First of all, this was pioneering work, so that the techniques changed over time as the activists learned their trade. Second, each province consisted of a unique blend of level of economic development, demographic mix, and politics, so Kaplansky and his secretaries had to adjust their approaches to meet local circumstances. Nevertheless, several common patterns emerged. To begin with, because prejudice and racism were as common among trade unionists as in the general public, the earliest efforts focused upon extensive programs of union education.36

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In educating the rank-and-file members of organized labour, Kaplansky began by following the patterns already set down by American activists. He modelled some of his early educational activities after the Michigan Labor Committee to Combat Intolerance, and in March 1948 he brought two of his secretaries to New York in order to meet the staff of the American JLC and learn about their efforts. Even before this, however, the JLC had begun producing pamphlets on racism and discrimination, modifying American versions for Canadian content and in some cases having them appear under the imprimatur of the CCL and TLC presidents. JLC labour committee secretaries were supposed to distribute these (as well as copies of Kaplansky’s Canadian Labour Reports) to trade-union members, usually in conjunction with lectures or the showing of educational films. As with the speech given by Jodoin at the 1946 CCL convention, this material emphasized that prejudice endangered labour solidarity. For example, the Canadian Labour Reports pamphlet, ‘You Belong to a Minority,’ issued about 1949, stated that ‘unionists know that race hatred and discrimination is used as a weapon to smash unions. Those who promote race hatred are invariably the loudest opponents of unionism. Divide and rule is their method in destroying unions by setting one racial group against the other.’37 To disseminate this message, the secretaries were also expected to be present at major union conventions, putting on displays and distributing their literature. Kaplansky then arranged to have them appear at union labour institutes, where they spread the message of antidiscrimination at strategic places throughout the curriculum. The secretaries also began to hold annual educational forums, usually called Race Relations Institutes, in which union members as well as the general public were educated about discrimination problems and their solutions. Finally, they began working with other educational bodies, especially the Canadian Association for Adult Education.38 Reaching out to trade unionists at their educational institutes and summer schools was hard work. Kaplansky wrote that ‘as the organizers of these institutes and seminars considered subjects such as race relations and international affairs as “luxuries,” preferring instead to concentrate during regular day-time sessions on “bread and butter” issues, like collective bargaining, union administration and parliamentary procedure, our subjects were [at first] left for evening seminars’ where attendance was sparse, usually confined to the converted. But education within the trade unions became easier as Kaplansky won

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the support of key members and refined his techniques, learning how to integrate human rights issues into the unions’ regular courses.39 Kaplansky also educated trade unionists at the national TLC and CCL conventions. Each year their human rights committees issued reports, normally written by Kaplansky but presented by the committees’ chairs, and each year resolutions (again often the work of Kaplansky) were presented and came to a vote. The trade-union movement was therefore informed of all important rights incidents and issues – as seen through the eyes of Kaplansky and his labour committees. Just as important, the general public was kept abreast whenever the news media picked up on a particularly noteworthy resolution or element of a report. For example, the Toronto Globe gave considerable coverage to the 1947 TLC annual convention, including a speech by Claude Jodoin’s that decried racial intolerance and drew attention to the recent Marisse Scott case.40 Gradually, however, Kaplansky changed his approach. He began to realize that, given Canadian denials of domestic racism and prejudice, publicizing issues at trade union-conventions and in newspapers had more of an effect than all his pamphlets, films, and posters. He also saw that it would be difficult (if not impossible) to make Canadians so tolerant as to remove all cases of discrimination. In some ways, changing attitudes was less important than changing behaviour, for people seeking employment do not so much need ‘tolerance’ as they need jobs.41 This involved, first, a campaign for provincial FEP legislation in Ontario, and then similar campaigns in other jurisdictions. The Toronto labour committee (in conjunction with its allies, the ACL and the CJC) pioneered in the struggle for an Ontario FEP law, and JLC-connected labour committees in other provinces were encouraged to follow the Toronto model. Ontario was also held up as an example, to persuade recalcitrant politicians in other jurisdictions that anti-discrimination legislation was a relatively popular and not very expensive way to attack discrimination and to gain some easy political credit. The Toronto committee did not, however, get involved in the campaign for a Female Employees Fair Remuneration Act. In Ontario this was a separate rights struggle, launched by a number of women’s groups. Although one of their supporters, the CCF member of the Ontario legislature, Eamon Park, was on the executive of the Toronto committee, the issue of equal pay for equal work (or work of equal value) was not a priority for the trade unionists. In part this can be

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attributed to male workers emphasizing their role as primary breadwinners and viewing woman’s work as secondary. But, as Ruth Frager has pointed out in her study of the Jewish trade unions in the garment industry, in the years before the ‘second wave’ of feminism even women workers were more concerned about class than gender.42 Meanwhile, in the early 1950s the JLC-connected labour committees in Ontario (that is, in Toronto and Windsor) joined the local human rights community to lobby for the next major step in creating antidiscrimination protection – a campaign for an FAP law, a fair accommodation practices act that would prohibit discrimination in the provision of public services, such as hotels, restaurants, barber shops, and so on. This law would prevent discrimination on the basis of a number of criteria, including religion and race. As a result, it was an issue that attracted not just Jews but a number of other minority groups, especially blacks. As earlier chapters have indicated, although in the immediate postwar years Ontario newspapers carried a number of articles about prejudice, especially stories about black Canadians being treated as secondclass citizens, one of the major obstacles to anti-discrimination work during this period was the way many Canadians turned a blind eye to racial discrimination, often denying its existence. However, it was incontrovertibly present in Dresden, a small town in southwestern Ontario, not far from the American border. ‘Jim Crow’ attitudes in Dresden were a major catalyst in the process of making Ontario the first Canadian jurisdiction with an FAP act. The story began in the nineteenth century when Dresden lay at the end of the underground railroad for fugitive slaves and a substantial number of blacks settled in the area. Josiah Henson, upon whose life the novel Uncle Tom’s Cabin was allegedly based, is buried nearby. By the end of the Second World War, blacks constituted close to 20 per cent of Dresden’s approximately 1,700 inhabitants, but several restaurants and barber-shops habitually denied service to them; indeed, even those who did not look like blacks often suffered racial discrimination when members of the community knew their racial heritage. True, the children went to school together and mixed in the Boy Scouts and Girl Guides, while both blacks and ‘whites’ were welcome at the Legion. Yet, except for the Catholic Church, blacks were not welcome at any of the ‘white’ churches. It was, in short, one of the most racially segregated communities in Canada.43

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The well-known CBC broadcaster and writer Stuart McLean has included a chapter on Dresden in his book about small towns in Canada. He quotes Gary McCorkle, a black who grew up in post-war Dresden: ‘It was hell growing up ... Dad had to take us to Chatham to get our hair cut. The barbers in Dresden wouldn’t cut coloured people’s hair. There was a restaurant called Kay’s. We weren’t allowed in there. They wouldn’t serve us. I had lots of white buddies at school, but when we came over the bridge and they went into the pool room or the restaurants, I had to go home.’44 Racism in southern Ontario had deep roots, intertwined with a smug sense of moral superiority which was nourished by self-serving comparisons with the United States. As Robin Winks has noted, in the early part of the twentieth century, ‘many small Ontario towns could boast of their pet blacks, who would regale youngsters with tales of slavery down on the old plantation, sing Negro spirituals and play the fiddle.’ In the 1920s, for a while, when the Ku Klux Klan began organizing in Ontario, crosses were burned in a number of communities, including Dresden and other nearby towns with substantial black populations. The Klan did not flourish, but not because it was too prejudiced for small-town Ontario; rather, it was unable to compete with the established and more respectable Orange Lodge, a bastion of antiCatholic, anti-Jewish, and anti-black sentiment.45 One of the Dresden area blacks who refused to accept the Canadian version of ‘Jim Crow’ was Hugh Burnett, a Second World War army veteran who owned his own carpentry business. In ‘The Dresden Story,’ a CBC documentary made in 1954, when the controversy about discrimination in the town was at its height and receiving national attention, Burnett is portrayed as one of the leaders of the black anti-segregation movement. A slim, well-spoken individual, with a small moustache and light brown skin, he appears to be relatively at ease in explaining the local situation and rebutting allegations that he and other local blacks were simply Communist pawns. He was the perfect spokesperson for the local activists – appearing cool and reasonable. As such, he did not threaten his audience but appealed to their higher natures.46 Burnett had chafed under Dresden’s restrictions for some time. He once told a journalist a story about how, when he was seventeen, he helped a white motorist who ran out of gas, and when the fellow tried to buy him a soda they were refused service at Kay’s Café, a Dresden

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restaurant owned by a prominent local citizen named Morley McKay. This may have been the event that caused him, in 1943, to send a complaint to the federal minister of justice about racial discrimination at McKay’s restaurant. He was informed that the government could do nothing, so a few years later, about 1948, he began a lawsuit against McKay. He did not proceed with it, however, probably because, in the wake of the pre-war Supreme Court decision of Christie v. York, the law provided little leverage.47 At about this time, Burnett joined with a number of other Dresdenarea blacks, including his uncle, William Carter, a prosperous farmer, in order to form an organization called the National Unity Association (NUA). Just prior to the municipal election of 1948, Carter led a delegation to Dresden’s town council, asking that a non-discrimination policy be made a condition of local business licensing. Although a number of Ontario municipalities had already passed anti-discrimination bylaws, in Dresden the proposal moved forward with glacial slowness. At the same time, the leaders of the NUA began receiving anonymous telephone calls, warning them that their property would be ‘burned out’ if they persisted in their demands for integration.48 Meanwhile, the Toronto labour committee had joined the Ontario human rights community. As explained earlier, it became part of a ‘triumvirate’ of leading groups, working closely with the Canadian Jewish Congress and the Association for Civil Liberties. This was a successful partnership, but not one without difficulties. Not only was there a natural friction between the CJC and the JLC, but the latter also had reservations about the ACL. The very respectability of the ACL often seemed, from the perspective of the labour activists in the Kaplansky network, to produce a mealy-mouthed brand of political pressure. For people accustomed to confrontations with capitalist bosses, it was not always easy to accept the ACL’s penchant for accommodation with the political elite, and on several occasions the labour committee executive found it difficult to work with the ACL volunteer secretary, Irving Himel.49 Moreover, the events in Dresden did not fit nicely into the plan of action initiated by the CJC. As noted earlier, the group had begun a campaign to demand an Ontario law against discrimination in employment, but the blacks in Dresden needed something rather different, a law prohibiting discrimination in the provision of services offered to the public. As a result, when the first ACL-led delegation lobbied the Ontario cabinet for an FEP law in 1949, there was no specific

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mention of the situation in Dresden, although it was perhaps one of the reasons why the delegation also asked that the government give municipalities the explicit power to cancel the licences of any provider of public services that practiced racial or religious discrimination.50 Yet Dresden was clearly a rights issue that could not be ignored, and Hugh Burnett took his case to the human rights activists. As a result, a few days after the delegates met with Premier Frost, the Toronto labour committee secretary, Vivien Mahood, travelled to Dresden to see the situation at first hand. She was accompanied by Mildred Fahrni, a former Vancouver Consultative Council activist who by this time was executive secretary of the Fellowship of Reconciliation. Mahood did this on her own time, with the ACL paying her gas money, although she saw it as her contribution to the work of the Toronto labour committee, and reported the trip in detail to Kaplansky. On the basis of this trip, she began planning a course of action, and her first step was to get in touch with Pierre Berton, the liberal editor of Maclean’s. The subsequent ‘exposé’ article by Sidney Katz helped turn the Dresden affair into a national story.51 Mahood found that not all members of the Dresden black community were solidly behind the NUA. Because only a few businesses refused to serve blacks, and because it was easy to drive to nearby towns for service, it was often fairly easy to ‘put up’ with isolated instances of racism. Moreover, there were, as Carter said to a Dresden municipal council meeting, ‘those who lack the guts to stand up and fight.’ It was primarily people like Carter and Burnett, moderately successful farmers or middle-class members of the NUA, who wished to pursue the issue as a matter of principle.52 As Mahood noted, most of the whites in Dresden resented the newspaper stories that had been published about their community. They were not so much active supporters of racism as what Mahood called ‘quiescent’ supporters of the status quo. Even the clergy tended to deplore the NUA agitation, and Carter and Burnett were widely regarded as people who were simply stirring up trouble. At one point the mayor of the town even accused Burnett, a CCF supporter, of being a Communist. Yet Mahood recognized that only a few citizens in Dresden were outspoken bigots, and she claimed that restaurant owner Morley McKay was probably the ‘moving spirit’ behind most of the discrimination. In the Maclean’s article, McKay was described as ‘a burly, black-haired Scot, energetic and nervous, who fiercely resents interference in his

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business.’ He was also reported as saying, ‘Do you know that for three days after [each attempt by a black to obtain service] I get raging mad every time I see a Negro. Maybe it’s like an animal who’s had a smell of blood.’ Another visitor to Dresden was J.B. Salsberg, one of the two LPP members of the Ontario legislature. As noted in previous chapters, the LPP and its supporters were very interested in anti-discrimination work and in 1944 had prodded the Conservative government of George Drew into creating the Ontario Racial Discrimination Act. However, in the chilly climate of the Cold War, support from Communists was often more of a disadvantage than an advantage. There is no evidence that the black community in Dresden either asked for, or received, any support from Salsberg, but a few years later another Ontario legislator accused Salsberg of causing ‘dissension and trouble.’ It was easier to see developments in Dresden as the result of outside agitators than as the natural reaction of the black community to unwarranted violations of their human rights.53 Meanwhile, the issue of non-discriminatory business licensing was finally put to the town voters in a referendum in December 1949. It was defeated by a vote of 517 to 108, and the town became a lightningrod attracting national attention and criticism. As a Toronto Globe editorial put it, ‘the decision brings shame to Dresden and to all Ontario.’54 The contrast between the practices in Dresden and the post-war values of human rights had created an example of what sociologists call a ‘discrepancy effect’ – an unsustainable division between values and practices. Over time, the situation in Dresden also undermined Canadians’ smug feelings of moral superiority and anti-Americanism. As an influential Globe columnist later wrote, ‘the reason that people from Toronto as well as people from Hamilton, Montreal ... etc., have a right to get indignant about Dresden’s record of discrimination is that Dresden is in Canada. And if there is one fact of U.S. life that we don’t want to import into this country it is ... anti-Negro discrimination.’55 While the NUA decided to lobby the Dresden town council again, the Toronto Association for Civil Liberties asked for another meeting with Premier Frost, arguing that Dresden (along with a number of other incidents) clearly demonstrated the need for both FAP and FEP legislation. This time (January 1950) the delegation was even larger than before, consisting of several hundred people and 104 different civil libertarian, church, labour, ethnic, and social-welfare organizations, including the NUA. The result was that, as explained in chapter

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5, Frost soon gave Ontario a law against restrictive covenants, a statute demanding limited gender equality in the workplace, and a provincial FEP act prohibiting discrimination in employment situations.56 Frost did not, however, move as quickly on the issue of discrimination in public accommodation. He was cautiously feeling his way along the largely uncharted road of anti-discrimination measures, he wanted to see how his FEP law would work in practice, and he won a huge electoral victory in 1951, which made it no longer necessary to steal the thunder of the left. Moreover, the NUA seems to have hoped that the provincial government might deal with the Dresden situation without any further pressure, and the Ontario human rights community concentrated for a while upon other matters, such as the enforcement of the FEP law (including educating the public about its provisions), lobbying Ottawa for a federal FEP act, and attacking discriminatory immigration restrictions. Meanwhile, discrimination against blacks continued to hit the news. As pointed out in chapter 5, the late 1940s had seen a number of wellpublicized issues, such as the Icelandia skating rink protests and the refusal of an Owen Sound hospital to provide training to Marisse Scott. Then, in the early 1950s, many Canadians were discomfited when the press gave substantial publicity to the fact that a Hamilton barber had refused to cut the hair of Oscar Peterson, the black pianist already recognized as one of Canada’s cultural stars. Perhaps most shocking of all, there were reports of the burning of a fiery cross in North Buxton, one of the towns, near Dresden, where the NUA was also active.57 Less publicized, but just as serious, was the refusal by a number of southern Ontario licensed establishments to serve blacks. Both the Toronto and Windsor labour committees devoted considerable energy to investigating complaints (one of them involving the Mercury Club in Toronto, the other the William Pitt hotel in Chatham, not far from Dresden) and began to pressure the Ontario Liquor Licence Board to suspend their licences. However, although the labour committees were able to obtain hearings before the board in late 1953, and in the Mercury Club case received an apology from the proprietors, the William Pitt case ended in a defeat, for the board ruled that a single act of discrimination did not constitute a pattern that warranted a licence suspension.58 At about the same time that the tribunal disappointed the Toronto labour committee, the Ontario attorney general, Kelso Roberts, informed

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the NUA that he could provide no legal redress in Dresden. Burnett then approached Donna Hill, recently appointed as secretary of the Toronto labour committee. She, along with Ben Kayfetz of the Joint Public Relations Committee, began putting together a policy network that would create a brief asking for a provincial FAP law. In March 1954 the brief was presented to Premier Frost by a delegation once again led by the Toronto Association for Civil Liberties.59 This time Dresden was a central concern. The ACL brief referred to discrimination against blacks in a number of Ontario communities but noted that ‘the height of expression of Jim Crow in Canada is to be found in the town of Dresden, Ontario.’ In addition, although several people spoke, Hugh Burnett got the most publicity. He said that he was ashamed to have to plead for his fundamental democratic rights, and referred shrewdly to a possible connection between the rise of communism and dissatisfaction over racial discrimination. ‘There are no Communists among the coloured people at Dresden,’ he stated, ‘but I don’t know how long we can assure that if the discrimination practised there is to continue.’60 Frost gave this delegation a warm welcome. This was not a surprise to some of the activists, for Ben Kayfetz had earlier engaged in a little ‘quiet diplomacy’ with Kelso Roberts. Roberts had promised that he would speak to the premier on this issue, and he himself called publicly for an FAP law. This call was probably a governmental trial balloon, for Frost had privately asked Roberts to research information about the anti-discrimination laws in the United States. The very reasons that had persuaded Frost to consider an FEP law in 1951 were now impelling him to take another incremental step forward: concerns about economic development, a perception of changing public values, and considerations of political advantage.61 When Frost met with the delegates he promised to study their proposal, and said that his opposition to discrimination was well known. He referred to ethnic bias as a ‘blot on our good name’ and stated publicly that the ‘coloured people’ in the delegation would always be welcome in his home. Then, less than a week later, his government introduced Canada’s first FAP act. (Perhaps not coincidentally, this was the same day that a legislative committee on Indian affairs tabled a report which called for, among other things, the enfranchisement of Ontario’s native peoples.) In the debates on the bill, Frost referred to the pressure of lobbyists such as the ACL, although J.B. Salsberg indicated, correctly, that Frost had been thinking about introducing such a

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bill even before the delegation reached him. In fact, the ACL delegation had provided him with an excuse. Just as the ACL strengthened the respectability of the CJC and the JLC, so, too, it strengthened the hand of the premier of Ontario.62 Frost was a strong leader who could usually lead his caucus. According to Ben Kayfetz, ‘once you got the ear of Frost, you were in.’ Nevertheless, he encountered some opposition with this initiative. Some Tory backbenchers claimed that Communists were behind the agitation in Dresden, and J.W. Murphy, who represented Dresden, distorted the truth by telling the House that blacks in the town were not upset about discrimination and that the problem was really caused by outside black ‘agitators’ from Detroit. Murphy was not, of course, likely to be sympathetic to the plight of the Dresden minority. This was the same politician who had created a discriminatory restrictive covenant on his own property, a covenant that took white supremacy to the very limits, excluding essentially all people not of Scottish or Scandinavian extraction.63 Frost’s FAP bill prohibited the discriminatory refusal of services in ‘any place to which the public is customarily admitted.’ Like the earlier FEP act, it stated that discrimination on the basis of race, creed, colour, nationality, ancestry, or place of origin was contrary to public policy, and it, too, made reference to the Universal Declaration of Human Rights. The enforcement process set out by the law was also similar to the FEP act - the laying of a complaint was followed by investigation, informal conciliation, formal conciliation, and (as a last resort) prosecution. Compared to our modern anti-discrimination legislation, this process was badly flawed. To begin with, although it and the FEP act parted company with the quasi-criminal approach of the Ontario Racial Discrimination Act (which, by the way, it repealed), it still rested upon an individualistic conception of discrimination; there was no recognition that discrimination was a systemic issue rather than a collection of individual complaints, and there was certainly no process by which the state might provide any assistance to an individual who wanted to lay a complaint. In addition, it was an invitation to political interference. The notion of a human rights commission, acting independently, still lay in the future. Finally, it treated discrimination as simply another issue of labour relations; there was no awareness that conciliating a complaint about a refusal of service might be quite different from conciliating a complaint about factory-safety practices, or

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that it might help to have the law implemented by public servants sensitive to racial issues.64 Indeed, from the perspective of the rights activists, the new law was only qualified progress. They were aware of most of the above shortcomings and had also called for the creation of a citizen’s advisory board, to be composed of experts in ‘intergroup relations’ who would advise the government on anti-discrimination educational measures. The government had ignored this recommendation to expand the bureaucracy and left education to the case-by-case process of administrative conciliation.65 Reaction to the bill was mixed. The Toronto Star, of course, approved, while the Globe was apprehensive. First, it warned that the proposed act did not provide any protection for people who might be accused unfairly of discrimination. After all, it added, a person might refuse accommodation for reasons other than prejudice. Moreover, it said, the law cannot make people moral. ‘If the proposed bill has any valuable effect,’ concluded the editorialist, ‘it will be through stimulating an educative process. It could also merely inspire more ingenious forms of evasion.’66 The Globe editorialist was in part prescient. Although a number of Dresden’s establishments complied, several restaurants and barbershops continued to flout the law. As a result, Hugh Burnett and other NUA members began to test these establishments, relaying information to Sid Blum, who had replaced Donna Hill as secretary of the Toronto labour committee shortly after the passage of the legislation. It was Blum who filed complaints on behalf of the Dresden blacks, and from this point on, although Burnett was more often in the public eye, it was Blum who acted as his behind-the scenes supporter, with Kalmen Kaplansky standing even further in the shadows behind his labour secretary.67 With Blum’s assistance, the black activists in Dresden made enforcement of the FAP law ‘their’ issue over the course of the next few months. By August, Blum calculated that the number of FAP complaints from Dresden was at least four times that of complaints from the rest of the province.68 The immediate reaction to these NUA complaints was a decision by Charles Daley, the Ontario minister of labour, to send one of his local factory inspectors to begin an investigation. Daley, however, was the same minister of labour who in 1947 had told Rabbi Feinberg that racial discrimination in Ontario was largely ‘imaginary,’ so there was

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little reason to believe that this would be a thorough investigation. Blum suggested to the government that a factory inspector might not be able to devote enough time to the issue, but he then received a letter from Burnett that suggested an even worse outcome – ‘it comes pretty straight from McKay that when the inspector was down that he stayed with McKay and they had a good time and that he told McKay he had nothing to worry about, he could keep on refusing if he wanted to.’ Whether or not this was true, the factory inspector reported that there was no evidence of discrimination in the town. J.F. Nutland, the officer in charge of the FAP act in the Department of Labour, then informed Blum that he should not ‘interfere’ with the situation in Dresden, lest he ‘upset’ the community.69 Of course, many of Dresden’s blacks were already deeply upset. In the words of Gary McCorkle, the previously mentioned black youth who grew up during this period, ‘I still feel pain for the way I was treated back then. You just don’t get over it. I feel hatred for the people ... People talk about the U.S. and how bad it was. This was as bad as any place in the U.S. The only difference was we didn’t have the population. If we had as many people as they did, there would have been riots and killings.’70 Indeed, at this point the tensions in Dresden almost spun out of control, but it was not violence from the black community that threatened. As noted earlier, Burnett had been given warnings about his activism back in 1949, and now he began receiving anonymous letters threatening his life. In addition, there was talk that the upcoming celebrations for Dresden’s centennial might generate mob violence. The NUA wrote the deputy attorney general of the province, apprising him of these developments and complaining about low levels of police protection and cooperation. Meanwhile, Blum issued a press release decrying these threats, and the Toronto Telegram published a story titled ‘Dresden Negro warned, gets gun for safety.’71 Blum had no sympathy for the tender feelings of racists. He believed that ‘quiet persuasion will usually produce one result: quiet inaction.’ However, he was scrupulous about relying upon facts rather than rumours, and therefore on 22 July he went on a two-day factfinding trip to Dresden. He found that racial tensions were high, with the locals insisting either that there was no racial problem or that the problem was caused by local blacks who did not ‘know their place’ and who also wanted to marry local white women. He concluded that the passage of the FAP legislation and the subsequent visit of the

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factory inspector had done little to change the attitudes of the white population. Indeed, there was a general misconception that the FAP act did not even exist.72 Blum immediately began to orchestrate a large-scale operation which involved a maximum of direct pressure on the government, widespread publicity, and further testing. He lobbied the ministry of labour with letters and telephone calls, asking for the appointment of a commission of inquiry. Meanwhile, he persuaded the two Toronto trade councils to demand that the government take action, and ensured that this was widely reported in the city press. In the process, he also created an alliance with a Toronto Telegram newspaper reporter, who travelled to Dresden to observe the testing process and provided extensive press coverage of the Dresden affair. (One of the reporter’s articles, written for the now-defunct magazine Liberty, was reprinted with the logo and address of the Toronto labour committee and widely distributed as an education and lobbying tool.) Nor did Blum neglect radio and television coverage. In October the CBC radio program ‘Cross Section’ looked at the Dresden story, using material supplied by Blum, and he also arranged in November for Burnett to appear on the television show that first aired ‘The Dresden Story.’ Throughout, he provided continual advice and support to Hugh Burnett, while arranging to have a number of black people visit the offending restaurants so that he could file complaints on their behalf.73 At the same time, the Kaplansky network kept up the pressure from another direction. The black secretary of the Windsor labour committee, Harold Johnson, was also working hard behind the scenes, meeting frequently with members of the NUA to discuss strategy and attempting to dramatize the Dresden story for the public.74 In the face of growing public pressure, and a total of eight complaints, including one filed by Burnett on behalf of a travelling black couple from Cincinnati, the labour minister finally appointed Judge William F. Schwenger to a one-man commission to determine if the situation warranted prosecution. The hearing took place in Dresden on 27 September, with at least two hundred people attending, including newspaper reporters from as far away as Vancouver.75 Judge Schwenger held hearings on two separate complaints. First, Hugh Burnett and four other members of the black community claimed that they had been denied service by Morley McKay. Second, a black union activist named Lyle Talbot alleged that he and several other blacks had been turned away at Emerson’s Soda Bar Restaurant. (Tal-

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bot, a member of Ford Motor Company local 200 of the United Automobile Workers, was a volunteer for the Windsor Interracial Council, from which position he had been in contact with the Toronto labour committee concerning Dresden since 1948.) These complainants were supported by the Toronto and Windsor labour committees, which had filed the complaints on their behalf, and they were represented in the hearing by the former CCF national secretary, David Lewis. As noted earlier, Lewis was a member of the JPRC and had close ties with Kaplansky and the JLC. He appeared pro bono, significantly cutting the costs of the two labour committees.76 At the hearing the complainants testified about the continuing pattern of racial discrimination. The case against Emerson’s restaurant was clouded by the fact that the complainants had arrived shortly before closing time, but there was no doubt that McKay refused to serve blacks. In fact, McKay readily admitted his discrimination, arguing a kind of defence of necessity which stressed property rights – ‘I have to break the law to protect my business. I have a right to ... My customers have told me if we serve Negroes, they won’t come in.’77 By October, the minister of labour had received Schwenger’s report; however, he would not make it public, saying that there was no need to take action as long as there was evidence that people were being educated about their legal obligations. In reality, although the report recommended that no further action be taken in the Emerson case, Schwenger had found that there was sufficient evidence to suggest that McKay was in direct violation of the FAP act, and he unequivocally recommended that he be prosecuted. Labour Minister Daley was obstructing justice and misleading the public as well.78 This refusal to release the report produced a hail of criticism from the press. Meanwhile, Blum kept up the pressure by arranging another test case about a week later. This time he sent two people, both of them strangers, to Dresden. One of them, Bromley Armstrong, was a Jamaican-born black trade unionist in his early thirties, the financial secretary of local 439 of the United Auto Workers, and chair of the UAW’s FAP committee. Armstrong had been involved with the Toronto labour committee in the earlier discrimination cases concerning the Ontario Liquor Licence Board before he began testing the restaurants in Dresden, and in 1955 he became a member of the Toronto labour committee. After the case was over, he continued to work in the human rights field, and in the 1990s he was given both the Order of Ontario and the Order of Canada for his contributions to society.79

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Armstrong, along with Ruth Lor, a Chinese Canadian who was secretary of the University of Toronto Student Christian Movement, joined Hugh Burnett and Sid Blum on a test of Kay’s Café. As was expected, they were refused service. Indeed, when Armstrong went to the back of the restaurant and spoke to Morley McKay, the latter appeared to be so upset about the frequent tests that Armstrong was seriously concerned that he might be attacked by the restaurant owner, who was wielding a large meat cleaver and appeared to be having trouble controlling his notorious temper. Over the course of the next month or so, Armstrong and others attempted on several occasions to get service at Kay’s Café, but always unsuccessfully.80 This story received prominent coverage in the Toronto newspapers, partly because Blum had been astute enough to invite reporters to witness the test. Minister of Labour Daley, however, responded angrily, suggesting on several occasions that the test was the work of ‘troublemaking Communist groups.’ The Cold War was at its height, and such responses were common ‘red herrings’ during the period. Daley made this charge several times, despite angry denials from the Toronto labour committee, the NUA, and their allies. Perhaps Daley had been influenced by the Globe, which a few weeks previously had noted that ‘it is regrettable that the Communists have taken a hand in the Dresden matter, as they have frankly revealed in their newspaper.’81 ‘Red’ bashing did not always work, however. Daley’s remarks generated a scolding editorial in Maclean’s: ‘We have no idea who organized the test cases in Dresden. But if the Communists did, then the rest of us ought to be ashamed that the credit went to them by default ... It doesn’t matter a fig under whose auspices the facts were brought to light.’ Liberal sentiment in Canada was not going to let the bugbear of communism cloud the issue of racial discrimination.82 Was there any Communist involvement? In the film The Dresden Story, Burnett says that although Communists had made some overtures to the NUA, they had been rebuffed, and Sid Blum once wrote to one of his colleagues that ‘Commies tried to muscle in on the Dresden case for their own purposes. They didn’t succeed.’ Perhaps this was a reference to the visit by J.B. Salsberg, for there is no evidence that the ‘fellow travelling’ Civil Rights Union or League for Democratic Rights ever got involved other than mentioning Dresden occasionally in their literature. Certainly, the strong anti-Communist position of Blum and

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Kaplansky ensured that they would never have tolerated any cooperation with the revolutionary left.83 In any case, Frost did not believe Daley’s charge and he pressured him to take action. In early November the government announced that it was, for the first time, proceeding with a prosecution under the new FAP act – against Morley McKay for his refusal to serve Bromley Armstrong. Shortly afterwards, the government announced a second prosecution, this time against the wife of the owner of Emerson’s Restaurant, based on complaints by two local blacks, Joseph Hanson and Mrs Bernard Carter, who had once again tested the establishment on behalf of the NUA.84 In January 1955 the restaurateurs were found guilty, but they appealed, and in early September County Court Judge Henry Grosch overturned the magistrate’s decision. He ruled that a restaurant owner could not be held responsible for a refusal of service by his waitress, and added that there had been evidence only of a ‘postponement’ of service rather than a refusal. Moreover, he stated, there was no clear evidence that, even if there had been a refusal, it was based on racial discrimination. Human rights activists reacted angrily, especially when it was pointed out that Grosch had been one of the property owners who, some years earlier, had argued in the Noble and Wolf case that a discriminatory restrictive covenant was legal. The Toronto labour committee presented this information to the two Toronto labour councils, which publicly called on the government to appeal the decision and to pass an amendment to the legislation that would make it easier to enforce.85 The Canadian Jewish Congress was also annoyed. The congress had been interested in the Dresden case for some time, although leaving the details of the campaign largely in the hands of the JLC labour committees. On this occasion the CJC’s Joint Public Relations Committee invited Blum to attend a meeting in order to discuss the chances of appealing Grosch’s decision.86 Frost, too, was angered by the decision; he was quoted as saying, ‘Surely it isn’t necessary that a bank robber must announce that he is going to hold up a bank before he is convicted of bank robbery!’ However, he was unwilling to amend the legislation, maintaining that the error lay with the judge and not the statute. As he probably knew, the law was by no means a dead letter. Not long after this a bureau-

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crat reported that thirty-three complaints had been laid under the FAP act, although so far only the Dresden cases had gone to court.87 Although the human rights community (especially its labour component) kept up pressure for an FAP amendment act that would more clearly define the nature of discrimination, and also reduce the discretionary power of the minister of labour, Blum proceeded to see what he could do with the legislation as it stood. To his delight, Attorney General Roberts told him privately that he was sympathetic to their cause and that his department would cooperate fully if further tests were held.88 Blum and Armstrong, along with some trade unionists from Windsor and London, attempted on several occasions to obtain service from Kay’s Café. Each time, however, the restaurant closed shortly after they entered, stayed shut for several hours, and then reopened with a waitress stationed by the window to give warning should the test group return. Sometimes it would even shut down when the owner suspected that human rights testers were on the way. As a result, McKay began to believe that he had perhaps won; he boasted to one of Blum’s white ‘plants’ that he had beaten the previous charges because ‘they couldn’t prove anything.’89 Because of this impasse, and because the attorney general’s office suggested that it might be better to test the café with someone who was unknown to McKay, Blum changed his tactics and called upon two Trinidadian University of Toronto students, Jake Alleyne and Percy Bruce. By using complete strangers rather than Hugh Burnett or Bromley Armstrong, the Toronto labour committee hoped to get proof of refusal of service rather than simply a pattern of eccentric working hours. In addition, if strangers were refused service, McKay could not claim that he was doing this for personal reasons rather than reasons of race.90 When they went to Dresden in November, the black testers were careful not to provide any reason for dismissing their complaint. They were dressed respectably and were careful to be polite. In addition, they requested service several times from both the waitress and McKay, so there could be no doubt about a refusal of service. Moreover, a white student had come down with them from Toronto, entered the café after them, and then asked successfully for service. Finally, Blum had arranged that another student would be in the café simply to observe what had happened. This secret tester also chatted with

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MacKay, who informed her about the ‘dangers’ of interracial fraternization. As he put it, ‘we have to protect our daughters from them.’91 The test was a success. The two black students were not served, yet the white student ‘customer’ received service quickly. As a result, both Bruce and Alleyne laid complaints, and early the following year McKay was charged a second time for violating the FAP law.92 At about the same time that the charges were being laid, the Toronto Association for Civil Liberties led yet another delegation to Premier Frost, this time asking for improvements in the FAP act. Once again, the Dresden affair was a primary focus for human rights lobbying, and although Hugh Burnett was not able to join the delegation, it included a number of black activists: Bromley Armstrong (representing the Toronto labour committee), Stanley Grizzle and B.A. Walker (of the Brotherhood of Sleeping Car Porters), and Donald Moore (of the Negro Citizenship Association).93 Premier Frost was unwilling either to create an anti-discrimination commission or to amend his FAP legislation, but he did mention to Blum that he was optimistic that the law would prove effective. According to Frost, the crown attorney prosecuting the first Dresden cases had been ill and had not handled them very well. In addition, as Blum later wrote to Kaplansky, this time the attorney general’s department was ‘going all out to make this conviction stick,’ and the case was being directed from Toronto rather than by the crown attorney in Chatham, a town close to Dresden.94 McKay’s lawyer argued in court that his client was not responsible for any denial of services on the grounds of race and that the law was in any case unconstitutional criminal law legislation. He also maintained that the testing process was unfair, calling Blum’s observer ‘a plant, a spotter, a spy.’ The magistrate, however, rejected these arguments, and in late February McKay was found guilty, fined, and assessed court costs. The fines were moderate – $50 on each of two counts – but the costs were over $600, an extremely high figure that reflected the cost of bringing the labour committee witnesses from Toronto to Chatham.95 McKay appealed once again, but this time the case went to County Court Justice H.D. Lang rather than Grosch. For Lang, the case for the complainants was clear – an actual refusal of service had taken place, the owner was responsible, the reason could be nothing other than race, and the legislation was indeed constitutional. He upheld both

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the conviction and the fine, ruling also that McKay had to bear the costs of both the convictions and the appeal. The special crown prosecutor had offered not to press for costs if McKay would undertake to stop discriminating in the future, but McKay’s defence lawyer told the court that he wished ‘to go down with his colors flying.’96 The decision was widely reported in the Ontario press as well as the Canadian Press wire service, and most of the comments were favourable. Even the Globe, usually unsympathetic to legislation that limited the freedom of the marketplace, grudgingly supported Lang’s decision: ‘in our view it will always be difficult to impose racial tolerance by law. Education is the surest means of eliminating discrimination in our society. Nevertheless, if we are going to have anti-discrimination legislation, it will have no virtue unless it is effective. Judge Lang has done a good deal to strengthen the Fair Accommodation Practices Act.’97 McKay decided to appeal to the Ontario Supreme Court, and the court granted leave on the issue of the constitutionality of the FAP act. Yet in October he struck his colours and announced that he would not carry through with the appeal. The anti-discrimination forces then waited for a few weeks while government officials informed the Dresden community about their legal obligations and the possibility of future prosecutions. On 16 November 1956 a test group from the NUA asked for service from Kay’s Café and the owner complied. Racial segregation in Dresden had come to an end.98 Dresden was an important victory, but the price was high and the gains limited. First, Hugh Burnett’s health was damaged by the tensions, and his carpentry business failed for lack of customers. People in Dresden still remember that he ‘got run out of town.’ Second, this was simply one battle in a long war – even by the end of the decade, blacks in Ontario were still having significant problems obtaining certain services, and newspapers were editorializing about the need for improved FAP enforcement. (An interesting footnote to Canadian race history is the fact that the famous civil rights activist Dr Martin Luther King was forced to give up a trip to Canada in 1960 because his host was unable to confirm a reservation at a resort. The manager wrote that having a black couple stay with a white couple would cause unacceptable ‘embarrassment’ if any other visitors complained.)99 From the perspective of human rights activists, at least three tasks still remained after Dresden: the continued testing and enforcement of existing FEP and FAP law in Ontario; obtaining legislation that fol-

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lowed the Ontario model in other provinces and at the federal level; and the revision of existing provincial anti-discrimination statutes, ultimately bringing them together as human rights codes, with provision for full-time investigation, enforcement, and public-education staff. Over the next few years the JLC played a major role in the achievement of all three goals. The Toronto labour committee and Sid Blum continued to experiment with the testing procedures they had used so successfully in the Dresden affair. They realized that even a tenacious individual such as Hugh Burnett could have trouble proving that he had been the victim of racial discrimination. As a result, they adopted what can be described as a quasi-governmental role, setting up and publicizing elaborate tests to demonstrate beyond doubt the existence of continuing patterns of racial and/or religious discrimination. As an Ontario FAP officer noted in 1956, the Toronto labour committee was doing a ‘swell job’ and had saved his department much work by its aggressive testing tactics.100 The JLC also exported the Ontario model to other provinces. By the time the Dresden affair was over, a pattern had been set in which JLC labour committees in Montreal, Manitoba, and Vancouver were working with local coalitions to lobby for municipal and provincial FEP and FAP laws, with Kaplansky suggesting how they could profit from the pioneering efforts of the Toronto labour committee and the local committee secretaries making ample use of the ‘Dresden Story’ film in their educational efforts. In those provinces where there were no labour committees, the JLC still had an impact on local trade unionists via the human rights committees of the CCL and TLC and, after 1956, the National Committee on Human Rights of the Canadian Labour Congress. The JLC also played a major role in getting the Ontario government to improve legislative protection for human rights. Sometimes this simply involved demands that the scope of the laws be extended, covering rental accommodation and job-placement agencies, for example. At other times the group asked for an administrative body that would specialize in investigating and conciliating FEP and FAP complaints while also educating the public about rights and obligations. In short, experience in the field increasingly suggested to the activists that the state rather than individuals or groups should take on more responsibility.101 By 1959, Ontario had broadened the scope of its laws and instituted a commission with educational powers. It was not until 1962, however, that the province incorporated all of its anti-discrimination stat-

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utes into a single code, with a commission that had not only educational powers but also the ability to investigate, conciliate, and even prosecute by sending cases to administrative tribunals rather than to courts.102 As the legal scholar Walter Tarnopolsky has pointed out, our modern human rights legislation evolved out of Ontario’s early anti-discrimination laws and its subsequent Human Rights Code. In contemporary Canada there now exists legislation in every province, and at the federal level, protecting citizens against discrimination in employment and in the provision of public services, not only in matters involving race and religion but also in the fields of sex, sexual orientation, and physical disability (to name only a few). Moreover, these codes have been recognized by the Supreme Court as having a ‘quasiconstitutional’ status that elevates them above the ordinary statutes of the land, and they are connected to the Charter of Rights in ways that expand their ambit of protection far more widely than anything ever dreamed of by the early human rights activists of the immediate postwar period.103 This book ends in 1960, a relatively arbitrary date as far as the JLC is concerned. By then, the labour network was no longer headed by Kalmen Kaplansky, for, as already recounted, in 1957 he was appointed director of the CLC’s Department of International Affairs, which led in 1960 to his parallel appointment to the governing body of the International Labour Organization (ILO). In 1966 Kaplansky stepped down from both these positions and the following year became director of the Canadian branch of the International Labour Office and then special adviser to the director general. He retired in 1980.104 Sid Blum, Kaplansky’s replacement as JLC director, also became secretary of the CLC’s National Committee on Human Rights. In this latter capacity, he presided over an organization of labour committees stretching from sea to sea, with paid staff in Montreal, Toronto, Winnipeg, and Vancouver and volunteer committees in Halifax, Amherst, Sydney, Saint John, Windsor, St Catherines, Hamilton, and Calgary.105 In Nova Scotia, for example, Blum set up a Halifax human rights committee and subsidiary organizations in Amherst and Sydney; this helped to create pressure for a provincial FEP law (passed in 1959). The most urgent issue in Nova Scotia was the treatment of its black population, and by 1960 the JLC had begun to make contact with some of the black community leaders.106

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In Toronto, by 1960 the secretary of the labour committee was a young law school graduate named Alan Borovoy, later to become a national figure as the general counsel of the Canadian Civil Liberties Association. In 1960 Borovoy was working on a number of human rights cases in public services, including one filed by future MP Howard McCurdy about discrimination on a local golf course. Borovoy was also working closely with Pierre Berton of Maclean’s magazine, who not only publicized incidents of discrimination but sent Borovoy information about situations worth investigating.107 In 1960 the Winnipeg JLC committee secretary was again David Orlikow, who covered the prairie provinces but did most of his political lobbying in Winnipeg. Manitoba passed an FEP law in 1953 and by 1960 Orlikow was trying to obtain FAP legislation. He also organized test cases, roughly following the model developed in Toronto. Although one case involved allegations of discrimination against blacks by the local Simpson’s department store, his attention was more frequently drawn to issues of discrimination against native Indians. As in other provinces, it was necessary to document abuses before people would admit that there were problems with racism.108 Finally, the Vancouver labour committee secretary in 1960 was Bill Giesbrecht. Working with other groups, his organization had managed to get the province to pass an FEP law, and Giesbrecht was active in a number of other causes, including lobbying for a provincial FAP statute and for a Vancouver city anti-discrimination by-law. As with all of these groups, however, the full story of this committee’s work on human rights remains to be told, waiting for future historians to fill in the details and explain the national connections.109 During the 1950s, the Kaplansky network had also intervened in another issue, one that embraced not just equality issues but also libertarian rights. The struggles for FEP and FAP legislation had often seized the attention of local activists, but there still remained the possibility of a law that would prohibit Ottawa, and perhaps even the provinces, from violating certain rights. As a result, the 1940s and 1950s were not just decades of struggle for anti-discrimination legislation, but also a period in which there was a lengthy campaign for another goal – a national statute in the form of a Canadian bill of rights.

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8 The Canadian Human Rights Community and the Bill of Rights

Earlier chapters in this book have mentioned in passing that certain key groups and individuals in the post-war Canadian human rights community became converted to the idea that the nation needed a bill of rights. The present chapter examines this intellectual sea change in more detail and explains how these people formed a policy network to attain their goal. It illustrates, moreover, the way in which the idea of a bill of rights brought together both libertarians and egalitarians. During the war the civil liberties groups in Canada had begun to widen their scope, embracing not just libertarian but also egalitarian issues. Then, in the post-war years, they had shifted from opposition to anti-discrimination laws to wholehearted support. This helped to facilitate the campaign for a bill of rights, a document that would protect not only such rights as free speech and freedom of association but also the right not to suffer discrimination on the basis of such reasons as race, religion, or sex. All this was, of course, part of the wide-reaching new post-war discourse of human rights. There were a few demands for a bill of rights even before 1945. The Independent Labour Party MP, and future leader of the CCF, J.S. Woodsworth, argued as early as 1927 that the nation should have a bill of rights to protect minorities against discrimination on the basis of language, culture, and religion. This was not, however, a demand for a full-scale set of rights protections along the lines of the American Bill of Rights; it was more of an extension of the limited minority rights already entrenched within the Canadian constitution, primarily a way of improving relations with Quebec.1 A demand for a Canadian bill of rights analogous to that of the United States was first voiced in 1935. When the League for Social

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Reconstruction brought out its book, Social Planning for Canada, Frank Scott was responsible for the section on the constitution, and one of his recommendations was that civil liberties should also be protected by ‘an entrenched Bill of Rights clause in the B.N.A. Act.’2 Scott’s suggestion did not spark much interest at either the governmental level or in the press. There were probably several reasons for this. First, those who dominated the Canadian socio-political elite, whether classical liberals or Tory conservatives, had little inclination to curb the powers of the state, and they were hardly likely to look with any favour at a suggestion coming from the social democrats. A second reason why Scott’s suggestion fell on deaf ears was that it proposed a radical break from the constitutional principle of parliamentary supremacy. This principle, in turn, could be defended on two interconnected grounds: it was part of Canada’s British constitutional heritage, and it was buttressed by the arguments of A.V. Dicey. As Frank Scott later wrote, even in the period following the Second World War, most Canadian lawyers were ‘reared in the Diceyan gospel’ and Scott himself had once been an acolyte before the altar of parliamentary supremacy.3 Moreover, any departure from British traditions would be tied up with the move ‘from colony to nation’ (to use the title of Arthur Lower’s influential post-war history text). Scott’s proposal would have meant that Canadians would need to ask the British Parliament to take away certain powers from their legislatures, a partial reversal of the ‘normal’ evolution of Canadian independence. In 1931 the Statute of Westminster had made Canada legally sovereign, but there still remained a number of ‘loose ends’ to tie up, including the ending of appeals to the Privy Council and the handing over of all the constitution-amending power to Canadians. Given this pattern of constitutional evolution, a bill of rights could be seen as a retrograde step. In fact, this argument was explicitly raised, in December 1937, in a governmental memo by Loring Christie, a senior Canadian diplomat, and it resurfaced again from time to time in the years to come.4 Another problem with Scott’s idea was its ‘nation-building’ bias. The political scientist David Elkins and his colleagues have argued that there are three constitutional models from which Canadians can choose: the country-building, province-building, and Quebec nationbuilding models. With the first approach there is a stress on the national interest and the obligation of Ottawa to promote this. Elkins points out, following Alan Cairns, that the entrenchment of the Char-

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ter of Rights in 1982 was an attempt ‘to construct by constitutional engineering a national community defined by the rights the citizenry possessed.’ Not surprisingly, since Trudeau was in constitutional matters a disciple of Scott, the latter’s proposal was an early forerunner of this approach.5 Indeed, Scott’s nationalism led both directly and indirectly towards a national bill of rights. As early as 1931 he had argued that the Privy Council was responsible for distorting what he considered to be the centralist nature of Canadian federalism, and he was appalled when, in the late 1930s, the Privy Council struck down R.B. Bennett’s ‘New Deal’ legislation, a set of laws that would have regulated the Canadian economy in response to the problems of the Depression. Consequently, he maintained that appeals to the Privy Council should be ended so that the Supreme Court of Canada could develop an indigenous Canadian jurisprudence, one that might (among other things) be more sympathetic to state intervention in the economy. As Alan Cairns has pointed out, the idea of a Canadian bill of rights made little sense as long as Canadian statutes were being interpreted in London, so the nationalist campaign for Supreme Court independence from the Privy Council, which finally succeeded in 1949, helped to pave the way for the bill of rights movement.6 Yet the ‘nation building’ effect of an entrenched bill of rights clashed with the other two models: provincial rights and Quebec nationalism. Not only does a national bill of rights usually have a centralizing effect, but in Canada the proposal also threatened a common belief that ‘civil liberties’ were almost entirely under provincial jurisdiction, since the BNA Act gave the provinces power over ‘property and civil rights.’ Moreover, the general thrust of decisions by the Privy Council had been to decentralize Canada, and suggestions for a bill of rights therefore ran counter to this pre-war ‘province building’ tradition. At the same time, the Quebec government of Premier Duplessis viewed decentralism as a sine qua non of French-Canadian national survival. Since Prime Minister King was heavily dependent upon the support of Quebec voters, and unwilling to alienate Duplessis any more than could be helped, he normally refrained from taking steps that would protect civil liberties at the expense of ‘Canadian unity.’ As a result, much of what at that time passed for country building was an evolutionary disengagement from colonial subordination, not the adoption of policies that would weaken the provinces in any significant way.

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But not everyone supported the provincial-rights argument, and Ottawa’s decision not to disallow the 1937 Padlock Law helped to stimulate the nation-building position. One of Ottawa’s strongest critics was J.W. Dafoe, the legendary editor of the Winnipeg Free Press. Described by the journalist Bruce Hutchison as ‘an old lion with a shaggy, reddish mane, a huge body, and a weary look,’ Dafoe had been for years an unyielding supporter of the Liberal Party, as well as a strong believer in Adam Smith and the policies of laissez-faire. Over time, however, he became more of a reform liberal – convinced that the state should play a greater role in the lives of its citizens, creating social-security programs and regulating the natural resources of the country so that the public would better reap the benefits.7 At the same time, Dafoe was unalterably committed to the liberal freedoms of association and discussion; as he wrote in the early 1930s, with reference to fascism and socialism, ‘the surest defence of the democratic system against the two alternative tyrannies that threaten us is the full acceptance of the libertarian principles that have been challenged.’ This libertarianism, combined with his growing acceptance of the welfare state, propelled Dafoe towards support for federal activism. Among other things, he maintained that Ottawa should use the power of disallowance to strike down the Padlock Act. Then, he added, it should place certain rights beyond the constitutional powers of any province by creating a bill of rights. Dafoe made these points repeatedly in the pages of the Free Press and in a number of pamphlets that reproduced his columns.8 Interestingly, Dafoe was also a member of the Royal Commission on Dominion-Provincial Relations. Usually called the Rowell-Sirois commission, it was established in 1937 primarily to deal with federalprovincial fiscal relations and the government financing problems arising from the Great Depression, but it also received a brief dealing with the status of civil liberties. This brief, submitted by Professor A.R.M. Lower along with the liberal Winnipeg lawyer J.B. Coyne and R.O. MacFarlane, an assistant professor of history at the University of Manitoba, argued that ‘a superior plane of civil rights must be recognized above the jurisdiction of the provinces and especially dedicated to guardianship of the civil rights of the citizen as a CITIZEN OF CANADA.’ The brief added that such rights (including interprovincial trade, mobility rights, the franchise, and freedom of religion) should be either handed over to the federal government through a constitutional amendment or protected by means of a bill of rights. Meanwhile, it sug-

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gested, the federal power of disallowance should be used more frequently to protect these fundamental freedoms.9 This brief seems to have had considerable impact. Christopher MacLennan has suggested, in his history of the Bill of Rights, that one reaction to it was the previously mentioned federal briefing note by External Affairs adviser Loring Christie. This provided the government with an extensive analysis of the pros and cons of a bill of rights, suggesting that a bill of rights entrenched into the constitution by amendment would constitute a backwards step in the evolution of Canadian sovereignty (since Britain would have to provide the amendment) and arguing that the better option might be a simple statute that set out as a formal declaration the British liberties already enjoyed by the citizens.10 Another reaction came from the judiciary. According to Arthur Lower, the judges in the Alberta Press case were influenced by his joint brief to the Rowell-Sirois commission, for a lawyer had referred to it when arguing before the Supreme Court that an Alberta bill interfering with the freedom of the press should be declared unconstitutional. Two judges of the court suggested that the constitution contains an ‘implied bill of rights’ that might be used to strike down laws which interfere with the free-speech rights necessary to the parliamentary process. This was the argument that soon afterwards the Montreal branch of the CLU attempted (unsuccessfully) to use in the Fineberg case, attacking the constitutionality of Quebec’s Padlock Law.11 There was, however, another important part to the argument of the two Supreme Court justices. Chief Justice Duff also suggested that Ottawa might have the constitutional power to protect the right of ‘free public discussion of affairs.’ As he wrote, ‘we do not doubt that (in addition to the power of disallowance vested in the Governor General) the Parliament of Canada possesses authority to legislate for the protection of this right’ by virtue of its general power to protect the constitution itself. Since this was mere obiter and not part of the majority reasoning, it was not legally binding, but it did suggest that some time in the future a liberal Supreme Court might adopt Duff’s reasoning and declare officially that Ottawa had the power to create a bill of rights without the country having to go through the struggle of a constitutional amendment.12 The first parliamentary demand for a national bill of rights seems to have taken place in 1938 when the radical and iconoclastic independent Manitoba MLA, Lewis St George Stubbs, moved a resolution

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calling for the incorporation in the constitution of a guarantee of freedom of speech, assembly, press, and religion. His resolution passed, but it does not seem to have had any effect on the federal government.13 Then, as noted in chapter 1, the defeat of the challenge to Quebec’s Padlock Law in the Fineberg case suggested to the Montreal Civil Liberties Union in 1939 that the answer to their problem perhaps lay in lobbying for a national bill of rights. As a result, Cam Ballantyne wrote to David Lewis, the national secretary of the CCF, mentioning that he had heard from Eugene Forsey that the CCF national council had been thinking about proposing just such an innovation. Lewis wrote back, saying nothing about CCF plans but noting that introducing a bill of rights was an idea ‘which is foreign to the popular thinking about the British constitution’ and adding that the U.S. Bill of Rights had failed on the whole to achieve its desired ends. Lewis did not rule out the idea entirely, however, and suggested that the CLU might prepare the way for such a constitutional change by engaging in an educational campaign.14 With the outbreak of the war, the CLU seems to have abandoned any such plans. In general, during the early part of the war, there was little or no discussion of Canada’s need for a bill of rights. Ottawa’s heavy-handed use of the DOCR, however, as well as the forced dispersal and internment of Japanese Canadians, demonstrated to many people the validity of the Actonian dictum about the corruption of power. Not surprisingly, therefore, in 1943 Frank Scott again proposed a constitutionally entrenched bill of rights, a bill that would include not just traditional civil liberties but also ‘minority rights’ for francophones. In the same year, speaking on behalf of the CCF, Scott and the now-converted David Lewis called for a new constitution ‘guaranteeing full protection to minorities and embodying the democratic civil liberties.’ By late 1944, the federal CCF election manifesto contained a pledge to protect ‘the existing minority rights set out in the BNA Act’ as well as a call for a bill of rights entrenched by a constitutional amendment.15 However, this notion still did not have the complete support of the party elite. It is true that George Grube supported the idea in an article written for the 1944 Ontario CCF book Planning for Freedom, although he mentioned it only in passing as a way of defending citizens against employers as well as the state. Frank Underhill, by contrast, expressed worry in a companion article about corporations tak-

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ing advantage of constitutional protections. As a historian, he was aware that at one point many social-welfare laws in the United States had been struck down by a conservative Supreme Court interpreting the Bill of Rights in a pro-business fashion.16 Yet the enemies of capitalism, the Communists, were by now calling for a bill of rights. In November 1944 the Tribune carried the details of the LPP electoral program, which included an interesting mixture of support for both individual and collective (ethno-national) rights – a call for ‘... a specific Bill of Rights, containing guarantees of civil liberty, freedom of conscience, and recognition of the equality and rights of the national communities of French and English Canada.’17 Meanwhile, the notion of a bill of rights was catching on in liberal circles. The Civil Liberties Association of Toronto seems to have mentioned the idea to the federal government in one of its briefs in 1942, and even after the death of Dafoe the Winnipeg Free Press continued the struggle. In 1944 Bruce Hutchison wrote a editorial which suggested that, given Canada’s experience with the Alberta press bill, section 98 of the Criminal Code, the Padlock Law in Quebec, and the deportation of certain Canadians during the Depression of the 1930s, common law protections of civil liberties were inadequate and therefore those liberties needed constitutional protection. This was the opening salvo in a new barrage of Free Press articles and pamphlets dealing with civil liberties in Canada and demanding a constitutional bill of rights.18 Even the Canadian Bar Association put out tentative feelers. The report of its committee on civil liberties, presented to the CBA’s annual general meeting in August 1944, warned particularly about the danger of ‘executive despotism’ and ended with the words: ‘We wonder if, for Canada, we had not better follow the American procedure, and incorporate ... [certain traditional liberal] rights and liberties of the subject in our own Constitution, for greater guarantee that our democrats will not forget Democracy.’19 The reference to democracy in this report is interesting. There are two equally legitimate definitions of democracy – one of them calls it majority rule, while the other sees democracy as a combination of majority rule and respect for minority rights. Each implies an attitude towards the notion of a bill of rights prohibiting the passage of certain laws. The former, majoritarian, perspective is opposed to such an approach, for it has faith in Parliament’s ability and willingness to respect civil liberties and minority rights. In its ‘pure’ liberal form, it

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involves a Burkeian reliance upon the good sense of MPs. In its populist manifestation, it has faith in the ability of parliamentarians to represent the will of the people and it either assumes that the people will not forsake liberal principles or believes that if they do so the courts should not stand in their way. By contrast, the minority-rights perspective has little faith in the ability of either parliamentarians or the voters to ‘do the right thing,’ especially in times of stress. Instead, it wants the courts to uphold and apply the values entrenched into a prohibitory bill of rights. The judges, therefore, are constitutional guardians who curb either populist passions or the impulses of corrupted politicians. This is, of course, the most elitist of the two positions, for it places considerable power in the hands of an unelected minority of individuals. Debates about the values of these positions have become common in Canada since the creation of the Charter or Rights in 1982, but the issues involved were not as well understood in the 1940s and 1950s. Moreover, the argument against the proposed bill of rights was usually couched in language about the ‘British tradition’ of parliamentary supremacy, not in language about democracy. For the most part, references to democracy, as in the case of the Canadian Bar Association, were essentially anti-majoritarian arguments in favour of a bill of rights.20 Meanwhile, the idea of a bill of rights was next floated by T.C. Douglas, the CCF premier of Saskatchewan, who put the matter firmly on the national political agenda in August 1945, shortly before the surrender of Japan and the end of all wartime hostilities. At that time, the prime minister and the nine premiers were gathered in Ottawa for what was called the Dominion-Provincial Conference on Reconstruction. Most of the discussion revolved around Ottawa’s plans to take the initiative in a number of economic and social-welfare policy areas, but when Douglas made his government’s presentation he recommended ‘that the British North America Act should be revised placing certain fundamental religious, racial and civil liberties in a Bill of Rights, amendable only by the unanimous consent of the provincial legislatures concurrently with the dominion parliament.’21 The proposal was not met with any degree of enthusiasm, but about a month later Alistair Stewart, the CCF MP from Winnipeg North, and a colleague of Arthur Lower in the local Civil Liberties Association, made a case before the House of Commons. Referring to the preamble of the United Nations, with its affirmation of fundamental rights and

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freedoms, he argued that such a bill might go far in eliminating racial and religious discrimination. Soon after this, he moved that ‘in the opinion of this house, there should be incorporated in the constitution a bill of rights protecting minority rights, civil and religious liberties, freedom of speech and freedom of assembly; establishing equal treatment before the law of all citizens, irrespective of race, nationality or religious or political beliefs; and providing the necessary democratic powers to eliminate racial discrimination in all its forms.’22 It is interesting to speculate as to why Stewart introduced this resolution. As a member of the CCF, he was, of course, supporting recent party policy. However, Stewart also represented a constituency that included a large percentage of minority groups, and as well he had a personal history of support for human rights. He was one of the Winnipeg civil libertarians who, during the war, had publicly criticized the DOCR, and after the war he sat on the advisory council of the Manitoba Civil Liberties Association. He was also, towards the end of the conflict, one of those who took an active part in forcing the University of Manitoba to repeal its anti-Semitic entry requirements for its medical school. Finally, as he admitted later in a speech, ‘I had been in the house for only two weeks, and I was optimistic. I thought the Liberal government might possibly see some reason in a bill of rights.’23 Stewart’s resolution was never discussed in the House, for he withdrew it when he heard that the government planned to amend the Citizenship Act; he believed that he would be able to raise the matter again in the ensuing debate. However, some time later, before the act was introduced, John Diefenbaker made his own bid, in the debate on the throne speech during the height of the Gouzenko affair in March 1946.24 It has always been part of the ‘conventional wisdom’ that after the war John Diefenbaker was the political knight in shining armour who searched for years in the wilderness for the elusive holy grail called the bill of rights. Diefenbaker himself did little to dispel the idea, and much to encourage it. But it is a caricature of reality. While Diefenbaker was astute enough to appropriate the proposal for a bill of rights, and make it his own, his ideas about what exactly the proposal meant owed much to the thinking of others.25 According to one analysis of Diefenbaker, the future prime minister’s first public reference to a bill of rights (notwithstanding his claims in his memoirs) seems to have been in a radio address in 1943. A year

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later he made another broadcast in which he referred to a bill of rights that would consist of such things as the right to work, the right to fair pay, the right to security, and the right to education. These references, however, can be classified as trial balloons which generated little interest. The speech in early 1946 was his first attempt to bring the idea before Parliament.26 Yet, even here, Diefenbaker was not entirely clear about the exact nature of his proposal. At first he referred to ‘a declaration of liberties,’ suggesting that what he had in mind was less than a constitutional amendment. Then, however, he spoke of the American Bill of Rights, arguing that Canadians should have something similar – ‘a bill of rights under which freedom of religion, of speech, of association and of speech [sic], freedom from capricious arrest, and freedom under the rule of the law, should be made part and parcel of the law of the country.’ It was not until about a year later that Diefenbaker made it clear that his proposal would enshrine egalitarian as well as legal and political rights.27 Although Diefenbaker’s proposal seemed to be attractive to those who had been alarmed by the Gouzenko affair (the Toronto Star, for example, even suggested that ‘probably everyone will agree that Canada should have a specific declaration of human rights’), in fact most Canadians were not sure exactly what it was they wanted. In the years between 1946 and 1960, different lawyers, scholars, and academics slowly developed a number of different approaches, although there was considerable disagreement, uncertainty, and confusion about them. In retrospect, it appears that Canadians had four major options: a declaratory bill of rights, a statutory bill of rights (which in turn had two different variations), and either an unentrenched or an entrenched amendment to the BNA Act (with the latter also including two different possibilities).28 The first option would have been the least radical – a simple declaration of rights that was not legally binding. As Walter Tarnopolsky has pointed out in his exegesis of the legislation which Diefenbaker finally achieved in 1960, a declaratory statute is ‘one which declares or formally states what the existing law is on a given subject, so as to remove any doubts which may have been raised.’ It therefore assists the judges in the performance of their customary task of interpreting the law, but it does not give them any additional power, unlike legislation which prohibits either the executive branch or the legislature from certain types of behaviour. Such a bill of rights would have been

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important only in symbolic and educational terms, a drawing together of all the common law rights and constitutional statutes which were part of Canada’s British heritage.29 The other approaches were all prohibitory rather than declaratory; in other words, they would impose some limits on government. For example, the second option was the passage of a federal statute that not only declared certain rights to be in existence but actually prohibited their breach. There were two possible forms such a bill of rights could have taken. One version could have been a statute written in such a way that it clearly permitted the courts to nullify executive decisions that violated the declared rights. The more extreme version would have also mandated judicial review of legislative decisions. In other words, it would have permitted the courts to strike down any statutes that were inconsistent with these declared rights. However, although the statute would have applied to future parliaments, it would not have been an absolute prohibition, for it would have left the principle of parliamentary supremacy intact. Any future Parliament could have passed a statute either repealing or partially nullifying the effect of this bill of rights. Davie Fulton, minister of justice during the debates on Prime Minister Diefenbaker’s proposed Bill of Rights in 1960, pointed out that such a statute becomes elevated to the status of a constitutional amendment not through alteration of the BNA Act but through creation of an ‘organic law.’ This, however, was a technical point likely to be overlooked and unappreciated except by constitutional lawyers and political scientists.30 The third major option was hardly more adventurous than the second, but it became available only in 1949 when the BNA Act was amended so as to give the Parliament of Canada limited power to amend the BNA Act (excluding the power to affect provincial rights). As later pointed out by J.W. Pickersgill, the former senior civil servant then reborn as a Liberal politician, from that point on the federal Parliament could have created a bill of rights by passing an amendment to the BNA Act which would have been binding only on the federal government. Such an amendment would not have been entrenched, and therefore could have been altered by a subsequent act of Parliament, but, as a formal addition to the BNA Act, it might have been regarded by the judiciary with more respect than a simple statute.31 Finally, a considerably more adventurous approach would have been a constitutionally entrenched bill of rights that undermined the prin-

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ciple of parliamentary supremacy. This also involved two alternatives. First, as Frank Scott later suggested, Ottawa might have entrenched a provision that prohibited only the federal legislature from violating certain rights. According to Davie Fulton, this would have necessitated the federal government handing back to the British Parliament some of its recently acquired powers of amending the constitution within Ottawa’s field of jurisdiction. Yet the problem could have been avoided (as political science Professor Kenneth McRae suggested to Diefenbaker) by having the Canadian Parliament entrench an amendment to section 91 by creating a ‘manner and form’ requirement for future changes. A ‘manner and form’ requirement within a statute stipulates that a later Parliament can change the statute only by following a prescribed procedure, for example, a requirement that twothirds of the MPs must vote for change.32 Second, Ottawa might have gone even further and constitutionally entrenched a bill of rights that limited the powers of both Ottawa and the provinces. This would have been possible only by asking the British Parliament to pass the appropriate amendment or by first achieving the patriation of the BNA Act and then using the newly acquired power to entrench the bill of rights through an autochthonous amendment. However, because of tradition, as well as respect for the constitutional rights of the provincial premiers, either British or Canadian entrenchment would have necessitated the approval of most or all of the provinces.33 In 1946 Diefenbaker seems to have been undecided at the most basic level – did he advocate a declaratory or a prohibitory bill of rights? Even so, it was reported that Diefenbaker’s speech alarmed the Tory caucus, and over the next few years almost none of them supported his frequent proposals for a bill of rights. Above all, the Conservative MPs from the west coast (with the exception of Davie Fulton) were not favourably disposed towards a bill of rights which might impede discrimination against Japanese Canadians.34 Diefenbaker could see a declaratory bill of rights as a nation-building tool that might avoid certain constitutional ambiguities about jurisdiction over civil liberties. As he noted in Parliament, about a year after he first called for a bill of rights: ‘A declaration of a bill of rights in this country would be a positive declaration on the part of men and women of all political faiths in their belief in civil liberties. Whether the federal authority has the power or not to pass legislation respect-

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ing civil liberties, its passage would strengthen the hand of the Minister of Justice in the matter of the disallowance of any statute which would deny freedom anywhere in our country.’35 This argument is reminiscent of the point made by Lower and his colleagues to the Rowell-Sirois commission in the late 1930s. Diefenbaker and Lower often corresponded on the bill of rights issue, so Lower may well have suggested this line of thought. It was, moreover, consistent with the country-building perspective which Diefenbaker stressed a year later when he asked the federal government to send the jurisdictional question to the Supreme Court as a reference case: ‘To say that in one part of Canada a Canadian may enjoy freedom of religion and of speech and of association, all those great and abiding freedoms, and that in another province a Canadian may not enjoy them, is a denial of the possibility that we shall ever build a United Canada on the basis of equality of the individual before the law in all parts of the country.’36 Another reason why Diefenbaker may have favoured a declaratory bill of rights was that it left intact the fundamental British tradition of parliamentary supremacy. At first glance, it is surprising that Diefenbaker, as a Tory conservative committed to Canada’s British connection and the monarchy, ever mentioned an American-style prohibitory bill of rights. Such an innovation would have constituted a radical break with the past, while a declaratory bill would simply have clarified some of ‘those things we treasure’ in the British constitutional tradition, such as Magna Carta, habeas corpus, and the 1689 Bill of Rights.37 Yet Diefenbaker was strongly drawn to the notion of a prohibitory bill of rights, at least one that would have curtailed the powers of the executive rather than the legislature. When he defended his proposal in the House for the first time, he pointed out, in a peroration heavily laden with ‘precious British liberties’ rhetoric, that the Gouzenko crisis was part of a trend towards executive despotism. In his words, ‘from 1939 on, the government has arrogated to itself powers which ordinarily reside with parliament and the people.’ This had begun, he said, with the passage of the DOCR. It continued after the war when Ottawa in effect bypassed Parliament by creating orders-incouncil permitting the deportation of Japanese Canadians, and it reached its nadir when Ottawa used an order-in-council during the Gouzenko affair to ‘sweep aside Magna Charta, habeas corpus and the bill of rights.’ For Diefenbaker, the great defender of the traditional

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powers of Parliament, the cancer eating away at the Canadian political system lay within the executive branch (which of course was dominated by Liberals rather than Tories).38 Diefenbaker was not, in fact, very much of a civil libertarian. Indeed, he was not very much of anything, according to one study, which refers to him as ‘an ideological vacuum cleaner.’ As noted in earlier chapters, his claims to have been a wartime civil libertarian were somewhat exaggerated, and on the Japanese-deportation issue he was opposed not to the substance of the government’s policy but to the process, the fact that the deportation policy had been mandated through orders-in-council, and even worse, through orders-in-council that had been created in such a way that the cabinet appeared to be evading the clearly expressed will of Parliament. Had the deportation taken place according to legislation explicitly provided by Parliament, he might well have had no objection. As Denis Smith has put it in his biography of Diefenbaker, ‘rights were only what parliament declared them to be.’39 At about the same time that Diefenbaker was raising the idea of a bill of rights, the Alberta Social Credit government of Ernest Manning was pursuing a somewhat similar goal. On 27 March 1946 the lieutenant governor of Alberta granted royal assent to An Act Respecting the Rights of Alberta Citizens, the short title of which was the Alberta Bill of Rights Act. This largely declaratory statute contained a rather odd mixture of points which could have been produced only by a Social Credit government. It began with a list of the ‘Rights of Citizenship’ in the province. Each one began with a statement that ‘it is hereby declared,’ but there was no way of enforcing these rights in the courts. They included traditional liberal individual rights such as freedom of worship, expression, and assembly, along with some clearly anti-socialist desiderata such as the ‘freedom to engage in work of choice’ and the ‘freedom to acquire property and enjoy home and property.’ The legislation also contained a populist guarantee of the right either to gainful employment or to social-security pensions, education benefits, and medical benefits. Finally, a large section of the statute dealt with the implementation of Social Credit financial theories, creating a ‘Board of Credit Commissioners’ and a ‘Consolidated Credit Adjustment Fund.’40 The Alberta legislation, however, was a constitutional flash in the pan. The legislation contained a stipulation that it would not come

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into force until the courts had pronounced it constitutionally valid, and the entire law was declared ultra vires by the Supreme Court in 1947.41 Meanwhile, shortly after the debate on the throne speech in the House of Commons, federal cabinet minister Paul Martin moved second reading on the government’s proposed Citizenship Act. The law concerning Canadian citizenship was then a confusing amalgam of three different statutes, and the government intended to consolidate the law into one piece of legislation. The Citizenship Act also had an important symbolic effect, since it created a new status of ‘Canadian citizen’ which supplemented the old status of ‘British subject.’42 In retrospect, the passage of the Citizenship Act has been seen as an important stage in the development of Canadian democracy and a major step forward in ‘nation-building’ of the civic nationalist variety. At the time, however, the legislation was a significant disappointment for those who were committed to enhanced protection for human rights. It did nothing to improve the second-class citizenship of Asian Canadians in British Columbia, and Martin even moved an amendment to ensure that the Japanese-deportation orders-in-council would not be inadvertently cancelled by the legislation. The ‘country building’ impulses of the federal government were half-hearted measures when it came to human rights.43 Diefenbaker’s response to the proposed legislation was a reflection of his constitutional tunnel vision – a request that every certificate of citizenship given to new Canadians include a short bill of rights. His argument in favour of this, however, once again indicated his uncertainty about what exactly he wanted. On the one hand, he seemed at times to be arguing that the state itself should be prohibited from violating certain fundamental human rights. As he said, ‘if citizenship is to mean anything it must mean the equality of all.’ However, other passages once again indicate that his chief goal (and that of his ally, Davie Fulton) was the curbing of executive despotism. For example, he proclaimed that ‘I am unalterably opposed to any alteration or diminution of the rights of Canadian citizens by order-in-council independently of parliament.’ Moreover, his proposed bill of rights explicitly permitted suspension of the right of habeas corpus – as long as it was done by Parliament.44 Diefenbaker was unable to gain support from the House even for this version of a bill of rights. Yet, by raising the issue in the House (along with Alistair Stewart, who suggested as an alternative that a

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statement of human rights be included as a preamble to the Citizenship Act – and one that mentioned egalitarian as well as libertarian rights), Diefenbaker helped to pique the interest of some influential Canadians. For example, the Ottawa Journal responded with an editorial titled ‘We Need a Bill of Rights,’ and the Globe implicitly supported the proposal by quoting approvingly and at length from Diefenbaker’s speeches in the House. Then, after the Citizenship Act came into force on 1 January 1947, several members of the Manitoba Civil Liberties Association used the occasion to give radio broadcasts on ‘the Meaning of Canadian Citizenship,’ arguing that Canadian citizenship should be based upon the principle of equality before the law and that this should be set out in a new Canadian bill of rights.45 By this time, Arthur Lower had become converted to the idea of a bill of rights that would limit not just the provinces (as he had proposed before the war, in his joint brief to the Rowell-Sirois commission) but also the federal government. Lower’s faith in the liberal beneficence of the federal government had been badly shaken first by the DOCR and then by the Gouzenko affair. While Quebec had been the greatest threat to libertarian rights in the late 1930s, it was clear that Ottawa also posed a danger.46 Moreover, Lower had also come to worry about egalitarian rights. Like many of his generation, in the pre-war period he had been more defensive than liberal in his attitudes towards racial equality. As Carl Berger has noted, his earlier writings, full of references to blood, stock, and fatherland, had definite ‘racist overtones.’ He had been concerned with the dislocations of immigration and low English-Canadian birth rates, and he worried that these were endangering the status of Canada as a British country – ‘dominated by British ideals, with British institutions, and predominantly British in population.’ He had even, in 1944, written about the perverse nature of Japanese Canadians and suggested that Ottawa should perhaps deport them after the war.47 But for Lower, as for many other Canadians, the Nazis had served to make racism unpalatable, and his Winnipeg Civil Liberties Association denounced ‘the curse of racialism.’ After the war, although he continued to favour a homogeneous society, he was sympathetic to the minority groups who had already come to Canada. As he wrote in 1947, ‘every state naturally has the right to scrutinize the qualifications of those seeking to become its citizens. But to discriminate between its native-born citizens, awarding degrees of excellence (or privilege) should be anathema.’ Holding such opinions, he could argue in

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favour of a constitutional document that guaranteed traditional ‘British liberties,’ including the principle of equal treatment of all citizens.48 Lower therefore did his best to support Diefenbaker, sending Prime Minister King, on behalf of the Winnipeg (soon to be Manitoba) Civil Liberties Association, a telegram that fulsomely suggested that this was a chance to prevent a repetition of past excesses, as well as ‘your opportunity to recover for true liberalism its traditional position and for yourself the favourable verdict of history.’ Perhaps more important, the following month Lower travelled to Ottawa, where he met not only with John Diefenbaker but also with Senator Arthur Roebuck, B.K. Sandwell, and Eric Morse (national secretary of the United Nations Association in Canada and a member of the recently formed Ottawa Civil Liberties Association).49 It was not a simple matter for these liberals to embrace the idea of a bill of rights. At one point in the discussions, Roebuck suggested to Lower that they form a committee to promote the idea of a Canadian bill of rights, arguing that Diefenbaker would be more likely to succeed if there were such a body to ‘feed’ him information. Sandwell, however, was at first rather sceptical. In the middle of the Japanesedeportation struggle, he had suggested in an editorial that Canada perhaps needed a bill of rights that would protect citizens from executive despotism, but when Diefenbaker suggested a bill of rights a few months later, Sandwell had rejected the idea of a restriction on parliamentary sovereignty. As he pointed out, one barrier to an effective bill of rights would be the difficulty of achieving federal-provincial agreement to a constitutional amendment, and at the same time it would undermine ‘the doctrine that the powers of such legislative bodies should be restricted only by the good sense and moderation of their members – and thus in the long run of the people who elect them.’ In short, he was assuming the majoritarian, and perhaps even populist, view of democracy.50 Arthur Lower shared some of Sandwell’s misgivings. However, he was willing to accept at least a declaratory bill of rights. As he wrote to one of his civil libertarian friends, ‘one cannot enforce the Sermon on the Mount in a court of law, but it has not been without its influence.’ Believing that part of the problem was the apathy of the Canadian people, Lower thought that a document which educated them about their rights would perhaps in the long run have some effect in curtailing the authoritarian tendencies of Canadian governments.51

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Meanwhile, Lower was also in touch with the Emergency Committee on Civil Rights, the radical-left civil liberties group that had recently broken with Sandwell over the Gouzenko affair. A series of letters passed between the ECCR executive and Lower, and in early August the Winnipeg group was visited by C.B. Macpherson. Up to this point, none of the ECCR letters to government or its newspaper advertisements had made any reference to a bill of rights as a longterm solution to civil liberties violations, but soon after Macpherson’s trip the ECCR newsletter stated that ‘we shall be pleased to print discussions on the question of a Bill of Rights for Canada.’ Quite possibly Lower had helped to convert Macpherson to his way of thinking.52 In Lower’s eyes, support from the ECCR was a mixed blessing. He believed that many of the executive were either members of the LPP or sympathetic to its aims, but he felt that they were more likely to get things done than the CLAT organization of B.K. Sandwell (which he referred to as ‘inert’), and he concluded that a limited and temporary connection might be desirable.53 Lower also had access to a more ‘respectable’ ally in the form of the Winnipeg Free Press. Grant Dexter, now the newspaper’s general editor, was a progressive liberal reformer and a member of what the historian Patrick Brennan has dubbed ‘the Liberal press establishment’ – a small group who had considerable impact upon public perceptions and acceptance of government policy in the immediate post-war era. As a member of the advisory board of the Winnipeg (renamed Manitoba) Civil Liberties Association, he helped to connect Lower with the usually liberal Free Press.54 Of course, it might be more accurate to see Lower promoting one of the Free Press’s causes rather than the newspaper supporting Lower. In the spring of 1946, following the lead of Dafoe and Hutchison, the paper had supported Diefenbaker’s call for a bill of rights. A few months later, when the Canadian Bar Association was meeting in Winnipeg for its annual general meeting, the newspaper also produced a lengthy editorial on the Gouzenko affair, arguing that the CBA should defend civil liberties and consider the option of a bill of rights.55 Increasingly, it seems, classical liberals were coming to accept an idea that previously had been largely the pipe dream of social democrats. Within a few months of his meeting with Lower and the others, Sandwell had abandoned his scepticism, as well as his majoritarian

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democratic impulses, and was now in the camp of the bill of rights advocates. In an editorial written in October 1946, he referred to an anonymous article in Chitty’s Fortnightly Law Journal which argued that the Anglo-Saxon tradition ‘never meant the absolute rule of the majority. It has meant the rule of the majority subject to the overriding principles of constitutionalism in favour of the minority.’ It also added that a bill of rights was necessary in a country that had not developed, as Britain had, ‘powerful traditions’ protecting minority rights. Sandwell grudgingly admitted that the author might be correct, adding that Canadians lacked another of the British guarantees of minority rights – ‘the permanent presence of a personal hereditary monarch.’56 Other civil libertarians were also coming around. When, in late 1946, a number of representatives of different eastern Canadian civil liberties groups convened to discuss the formation of a national organization, they also debated the merits of a bill of rights that would not just be declaratory but would also prohibit the state from violating certain rights. Wilfrid Eggleston of the Ottawa civil liberties group argued that such an idea constituted a reversal of the principle of parliamentary supremacy, but he was contradicted by several other speakers, including C.B. Macpherson and Frank Park of the Civil Rights Union as well as Frank Scott of the Montreal organization. Given that he was a professor of constitutional law, Scott’s approach probably carried the most weight. Using an argument that he later enlarged upon in an influential Canadian Bar Review article, Scott challenged the position that a bill of rights would be an unprecedented violation of parliamentary supremacy. As he pointed out, the Canadian constitution already contained certain limitations on this principle, for the BNA Act protected certain minority language and denominational school rights. These, as he argued, constituted ‘the beginnings of a Bill of Rights.’57 Yet parliamentary supremacy (even if attenuated) was still a central constitutional principle, and one that could permit serious rights violations. In January 1947 the Privy Council decision on the JapaneseCanadian deportation issue demonstrated that there were almost no constitutional fetters upon an illiberal government. For many members of the human rights policy community, this demonstrated as never before the importance of a prohibitory bill of rights. Shortly afterwards, CLAT and the CRU jointly sponsored a public meeting that featured a number of prominent civil libertarians and human rights activists, including Andrew Brewin, Rabbi Abraham Feinberg, and

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Senator Arthur Roebuck. Referring to the deportation case, as well as the Gouzenko trials and the Chinese Exclusion Act, the speakers had no trouble persuading the audience to adopt a resolution that demanded a parliamentary committee ‘to investigate violations of civil rights in Canada, to hear representations from individuals and organizations on means of preventing future violations, and to make recommendations for a Canadian Bill of Rights.’ A telegram was immediately dispatched to the minister of justice.58 Shortly afterwards, some of these ideas were reworked into a persuasive argument by Arthur Lower, who had recently left Winnipeg in order to teach in the east. In a lengthy essay titled ‘Some Reflections on a Bill of Rights,’ he called for the establishment of a parliamentary committee to consider the repeal of a number of authoritarian statutes such as the War Measures Act. In addition, Lower now argued in favour of a prohibitory bill of rights in the constitution, pointing out that the very nature of federalism imposes limits on parliamentary supremacy. (He warned, however, that a declaration of principle in a statute might be the most attainable goal in the short run.) Civil liberties infringements during the Second World War as well as the recent disturbing violations in the Gouzenko affair and the Japanese-deportation case clearly indicated to him that ‘we can no longer depend solely on the omnicompetent parliament. It has shown heretofore only slightly more sense of liberty than have the masses. We cannot easily rest on the doctrine of parliamentary supremacy. We must return to older doctrines ... We must get back to the principles of common law.’ In other words, rather than seeing a bill of rights as an Americanization of the Canadian constitutional system, Lower preferred to see it as a return to the earlier English natural-rights tradition and the elevation of judicial supremacy over parliamentary supremacy. In terms of legal/political philosophy, this was a dismissal of Benthamite positivism and a reversion to the era of Coke.59 Lower distributed his essay to a number of contacts and was gratified to see it receive considerable public exposure. Diefenbaker used it in the House of Commons as ammunition to bolster his arguments, while Chitty recommended it to the civil liberties committee of the Canadian Bar Association and also published it in his Fortnightly Law Journal. In July 1946 Chitty had argued that a bill of rights would only ‘temporarily check the advance of antidemocracy,’ but he, too, had now changed his mind. In the same issue in which he published Lower’s article, he referred to the ‘obnoxious doctrine of legislative

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sovereignty,’ suggested that ‘the lawyer alone ... understands the real meaning of Civil Liberty,’ and concluded that ‘only the Courts can put upon this overweening menace of legislative sovereignty the limitations that must be put upon it, if freedom is to survive and true democracy be saved.’60 Meanwhile, in early 1947 the United Nations started the process of creating an international human rights document. As a result, the throne speech promised the creation of a special joint parliamentary committee to examine ‘the question of human rights and fundamental freedoms and the manner in which those obligations accepted by all members of the United Nations may best be implemented.’ This proposal spurred members of the bill of rights policy community into activity. The Toronto Star immediately supported the move, recommending that the committee concentrate on the bill of rights issue, and the CRU sent the minister of justice a lengthy letter (with copies sent to MPs) requesting that the committee be mandated to investigate a number of issues surrounding the Gouzenko affair, as well as consideration of a Canadian bill of rights. Shortly afterwards, in February, the Winnipeg Free Press published the first of two more sets of lengthy editorials on the need for a Canadian bill of rights, and the Manitoba Civil Liberties Association sponsored a public meeting (featuring John Diefenbaker, B.K. Sandwell, and the CCF MP Stanley Knowles) which called for all MPs to support a ‘Declaration of Rights.’ (Knowles later read this resolution into the records of the House of Commons.) Then, in March, CLAT began to consider lobbying for a bill of rights, first writing the American Civil Liberties Union for information about the implications of such an innovation. Shortly afterwards, the Jehovah’s Witnesses began their own campaign for a bill of rights, publishing a series of well-researched articles in the Canadian Bar Review, starting a petition that collected half a million signatures and was presented to Parliament on 9 June, and later (in early 1948) distributing some well-reasoned arguments for a bill of rights in their tract Awake!61 The Jehovah’s Witnesses had good reason to demand a bill of rights. For some time, in both Canada and the United States, they had been under attack for their aggressive proselytizing and refusal to conform to certain school practices which they saw as paying homage to the state. As noted earlier, the Witnesses were particularly unpopular in Catholic Quebec, which had persuaded Ottawa to ban the organization during the war and then had attempted to suppress the group completely in the following years. Having won a number of battles in

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the United States during the late 1930s and early 1940s, using as their shield the American Bill of Rights, the Witnesses began a campaign of lobbying and litigation in Canada. The Witnesses were often successful in persuading the unusually liberal Supreme Court of the 1950s that their rights had been violated in an unconstitutional fashion. As a result, legal scholars have paid considerable attention to their struggles, including their campaign for a bill of rights. The following comment by Edward McWhinney is not atypical: ‘There is great truth in the statement, made only half in jest, by Glen How, who has been counsel for Jehovah’s Witnesses in their main contests before the Supreme Court of Canada, that Jehovah’s Witnesses, and not Mr. Diefenbaker, have given Canada her Bill of Rights.’62 Such an evaluation is misleading, however, and is based upon a reading more of law reports than of historical documents. Although one cannot deny the importance of the Jehovah’s Witnesses in bringing civil liberties issues to the attention of the Supreme Court during the 1950s, they were a marginal group that could not do very much to persuade the majority of Canadians that minority rights were entitled to better protection. The revolutionary development of a ‘rights consciousness’ in Canada did not take place because an unpopular religious sect demanded better treatment, nor because the Supreme Court supported most of their demands, but rather because a number of more ‘respectable’ individuals and groups took advantage of new attitudes towards human rights and lobbied hard to educate their fellow Canadians. Meanwhile, Prime Minister King proceeded with his usual incremental caution, never doing anything by halves (as F.R. Scott once wrote in a poem) that could not be done by quarters. In May his government set up its promised joint committee on human rights, with the mandate of determining what steps, if any, should be taken ‘for the purpose of preserving in Canada respect for and observance of human rights and fundamental freedoms.’ Bill of rights advocates were not encouraged to see that the resolution establishing the committee was introduced by Ian Mackenzie, the minister of veterans affairs whose attitude towards Japanese Canadians can only be described as racist and who had adamantly opposed Diefenbaker’s bill of rights amendment to the Citizenship Act in the spring of 1946. Having Mackenzie open the process looked something like a joke in very bad taste, and it soon became clear from his remarks in the House that he

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was still not in favour of a bill of rights. In a long-winded and meandering speech, he noted that ‘in my view it is more important that we should think and talk about freedom than that we should pass legislation in regard to it.’63 Mackenzie, in fact, was totally opposed to creating a bill of rights. In the fall of 1946 he had written to King, proposing that a ‘delaying tactics Committee’ be set up. There are probably several reasons why he took this position, and why King also seemed to be unsympathetic to calls for a bill of rights. Some reasons were technical. According to the government’s legal advisers in the Department of Justice who were in the process of examining the issue, there were three arguments against this innovation: it would deviate from the time-honoured British principle of parliamentary supremacy; it might be seen as invading provincial jurisdiction over the field of property and civil rights; and, as A.V. Dicey had suggested, with an independent judiciary and traditional British liberties there was no need for any additional protection.64 These were to some degree technical constitutional points, but they were also connected to political considerations. For example, Mackenzie represented a major body of opinion in British Columbia that King had so far not been able to ignore, and a bill of rights would threaten the government’s plan for continued federal limitations on the right of Japanese Canadians to vote and to move back to British Columbia. At the same time, the Liberals depended on Quebec voters. As noted in earlier chapters, a number of French-Canadian members of the Liberal caucus were extremely conservative supporters of state authoritarianism, especially when dealing with unpopular minorities such as Communists or Jehovah’s Witnesses. While there were also authoritarian anglophone Liberals, the strong Quebec representation within the caucus clearly undermined arguments for a bill of rights. The possibility that a bill of rights might limit provincial powers also alarmed the government. There was some disagreement as to whether or not the phrase ‘property and civil rights’ in section 92 of the BNA Act confined jurisdiction over fundamental civil liberties to the provinces. What if a federal law turned out to be a constitutional Trojan horse, interpreted by the liberal and activist Supreme Court so as to strike down patently unjust provincial legislation? Not only Duplessis’s Padlock Law was at risk, as well as his ‘war without mercy’ against Jehovah’s Witnesses, but also the British Columbia and Alberta sexual sterilization acts, various provincial married women’s property

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acts, and British Columbia’s repressive legislation on the education of Doukhobors.65 But even a declaratory bill that purported to apply only to Ottawa might be seen as unacceptable to certain provincial premiers, especially when Diefenbaker suggested that a declaratory bill would make it easier for Ottawa to utilize its power of disallowance against future unjust provincial laws. As the history of the Padlock Law indicates, when it came to the protection of basic rights through the disallowance power, the federal Liberals were unwilling to step on the tender constitutional toes of Quebec; augmenting the federal power to disallow provincial laws would have been regarded as an undesirable provocation.66 Finally, demands for a bill of rights constituted at least symbolically a massive motion of want of confidence in the government. To admit that Canada needed a bill of rights was to agree that Ottawa had gone too far in violating civil liberties during and immediately after the war. From the perspective of most cabinet ministers and backbenchers, the Liberals had acted appropriately; a bill of rights would only have impeded them from doing what they believed had been completely necessary.67 The 1947 parliamentary committee first met in June. A number of the members were human rights advocates: Liberal Senator Arthur Roebuck, Liberal MP David Croll, CCF MP Alistair Stewart, and Progressive Conservative MP John Diefenbaker. (Indeed, Roebuck and Stewart were listed as members of the Committee for a Bill of Rights in its submission the following year.) However, most of the members, including the chairman, Minister of Justice J.L. Ilsley, and the vicechair, Senator L.M. Gouin, were probably either neutral or opposed to the idea of a bill of rights.68 The committee spent some time listening to testimony from representatives of External Affairs and the Department of Justice, who explained Canadian obligations under the United Nations (including the forthcoming Universal Declaration of Human Rights) and also discussed the fine points of the Canadian constitution. It became clear that Canada was not under any international legal obligation to create a bill of rights, and it also was suggested that if such a measure did become law, certain legal complications would arise. As Deputy Minister of Justice F.P. Varcoe pointed out, a declaratory bill of rights would have ‘no legal consequences,’ but if a prohibitory bill of rights were passed by Parliament the principle of parliamentary supremacy

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would ensure that the limitations on government could continue in existence only as long as they were not repealed by a subsequent amendment. Of course, he added, a prohibitory bill of rights could be entrenched into the constitution, and therefore be protected against future statutory amendments, but this could be done only by asking Britain to pass a constitutional amendment. However, he suggested, this would be a ‘retrograde step’ in terms of the evolving sovereignty of Canada. By implication, Canada would be better to wait until the constitution had been patriated; then Canadians could, if they so chose, amend the constitution themselves so as to entrench a bill of rights.69 No interest groups appeared before the parliamentary committee, because of a lack of time. However, several groups made application to appear, including the Jehovah’s Witnesses, Irving Himel (acting on behalf of a number of Chinese organizations), the Canadian Daily Newspapers Organization, and the CRU. In addition, the committee received written submissions from the National Council of Women, the Alberta conference of the United Church, and the Manitoba Civil Liberties Association.70 Surprisingly, there was no input from the Committee for a Bill of Rights. In the fall of 1946, Irving Himel had written to Roger Baldwin of the American Civil Liberties Union, asking him for information that Himel might utilize in preparing a draft bill of rights. Shortly after the throne speech announcement of a human rights committee, he had approached the Toronto civil libertarians with a proposal that an ad hoc committee be formed for the purpose of making a presentation. The executive saw that this was an excellent idea (no doubt influenced by the meetings between Sandwell, Lower, Roebuck, and Diefenbaker) and agreed to set aside temporarily their plans for creating a national group. Irving Himel became the secretary of the CFBR, and the most active non-Communist civil libertarians made up the core of the group: Malcolm Wallace, B.K. Sandwell, E.A. Corbett, Andrew Brewin, and Mrs W.L. Maude Grant. Although the CFBR was unable to muster its resources in time to make a presentation, in August it presented the chair of the committee, as well as the minister of justice, with a petition for a bill of rights signed by more than two hundred influential citizens.71 The parliamentary committee made its final report in mid-July. Stressing that they had only begun to investigate the issue of a bill of rights, the committee members noted that they had invited all provincial attorneys general and the heads of all Canadian law schools to pro-

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vide their views as to whether Ottawa had sufficient constitutional jurisdiction over civil liberties to pass a national bill of rights. They also recommended that, early in the next session of Parliament, the government appoint another joint committee to continue their work. The government may have been satisfied at the committee’s lack of progress, but the members of the policy community were not, and the Winnipeg Free Press called the process ‘frustrating.’ Yet momentum for a Canadian bill of rights slowly continued to build. Mr Justice C.H. O’Halloran of the Supreme Court of British Columbia wrote a series of articles on ‘Inherent Rights’ in the Toronto law review Obiter Dicta, arguing in favour of a bill of rights on a number of grounds: the ‘new despotism’ argument, the absence of liberalism among non-British immigrants, the need for an antidote to Communist ideas, and the merits of the American political system. Then, at the twenty-ninth annual meeting of the Canadian Bar Association, R.M.W. Chitty led an assault upon the bastions of legal conservatism. As chair of its civil liberties section, he presided over a debate as to whether or not the CBA should favour the adoption of a bill of rights as recommended in a set of civil libertarian proposals made by the British Columbia section. However, the legal profession was split on this issue and the matter was deferred. Perhaps not surprisingly, therefore, the civil liberties section made little progress on the issue, and by 1949 it had to report that ‘its work was more or less at a standstill because of the current discussion of the United Nations Draft Bill of Human Rights by a special committee of the Association.’72 Calls for a bill of rights were also hindered by the fact that frequently they came from Communists. In September, for example, a TLC convention was split by the introduction of a resolution calling for a bill of rights. The resolution, which was opposed by a majority of the delegates, was supported by a number of Communist-dominated unions. The most vocal proponents of the proposal, Madeleine Parent of the United Textile Workers and Sam Lapedes of the United Garment Workers, argued that a bill of rights was necessary to protect trade unionists from police harassment. By now, however, the Cold War had begun to split the trade-union movement, and labour solidarity was crumbling; the issue was the source of the proposal rather than its substance, and at least one trade unionist argued that he would have supported the motion had it not come from the Communists. Moreover, it was clear that some delegates were also worried that a bill of rights might prevent a government from taking the kind of anti-

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Communist measures that Ottawa had recently pursued in the Gouzenko affair.73 Yet, as long as the idea of a bill of rights was not identified too closely with the LPP, it was acceptable to members of the ‘respectable’ non-Communist labour movement. For example, in 1947 the CCL executive adopted a resolution condemning the methods used by the government during the Gouzenko affair, as well as certain anti-labour practices such as the use of excessive bail charges. It also called on Ottawa to legislate a bill of rights, and the resolution was adopted by the national convention without any difficulty. In part pushed by their anti-discrimination committees (in which Kalmen Kaplansky played a major role), both the CCL and TLC were formally committed by 1948 to a national bill of rights.74 Meanwhile, Lower and Diefenbaker were corresponding. Diefenbaker had already, in the spring of 1947, formed an alliance with Lower’s former civil libertarian colleagues in Manitoba, serving as one of their conference speakers and importuning them to send him a copy of their draft bill of rights before he raised the issue in the House. Now, in November, Lower sent Diefenbaker a letter of congratulations for his May speech, noting that ‘we evidently think upon very similar lines in these matters.’ He also criticized the ‘hypocrisy’ of Ian Mackenzie and the ‘arbitrary nature’ of Ilsley, the minister of justice and committee chair, whom he characterized as ‘a Star-Chamber man.’ Lower confided that he was disturbed by the way Cold War anti-communism was developing in the United States, but he was even more worried about Canada, for ‘with so many obvious witches to hunt, we in this country could very easily go a long way in the direction of some kind of tyranny.’ He added that he saw his main contribution to the struggle as the writing of articles, but he assured Diefenbaker that he would give him whatever support he could.75 Early the next year Diefenbaker responded with a rather pessimistic letter. Believing that the government had no desire to create a bill of rights, he forecast that the parliamentary committee ‘will be set up but only as a screen to protect the Government against criticism for its inaction in this regard.’ He also agreed with Lower’s evaluation of Ilsley, saying that he ‘is entirely opposed to a Bill of Rights and does not endeavour to conceal his contempt for those who believe in the need.’ Moreover, Diefenbaker felt that, among the Liberals in both the House and the Senate, only David Croll appeared to be supportive. Finally, he added that the Jehovah’s Witnesses, who had taken up a

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letter-writing campaign, might actually be harming the cause (presumably because they were unpopular and unable to present their case as disinterested and principled lobbyists).76 Nevertheless, the issue continued to attract the attention of newspaper editorialists, and by the spring of 1948 Canadians were focused as never before upon the idea of constitutionally limiting the power of government. For one thing, the Ontario CCF was attempting to obtain legislation along the lines of the recently passed Saskatchewan Bill of Rights, despite the Ontario government’s argument that such legislation could be effective only if it impaired the sovereignty of the legislature and was therefore an unacceptable deviation from constitutional principle. A similar campaign was also taking place in British Columbia, where the Japanese Canadian Citizens Association, later supported by the CCF, demanded a provincial bill of rights that would guarantee minorities full citizenship status, including the right to vote. Moreover, in Quebec, Premier Duplessis had once more started to apply the Padlock Law to his enemies on the left – a decision that spurred the Globe and Mail into calling for a national bill of rights that would protect citizens from their governments.77 Moreover, the United Nations was moving closer to the establishment of what became, on 10 December 1948, the Universal Declaration of Human Rights. Articles in the Winnipeg Free Press, the Toronto Star, the Canadian Forum, and Saturday Night informed people about the UDHR’s gestation and spoke approvingly of it after its adoption. In 1948 and 1949 the Canadian Bar Review kept the legal community abreast of these developments by publishing a series of reports written by McGill law school professor John Humphrey, who was at that time director of the UN Human Rights Division and responsible for writing the first draft of the UDHR. At the same time, John Diefenbaker drew the attention of the House to the proposed UDHR while it was being prepared in New York, and after it was created he argued that a domestic bill of rights would symbolize Canadian commitment to the principles of this international legal touch stone. He also pointed out to the House that, even in Britain, the mother lode of parliamentary supremacy, international legal developments had spurred the House of Lords into passing a bill of rights; this revolutionary fervour, however, did not extend to the British House of Commons, which defeated the bill.78 Meanwhile, in April, Minister of Justice Ilsley moved to set up a second parliamentary joint committee. The resolution made no ex-

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plicit mention of a bill of rights, but the idea was implied by the terms of reference, an examination of the best means of implementing Canada’s obligations in the light of the United Nations Charter. Yet, as Diefenbaker had predicted, the newly formed committee was not likely to advocate any radical changes; it included the traditional parliamentary human rights supporters such as Diefenbaker, Fulton, Croll, Stewart, and Roebuck, as well as a former member of CLAT, J.M. Macdonnell, but there were also a number of members who were by no means likely to support the notion of a bill of rights. Ilsley and Gouin once again served as joint chairs; another member, E.G. Hansell, had been on the select committee reviewing the DOCR during the war (and was rather defensive about the alleged human rights violations of that period); and this time Wilfrid LaCroix, the well-known proponent of anti-Communist censorship, had also been appointed a committee member.79 Along with the motion to set up this committee, Ilsley reported to the House the results of the government’s survey of attorneys general and law school deans that had been initiated by the 1947 parliamentary committee. The legal experts had been asked whether Ottawa had the power under the constitution to enact a ‘comprehensive bill of rights applicable to all of Canada.’ The majority of respondents was either opposed to the idea or did not provide a response; only the CCF government of Saskatchewan approved of a federal bill of rights. On the whole, they were worried that a ‘comprehensive’ bill of rights would necessarily infringe on matters within provincial jurisdiction. They voiced no opinion (having not been asked) on the constitutionality of a bill of rights that would deal only with civil liberties within federal jurisdiction.80 John Diefenbaker then criticized the government for not having responded earlier to the creation of the UDHR. Diefenbaker accused the Liberals of showing a lack of interest in both the national and international bill of rights, and he suggested that the newly formed committee was a ploy: ‘the committee, if it is to meet as it did last year, will merely be shadow-boxing, going through motions, postponing and procrastinating, with the government forever hiding behind the constitutional position.’ He therefore gave notice of his intention to move that the government submit the entire question of the constitutionality of a bill of rights to the Supreme Court as a reference case. The government demurred, and over the next few years Diefenbaker contin-

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ued to demand, always unsuccessfully, that the court be used to resolve this issue.81 When the 1948 committee was set up, the members were provided with information about human rights developments in both the United States and the United Nations, as well as the legal opinions of a number of federal civil servants. Perhaps the most important function of the committee, however, was the way in which it served as a focus for much of the support for a bill of rights which had been slowly building over the last two years. A number of groups, including the Canadian Jewish Congress, the Jehovah’s Witnesses, the Civil Rights Union, the Canadian Daily Newspapers Association, a coalition of ChineseCanadian associations, and the Committee for a Bill of Rights, presented the committee with written briefs. (There were no in-person presentations.) In short, both libertarian and egalitarian rights groups were united on this issue.82 The CFBR had come a long way since its creation the previous year as an ad hoc committee of the almost-defunct Toronto civil liberties group. It had developed into a national committee and now could present a brief that was endorsed by prominent Canadians from sea to sea. (These people were not identified specifically as members of organizations; the CFBR was a national committee of individuals, not a coalition of groups.) Although one perennially ‘red’-baiting Social Credit MP claimed in the House that the organization was a Communist front, nothing could have been further from the truth. There were a few names sometimes associated with the radical left, such as the writer Dorothy Livesay and Drummond Wren of the Workers’ Educational Association, as well as several people from the ECCR/CRU such as Leopold Infeld and Margaret Spaulding. However, the vast majority of the CFBR supporters were the usual ‘respectable’ nonCommunists, as well as many notables not usually active in human rights groups, including the actor Lorne Greene, the painters Lawren Harris, E.J. Pratt, and Arthur Lismer, the novelist Hugh MacLennan, the conductor and composer Sir Ernest Macmillan, and the neurosurgeon Dr Wilder Penfield.83 These and many other Canadian citizens – 173 in total, living in all the provinces except Prince Edward Island – signed a statement prepared by the CFBR calling for a prohibitory bill of rights entrenched into the BNA Act. The organization’s submission to the 1948 parliamentary committee consisted of a copy of this statement with all of

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the signatories’ names appended, a thirteen-page brief explaining why Canada needed such a bill of rights, and a draft bill to serve as a working model. This latter proposed adding a section on ‘Civil Rights’ to the BNA Act and prohibiting both the federal and provincial legislatures from passing laws that abridged the traditional freedoms of speech, religion, and assembly or violated a number of legal rights, such as the right to reasonable bail, the right to habeas corpus, and the right to a fair trial. (One of the clauses also contained a prohibition against exiling Canadian citizens, clearly a reaction to the recent struggle of Japanese Canadians.) All of these rights, as well as the right to vote, were to be enjoyed ‘without distinction on account of race, sex, religion or language.’ The brief is an interesting document, because it sums up most of the contemporary arguments in favour of a bill of rights. It pointed out that Canada already had certain constitutional rights protections for linguistic and religious minorities, and it used the ideas of justices Duff and Cannon in the Alberta Press case to argue that the right of public discussion (as well as certain other freedoms) fell within federal jurisdiction. At the same time, however, in a later passage the brief tacitly admitted that constitutional law on this matter was still unclear and that the CFBR was engaged in a centralist nation-building project; it noted that ‘a constitutional amendment would by-pass the controversy as to what part of the protection of civil rights falls within the provincial sphere and what part falls within the sphere of Parliament.’ After having explained why a bill of rights was possible, the brief then went on to demonstrate why it was necessary. It first pointed out that, since the war, a number of problems had arisen which demonstrated the willingness of both provincial and federal governments to breach traditional civil liberties. The most important examples were the attempted deportation of Japanese Canadians, the Gouzenko affair, and the continued application of the Padlock Act, but the brief also mentioned the recently passed Prince Edward Island Trade Union Act and Quebec’s attacks on the Jehovah’s Witnesses as well as certain censorship policies. (The Prince Edward Island Trade Union Act, passed in 1948, stated that all local trade-union members must be provincial residents unaffiliated with any unions outside the province. The measure was, as Eugene Forsey put it, ‘one of the most extraordinary statutes ever passed by a Canadian legislature,’ for it severely limited the right of free association, making it impossible to have an effective trade union movement in the province. The unionists lobbied Ottawa

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to disallow this legislation, but, before it could make a decision, the provincial government withdrew the act. Both Forsey and Sandwell argued in print that this provincial violation of civil liberties demonstrated yet again the need for a bill of rights.)84 The CFBR brief also contained a second set of arguments in favour of a bill of rights. For example, it maintained that such a bill would be an effective weapon in the Cold War struggle for the hearts and minds of citizens. Pointing to Britain as a society that traditionally showed more tolerance for unpopular opinion than Canada, the brief argued that ‘it is when efforts are made to make society static by repressing unpopular opinion that we invite sabotage and distrust of the democratic state.’ Moreover, the brief continued, the United Nations Charter also states that respect for human rights is one of the foundations of world peace; by creating a domestic bill of rights, Canadians would be demonstrating that they take such pronouncements seriously. In addition, the brief referred obliquely to the recently passed Citizenship Act, suggesting that a bill of rights ‘would be valuable in teaching the implications of Canadian citizenship. An explanation of the Bill of Rights would give a sense of security to our many minorities and an understanding pride in our free institutions.’ Finally, the brief contained a set of counter-arguments against those who (like the federal government) were sceptical about the desirability of a rights bill. It pointed out that, during the war, the American Supreme Court had managed to provide better protection for civil rights than had been available in Canada, and that this had been done without hampering the authorities’ pursuit of the war effort. It also claimed that Canadians should not be swayed by the British example of a country flourishing without a bill of rights. Britain, it pointed out, was quite different from Canada – a unitary state with a largely homogeneous population and a long tradition of respect for civil liberty. The brief also mentioned, ‘as an incident to the enactment of a Bill of Rights,’ a problem that recently had been publicized by both R.W.M. Chitly and Glen How, the lawyer for the Jehovah’s Witnesses – namely, certain impediments to appealing to the Supreme Court those cases that did not involve substantial amounts of money. Noting that appeals to the Privy Council might soon be abolished, and stressing the importance of the Supreme Court in determining constitutional rights, the brief argued that these ‘illogical restrictions’ be eliminated.85 Two other aspects of the CFBR brief are worth emphasizing: its reluctance to constitutionalize the welfare state, and its pioneering willingness to protect women. The brief explicitly excluded from the

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draft bill any reference to ‘economic’ rights or freedoms, such as the right of employment or freedom from want. As the authors of the brief noted, ‘positive action is required for these ends, not the type of negative restriction on the power of governments or legislatures to interfere with traditional liberty which is properly the scope of a Bill of Rights.’ On the other hand, it did recommend including protection against discrimination on the basis of sex. Previous suggestions for a bill of rights, whether by F.R. Scott, Arthur Lower, Alistair Stewart, John Diefenbaker, B.K. Sandwell, Arthur Roebuck, or the CCF, as well as the legislation passed in Alberta and Saskatchewan, had never mentioned this possibility. Now, although Canada’s ‘second wave’ of feminism was still in the future, people were beginning to realize that human rights should include women’s rights. No doubt one reason for this was the Universal Declaration of Human Rights, which contained a prohibition against sex discrimination. Although the Manitoba, University of British Columbia, and Vancouver civil liberties organizations also wrote to the parliamentary committee, the major civil libertarian submission came from the Civil Rights Union. This echoed many of the CFBR concerns, but it also focused on certain issues that reflected its radical left-wing perspective. For example, it mentioned the anti-Communist LaCroix bill and claimed that organized labour had recently been the victim of onesided law enforcement, such as the decision of Maurice Duplessis’s government to break textile strikes in Valleyfield and Lachute by laying charges of seditious conspiracy against the trade union leaders. It raised concerns about security screening in the public service, and it called for a bill of rights that would include the rights of labour – the right to organize and join a union, the right to bargain collectively, and the right to strike and picket. (Similar arguments were also presented during this period by the LPP in the pages of its house organ, the Canadian Tribune.)86 The CRU brief was not formally discussed by the committee. After all, in the Cold War climate of 1948, there was little support for the rights of trade unionists who were openly connected to the LPP. Since even liberal and social-democratic civil libertarians usually distanced themselves from radical or Communist-tainted proposals, it is not hard to imagine the conservative committee members such as LaCroix, Ilsley, and Gouin giving short shrift to the CRU proposals. Moreover, in the unlikely event that they harboured in their hearts any sympathies for the CRU, they would have been returned to the path of right-wing

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righteousness by B.K. Sandwell. In a Saturday Night article on the CRU, Sandwell argued in favour of loyalty tests for civil servants and against the inclusion of labour rights in a bill of rights. He concluded that ‘the whole project of a Bill of Rights can be set back twenty years by any too vigorous demand that it set up “rights” which the majority of the Canadian people have not been induced to recognize, or which are so badly defined that they would be the cause of instant dispute. And it does not help at all that some of the advocates of these novel or indefinite rights are people who also advocate an economic system which, as practiced in other countries, does not grant anybody any rights at all.’87 Nevertheless, although the parliamentary committee deigned to consider the CFBR’s recommendations, it first decided to seek the opinion of F.P. Varcoe, the deputy minister of justice. His assessment, which echoed his remarks to the 1947 parliamentary committee (including the idea that Canada should not ask Britain to amend the constitution), can be described as one of cautious pessimism and seems to have touched a chord in the hearts of the majority of the committee members. When they made their final report in June, they refused to endorse the idea of a constitutional amendment, arguing that the proposal needed more study. They also maintained that it would be ‘unwise’ for Ottawa to adopt the alternative strategy of an ordinary federal statute. This, they noted, might be seen as infringing on provincial jurisdiction, and in any case such protections could always be overridden by a later statute. The committee did recommend that Ottawa give serious consideration to enlarging the jurisdiction of the Supreme Court so that it might hear appeals in a broader range of cases, but further than this technical recommendation they were not willing to move. Choosing the path of caution, they noted that Canadians already possessed ‘a large measure of civil rights and liberties,’ and concluded that ‘there is much to be said for the view that it would be undesirable to undertake to define them before a firm public opinion has been formed as to their nature. It is not evident to your Committee that such an opinion has reached an advanced stage in Canada. There is need for more public discussion before the task of defining the rights and freedoms to be safeguarded is undertaken.’88 The 1948 committee was a disappointment to the human rights community, but it had been more than an exercise in governmental obfuscation and intransigence; publicity had nourished the concept of a bill of rights rather than smothering it, and for the next two years the

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issue was raised through a number of editorials in the press. Of course, not all journals wanted a bill of rights. For example, in the fall of 1948 the conservative Quebec journal L’Action Catholique opposed the idea, largely because it would have protected the Jehovah’s Witnesses, and in 1950 the Ottawa Journal published a critical analysis. The main arguments of the newspaper, which were itemized and rejected in a Saturday Night article, were that it was difficult to define the limits of freedom, that the American Bill of Rights was at times ineffective, and that civil rights were within provincial jurisdiction. Nevertheless, if Oscar Wilde’s dictum can be applied to politics – that it is better to be attacked than to be ignored – then even such public opposition was a kind of progress, keeping the issue before the attention of the general public.89 One of the most influential articles published during this period was written by Frank Scott in the Canadian Bar Review. Scott suggested that the Canada’s commitment to the UDHR made a national bill of rights desirable and that the constitution actually made it possible. There was, he argued, a significant difference between ‘property and civil rights,’ which were under provincial jurisdiction, and ‘civil liberties,’ which fell under the jurisdiction of both Ottawa and the provinces. Something like this had been intimated in Lower’s pre-war brief to the Rowell-Sirois commission, but it was not yet established law, and Ottawa had continually refrained from adopting John Diefenbaker’s suggestion that the matter be sent to the Supreme Court as a reference case.90 Scott, however, maintained that the absence of a judicial decision was an inadequate excuse for Ottawa’s ‘dilatory and hesitant’ approach to the protection of civil liberties or human rights. According to him, Ottawa had more than enough jurisdiction in this field to warrant the creation of a bill of rights. He therefore developed at some length an argument in favour of a prohibitory bill of rights entrenched into the constitution, pointing out that the constitution already limited the parliamentary supremacy of our legislatures in a number of ways. He added, however, that as an alternative the government could create a prohibitory bill of rights in the form of a federal statute. This would at least exert a moral force on Parliament and a legal curb on the executive. Meanwhile, the CFBR was supported in its lobbying by an increasingly diverse set of allies. The Jehovah’s Witnesses organized a second petition, this time with over 600,000 signatures, which in early 1949 Alistair Stewart introduced into the House as an eleven-foot-high stack

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of papers (although he carefully noted that he supported the principle, not the religious sect). In addition, the major trade-union organizations had begun to lobby Ottawa for a national bill of rights, while at the same time asking the provinces to create their own versions.91 By now the administration of Mackenzie King was over; in August 1948 the Liberal Party had chosen Louis St Laurent as its new leader and as the nation’s next prime minister. This and certain other changes, such as the appointment of Lester Pearson as secretary of state for external affairs and the replacement of Ilsley by Stuart Garson as minister of justice, may have encouraged the human rights community. However, Garson, too, was a believer in parliamentary supremacy, and when St Laurent fought his first election as prime minister in the summer of 1949, the Liberals ignored the demands of both the CCF and the LPP for a bill of rights, choosing to run their campaign on other issues. Public support for a bill of rights was clearly not crucial, for the Liberals won the election with the largest majority so far ever gained by a political party since Confederation.92 Shortly afterwards, John Diefenbaker resumed his by now annual ritual of moving that the issue of a bill of rights be sent to the Supreme Court as a reference case. As always, he was unsuccessful, but a few days later Arthur Roebuck introduced his own proposal for a ‘Canadian Bill of Human Rights and Fundamental Freedoms’ into the Senate. Ottawa was about to attend a federal-provincial conference on amending the constitution, and Senator Roebuck, at the instigation of the newly formed Toronto Association for Civil Liberties, asked that this proposal be presented to the premiers. The federal government, however, asked Roebuck to withdraw his motion, on the understanding that it could be presented again at the next session of Parliament and referred to a Senate committee. Roebuck complied, and the federal-provincial conference therefore remained unburdened with this particular problem.93 Then, in March 1950, Roebuck moved that a committee be set up to address the matter. By April, the Senate committee on human rights and fundamental freedoms was holding its first hearings. Ironically, at about this time the federal cabinet was debating how best to oppose the draft covenant on human rights being prepared by the United Nations as the next step after the adoption of the UDHR. As Minister of Justice Garson pointed out, the success of a covenant restricting Canadian sovereignty would make it much more difficult to oppose domestic demands for a bill of rights.94

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The Senate committee began by considering a draft bill of rights that Roebuck had modelled loosely on the UDHR. The Senate has never been known as a hotbed of radicalism, and the members of the committee, with the exception of Roebuck himself, were not known for their human rights sympathies. Nevertheless, unlike the previous two joint committees, the Roebuck committee permitted a wide variety of groups not only to send in written submissions but also to attend hearings and engage in debate with the committee members. As a result, Arthur Lower sent in a lengthy brief, and the senators met not just with government officials but also with F.R. Scott and representatives of a number of the major actors in the human rights community. All this resulted in more publicity for the idea of a national bill of rights, and Roebuck himself congratulated the press for its excellent coverage. Yet the Senate committee in many ways simply reiterated the points looked at by the previous two committees. The different groups raised the same sorts of issues as before, although there were also a few concerns that had emerged in the last several years, such as the Dresden story, mob treatment of Plymouth Brethren in Shawinigan Falls, censorship in Quebec, the Alberta government’s discrimination against Hutterites, and the plight of aboriginal peoples. The committee’s final report, adopted in June, fell far short of the demands that had been made by most of the activists. It agreed that the Canadian nation was ‘deeply interested’ in rights and freedoms and noted in a passage of unusual senatorial hyperbole that, for the ‘free self-respecting, manly nation’ of Canada, ‘this is the time to nail the emblems of law, liberty and human rights to our mast-head.’ On the other hand, it drew back with a shudder at the thought of violating the even more sacred field of provincial rights – ‘No informed person with any sense of responsibility would suggest that the Dominion Parliament forcibly invade Provincial jurisdiction.’95 The obvious solution was a constitutional amendment. Yet here the concerns raised by Deputy Minister Varcoe prevailed over the arguments of F.R. Scott and the CFBR. The committee report noted that an amendment could be effected only through a request to the British Parliament, and that this ‘would have the appearance at least of a surrender of sovereignty.’ The Canadian evolution from colony to nation would brook no backsliding, and no constitutional amendment should take place until the BNA Act was patriated.

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In the interim, suggested the committee, Parliament should adopt a ‘Declaration of Rights’ that would apply only to federal jurisdiction and would not be legally binding. This would be a domestic equivalent of the UDHR, not only educating the public and strengthening national pride but also standing as a guidepost for future legislators and a statement of public policy that might affect future judicial decisions. It would constitute ‘one grand and comprehensive affirmation’ of human rights, and ‘thus will Canadians know of their freedom, exercise it in manly confidence, and be proud of their country.’ The notion of a declaration rather than a constitutional amendment conformed nicely with the realpolitik of contemporary federal-provincial relations. Patriating the constitution had always been seen as an important next step in the evolution of Canadian sovereignty, but in the immediate post-war period this issue had been pushed aside in favour of other constitutional matters such as tax sharing. In 1950 Ottawa and the provinces were discussing a formula for future amendments to the constitution, and Maurice Duplessis was adamant that the so-called ‘compact theory’ of Confederation gave Quebec the right to a veto on all formal constitutional changes that might affect its rights as a province. Since it was still not clear as to how far civil liberties fell under provincial jurisdiction over ‘property and civil rights,’ and since Duplessis was unlikely to look favourably upon any bill of rights that limited his freedom to deal with Communists and Jehovah’s Witnesses, it was becoming evident that the chances of the Quebec premier agreeing to the constitutional entrenchment of a bill of rights were non-existent. Moreover, it was not just Duplessis who stood in the way, although his opposition was probably crucial. Some interest groups, such as the CCL and the TLC, urged the federal provincial conference of 1950 to insert a bill of rights into the constitution, but none of the governments except Saskatchewan supported this idea. This, of course, was the kiss of death; Prime Minister St Laurent was not willing, as Pierre Elliott Trudeau was years later, to run the risk of alienating most of the provincial premiers.96 However, the activists, ever optimistic, responded to the Roebuck committee recommendations with a counter-proposal. Writing in the popular press, both Lower and Sandwell continued to educate the public about the need for constitutional controls on government, while Sandwell and Himel cobbled together a large delegation of over two

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hundred people and fifty organizations for a meeting with the prime minister. This was a typical ploy of the Toronto civil libertarians. As pointed out in previous chapters, they had (with considerable help from their allies) organized a large delegation to Queen’s Park in 1949 in order to present demands for anti-discrimination legislation, repeated the exercise in 1950, and later organized similar deputations in 1954, 1956, and 1958.97 Embracing most of the major rights activists of the time, this new delegation met with Prime Minister St Laurent and some key cabinet ministers in May of 1951. Together, in the name of the CFBR, they presented an ingenious proposal written by Himel, Sandwell, and Scott – a request for a joint resolution of the federal Parliament ‘approving the inclusion in the Canadian constitution of a declaration of human rights and liberties.’ This fell short of a request for an immediate constitutional amendment, therefore avoiding the problem of asking Britain to take the necessary step. Yet it demanded more than the declaration recommended by the Roebuck committee, for its proposal would have committed the federal Parliament to the principle of a future constitutional entrenchment which would, its creators hoped, someday include both Ottawa and the provinces. The prime minister did not appear to be enthusiastic about this proposal, but it generated support from the Globe and Mail, which noted that ‘surely it is axiomatic that the basic freedoms should be accorded in equal measure to all Canadians across the country’ and added that ‘it would also provide a powerful antidote to the Communist propaganda that is being assiduously preached to Canadians both “new” and established.’ The Globe editorial acknowledged, however, that because of provincial jurisdiction over property and civil rights, no further steps could probably be taken until the issue of patriation had been settled. This was a realistic appraisal of the political situation. Scott had recently written to Sandwell, saying that ‘we shall not get far in urging a Bill of Rights in the Constitution, since I am convinced this Government considers it impossible to do anything about amending the Constitution in a general way. The Constitutional Conference has in effect been broken up by Duplessis, and I do not suppose it will meet again in years. I therefore, do not see much action in regard to a formal Bill of Rights.’98 Indeed, Prime Minister St Laurent told the House in May that a constitutional amendment entrenching a bill of rights ‘would make it more difficult to proceed in the calm attitude which has been main-

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tained up to the present time in our own efforts to secure agreement on a proper form to amend our own constitution in Canada.’ In short, Ottawa was going to do nothing, yet another example of provincial rights trumping individual rights.99 But there were other reasons why the St Laurent government was so intransigent (although for some time the deputy minister of justice, F.P. Varcoe, had been developing a draft bill of rights in the unlikely event that the government changed its mind). Some of these have been mentioned earlier, such as adherence to the principle of parliamentary supremacy and the burden of history. When George Tanaka of the Japanese Canadian Citizens Association had suggested to the Roebuck committee that Canada needed a bill of rights because the government had treated Japanese Canadians badly during the war, some of the senators responded in a harshly defensive fashion. Now, however, with the outbreak of hostilities in Korea, the Cold War was at its height, and for many people a bill of rights looked like a shield that might protect Communists from ‘reasonable’ limitations on their fundamental freedoms.100 Not surprisingly, for the next few years the campaign for a bill of rights was led primarily by Communists or fellow travellers. From June 1951 to about 1954, the League for Democratic Rights (and its affiliate, the Civil Rights Union) developed a series of small but vocal national bill of rights campaigns which were intimately connected to the fight against changes in the Criminal Code and opposition to the Padlock Act. As Minister of Justice Stuart Garson pointed out to the House, although many supporters of a bill of rights were ‘estimable citizens,’ no political party or organization in Canada was a stronger advocate of a bill of rights than the LPP. ‘Why? Because I would suggest that a Canadian bill of rights would suit the interests and plans of that party.’101 Of course, the field was not entirely vacated by the non-Communists. Organized labour continued to call for both federal and provincial bills of rights, especially with Kalmen Kaplansky working through the separate TLC and CCL human rights committees. When the two organizations melded in 1956 to form the Canadian Labour Congress, a clause in the ‘Platform of Principles’ included a demand for a constitutionally entrenched bill of rights. Yet, for the egalitarian rights activists within the labour movement, there were other goals besides a bill of rights; much of their energy went instead into their campaigns for provincial and federal anti-discrimination legislation.102

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In Parliament, as well as in public forums, some of which were broadcast on the radio, John Diefenbaker kept up his demands, stressing the need to send the matter to the Supreme Court as a reference case. To be sure, although the call for a bill of rights was by now Conservative Party policy, at times Diefenbaker seems to have been simply going through the motions, perhaps suspecting that he was flogging a dead horse, although his flagellations were sometimes augmented by Alistair Stewart, Stanley Knowles, and David Croll.103 Some support also emerged from the Supreme Court of Canada. In the fall of 1953, in the case of Saumur v. Québec, the court struck down a municipal by-law limiting the right of Jehovah’s Witnesses to distribute religious literature. This was the first time that some members of the Supreme Court accepted Scott’s argument that there was a difference between civil liberties and ‘property and civil rights.’ In other words, notwithstanding provincial jurisdiction over the latter, it was now possible to consider religious freedom (and other civil liberties) as coming also within federal jurisdiction. As law professor Bora Laskin pointed out, the decision therefore provided some support for the proposition that Ottawa could enact a bill of rights which would at least protect some major aspects of civil liberties, and perhaps even cover all of them.104 However, as the Winnipeg Free Press acknowledged, the case was also a ‘defeat’ for the rights community, for, although some of the judges had been willing to strike down the law on the grounds that it violated the so-called ‘implied bill of rights’ first suggested by Duff and Cannon in the Alberta Press case, these judges still constituted a minority. Moreover, to form a majority on the matter at hand, they had to rely upon another judge who argued that the by-law merely violated a provincial statute. The weakness of civil liberties within the constitutional status quo was soon emphasized when, in early 1954, Premier Duplessis introduced an amendment to the Quebec Freedom of Worship Act which satisfied the other judge’s objection to the bylaw and therefore nullified the decision of the Supreme Court in Saumur.105 These developments, moreover, created a fear that the court might divide the same way on the Padlock Act case now wending its way slowly upwards through the court hierarchy. Victor Sifton, the Free Press publisher and supporter of the CFBR, therefore decided to forget about the elusive protections of a judicially created ‘implied bill of rights’ and to launch his own campaign in favour of a legislated bill.

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Both his own speeches and the editorials of his newspaper began to call out insistently for a constitutional amendment that would ‘strengthen the preamble to the British North America Act, leaving no doubt about the Alberta Press case obiter that the freedom of a Canadian citizen is beyond the reach of a provincial legislature.’106 As a result of this campaign, Arthur Lower wrote Sifton, whom he knew very well, offering to provide some support. The Free Press publisher responded favourably, whereupon Lower wrote to Irving Himel of the ACL, suggesting that the organization once again take up the struggle. Lower also offered to lobby Minister of Justice Garson, another close acquaintance. He noted that, while both Alistair Stewart and John Diefenbaker could be relied upon, as opposition members they would have little impact.107 In reply, Himel explained that his organization was committed to implementing the report of the Roebuck committee rather than following the approach of Victor Sifton. He said that the ACL was preparing a pamphlet and hoped to engage in ‘a concerted effort ... to develop a strong public opinion for such action when this subject is raised in the House of Commons by Diefenbaker and Stewart et al at the next session.’ He added that he hoped Lower would, as part of such a program, write a short essay which Himel and Sandwell would attempt to get published either in Maclean’s or in Saturday Night.108 There is no evidence, however, that the ACL did much more on this until 1959. The pamphlet does not seem to have been published, nor did Lower write his article. The CFBR was by now no more than a minor committee of the ACL. In addition, by the spring of 1954 Sandwell was ill and by the end of the year he was dead. Perhaps not coincidentally, the ACL soon became more interested in anti-discrimination legislation than in the protection of civil liberties through a bill of rights. As noted earlier, it was to some degree a ‘letterhead organization’ without any grass-roots foundation or professional staff. As a result, it lacked the personnel to deal with several major projects at once. Probably the events of 1954 also hindered the campaign for a bill of rights, but any explanation is necessarily complicated. On the one hand, Canadians became aware of another way in which the American Bill of Rights protected minorities. The landmark case Brown v. Board of Education gave new life to the American civil rights movement when the U.S. Supreme Court struck down school segregation as a violation of the constitution. This helped to stimulate Canadian inter-

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est in ‘civil rights’ generally and in the American Bill of Rights in particular. On the other hand, in 1954 the federal government was completely revising the Criminal Code, with certain changes aimed directly at the suppression of the ‘Communist menace.’ Although this demonstrated to radical groups like the League for Democratic Rights – and even the occasional liberal – that a bill of rights was an essential anodyne, there was not much chance that Ottawa would listen. To introduce a bill of rights at that time might have jeopardized some of these restrictions and provided even more ammunition for the quasiMcCarthyite members of Parliament, such as Conservative leader George Drew, most members of the Social Credit Party, and some of the ultra-conservative Liberals from Quebec.109 Yet the ‘Red Scare’ also helped the rights cause. Blair Fraser, the influential journalist in Maclean’s, and one of the many people whom Lower had informally lobbied about his constitutional project, wrote an article called ‘Can McCarthy Happen Here?’ His answer was a resounding ‘yes.’ Then, having demonstrated that Canadians were not immune to anti-Communist hysteria, Fraser pointed out that the rights violations of the Gouzenko affair would never have taken place if Canada had an American-style bill of rights.110 But, by the end of 1954, the threat of communism had diminished; the Korean War was essentially over, Joe McCarthy had been discredited in the United States, Soviet Premier Khrushchev was beginning his anti-Stalinist campaign, and soon (in 1956) the Hungarian uprising would help demonstrate the moral bankruptcy of the USSR. On the domestic scene, the LPP had begun to lose many of its supporters, and the League for Democratic Rights had started to wither away. Those who opposed a bill of rights on the grounds that it would hamstring government and prevent it from dealing with the Cold War menace now had increasingly weaker arguments, and the stronger position was that the protection of individual rights would demonstrate the moral superiority of the ‘free world’ over communism. To make things even more complicated, perceptions that communism was less dangerous were leading to complacency. While only 40 per cent of Canadians in 1947 had believed that their rights were adequately protected, by 1957 a Gallup poll indicated that 60 per cent were satisfied; the explanation of the pollsters was that fears of communism and socialism had subsided.111 Meanwhile, in December 1956, John Diefenbaker had replaced George Drew as leader of the Conservatives and made a bill of rights

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one of his priorities. In retrospect, this was probably the only hope for the advocates of a bill of rights. Given the public apathy and diminished lobbying by rights groups, there was little chance that the Liberals would soon budge from their opposition, and, although the CCF had kept the notion alive in their 1956 Winnipeg Declaration, there was no chance that they would come to power in the near future.112 Then, in 1957, the Supreme Court struck down the Padlock Law. In one way this civil libertarian success could be seen as a setback for the bill of rights movement. When the trial judge had refused to strike down the law in 1950, Sandwell had argued that the decision helped to prove the need for a bill of rights, and, as the case worked its way towards the Supreme Court, the journalist Bruce Hutchison had predicted that if the Supreme Court struck down the statute the Liberals would see this as an affirmation that the courts were adequately defending civil liberties and did not need the additional help of a bill of rights. When the Supreme Court did indeed declare the Padlock Act ultra vires in 1957, Hutchison no doubt believed that the human rights activists had won an important battle but were in greater danger of losing the war.113 On the other hand, Andrew Brewin had a more optimistic interpretation of the Switzman case. As he noted, it illustrated that the ‘implied bill of rights’ argument was not gaining any more advocates on the Supreme Court, for only three judges had been willing to grasp the nettle of judicial activism – Kellock and Rand mentioned the ‘implied bill of rights’ and said that the law was unconstitutional on the grounds that it interfered with freedom of opinion, while Mr Justice D.C. Abbott went even further, arguing that limiting public debate was beyond the power of both the provinces and Ottawa. The majority of the Supreme Court was not going to make new policy, and Brewin suggested that it was therefore time for Parliament to take the initiative.114 Parliament, of course, is usually dominated by the government in power. In 1957 St Laurent called an election, and John Diefenbaker slipped into power with a minority government. The Conservatives had said almost nothing about a bill of rights in the 1957 election campaign but instead stressed the rights of Parliament in the wake of the Pipeline debate. Now, although he received considerably hortatory mail on the subject, and his minister of justice, Davie Fulton, began work on the matter with his officials, Diefenbaker deferred action on a bill of rights. With a tenuous hold over the House, and facing serious economic issues, he had other issues on his mind. In 1958,

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however, Diefenbaker called another election, and one of his campaign promises was a bill of rights, although he stated that the bill would be sent first to the Supreme Court for a ruling on its constitutionality. By September 1958, he had a huge majority government and time to move on his pet project. He therefore introduced Bill C-60, An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms.115 This proposed legislation was thoroughly modern, even progressive, in that its name gave formal recognition to the new idea of human rights. Yet it was also traditional, even conservative, in that its substance was largely rooted in the past. As might have been expected in the light of Diefenbaker’s past proposals, it was more than a simple declaration of rights but less than an amendment to the BNA Act. It began with the words ‘it is hereby recognized and declared that in Canada there have always existed and shall continue to exist the following human rights and fundamental freedoms,’ and then listed a number of libertarian and egalitarian rights. It went on to say that these should not be abrogated when ‘construed and applied’ (presumably by the courts and administrators). This seemed to be a way of protecting rights without violating the principle of parliamentary supremacy. In introducing the bill, Diefenbaker alluded to a number of civil liberties abuses that had taken place over approximately the last fifteen years, all of them involving Liberal government orders-in-council rather than statutory infringements. Some of them were well known, such as Ottawa’s attempt to deport Japanese Canadians or its undermining of habeas corpus as a result of the Gouzenko revelations. Others were relatively obscure, involving administrative-law issues involving the power of civil servants within the welfare state. In short, although Diefenbaker acknowledged that a bill of rights would make Parliament ‘more cautious’ about passing laws that violated fundamental freedoms, his major emphasis was on buttressing Parliament against cabinet and bureaucratic excesses – a prophylactic against the executive despotism so feared by classical liberals. As MacLennan has argued, Diefenbaker’s commitment to equality in the Bill of Rights was a reflection of his prairie upbringing within a multicultural immigrant society, including first-hand knowledge of prejudice directed against him because of his Germanic name, but his libertarian commitment was grounded firmly in his 1940s battles with the government of Mackenzie King.116

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This concern about executive despotism also explains the section that dealt with the War Measures Act. The bill said that anything done by government under the authority of the War Measures Act ‘shall be deemed not to be an abrogation, abridgement or infringement of any right or freedom recognized by the Canadian Bill of Rights,’ a position consistent with Diefenbaker’s rather authoritarian perspective. During the war, he had accepted in principle the limitations imposed by the War Measures Act, telling the House that ‘national safety is of paramount importance over private rights.’ However, he wanted such limitations to be adopted only with the approval of Parliament. As Diefenbaker later wrote in his memoirs, his legislation ‘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.’ From the perspective that the real danger to civil liberties was cabinet despotism, and not legislative despotism, this was a sensible argument. The premise, however, was questionable, and soon even the Liberals were calling for stronger limits on what could be done by government under the War Measures Act.117 In addition, Diefenbaker argued that there were obstacles to constitutional reform. He recognized that an amendment which limited only Ottawa could at any time be repealed by a subsequent act of Parliament, while an amendment which limited both Ottawa and the provinces would be opposed by the premiers. This would put the government in a dilemma, for in the years following the Second World War, in reaction to the centralizing policies of the Liberals, the Conservative Party had increasingly identified itself as the party of provincial rights. The major obstacle was still Maurice Duplessis, and within the Conservative caucus there was considerable support for Duplessis’s position on provincial rights. As Diefenbaker’s solicitor general put it, a bill of rights binding on the provinces would threaten Duplessis’s war against the Jehovah’s Witnesses, a group that was ‘really embarrassing people’ in the province. The prime minister therefore admitted that a binding constitutional amendment was impossible in the short run, and he reneged on his campaign promise to submit the entire matter to the Supreme Court as a reference case. (As the opposition pointed out, Diefenbaker also failed to follow through on his recommendations that there be a standing House committee on civil rights as well as a civil liberties division in the Department of Justice.)118 Nothing more was done with this bill in the House, for the government had made clear that it was simply an affirmation of its commit-

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ment to proceed in the next session of Parliament. Yet the bill was widely condemned by some of Diefenbaker’s former allies. Senator Roebuck, for example, complained that it was ‘a rather drab document which breaks no new ground, establishes no new rights, and does very little for the people of Canada,’ and law professor Bora Laskin called it a ‘timid’ step that was worse than doing nothing. The government, however, merely claimed that it had received so many comments and briefs that it had decided to introduce a new draft in the 1960 session of Parliament, in order that it be sent to a special committee which would hear further representations from interested groups and individuals.119 Because it took such a long time for the gestation of this bill – almost two years from the fall of 1958 to August 1960 – the bill of rights policy network had ample time to speak out and lobby. It also had time to promote the idea that a bill of rights was one way that Canada could live up to its commitment to the principles enshrined in the Universal Declaration of Human Rights. The year 1958 saw the tenth anniversary of this document, and considerable energy was expended in celebrating the event and using it as a focal point for human rights ‘consciousness raising.’ It became apparent, however, that the breadth of the UDHR created potential divisions within the human rights community. Virtually all members wanted a bill of rights that reflected the formal libertarian and egalitarian rights of the UDHR, but it was only those on the left and those associated with trade unions who also wanted a law that would reflect the so-called programmatic rights of the document, such as the right to adequate food or shelter. These activists would never be satisfied with a purely liberal bill of rights.120 During this period, Irving Himel and the Association for Civil Liberties created yet another ad hoc coalition. In April 1959 a delegation presented Diefenbaker with a brief that argued in principle for a constitutional amendment but accepted a prohibitory statute as an interim, second-best alternative. The brief also included an alternative draft bill, somewhat broader than the government’s, which would have protected citizens’ rights from abrogation under the War Measures Act.121 Over thirty organizations participated, representing the usual elements of a human rights coalition: churches, trade unions, women’s groups, and ethnic bodies as well as some relative newcomers such as the Canadian Federation of Agriculture. But, as usual, the Canadian

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Bar Association was not an integral part of the human rights community. Though Himel invited the organization to participate, its president declined, for the CBA executive had decided that a bill of rights was ‘neither required nor advisable.’ The CBA was not unanimous on this matter, but one author has suggested that significant resistance to the bill of rights may also have come from David W. Mundell, the chair of the civil liberties section in the late 1950s. He had worked on human rights issues as a lawyer for the Department of Justice in the 1940s and 1950s and had been counsel for the Kellock-Taschereau Royal Commission.122 The CBA, however, did take part in the fairly extensive public debate in the learned journals and (to a lesser extent) newspapers. In 1958 Saturday Night had published an article weighing the pros and cons of the idea, and later in the year the political scientist Pauline Jewett wrote a critical analysis in the Canadian Forum. In early 1959 Maclean’s published an article by another political scientist called ‘Why Pass a Useless Bill of Rights?’ and in March 1959 the Canadian Bar Review devoted an entire issue to Diefenbaker’s proposal, with articles by eminent legal scholars such as W.R. Lederman, Edward McWhinney, Bora Laskin, and F.R. Scott. Arthur Lower once again turned his attention to the topic, but this time, in a CBC broadcast and in an article in Canadian Commentator, he was attacking Diefenbaker rather than supporting him, especially because the legislation provided no protection against the War Measures Act. In addition, critical articles appeared in the Dalhousie Review and Queen’s Quarterly, and F.R. Scott publicly attacked the Diefenbaker bill in a major speech (almost immediately published in a book), maintaining that ‘if this is the best we can do, we are admitting that we are not really deeply concerned about civil liberties.’123 Yet the Diefenbaker government refused to make any major changes to the bill. Then, in the summer of 1960, the prime minister reintroduced the slightly revised bill, now renamed C-79. Diefenbaker made what the Globe called ‘an emotional and personal address’ to the Canadian people on the eve of Dominion Day, just before the bill was to be debated for second reading in the House. The following day he spoke in the House for over two hours in support of the legislation, providing in his conclusion a prime example of the eloquent overkill for which he was so famous: ‘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

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choose those who will govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.’124 The opposition in the House for the most part supported the legislation in principle but still criticized some of its details, and national debate continued for the rest of the summer. For the last time, the traditional activists within the human rights community, as well as a number of tangentially interested people and organizations, were able to state their cases through the House of Commons, before a special House committee on human rights and fundamental freedoms, and in the Canadian press. In this welter of commentary, several points stand out. First, no francophones at all testified before the 1960 parliamentary committee. The struggle for a bill of rights had been, and continued to be, almost entirely an English-Canadian affair. Second, outside Quebec there was now virtually unanimous support for ‘human rights and fundamental freedoms,’ and remarkably little disagreement about what those rights should involve; most of the commentators were committed to a liberal-individualistic model of human rights, although F.R. Scott did criticize the bill for protecting only political and legal freedoms and not mentioning cultural and economic rights or the right not to suffer discrimination in employment. (Given the tenor of the times, it is not surprising that were no demands for protection of such Charter-era ‘modern’ rights as the rights of the physically or mentally disabled or the rights of gays and lesbians.)125 This consensus was the product of an incremental revolution in thinking. While the earlier debates in the late 1940s and 1950s had produced some opposition from those who wished to defend antiAsian discrimination or anti-Communist legislation, attitudes of this nature were singularly absent in 1960. Even the Liberal Party, which had been responsible for most of the federal civil liberties violations of the last two decades, was finally willing to admit that ‘we do not believe that certain of those actions [dealing with the Japanese Canadians] were really necessary, or that they should be repeated in any similar situation in the future.’ After the purging of Liberal ranks in the 1957 and 1958 elections, it was now possible for a new leadership to admit what had previously been taboo. The Ottawa Journal referred sarcastically to the ‘spectacle of “my-party-right-or-wrong” Liberals suddenly aflame for liberty.’126 In fact, a bill of rights was no longer an idea supported primarily by prairie populists, left-liberals, democratic socialists, and Communists.

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Groups like the Civil Rights Union and the League for Democratic Rights were no longer even in existence, and the organizations that appeared before the parliamentary committee were all moderate and ‘respectable.’ Eighty-six out of eighty-nine English-speaking newspapers supported the measure, and even the Chamber of Commerce, usually a bastion of conservatism, approved the bill as a commitment to the principle of freedom (although it lamented the absence of an anti-union right-to-work clause). What opposition did arise came primarily from certain members of the legal profession, who saw this as a deviation from British traditions and the teachings of A.V. Dicey, Quebec’s Union Nationale government, and a few francophones in Parliament.127 Among the supporters of a bill of rights there was also relative unanimity on a number of points. First, almost all of them wanted the legislation to have real ‘teeth,’ and most supporters wanted it to limit Parliament as well as the executive. In other words, if this was to be a deviation from British tradition, let it include limitations on parliamentary supremacy. Moreover, virtually all supporters of a bill of rights wanted it to be somehow constitutionally entrenched so that it could not easily be amended or overridden. On the related matter of whether the entrenchment should limit Ottawa alone or Ottawa and the provinces, most supporters felt that the optimum solution would be an entrenchment that bound all eleven governments, although they agreed with Diefenbaker that past history indicated that, in the short term, this was highly unlikely. As a result, many (perhaps most) of the politicians and interest groups who wished to proceed with a bill of rights were willing to accede to Diefenbaker’s proposal that his legislation apply to Ottawa only.128 Finally, most supporters of Diefenbaker’s Bill of Rights were concerned that the War Measures Act was largely exempt from its protection. There was, however, no consensus as to how to balance the interests of the state with the interests of individual freedom in wartime, especially in the shadow of the nuclear bomb. Virtually all commentators agreed that it was legitimate in wartime to place some limits on traditional rights; the question that remained unsolved was how best to do this. Between the introduction of Bill C-60 and the passage of Bill C-79, a number of changes were made by the Diefenbaker government, but few of them satisfied the main issues addressed by those who wanted a strong bill of rights. The most serious problem was that the

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Diefenbaker Bill of Rights appeared to be a toothless assault on the power of Parliament, for the phrase ‘construed and applied’ was not an explicit message to the judiciary that they should strike down any law that violated the rights listed in the new legislation. When one realizes that several critics of the bill pointed out that the bill could be interpreted as simply a declaratory bill of rights, and when one realizes that it would have been easy to redraft the legislation so that it clearly gave judges at least conditional powers to limit Parliament, one must come to the conclusion that the Diefenbaker government probably favoured a bill which would control only the executive and merely warn the legislative branch. Of course, this was consistent with Diefenbaker’s commitment to British constitutional traditions; his Bill of Rights was intended to be no more than a statutory consolidation of the common law bill of rights approach which had already been developed piecemeal by the judiciary.129 There was, nevertheless, one governmental change to the legislation that could have altered the meaning of the phrase ‘construed and applied.’ By the time the final version of the law was passed, it stated that ‘every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge, or infringe ... any of the rights or freedoms herein recognized and declared.’ This addition of the ‘notwithstanding’ phrase, otherwise known as the non obstante clause, could perhaps be interpreted as Parliament imposing a ‘manner and form’ requirement on itself, so that statutes could indeed be struck down by the courts under certain conditions. On the other hand, it could just as easily be seen as a way of ensuring that Parliament retained the ability to overrule any judicial application of the Bill of Rights. Although some supporters of the law hoped at the time that the judiciary would take the former interpretation and strike out boldly against unjust federal statutes, there was certainly no clear mandate in the bill that they should do this.130 Another difficulty was that Diefenbaker’s bill only went part way in satisfying the demands of those who wanted protection against the War Measures Act. Here again Diefenbaker took the traditional route of distrust of the executive and deference to Parliament, for the Bill of Rights guaranteed Parliament’s right to give almost unlimited powers to the executive in emergency situations; the bill simply made it more difficult for the executive to manipulate Parliament into granting such

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powers. This certainly did nothing to prevent Parliament from passing unjust laws, or to limit the executive, once Parliament had approved the invoking of the War Measures Act, from passing orders-incouncil as severe as those that had been passed during the Second World War. In addition, the Bill of Rights remained a statute and not an entrenched element of the constitution. Whether or not Diefenbaker could have entrenched the legislation must remain one of the more interesting unanswered questions of Canadian legal history. In early 1959 Premier Douglas of Saskatchewan had urged him to call a federalprovincial conference that would discuss such entrenchment. Diefenbaker chose not to submit his proposal, no doubt largely because it was clear that Duplessis would not be sympathetic. However, the Quebec premier died in September 1959 and his party was defeated by Jean Lesage and the provincial Liberals in June of the following year. Then, while the parliamentary committee on C-79 was sitting in July, the new premier issued a statement at a federal-provincial conference: ‘the experience of the past few years has convinced the government of Quebec that human rights are not sufficiently protected in the sphere of provincial jurisdiction. We, therefore, believe that it is now necessary for us to have a bill of human rights. We are also of the opinion that such a bill would have a much greater actual and symbolic value if it were part of the constitution ... It seems to us that we have here a magnificent opportunity to discuss this problem and to see if we cannot agree on a joint declaration of human rights that could be embedded in our constitution.’131 One commentator has suggested that this ‘quiet revolution’ in the position of the Quebec government was probably engineered by the federal Liberals, especially Lester Pearson and Paul Martin. In any case, the Liberals on the parliamentary committee studying the bill maintained that it was a breakthrough which altered the entire situation, and some members suggested that provincial representatives be asked to appear before the committee. Furthermore, the CCF leader, Hazen Argue, maintained that since according to his information the premiers of Saskatchewan, Quebec, New Brunswick, Alberta, and British Columbia were also in favour of a constitutional entrenchment of a bill of rights, further discussion of the bill should be postponed in order that the government discuss the matter with the other provinces.132 This postponement did not take place, and the government proceeded to move its bill through Parliament. The reasons for this re-

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fusal to grasp the constitutional olive branch are not clear. Diefenbaker may have believed that Lesage’s proposal might lead to the creation of a constitutionally entrenched bill of rights that would radically change the Canadian political system by undermining the principle of parliamentary supremacy. Perhaps he also agreed with the argument, raised initially by Loring Christie, stressed repeatedly by Varcoe, and reiterated in the Roebuck committee report, that a request by Canadians to have the British Parliament pass a bill of rights on their behalf would be a surrendering of Canadian sovereignty. The most likely explanation, however, is that the legislation in process was Diefenbaker’s own pet project, and he had no desire to share it with ten premiers who might take forever to reach a consensus. He had waited a long time to create ‘the Diefenbaker Bill of Rights’ and no Quebec politician was going to get in the way. To be sure, the committee hearings had not been a complete waste of time. Although Diefenbaker was intransigent on the overall structure of the bill, a few additions were made, including a preamble that was suitable for hanging in classrooms and government offices. After the committee made its report, the bill moved swiftly through the House and was railroaded even more quickly through the Senate. On 10 August 1960 the Diefenbaker Bill of Rights was given royal assent and became law.133 The passage of this legislation marked the closure of a major struggle for the Canadian human rights community. In the next few years the success or failure of ‘the Diefenbaker Bill of Rights’ would be determined by the judiciary; litigation rather than lobbying now seemed to be the way to achieve effective limits on federal rights violations. Yet the Bill of Rights was only a qualified victory. First of all, Diefenbaker was not responding to the demands of the human rights community – it is clear that he had his own agenda long before he became prime minister. At best, one can argue that the constant lobbying and education had helped to make Canadians aware of the arguments in favour of a bill of rights. The Bill of Rights was a qualified success also because it was only half a loaf, and in constitutional law that was perhaps worse than no loaf at all. The gloomy predictions of Bora Laskin, Frank Scott, and others were soon vindicated, and the law remained primarily a limitation on executive behaviour rather than a curb on Parliament. True, Diefenbaker crowed that his masterwork had been vindicated when, in the late 1960s, the Supreme Court finally struck down a section of

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the Indian Act that violated the equality provision of the Bill of Rights. However, in a subsequent case, the Supreme Court indicated that it was unwilling to use the legislation for anything more than a check on executive abuses; the court had in effect changed its mind, and Canadians were stuck with a lame-duck limitation on parliamentary supremacy.134 The year 1960 can therefore be seen as the end of the first stage of Canadian human rights history. The world had set up the Universal Declaration of Human Rights, but it would be some years yet before this statement of principles would be given legal force in the form of two conventions (ratified by Canada in 1976). Domestically, Canadians in most provinces and at the federal level had anti-discrimination legislation but not modern human rights codes. They also now had a bill of rights, which at least accustomed them, even in the face of its limitations, to the idea of a national human rights document, Above all, it remained for Prime Minister Trudeau to supplement the deficiencies of the Bill of Rights with the Charter of Rights and Freedoms in 1982. The next twenty-two years formed the second stage of Canadian human rights history, with new issues, new interest groups, and new legal outcomes.

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Conclusion

This book has shown how Canada entered the age of rights from 1930 to 1960. It was, of course, simply the beginning of what Michael Ignatieff has called the rights revolution. Despite the advances described here, in 1960 discrimination against minority ethnic and religious groups was still far too common, limitations on libertarian rights were still excessive (at least from the liberal perspective), and the nation was not yet exposed to the ideas of feminism, gay liberation, and First Nations nationalism, to the idea that the rights of those with physical and mental disabilities were shamefully neglected, and to a multitude of other ‘postmaterialist’ rights concerns, including the notion of animal rights. At the same time, rights laws remained in their infancy – Ontario was still moving slowly in the direction of a comprehensive human rights code, and the other provinces lagged far behind. At the constitutional level, the Diefenbaker Bill of Rights would turn out to be merely a wet cardboard shield against governmental injustice, and the Charter of Rights and Freedoms was merely a gleam in the eye of a relatively unknown law professor from Quebec who had not yet joined the Liberal Party let alone become prime minister. Finally, many of the rights groups, especially civil liberties organizations, had simply disappeared, and what remained was a small collection of individuals indeed. A prominent American human rights activist has written in his memoirs that in the 1960s the professionals engaged in human rights work in his country would have fitted easily into a good-sized living room, while the professionals in the rest of the world could have been placed into a much smaller room.1 In Canada,

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no doubt, one could have fairly easily fitted the professional human rights activists into a closet. All this stands in marked contrast to the proliferation of rights organizations and professionals in the world today, including Canada, as well as the institutionalization and increasing political significance of these rights groups. Yet the contemporary situation is, of course, rooted in past developments. Looking back at the events and transformations discussed in this book, one can see that there were three aspects to Canada’s entry into the age of rights. First, people’s changing attitudes about justice led to new forms of political organization. As noted in chapter 1, during the 1930s and early 1940s, there emerged a number of organizations devoted to the protection of what today we would call ‘human rights and fundamental freedoms,’ and although initially most of these were ad hoc bodies dealing with specific issues, in many instances they either developed into, or were replaced by, long-term institutionalized organizations. Some of these were of course ‘traditional’ private interest groups, furthering the self-interest of their respective memberships; the Canadian Jewish Congress, for example, was one of the largest and most successful of such organizations. Some, however, exemplified a relatively new phenomenon, for they were based on a concern for the rights of other Canadians. This was, in fact, the beginning of the modern Canadian human rights community – ongoing intergroup cooperation based not just upon enlightened self-interest but also upon a commitment to universal values. In the field of libertarian rights, political action at first often coalesced around specific issues; the Zynchuk case, for example, led to the formation of a coalition of different organizations representing workers, women, churches, social-democratic intellectuals, and politicians. Similarly, in the area of egalitarian rights, the federal government’s inadequate response to the Nazi persecution of Jews and the resulting wave of potential refugees led to the creation of the Canadian National Committee on Refugees and Victims of Political Persecution, a coalition of Jewish groups aided by a number of gentile Canadians committed to principles of compassion, liberal justice, and intergroup solidarity. It was in the field of libertarian rights, however, that ad hoc coalitions first began to give way to permanent bodies. The Canadian Labor Defense League, an organization committed to the defence of radi-

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cal workers and Communists, was one of the earliest of such organizations. Another was the Canadian League against War and Fascism. Yet for a number of reasons, not the least of which was the fact that these groups appeared too closely connected to Canadian Communists and not adequately based upon universal values, by the end of the 1930s these bodies had been replaced by civil liberties organizations in Montreal, Toronto, and Vancouver, groups committed to defending the freedom of all citizens and not just those of the radical left. Moreover, there was a strong sense that Canada needed a permanent national organization; each civil liberties group was in theory a branch of the Civil Liberties Union, although in practice they operated rather autonomously. It also became clear during the 1930s that rights groups, whether driven by enlightened self-interest or altruism, were almost inevitably dependent upon the support of what this book has called ‘tangential human rights organizations’ – groups primarily concerned with furthering the interests of their respective members but having a secondary focus on the rights of other citizens. Churches, for example, were frequently involved in human rights work, especially when their members were motivated by the values of the Social Gospel. Trade unions also had an interest in a wide scope of rights, sometimes standing up on behalf of people who had no connection to the trade-union movement. As chapter 2 has demonstrated, the war years strengthened the civil libertarian movement, although in some cases organizations fell by the wayside in the final years of the conflict, in part because of divisions between Communist and non-Communist members. But, for those civil liberties groups that remained active, a concern for individual freedom became increasingly supplemented by a defence of the equality rights of minority ethnic and religious groups – a broadening of the scope of their universal ideals. At first, ad hoc coalitions were often the normal response to rights problems, especially in the field of egalitarian rights. Chapter 3 has shown how, around the end of the war, an increased Canadian concern for the rights of others, and the decision of Ottawa to deport a number of Canadian citizens of Japanese descent, led to the creation of a human rights ‘policy network,’ the Co-operative Committee on Japanese Canadians. In this ad hoc coalition, the Japanese-Canadian groups were motivated (understandably) by self-interest but most of the others – churches, trade unions, women’s organizations, and so on – operated primarily on altruistic grounds. Together they created an

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early human rights organization, albeit one that was neither permanent nor widely focused. Chapter 3 has also pointed out that, at about the same time that the CCJC was operating, another rights coalition sprung up, this time to change immigration laws concerning the Chinese. While there was some slight overlap between the CCJC and the Committee for the Repeal of the Chinese Immigration Act, the two groups did not come together and both disappeared after having succeeded in attaining their original aims. In the field of egalitarian rights, inter-ethnic group solidarity was not common in the late 1940s. Canada was still, to some degree, a multiplicity of ethnic solitudes. Nor was there much inter-ideological solidarity in the field of libertarian rights. Chapter 4 has shown how the Gouzenko crisis galvanized a number of liberals and social democrats across the country into either founding or resuscitating civil liberties groups. At the same time, however, the Emergency Committee for Civil Rights emerged as a response to the perceived inadequacies of the Toronto civil liberties group. The ad hoc ECCR soon transformed itself into a permanent organization, the Civil Rights Union, but it was tarred by allegations of Communist infiltration and remained isolated from the less radical civil liberties groups. As chapter 5 demonstrated, except on rare occasions, such as the formation of a policy network for a second round of the Padlock Law struggle, Communist-dominated and non-Communist civil liberties groups in Canada remained on parallel but separate tracks throughout most of the Cold War period and no truly national and comprehensive civil liberties organization was ever formed. Nevertheless, a number of groups did come together to form new rights bodies and coalitions during the immediate post-war period. Some of these were different ethnic and religious groups, while others were civil liberties organizations and tangential rights groups such as trade unions. Often these groups were self-interested, but this enlightened self-interest was increasingly packaged, and therefore made increasingly effective, within a commitment to universal values. Chapters 5 and 7 have demonstrated how leaders of both the Canadian Jewish Congress and the Jewish Labour Committee recognized that it was more effective to harness the emerging discourse of human rights in campaigns against racial and religious discrimination than to ask for the far narrower goal of justice for Jews alone. Therefore, during the 1950s, Jewish and trade-union activists created an entire network of labour committees devoted to the promotion of egalitarian rights. Permanent bodies, committed to a wide spec-

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trum of equality for all ethnic and religious groups (although somewhat lukewarm about women’s rights), these can be seen as a major step in the direction of modern human rights groups. They then coalesced with a wide variety of organizations – civil liberties groups, ethnic organizations, trade unions, churches, and other tangential rights groups – and educated the public about the dangers and errors of prejudice, as well as lobbying for effective anti-discrimination legislation. As these coalitions worked to obtain pioneering forms of human rights law, and while some of their members worked (as pointed out in chapter 8) to obtain a national bill of rights, there emerged a number of local human rights communities loosely linked into a national human rights community. While this was fragmented geographically, and sometimes badly split along ideological grounds, the very fact that it existed at all demonstrated how much Canada had changed between 1930 and 1960. The second major change that had taken place during this period, and that was both the cause of and a result of the nascent human rights community, was a shift in the way the public began to view minority rights. Canada moved from being a society drenched in prejudice and discrimination to one that was far more willing to tolerate (and even embrace) ethnic and religious diversity. Moreover, this shift in consciousness was moulded by new linguistic patterns. This book has discussed how in the 1930s the dominant discourse was still that of ‘traditional British liberties.’ It was only during the Second World War that the term ‘human rights’ began to appear frequently in people’s consciousness and language, with equality-seeking groups using the phrase more and more in the identification of their goals. But this linguistic turn was more than just a shift in labels. As this book has suggested, the war against totalitarianism and then the revelations about Nazi atrocities, especially the extermination of six million Jews, made it increasingly difficult to justify racial and religious discrimination at home. The Second World War was a bucket of cold water awakening Canadians to the realization that they needed to do a better job in living up to their own liberal-democratic principles. Notions of in-group superiority and justifiable discrimination or oppression were increasingly replaced by a new form of natural-law thinking – the notion that all human beings, regardless of race, ethnicity, religion, sex, or nationality, possess certain inalienable rights by virtue of their common shared humanity.

Conclusion—377

Another facet of the changing attitudes involved an ideological shift from classical liberalism to reform liberalism and (in some cases) social democracy. In the tradition of classical liberalism, the ideal of freedom was accorded a higher importance than the ideal of equality. To the extent that equality was valued, it was the formal equality of right – the notion that all people should be equal in the eyes of the law. (Of course, even this principle was sometimes fudged; for example, by denying the vote to people of Asian descent, legislators discriminated against them.) But, from the perspective of reform liberals and those ‘liberals in a hurry’ who called themselves social democrats, as well as, in their rhetoric at least, Canadian Communists, the right of minority-group members to live free from racial or religious discrimination outweighed the virtues of a society premised on the classical-liberal value of freedom of contract. In short, many Canadians started to think that what the country needed was more equality even if it meant a little less traditional liberal freedom. The third major development during this period was a dramatic change in the legal status of minority rights. This was most remarkable in the field of egalitarian rights. In the mid-1940s it became clear, with the CCJC spearheading public opposition to the deportation of Japanese Canadians, that more and more Canadians were no longer willing to treat even unpopular minorities as second-class citizens. As a result, laws that discriminated against people of Asian descent were eliminated by the end of the decade, and some small steps were taken in the direction of a colour-blind immigration policy. (The fact that Canada did not open its gates to non-European immigrants until the early 1960s no doubt reflected lingering attitudes of ethnocentrism and discrimination. But, paradoxically, this helped ensure that these attitudes would diminish more quickly. Because the country was still overwhelmingly ‘white,’ and still largely British, the majority felt relatively unthreatened and could afford to champion values of racial toleration.) The changes in law that gave Asian Canadians full rights of citizenship, although important, can be seen as simply a classical-liberal society finally living up to its own standards. More fundamental shifts in the legal regime began when Ontario, followed by a number of other provinces, passed several anti-discrimination statutes in the 1950s. From the perspective of many classical liberals, these laws appeared to be a series of unjustifiable limitations on individual freedom. By the end of the decade, however, most Canadians had come to terms with this

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still-developing shift in the balance between liberty and equality, and the stage was set for the later development of modern human rights codes in every province and territory as well as at the federal level. Although the shift in egalitarian rights attitudes was a minor revolution, especially in the post-war years, developments at the level of libertarian rights seemed, during most of this period, to be less than impressive. True, economic prosperity combined with the growth of the modern welfare state made for relative peace in labour-management relations and a level of legitimacy for the political system that made the years of the Great Depression seem like a bad dream. But, as chapters 4 and 6 illustrate, although Ottawa did not reintroduce antiradical legislation such as the infamous section 98 of the Criminal Code, both the Gouzenko affair and Cold War tensions ensured that civil liberties were frequently curtailed, abridged, and infringed. Respect for fundamental civil liberties did not substantially improve until the late 1950s, when the Cold War threat of domestic subversion had subsided and a newly activist and very liberal Supreme Court of Canada started handing down a number of important legal cases protecting the libertarian rights of both Communists and Jehovah’s Witnesses. Finally, the passage of the Bill of Rights in 1960 promised initially to be a quantum leap in the direction of enhanced respect for both libertarian and egalitarian rights. Admittedly, as chapter 8 points out, even at the time the bill was passed there were serious reservations about how strong a bulwark for individual human rights it might prove to be. But it nevertheless was viewed both as a symbolic defence of fundamental human rights and as a possible shift away from the tradition of untrammelled parliamentary supremacy. The above-mentioned three developments – the emergence of new organizations forming a loosely linked human rights community, the shift in both the language and the focus of rights, and changes in the legal status of human rights – are indisputable. What is less clear is how many of the human rights campaigns between 1930 and 1960 were successful. The stories examined in this book seem to fall into three categories: successes, qualified successes, and failures. The successes included the campaign against the deportation of Japanese Canadians; litigation in both the Drummond Wren case, attacking a discriminatory restrictive covenant, and the Switzman case, striking down the Padlock Law; and the passage of a number of anti-discrimination statutes as well as pressure in the Dresden case to ensure that Ontario’s

Conclusion—379

Fair Accommodation Practices law was adequately enforced. The qualified successes appear to have been the first Padlock Law case; the protests against the DOCR policies during the war; the fight against the Criminal Code amendments in the 1950s; and the passage of the ‘half a loaf’ Bill of Rights in 1960. Failure, on the other hand, seems to be the appropriate category for the pre-war campaign against the Padlock Law and the protests against government policy in the Gouzenko affair. Of course, there were other issues, some more successful than others, so this book does not claim to offer a definitive score card. But it does seem clear that the activists were on the whole moderately influential, which, for most actors in politics, is probably as good as it gets. Moreover, with the benefit of hindsight, it looks as if some of these campaigns were almost preordained to failure. The pre-war Padlock Law struggle, for example, was probably doomed from the beginning, given the popularity of the Duplessis regime, the influence of Catholic Quebec on federal politics as long as the Liberals were in power, and the relative conservatism of the Canadian judiciary. Similarly, given the short-term nature of the issue, as well as the somewhat authoritarian values of the Canadian public – values that were reinforced by the undeniable revelations of traitors in high places – there was probably never anything very much that civil liberties organizations could do to change Ottawa’s policy in the matter of the Gouzenko affair. But, of course, fighting the good fight can be seen as intrinsically desirable, whether or not one wins. And, paradoxically, this book is a testament to the power of even apparently unsuccessful political struggles; without the struggles there would be far less of a record for historians to investigate and bring to our collective memory. But to what degree were the human rights activists actually responsible for their successes? How much were these the result of political action – what historians like to call human ‘agency’ – and to what extent were they the result of subterranean forces such as economic shifts and demographic changes? There can be no absolutely definitive answer to this question, but it is surely clear that these human rights activists were successful in large part because of certain changes in the nature of Canadian society. For one thing, the language of human rights was not a Canadian invention; rather, as chapter 2 demonstrates, it was an international development originating in the Second World War and finding its most important public expression in world documents such as the

380—Repression and Resistance

Charter of the United Nations and the Universal Declaration of Human Rights. In addition, Canada was catching up in the international race to industrialized status. With a larger urban population and a burgeoning middle class, the old antipathies towards minority groups were eroding and being replaced by values of toleration and even respect. Political scientists have concluded that respect for human rights is increased, all things being equal, when a country undergoes industrial growth, and Canada was no exception to this rule. Moreover, because industrial growth in the immediate post-war years was accompanied by unparalleled prosperity, there was no need to scapegoat unpopular minorities. At the same time, rapid industrialization and economic prosperity went hand in hand with increased security of trade-union rights and major growth in the size, nature, and influence of the labour movement. As this book has demonstrated, especially in chapter 7, this facilitated the human rights activism of trade unions and made it easier for them to work for the passage of anti-discrimination legislation. As well, economic growth and prosperity led to an influx of immigrants. Chapters 5 and 7 argue that the Ontario government in particular wished to ensure that discrimination against these new workers would not disrupt economic development. Along with the shift in values towards toleration and increasing acceptance of reform liberal interventions in the marketplace, as well as the desire to demonstrate that Communists did not have a monopoly on anti-racist policies, governments were on the whole receptive to the demands by human rights activists that anti-discrimination legislation and policies be implemented. Finally, one should never discount the impact of chance and unique situations. As Chapter 8 demonstrates, had John Diefenbaker not hitched his political chariot to the star of a Canadian Bill of Rights, it is likely that the lobbying of human rights activists in the late 1940s and 1950s might have led only to the passage of anti-discrimination laws. At the same time, however, had Diefenbaker been less wedded to the tradition of parliamentary supremacy, Canadians might have achieved a constitutional document that gave the judiciary real teeth. So it is clear that the successes of the human rights community can be partly attributable to a favourable ideological climate, which in turn was based upon a number of other factors, especially at the economic level. But none of these successes was predetermined. Even if a regime of enhanced protection for egalitarian rights and greater re-

Conclusion—381

spect for libertarian rights was ultimately inevitable, given the changes that were taking place in Canadian society, they might still have been a long time coming, blocked by either political inertia or conservative recalcitrance. According to some sociologists who study social movements, there are three major factors that determine success: political opportunities, mobilizing structures, and ‘framings.’ It is clear that the human rights activists of the immediate post-war period were presented with political opportunities for social change, and it is also clear that they were able to ‘frame’ their issues in ways took advantage of the new human rights discourse. To succeed, however, they had to organize, and the chances of success or failure were dependent upon their ability to mobilize a variety of resources, such as money, organization, and labour as well as non-material resources such as ‘respectability,’ legitimacy, solidarity, loyalty, and so on.2 Much of the impact of these organizations came from reasoned argument and moral suasion, rather than from brute political power; for the most part they did not represent many votes or sources of campaign funds, nor could they mount huge demonstrations or threaten the authorities with violence in the streets. Such tactics may be useful in some situations, but they were not available to the bodies discussed in this book, and even the less respectable bodies, such as the radicalleft League for Democratic Rights, seem to have felt that they would be counterproductive. There were, however, some other important sources of power. This book has mentioned ‘respectability’ on numerous occasions. This concept is rooted in class but also connects to other key social indicators, such as race/ethnicity, religion, political ideology, gender, sexual orientation, and attitudes about morality. Because the norm in English Canada was traditionally white, Anglo-Saxon, Protestant, upper-middle class, capitalist, male, and heterosexual, most of the rights struggles of our history have been at least in part equality struggles – outsiders fighting to achieve some degree of parity with those within ‘respectable’ society. To succeed, the outsiders often made alliances with people who were in many cases sufficiently detached from the political elite so as to question it but at the same time sufficiently part of it (that is, ‘respectable’) that they would be heard – certain academics, church leaders, trade unionists, artists, social-service providers, and the press. It is true that many of these people leaned towards the left, but this was not always a disadvantage in post-war Canada, where social de-

382—Repression and Resistance

mocracy was relatively acceptable and welfare-state ideas were being embraced by the centre-right. Of course, the human rights community, even groups such as the Civil Rights Union and the League for Democratic Rights, were not asking for anything very radical – merely that the country respect its evolving liberal principles. Moreover, in the field of egalitarian rights, the demands were usually presented in an incremental fashion, so that society could become accustomed to each particular forward step before proceeding to consider the next request. The passage of the Ontario Racial Discrimination Act in 1944 set the stage for the creation of the province’s Fair Employment Practices Act in 1951, which facilitated the passage of the Fair Accommodation Practices Act in 1954. In turn, these laws not only helped to pave the way for the passage of anti-discrimination legislation in other jurisdictions, they also made it easier in later years for human rights activists to demand the creation of modern human rights codes. The most successful of the rights groups were those with access to funds and the creation of professional staffs. The Co-operative Committee on Japanese Canadians was effective in large part because it reached the consciences and pocketbooks of many Canadians and so was able to hire a full-time organizer as well as pay for legal help. Similarly, the success of the Jewish Labour Committee can in large part be attributed to its financial ability to pay for a first-class executive secretary, as well as for full- and part-time secretaries in its local human rights committees. By contrast, the great weakness of the Association for Civil Liberties In Toronto was that it was run ‘out of Irving Himel’s desk drawer.’ Had the ACL been able to achieve its elusive goal of creating a truly national civil liberties organization, it might have had the funding to hire a permanent director who could have worked on issues full time. Voluntary labour was, of course, still essential for these organizations. Members of the boards were not paid, and people like Himel, Sandwell, and Spaulding donated countless hours of their time to their particular causes. Moreover, in many instances, legal advice came pro bono, as was true of David Lewis in a number of Jewish Labour Committee cases. These volunteers also helped to connect the core groups with each other and with tangential rights organizations. This book has identified certain ‘nodal’ actors who were members of different groups and

Conclusion—383

thereby helped to facilitate inter-organizational communication and generate support for particular causes. These people are in some ways similar to the individuals identified as ‘Connectors’ by Malcolm Gladwell in his book about rapid social changes. According to Gladwell, Connectors not only know a lot of people, they also know people in ‘many different worlds and subcultures and niches,’ and they are extraordinarily powerful because they can tie individuals to a multiplicity of new ‘opportunities and worlds.’ The nodal actors identified in this book – people such as B.K. Sandwell, F.R. Scott, Charles Millard, Kalman Kaplansky, George Tanaka, Arthur Lower, and so on – connected people in very much the same way. By virtue of their membership in different organizations, as well as their informal connections, they were able to link together individuals and groups who otherwise might not have touched. The different ‘worlds’ of ethnic/religious identities, class differences, and even political ideologies were to some degree bridged by these human rights Connectors, who were therefore able not only to create alliances and coalitions but also to foster a more permanent sense of community which held all human rights activists together – at least some of the time – in their pursuit of a common set of goals.3 When we look back on these years from the vantage point of the early twenty-first century, it is hard to see the egalitarian and libertarian changes as either inevitable or secure. The developments surrounding 11 September 2001 have shaken our faith in many things; they have produced not only considerable apprehension but also a kind of seismic upheaval in our thinking about rights which has led to doubt, confusion, and even existential nausea. Nevertheless, some things remain clear. For example, it is obvious that fear is one of the great enemies of both liberty and equality. It was fear of Communists that led to section 98 of the Criminal Code, the Padlock Law, and the Cold War amendments of the Criminal Code. It was fear of the ‘Yellow Peril’ that led to the mistreatment of Japanese Canadians, and fear of racial mixing that led the white citizens of Dresden, Ontario, to discriminate against their black neighbours. More recently, of course, the events of 11 September have shown how fear can suddenly create demands for the curtailment of traditional civil liberties and also generate enthusiasm for discrimination against ‘the other.’ Subsequent governmental legislation and policies have not been encouraging for human rights activists.

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But this is not just a case of – as they say in Quebec – plus ça change, plus c’est la même chose. The prime minister of Canada, Jean Chrétien, made a point, shortly after the tragedy of 11 September, of being photographed visiting a mosque. Canada is a far more heterogeneous and multicultural society than it was in 1960, no longer a bastion of British culture outside Quebec and no longer a conservative authoritarian society inside that province. However, one thing remains the same. In every society there are people who swim against the tide. In Canada and the United States today, although the continent has for a while become less tolerant of dissenting opinions, and some people have found new targets for resurgent bigotry, not everyone has jumped upon the conventional-wisdom bandwagon and tooted the horn for the brave new world of authoritarianism.4 As this book has suggested, there are many reasons why individuals swim against the tide. The most obvious and most easily comprehensible reason is that of direct personal self-interest. The Canadian Jewish Congress, for example, was a more powerful human rights body than that of the Canadian Dutch community in large part because Jews were far more threatened by bigotry and discrimination than were the Dutch. Sometimes this self-interest is indirect. The Japanese Canadians, for example, realized that it was better to join with others to promote human rights principles than to stand alone in defending their own particular rights. As a result of their shameful treatment during the war, they later lobbied not just for their own right to vote but also for wider causes, such as anti-discrimination law and a bill of rights. Sometimes, however, self-interest is so indirect as to be almost invisible. For example, although it is true that the Padlock Law was sometimes applied to the CCF, and that Frank Scott was a leading light in that party, his decision to support the largely Communist challenge to the law was hardly based upon enlightened self-interest. His commitment seems to have been one based on principle – a belief that certain values are worth fighting for, partly because they protect all of us, but also because they ensure that others will receive justice. Take, as another example, B.K. Sandwell. While his commitment to traditional libertarian rights was at times clouded by his fear of Communist infiltration, his opposition to the deportation of Japanese Canadians at the end of the war can in no way be seen as self-serving. It arose out of a belief in the principle of equality of right, fired by a sense of what Sandwell no doubt would have called ‘British fair play.’

Conclusion—385

Or, as yet another example, consider Margaret Spaulding, the wealthy Rosedale socialite who devoted most of her post-war energies to the Communist-front Civil Rights Union and League for Democratic Rights. She had nothing to gain, and much to lose (in terms of friends and reputation) by championing the unpopular causes of minority groups and radicals. Yet, in her case also, principle triumphed over pragmatism, and she flailed away at whatever political windmills she found offensive. All of these activists were valuable members of Canadian society, whether or not we agree with their ideas. It is true, as the events following 11 September have taught us, that an over-developed sense of moral probity can also be, along with fear, the enemy of clear thinking. Terror in the name of ‘the truth’ can inspire a dialectic of repressive reaction and counter-reaction. Indeed, as one political realist has remarked, ‘the most fundamental problem of politics ... is not the control of wickedness but the limitation of righteousness.’5 But mere opposition to the conventional wisdom of the times, the unpopular swimming against the tide, is always valuable. As the great nineteenth-century liberal John Stuart Mill argued cogently in On Liberty, no society or political rulers should assume infallibility, and opposition to their received values and the status quo should be regarded as a sort of gift – arguments swimming against the tide may contain at least a portion of truths previously hidden to most of us, they may inspire, through debate, higher truths previously invisible to all of us, and they at least will ensure that we cleave to our opinions for intelligent reasons, rather than simply holding them as dead dogma.6 Another thing that should be remembered is that it is seldom easy to defy the conventional wisdom. The members of the CCF who campaigned in British Columbia on a platform that decried anti-Asian prejudice ran the risk of losing votes at a time when their support was already scanty. The civil libertarians during the Second World War were, as J.M. Macdonnell later confided to the House of Commons, ‘regarded as very queer people, rather open to suspicion,’ and Arthur Lower recalled in his memoirs that ‘speaking up for measures of reason and moderation call[ed] for a high degree of courage.’ That level of principled bravery was also necessary for the civil libertarians during the Cold War who openly sided with the right of Communists to free speech and free association. It is true that some of the activists, such as Margaret Spaulding, were independently wealthy and therefore immune from the economic worries of ordinary people, but social

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pressure could also be applied; one of her children remembers that a prominent Toronto lawyer, the father of a girl he was dating, referred to his mother as ‘that Communist bitch.’7 Similarly, while the background and education of Frank Scott gave him more power than many other people to ‘get away’ with unpopular statements and positions, it is also true that his immersions into controversy resulted in a long delay in his appointment as dean of McGill Law School. Even worse, the University of Toronto geographer George Tatham was informed in the early 1950s that he would not be made head of his department, despite his qualifications, because of the rumours that his political activism had engendered. As one colleague told him, ‘some of them say you are a Fascist because you work with the Japanese, others say you are a Commie because you work for the Ukrainian people, others are saying you are a “Nigger lover” and a “Jew-lover.”’ And it should not be forgotten that Hugh Burnett received death threats and went bankrupt because of his attempts to secure fundamental rights for blacks in the small Ontario town of Dresden.8 As the Introduction to this book noted, Prime Minister Trudeau once wrote that ‘few men are aroused by injustice when they are sure of not being its victims ...’ The examples of Scott, Sandwell, and Spaulding, however, as well as the other human rights activists mentioned in this book, demonstrate that the few men – and women – who do become aroused by injustice to others can have a profound impact upon the direction that a society takes. Sometimes they can nudge public opinion in a new direction, and at times they can even persuade the state to make changes. To all of the human rights activists mentioned in this book, Canadians owe a debt of gratitude.

Notes

Abbreviations AAMP ACLUP AESC AMMC AO ARMLP ARP BWP CBAP CCC CCFP CCFQ

CCJCP CJCA CJCP CLCP CSISF DEAP

A.A. MacLeod Papers, Archives of Ontario American Civil Liberties Union Papers, Mudd Library, Princeton A.E. Smith Collection, Victoria University, Toronto Angus MacInnis Memorial Collection, University of British Columbia Special Collections Archives of Ontario Arthur R. M. Lower Papers, Queen’s University Archives Arthur Roebuck Papers, Archives of Ontario Bernard Wolf Papers, National Archives of Canada Canadian Bar Association Papers, National Archives of Canada Canadian Criminal Cases Co-operative Commonwealth Federation Papers, National Archives of Canada Co-operative Commonwealth Federation, Quebec Provincial Council Records, McGill University, Department of Rare Books and Special Collections Co-operative Committee on Japanese Canadians Papers, National Archives of Canada Canadian Jewish Congress Archives, Montreal Canadian Jewish Congress Papers, National Archives of Canada Canadian Labour Congress Papers, National Archives of Canada Canadian Security Intelligence Service files [including RCMP files], National Archives of Canada Department of External Affairs Papers, National Archives of Canada

388—Notes DFR DJR DKP DLP DLR ERP FLPP FRSP GGP GPP GPVAP GRPP GTC HDP HSP HWHP JCC JCCAP JCHRFF

JCP JCRCC JEP JGDP JKGP JLCP JSWP KKP LMFP LPP MFP MTC

Department of Finance (Ottawa) Records, National Archives of Canada Department of Justice (Ottawa) Records, National Archives of Canada David Kashtan Papers, Archives of Ontario David Lewis Papers, National Archives of Canada Dominion Law Reports Edward Richmond Papers, National Archives of Canada Frank and Libby Park Papers, National Archives of Canada F.R. Scott Papers, National Archives of Canada George Grube Papers, Queen’s University Archives, Kingston Glendon Partridge Papers, National Archives of Canada G.P.V. Akrigg Papers, University of British Columbia Archives, Vancouver G.R. Parkin Papers, National Archives of Canada Grace Thompson Collection, National Archives of Canada Hugh Dobson Papers, Vancouver School of Theology Archives Hazen Sise Papers, National Archives of Canada Herbert W. Herridge Papers, National Archives of Canada Japanese Canadian Collection, University of British Columbia Archives, Vancouver Japanese Canadian Citizen’s Association Papers, National Archives of Canada Joint Committee on Human Rights and Fundamental Freedoms, Minutes of Proceedings and Evidence (1947 and 1948), National Library of Canada June Callwood Papers, National Archives of Canada Joint Community Relations Committee Collection, Ontario Jewish Archives James Endicott Papers, National Archives of Canada John George Diefenbaker Papers, National Archives of Canada J. King Gordon Papers, National Archives of Canada Jewish Labour Committee Papers, National Archives of Canada J.S. Woodsworth Papers, National Archives of Canada Kalmen Kaplansky Papers, National Archives of Canada Leslie M. Frost Papers, Archives of Ontario Lorne Pierce Papers, Queen’s University Archives Mildred Fahrni Papers, University of British Columbia Archives, Vancouver Minuro Takada Collection, National Archives of Canada

Notes to page 3—389 OHRCR OJA OLCHRP OLCP OR PCOR RCP RGRP RSKC RSKSP SBC SCDOCR SCMP SCR SJCHRP SO UBCA UBCLL UJPOP UTL VUA WEAP WEP WLMGP WLMKP WNSP WPBP

Ontario Human Rights Commission Records, Archives of Ontario Ontario Jewish Archives Ontario [and Toronto] Labour Committee for Human Rights Papers, National Archives of Canada Ontario Labour Committee Papers, National Archives of Canada Ontario [Legal] Reports Privy Council Office (Ottawa) Records, National Archives of Canada Ramsay Cook Papers, Queen’s University Archives R.G. Robertson Papers, National Archives of Canada Robert S. Kenny Collection, University of Toronto R.S.K. Seeley Papers, Trinity College, Toronto Statutes of British Columbia Special Committee on the Defence of Canada Regulations, National Archives of Canada Student Christian Movement Papers, Victoria University Archives, Toronto Supreme Court Reports Papers of the Special Joint Committee on Human Rights and Fundamental Freedoms (1947), National Archives of Canada Statutes of Ontario University of British Columbia Archives University of British Columbia Law Library United Jewish People’s Order Papers, Archives of Ontario University of Toronto Libraries Victoria University Archives, Toronto Workers’ Educational Association Papers, Archives of Ontario Wilfrid Eggleston Papers, National Archives of Canada W.L. Maude Grant Papers, National Archives of Canada W.L.M. King Papers, National Archives of Canada W. Norman Smith Papers, Glenbow Archives, Calgary W.P. Bunt Papers, Vancouver School of Theology Introduction

1 Henkin, The Age of Rights, ix. The literature on human rights is immense; one could begin with Cranston, ‘What Are Human Rights?’ and, for Canada, see Manzer, ‘Human Rights in Domestic Politics and Policy.’ 2 Cohen, ‘Human Rights’; Knopff, Human Rights and Social Technology, 216; Ignatieff, The Rights Revolution, 7.

390—Notes to pages 4–14 3 Backhouse, Colour-Coded, 278. For a theoretical discussion, as well as some historical examples, of resistance to repression, see McLaren, Menzies, and Chunn, ed., Regulating Lives. 4 Toronto Globe and Mail: ‘Plaque’s Unveiling Casts Light on a Dark Chapter,’ and ‘Ottawa Says No to Redress for Six Groups,’ 5 August and 15 December 1994; ‘Head-tax Ruling Clouded by Allegations,’ 14 September 2002. For other groups, see: ‘Childless Adults Want Compensation’ [after involuntary sterilization of the ‘feeble minded’], 15 January 1996; ‘Native Veterans Demonstrate in Ottawa for More Compensation,’ 2 October 2002. 5 Arendt, The Origins of Totalitarianism, 292. 6 Waldron, ‘Nonsense upon Stilts? – A Reply,’ 154; Lauren, Visions Seen, 139 –71; United Nations, The United Nations and Human Rights. 7 Maritain, The Rights of Man and Natural Law, 65. 8 United Nations, The United Nations and Human Rights. 9 On individual versus collective rights, see Ignatieff, The Rights Revolution, especially chapter 3; Taylor, ‘The Politics of Recognition,’ 25 –73. 10 One can also speak of procedural justice – the right of a citizen to be treated by the state in a way that is fair. Since this right is usually invoked when the state is infringing upon the liberty of the citizen in some way – during an arrest or a trial, for example – I have chosen to treat it as a subcategory of libertarian rights. 11 Pross, Group Politics and Public Policy, 98. 12 Coleman and Skogstad, ‘Policy Communities and Policy Networks,’ 26; Pal, Beyond Policy Analysis, chapter 6. 13 Berry, Lobbying for the People, 7. 14 Stanbury, ‘A Sceptic’s Guide to the Claims of So-called Public Interest Groups’; Pross, Group Politics, 127– 8; Elshtain, Democracy on Trial, 53; Pal, Beyond Policy Analysis, 209 –11. 15 Borovoy, The New Anti-Liberals, xiv. 16 Ibid. According to Borovoy (at xii–xiii), ‘the essence of liberal philosophy ... is a commitment to three principles: freedom of expression, equality, and procedural fairness.’ The fact that I have chosen to incorporate the third of these into the first does not mean that we have any significant disagreement on this point. 17 Barber, ‘Searching for Civil Society.’ 18 Kohlberg, ‘Stage and Sequence.’ The quotation by Trudeau is from an unspecified issue of Vrai in 1958 (Berger, Fragile Freedoms, 210). 19 McDonald, ‘A Policy of Privilege.’ .

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Notes to pages 15–23—391 20 Taylor, ‘The Politics of Recognition.’ 21 Thompson, Whigs and Hunters, 266. See also Brickley and Comack, ‘The Role of Law in Social Transformation’; and Bartholomew and Boyd, ‘Toward a Political Economy of Law.’ 1. Civil Libertarians and the Padlock Law 1 Paul Tennant, Aboriginal Peoples and Politics, 82– 8, 111. 2 For early uses of the phrase ‘human rights,’ see J.S. Woodsworth, ‘Besco,’ Canadian Forum, March 1924; House of Commons, Debates, 30 March 1937, 2289. 3 ‘Review of the Times,’ New Dominion Monthly (1874), 252, quoted in Doug Owram, Promise of Eden, 127. 4 Sir Wilfrid Laurier, ‘Political Liberalism,’ in Forbes, ed., Canadian Political Thought, 136, 137, 150. 5 Dicey, Introduction to the Study of the Law of the Constitution, 70, 201, 207. 6 McLaren, ‘The Early British Columbia Supreme Court and the “Chinese Question.”’ 7 Dicey, Introduction to the Study of the Law of the Constitution, 193, 202–3. 8 Walker, ‘Race,’ Rights, and the Law, 12–32. 9 Sher, White Hoods. 10 Backhouse, ‘Clara Brett Martin.’ 11 Johnson v. Sparrow (1899), 15 Que. SC 104 (Quebec Superior Court); Walker, ‘Race,’ Rights, and the Law, 144 –5. 12 Sangha, ‘“Home, Sweet Home.”’ 13 Interview with Kalmen Kaplansky, 12 June 1996. 14 Macpherson, The Real World of Democracy, 9. 15 McLaren, ‘The Early British Columbia Supreme Court.’ 16 Thompson, The Harvests of War, 44, 92. 17 Leier, ‘Solidarity on Occasion’; House of Commons, Debates, 1914, vol. 1, 22; Kealey, ‘State Repression of Labour and the Left in Canada, 1914 –20.’ 18 Roberts, Whence They Came, 5 –23. 19 Kealey, ‘State Repression of Labour,’ 295. 20 Laurier, ‘Political Liberalism’; Kaplan, State and Salvation, 29 [translation of speech from Le Devoir, 31 January 1938]. 21 T.W.L. MacDermot, ‘Radical Thinking in Canada,’ Canadian Forum, October 1931; Escott Reid, Radical Mandarin, 31. 22 Canadian Forum, March 1931; House of Commons, Debates, vol. 2, 24 March 1939, 2259; Preece, ‘The Myth of the Red Tory,’ 8; Whitaker, .

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392—Notes to pages 24–9

23 24 25 26 27

‘Images of the State in Canada,’ 36; ‘Christians and Communists,’ Canadian Forum, June 1932; Harry Sanders, ‘Freedom and Justice,’ Canadian Forum, November 1931. Geiger-Adams, ‘Pioneer Issei.’ Cook, The Regenerators, 48 –9, 52, 55 –7, 157. Petryshyn, ‘Class Conflict and Civil Liberties.’ Walker, In Defense of American Liberties; Lilly, The National Council for Civil Liberties. Avakumovic, The Communist Party in Canada, 54, 69, 85 – 6; Frye, ‘Conclusion,’ 830. The idea of a ‘garrison mentality’ has been applied to Canadian civil liberties history by Horn in ‘“Free Speech Within the Law,”’ 43 – 4. ‘Police Methods,’ Canadian Forum, May 1931; Hunter, Which Side Are You On, 66; Naylor, The New Democracy, 210 –11. Betcherman, The Little Band, 136, 170; Scott, ‘The Montreal Sedition Cases,’ Canadian Bar Review 9, 10 (December 1931), 756; Betcherman, The Little Band, 185, 211, 214; W. Glen How, ‘The Case for a Canadian Bill of Rights,’ 789. Djwa, The Politics of the Imagination; Djwa and Macdonald, On F.R. Scott; Ken Lefolii, ‘The Poet Who Outfought Duplessis,’ Maclean’s, 11 April 1959; Terrence Maxwell Campbell, ‘The Social and Political Thought of F.R. Scott’; Forsey, A Life on the Fringe, 135; NFB, Rhyme and Reason [video on Scott’s life]. Allen, The Social Passion, 16; Djwa, The Politics of the Imagination, 117. Owram, The Government Generation; Faris, The Passionate Educators, 15. Djwa, The Politics of the Imagination, 118, 129 –132, 138; Montreal Gazette, 2, 4, 5 February 1931; F.R. Scott, ‘The Trial of the Toronto Communists.’ Young, The Anatomy of a Party, 137. Hewett, Unitarians in Canada, 208 –9, 218 [on Stiernotte]; Stiernotte to W. Norman Smith [on dialectical materialism], 20 October 1934, and Stiernotte to Smith [including resolution to UFA], 20 January 1932 [sic; intended as 1933], WNSP, file M 1157/29; Stubbs, A Majority of One, 64 –129; Horn, Academic Freedom in Canada, 99; Bright, ‘The State, the Unemployed, and the Communist Party in Calgary, 1930 –5,’ 538. Hewett, Unitarians in Canada, 187– 8, 208 –9, 327. J.C. Wilson, ‘Canadian Censorship’ (letter), Canadian Forum, November 1931; FRSP, vol. 9, file 8: Stiernotte to Scott, 25 October 1932, Taylor and Thomas to Stiernotte, 28 October 1932, and Stiernotte to Scott, 8 November 1932; letter from A. Stiernotte, Canadian Forum, December 1932. Scott to Stiernotte, 21 October 1938, Stiernotte to Scott, 10 February, 1933, FRSP, vol. 9, file 8. Stiernotte’s letter thanks Scott for moving the motion but does not give details. .

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31 32 33 34 35

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36 37

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Notes to pages 29–35—393 39 Hewart, The New Despotism; Cheffins and Tucker, The Constitutional Process in Canada, 97; Scott to CCLPA, 20 February 1933, FRSP, vol. 9, file 8. 40 Francis, Frank H. Underhill; Berger, The Writing of Canadian History, chapter 3; Horn, ‘“Free Speech within the Law”’; Horn, The League for Social Reconstruction, 181. 41 Underhill to Stiernotte, 23 November 1932, FRSP, vol. 9, file 8. 42 Milner [ACLU secretary] to Gordon, 29 November 1932, FRSP, vol. 9, file 8. 43 Djwa, The Politics of the Imagination, 48, 123; Socknat, Witness against War, 138 – 44. 44 Forbes, ed., Canadian Political Thought [Regina Manifesto], 241. 45 Stiernotte to Scott, 10 February 1933, FRSP, vol. 9, file 8;. Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part I, 1933 –1934, 139, 209 –10, 222, 321, 416; Part III, 1936, 235; Abella, Nationalism, Communism, and Canadian Labour, 44 – 53. 46 FRSP, vol. 9, file 8; Stiernotte to Scott, 22 May 1937, FRSP, vol. 10, file 13. 47 Forsey, ‘Montreal Is a Quiet City,’ Canadian Forum, June 1931. 48 Milligan, ‘Eugene Forsey,’ especially 252– 4, 268, 285, 294 –5; Forsey, A Life on the Fringe, 53, 58, 63, 72, 152, 190. 49 Lévesque, Scènes de la vie en rouge, 272, n. 35. 50 Canadian Forum: ‘A Focus of Fascism,’ July 1933, and ‘Quebec’s Iron Heel,’ November 1936; Livesay, Right Hand, Left Hand, 13 –14, 84 –5, 87. 51 Djwa, The Politics of the Imagination, 118 –19. 52 ‘Information Bulletin’ of the Montreal Presbytery [United Church], February 1933, JSWP, vol. 5, file 9; ‘A Focus of Fascism,’ Canadian Forum, June 1933; Gordon, ‘The Politics of Poetry,’ 23; Forsey, A Life on the Fringe, 58. 53 Canadian Forum: J.E. Keith, ‘The Fascist Province,’ April 1934, and ‘Quebec’s Iron Heel,’ November 1936; Scott to Rev. Stanley Elliott, 3 April 1935, and J.N. Lee, secretary pro tem, to ‘Dear Sir or Madam,’ 16 February 1934, FRSP, vol. 9, file 8. 54 FRSP, vol. 9, file 8: Lee to ‘Dear Sir or Madam,’ 16 February 1934, secretary/ECCL to ‘Dear Mr. ____’ [n.d.], ‘Canadian Civil Liberties Union Provisional Constitution’ and Scott to Timbres, 14 June 1934. 55 Manley’s ‘Introduction,’ in Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part IV, 1937, 165; Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part II, 1935, 68 –9, 107, 244; Scott to David Lewis, 7 November 1936, FRSP, vol. 10, file 13. 56 Forsey, Life on the Fringe, 133 –5. 57 ‘Calder’s Fine Vote Starts Big Campaign,’ New Commonwealth, 2 November 1939. .

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394—Notes to pages 35–41 58 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part II, 1935, 24, 595; Part IV, 1937, 265; Kaplan, State and Salvation, 11, 59. 59 Calder, Comment s’éteint la liberté; ‘Abrogation of Civil Liberties in the Province of Quebec,’ HSP, vol. 36, file 19; and ‘Freedom of Speech,’ in Sandwell, ed., Our Heritage of Freedom. 60 ‘Abrogation of Civil Liberties in the Province of Quebec,’ and extract from Comment s’éteint la liberté [my translation]. 61 ‘Details for Organization Meeting, Canadian Civil Liberties Union’ [about April 1934], FRSP, vol. 9, file 8. 62 Avakumovic, The Communist Party in Canada, chapter 3, 98; B. [Beckie] Buhay [for CLDL] to J.S Woodsworth, 19 May 1933, and Woodsworth to Buhay, 20 May 1933, JSWP, vol. 5, file 13. 63 Avakumovic, The Communist Party in Canada, 107– 8. 64 Ibid., 128 –9; A.M. Stephen, ‘Hitlerism in Canada’ [CLAWF pamphlet, n.d.], UBCA, SPAM 12457. 65 Macleod to H. Potter [secretary of Toronto council, CLAWF], 9 April 1937, and CLAWF/CLPD press release, 14 August 1937, AAMP, file 14. 66 Marvin B. Gelber, ‘Clench the Fist and Smash the Party,’ Canadian Forum, April 1937. 67 Avakumovic, The Communist Party, 96 –7; Gordon Skilling, ‘The Popular Front,’ Canadian Forum, February 1937. 68 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part III, 1936, 325. 69 Manley, ‘Introduction,’ in Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part III, 1936, 15; David Lewis, ‘The CCF Convention,’ Canadian Forum, September 1936. 70 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part III, 1936, 130; Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part V, 1938 –1939, 181. 71 ‘F.O. Jack King,’ Canadian Tribune, 26 August 1944. 72 Brown, When Freedom Was Lost; Howard, ‘We Were the Salt of the Earth.’ 73 Skebo, ‘Liberty and Authority,’ 65. 74 Letterhead of ‘Citizen’s Defence Movement,’ letter from Brounstein [corresponding secretary] to Scott, 13 July 1936, FRSP, vol. 9, file 9. 75 FRSP, vol. 9, file 9: King, ‘A Call to Action’ [to Scott], 25 February 1936, Scott to Spry, 5 March 1936, Scott to Underhill, 10 March 1936, Scott to King, 10 March 1936, Brounstein to Scott, 15 July 1936. 76 Underhill to Scott, 8 March 1936, FRSP, vol. 9, file 9. 77 Scott to King, 10 March 1936, FRSP, vol. 9, file 9. .

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Notes to pages 42–8—395 78 ‘For Release’ [CLPD press release], 23 August 1949, AAMP, file 4; Djwa, The Politics of the Imagination, 170 – 4. 79 ‘Quebec Fascists Show Their Hand,’ Canadian Forum, December 1936. 80 Djwa, The Politics of the Imagination, 170 – 4. 81 ‘Quebec Fascism,’ Canadian Forum, April 1937; Forsey, ‘Clerical Fascism in Quebec,’ Canadian Forum, June 1937. 82 Quinn, The Union Nationale, 124 –5. 83 Calder to Scott, 24 October 1936, FRSP, vol. 9, file 9; Forsey to Cahan, 3 November 1936, JSWP, vol. 5, file 9; Forsey to J.S. Woodsworth, 29 October 1936, JSWP, vol. 5, file 9; Forsey, A Life on the Fringe, 26. 84 Forsey to Woodsworth, 29 October 1936, JSWP, vol. 5, file 9. 85 ‘Minutes of Meeting Held in Strathcona Hall re “Freedom of Speech,”’ FRSP, vol. 10, file 13. 86 Scott to Lewis, 7 November 1936, FRSP, vol. 10, file 13. 87 Scott to Spry, and Spry to Scott, 21 December 1936, 8 and 13 January 1937, FRSP, vol. 10, file 13. 88 An Act to Protect the Province against Communistic Propaganda, SQ 1937, c. 11; E.A. Forsey, ‘Duplessis Takes Arbitrary Power Contrary to Federal Law,’ New Commonwealth, 27 March 1937. 89 Forsey, letter of 24 August 1949, reprinted in Hodgetts, The Sound of One Voice, 115; Leslie Roberts, ‘Padlocks and Democrats,’ Saturday Night, 4 February 1939; Black, Render unto Caesar, 17. 90 ‘Civil Liberties,’ Canadian Forum, June 1940. 91 Forsey, Life on the Fringe, 190; ‘Quebec Premier Uses Padlock to Silence French Paper,’ New Commonwealth, 13 November 1937. 92 New Commonwealth: ‘Civil Liberties Union Started,’ 20 March 1937, and E.A. Forsey, ‘Duplessis Takes Arbitrary Power Contrary to Federal Law,’ 27 March 1937; Oscar Cohen to Rabbi Eisendrath, 20 January 1937, JCRCC, box 1, file PR 117. 93 ‘Civil Liberties Union Gains Support,’ New Commonwealth, 5 June 1937; ‘Joint Public Relations Committee Cases 1938 –1946,’ JCRCC, vol. 1, file PR 117; Whitaker, ‘Official Repression of Communism during World War II,’ 135, 160; Kimmel and Kealey, ‘With Our Own Hands,’ 253. 94 The documents of the organization normally use the abbreviation CLU. I have chosen to follow this rather than use the more accurate abbreviation, MCCLU. In her brief discussion of the organization (Des Luttes et des droits, 19 –35), Lucie Laurin uses SDH as the French acronym. 95 Olssen, ‘The Canadian Left in Québec during the Great Depression,’ 121; Lévesque, Virage à gauche interdit, 143; Djwa, The Politics of the Imagination, 138; Socknat, Witness against War, at 141; Wade, The French Canadians, .

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396—Notes to pages 48–52 1760 –1967, vol. 2, 1911–1967, 837, 959, 989, 1006 –7, 1095; Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part IV, 1937, 494 – 5; ‘What Can Be Done to Preserve Civil Liberties in Quebec?’ FRSP, vol. 10, file 9. Forsey, ‘Under the Padlock,’ Canadian Forum, May 1938. ‘Official Statement of Civil Liberties Union,’ CCFP, vol. 147, file ‘Civil Liberties Union’; CLU Bulletin, no. 7, January 1939, and no. 8, April 1939, CCFP, vol. 146, file ‘Civil Liberties Union’; Ballantyne to ‘Dear Fellow Members,’ 8 February 1939, FRSP, vol. 10, file 13. Scott to Ballantyne, 19 November 1938, FRSP, vol. 10, file 13; Eugene [Forsey] to Hazen [Sise], 11 December 1938, and Sise’s reply, 12 December 1938, HSP, vol. 35, file 17. Scott to Goodwin, 13 November 1937, FRSP, vol. 10, file 13. New Commonwealth: ‘Civil Liberties Fights Que. Bill,’ and ‘Labor Alderman Flays “Anti-Communist” Bill,’ 3 April 1937; House of Commons, Debates, 30 March 1937, 2291; CLU Bulletin, no. 1, 2 February 1938, CCFP, vol. 146, file ‘Civil Liberties Union.’ ‘Civil Liberties in Quebec,’ Canadian Forum, May 1937; House of Commons, Debates, 30 March 1937, 2291, and May 1938, 3373 – 4; CRU Bulletin, no. 3, 21 May 1938, CCFP, vol. 146, file ‘Civil Liberties Union.’ House of Commons, Debates, 30 March 1937, 2294; ‘Liberal Stand on Padlock “Prostitution” Says Mitchell,’ New Commonwealth, 16 July 1938. Canadian Forum: ‘Civil Liberties in Quebec,’ August 1937; ‘Trade Unions in Quebec,’ May 1938. T.H. Harris, ‘The Newspaper Guild and Civil Liberties,’ Canadian Forum, September 1937; E.A. Forsey, ‘The Padlock Act Again,’ Canadian Forum, February 1938. Interview with Irene Kon, 11 June 2000; Bryan Palmer, ‘Introduction’ in Scott, A Communist Life, 7n.13; New Commonwealth: ‘Drew Attacks Civil Liberties Union: Says Movement Communist Led,’ and ‘Drew Renews Civil Liberties Attack: No Foundation for Charges Says Forsey,’ 12 and 26 March 1938. Interview with Irene Kon, 11 June 2000; Merrily Weisbord, The Strangest Dream, 69 –70. CLU Bulletin, nos. 1, 2, February 1938, CCFP, vol. 146, file ‘Civil Liberties Union.’ Le Devoir, 2 November 1937, as quoted by Mallette, House of Commons, Debates, vol. 1, 2 February 1938, 115; Forsey, ‘Quebec on the Road to Fascism,’ Canadian Forum, December 1937. .

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196 197

198

199 100

101

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102 103 104

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106

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107 108

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Notes to pages 52–5—397 109 ‘Quebec Tories Attack Civil Liberties,’ Clarion Weekly, 20 November 1937; CLU Bulletin, nos.1, 2, February 1938, and Bulletin, no. 3, 21 May 1938 [basing numbers on ‘an official statement by the Attorney-General’s department’], CCFP, vol. 146, file ‘Civil Liberties Union’; Maurice Duplessis, in Le Canada, 26 October, quoted by J.S. Woodsworth, House of Commons, Debates, 30 May 1938, 3375. 110 New Commonwealth, ‘Clergy Oppose Padlock,’ and ‘Padlock Act Held Controversial Subject,’ 15 January and 5 March 1938; Linteau et al., Quebec since 1930, 44. 111 Forsey, ‘The Padlock Act Again,’ Canadian Forum, February 1938; Weisbord, The Strangest Dream, 74, 80. 112 Speech by Tim Buck, December 1937, in Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part IV, 1937, 492; Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part V, 1938 –1939, 39, 384 –5, 403; Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The War Series, 1939 –1941, 42. 113 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part IV, 1937, 475; Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part V, 1938–1939, 9, 39, 48, 83, 123, 195, 250. 114 John Manley, ‘Introduction,’ in Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part V, 1938 –1939, 18; CLU Bulletin, nos. 1, 2, February 1938, CCFP, vol. 146, file ‘Civil Liberties Union’; Forsey, A Life on the Fringe, 134. 115 Quinn, ‘The Bogey of Fascism in Quebec,’ 301; Forsey, ‘Quebec on the Road to Fascism,’ Canadian Forum, December 1937; CLU Bulletin, CCFP, vol. 146, file ‘Civil Liberties Union.’ 116 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part V, 1938 –1939, 165; ‘Duplessis’ Padlock Law Flesh and Blood of Fascism,’ Clarion Weekly, 31 May 1938. 117 Forsey, ‘From the Seat of the Mighty,’ Canadian Forum, May 1937; Correspondence between Forsey and ‘Student,’ Canadian Forum, December 1937; Cam [Ballantyne] to Frank [Park], n.d. [1947?], FLPP, vol. 7, file 133. 118 Forsey, Life on the Fringe, 190; petition ‘To His Excellency the GovernorGeneral-in-Council,’ 27 January 1938, CCFP, vol. 146, file ‘Civil Liberties Union’; Forsey, ‘The Padlock Act Again,’ and ‘Under the Padlock,’ Canadian Forum, February and May 1938. 119 Mallory, Social Credit and the Federal Power in Canada, 176. .

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398—Notes to pages 56–60 120 Reference re Alberta legislation, [1938] SCR 100. 121 ‘Padlock Law Casts Pall of Fear over All Quebec,’ Toronto Star, 11 February 1938; ‘Democracy in Danger,’ Canadian Forum, March 1938; CLU Bulletin, nos. 1, 2, February 1938, and no. 3, 21 May 1938, CCFP, vol. 146, file ‘Civil Liberties Union’; House of Commons, Debates, vol. 1, 1 February 1938, 75, and vol. 3, 30 May 1938, 3368; E.A. Forsey, ‘Disallowance: A Contrast,’ Canadian Forum, June 1938; ‘Vox Hepburni, Vox Dei,’ Canadian Forum, July 1938. 122 ‘Calder Denied Hall – Raps Padlock Law,’ and ‘Broadcast on Padlock Law Denied by Station CKCL,’ Toronto Star, 12 and 16 February 1938; Park to Calder, 24 January 1938, FLPP, vol. 8, file 134. 123 Toronto Star: ‘Warns Ontario May Awake to See Padlock Law Here,’ 17 February 1938; ‘Race of Sneaks Is “Padlock Law” Result,’ 19 February 1938. 124 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part V, 1938 –1939, 123, 135, 216. 125 The term ‘elite non-conformists’ was used by Abella and Troper in None Is Too Many, at 284, referring specifically to the Canadian National Committee on Refugees, but it is a fairly accurate description of most civil libertarians. 126 Obituaries of Sedgewick: Vancouver Sun, 6 September 1949, and Vancouver Province, 7 September 1949; Vancouver Province: ‘Hits Padlock Law,’ 22 April 1938, ‘Archbishop Duke, Sedgewick Debate Quebec Padlock Law,’ 30 April 1938. 127 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part V, 1938 –1939, 19, 59, 128; Oscar Cohen [CJC executive director] to Eisendrath, 20 January 1937, JCRCC, box 1, file PR 117. 128 Conference on Civil Liberties,’ Toronto Star, 10 April 1938; ‘Disallowance Is Demanded of Padlock Law in Quebec,’ Toronto Star, 11 April 1938; Lower, This Most Famous Stream, 309. 129 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part V, 1938 –1939, 64. For a discussion of anti-Semitism in Quebec, see Oliver, The Passionate Debate, chapter 7, and Delisle, The Traitor and the Jew. 130 Oscar Cohen to Rabbi Feinberg, 7 December 1946, JCRCC, JPRC Correspondence, 1947, reel no. 1, file 24; Boire, Morley Callaghan, 12, 94. 131 ‘Resolutions: Conference on the Padlock Law and Civil Liberties,’ Robarts Library, University of Toronto. 132 CLU Bulletin, no. 3, 21 May 1938, CCFP, vol. 146, file ‘Civil Liberties Union’; House of Commons, Debates, vol. 1, 2 February 1938, 114, vol. 3, .

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Notes to pages 60–3—399

133

134

135

136 137

138

139 140

141 142 143

144

30 May 1938, 3379, and vol. 2, 24 March 1939, 2254; Herbert Orliffe [CCF provincial secretary] to Davis [Toronto branch of the CLU], 29 April 1938, CCFP, vol. 146, file ‘Civil Liberties Union’; Wilfrid Bovey to W.L.M. King, and King to Bovey, 2 and 3 March 1938, WLMKP, J-1, vol. 246. Lower, My First Seventy-Five Years, 167– 8; Jack [Pickersgill] to Lower, 21 December 1939, ARMLP, box 46, file 16; J.W. Pickersgill, ‘The Decay of Liberalism,’ Canadian Forum, April 1935; Lewis to Mergler, 20 April 1938, and Lewis to Forsey, 21 April 1938, CCFP, vol. 146, file ‘Civil Liberties Union.’ ‘Report on the Conference of the Padlock Law and Bills 19, 29 & 88,’ and transcript of speech by Edmond Turcotte, ‘Le Peril des libertés publiques dans la Province de Québec,’ HSP, vol. 35, file 17; Forsey, ‘Under the Padlock,’ Canadian Forum, May 1938. CLU Bulletin, no. 4, 9 July 1938, CCFP, vol. 146, file ‘Civil Liberties Union’; ‘60,000 Canadians Call for Padlock Disallowance,’ Clarion Weekly, 9 July 1938; ‘Liberalism Commits Suicide,’ Canadian Forum, August 1938. CRU Bulletin, nos. 5, 7, CCFP, vol. 146, file ‘Civil Liberties Union’; Forsey, ‘Duplessis Marches On!’ Canadian Forum, January 1939. CRU Bulletin, nos. 5, 7, CCFP, vol. 146, file ‘Civil Liberties Union’; ‘Breaking the Padlock,’ Canadian Forum, September 1938; Clarion Weekly: ‘Defies Duplessis, smashes padlock on His Own Home,’ 30 July 1938, and ‘Will Fight Padlock,’ 6 August 1938. CRU Bulletin, nos. 5, 7, CCFP, vol. 146, file ‘Civil Liberties Union’; invitation to fund-raiser, sent to Marion [Mrs F.R.] Scott, FRSP, vol. 10, file 9. CRU Bulletin, nos. 5, 7, CCFP, vol. 146, file ‘Civil Liberties Union’; CRU Bulletin, no. 9, June 1939, FLPP, vol. 7, file 133. ‘Conference on the Padlock Law’ [RCMP report], 13 November 1938, CSISF, document 158; ‘“Hepburn Storm Troopers” Cited at Padlock Meeting,’ Toronto Star, 14 November 1938; conference statement of expenses and receipts, 31 March 1939, FRSP, vol. 10, file 13. CRU Bulletin, nos. 7, 8, CCFP, vol. 146, file ‘Civil Liberties Union’; ‘Under the Padlock,’ Canadian Forum, December 1938. E.A. Forsey, ‘Land of Padlock’s Pride,’ Canadian Forum, July 1939; CRU Bulletin, no. 7, CCFP, vol. 146, file ‘Civil Liberties Union.’ E.A. Forsey, ‘The Padlock – New Style,’ Canadian Forum, March 1939; Mark Aurel, ‘Muni Is Victimized, but ... Duplessis Is the Criminal,’ Daily Clarion, 1 February 1939. Daily Clarion: ‘Muni Challenges Quebec Police Eviction Order,’ 20 January 1939, and ‘Citizens Troop into Muni Home, Offer Support,’ .

400—Notes to pages 63–70

145

146 147 148 149 150 151

152 153 154 155

156 157 158 159

24 January 1939, Repka and Repka, Canada’s Unknown Prisoners of War, 132. Ballantyne to ‘Dear Fellow Member’ [fund-raising letter], 8 February 1939, HSP, vol. 35, file 17; E.A. Forsey, ‘The Padlock – New Style,’ Canadian Forum, March 1939. C.P. Wright, ‘To Finance Padlock Appeals,’ Canadian Forum, October 1939. Interview with Abe Feiner, 5 June 1995; Djwa, The Politics of the Imagination, 297. Fineberg v. Taub (1939), 77 Superior Court (Que.) 233. Bédard v. Dawson (1922), 33 KB (Que.) 246. Fineberg v. Taub, 242. An Act to Ensure the Publication of Accurate News and Information, SA 1937, 3rd session, Bill 9; Reference re Alberta Statutes, [1938] SCR 100; the quotation (at 133) comes from Chief Justice Lyman Duff. Fineberg v. Taub, 240. Fineberg v. Taub, 242; Forsey, ‘Land of Padlock’s Pride.’ CRU Bulletin, no. 9, June 1939, FLPP, vol. 7, file 133; Forsey, ‘Land of Padlock’s Pride.’ Bulletin of the Canadian Civil Liberties Union,’ vol. 1, no. 8, April 1939, CCFP, vol. 146, file ‘Civil Liberties Union’; Scott to St Laurent, 15 June 1939, FRSP, vol. 10, file 9. Scott to St Laurent, 26 September 1939, FRSP, vol. 10, file 9. Saturday Night: ‘The Padlock “Criminals,”’ 11 November 1939, and ‘The Front Page,’ 18 November 1939. ‘Police Raid Committee Rooms of Candidate in Montreal,’ Canadian Tribune, 16 March 1940. ‘The Padlock “Criminals,”’ Saturday Night, 11 November 1939. 2. The Second World War: Civil Liberties at Risk

1 Cheffins and Tucker, The Constitutional Process in Canada, 61. 2 Lower, My First Seventy–Five Years, 309; Robinson, ‘Planning for “The Most Serious Contingency”’; Keyserlingk, ‘Which Fatherland in War?’ 3 Whitaker, ‘Official Repression of Communism during World War II,’ 137; Granatstein, A Man of Influence, 83 – 6; Keyserlingk, ‘Breaking the Nazi Plot.’ 4 ‘Civil Liberties,’ Canadian Forum, December 1939; Avery, ‘Canada’s Response to European Refugees, 1939 –1945, 183 – 4; Granatstein, A Man of Influence, 89. 5 Horn, Academic Freedom in Canada, 117–27. .

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Notes to pages 70–5—401 6 Socknat, Witness against War, 200 –3; ‘Shoot Them at Dawn,’ Saturday Night, 2 December 1939; Horn, Academic Freedom in Canada, 154 – 65. 7 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The War Series, 1939 –1941, 141; Dreisziger, ‘The Rise of a Bureaucracy for Multiculturalism,’ 7; ‘Civil Liberties,’ Canadian Forum, June, July, and August 1940; Tribune: ‘‘Sixth Column’ Activity May Destroy Basis of Canadian Unity,’ 25 May 1940. 8 Canadian Forum: ‘Civil Liberties,’ December 1939 and February 1940; Repka and Repka, Dangerous Patriots, 72; Saturday Night: Short Way with Dissenters,’ 18 January 1940, ‘Political Censorship,’ 16 March 1940, Sandwell, ‘Do We Need Martial Law?’ 18 May 1940; Canadian Tribune: ‘Conant Speech Is Called Subversive,’ 11 May 1940, ‘Agnes Macphail Warns against “Fifth Column” Activity in High Places,’ and ‘Conant Plan Called “Perfect Nazi Law,”’ 18 May 1940; Saywell, ‘Just Call Me Mitch,’ 441, 450. 9 Canadian Tribune: ‘Is It Happening Here?’ 9 March 1940, ‘Blitzkrieg on Liberty,’ 18 May 1940, ‘Civic Employee Dismissed on “Suspicions,”’ 6 July 1940. 10 Kaplan, State and Salvation, chapter 5. 11 Smith, ‘The Defence of Canada: Civil Liberties during World War II,’ radio transcript, 1. 12 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The War Series, Part I, 1939 –1941, 70; Socknat, Witness against War, 215 –16; document 158, August 1941, CSISF; ‘Demand Conant Curb Misuse of Defence Act,’ Canadian Tribune, 17 February 1940. 13 Hannant, The Infernal Machine; Sandwell, ‘For a National Registration,’ Saturday Night, 15 June 1940. 14 Sandwell, ‘Lawyers and Liberty,’ Saturday Night, 30 November 1940; Chitty, ‘Inter Alia,’ Fortnightly Law Journal, 15 September 1941, 50, and 15 October 1942, 82. 15 Fortnightly Law Journal, 16 December 1940. 16 MacDowell, Renegade Lawyer, chapter 7; Rex v. Demorest, [1941] 1 WWR 225; Yasny v. Lapointe, [1940] 2 WWR 373; Rex v. Coffin, [1940] 2 WWR 592. 17 Keyserlingk, ‘Breaking the Nazi Plot,’ 63; Globe: ‘The Liberty of the Subject,’ 4 October 1940, and ‘Press Freedom Is Held Vital to Democracy,’ 12 April 1941; Canadian Forum: May 1941 [internment statistics], ‘Civil Liberties,’ June 1941. 18 Morley, Secular Socialists, 177– 8; Socknat, Witness against War, 188 –9; Canadian Forum: Humphrey Carver, ‘Premier Hepburn and the Professors,’ May 1939, G.M.A. Grube, ‘Freedom and War,’ November 1939, .

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402—Notes to pages 76–80

19 20

‘Civil Liberties in War Time,’ July 1940, ‘Those Defence Regulations,’ January 1941. Thelma LeCocq, ‘Good-Humored Oracle,’ Maclean’s, 1 April 1946. Robert Fulford, ‘Crosscurrent: Thoughts on a Man Whose Written Record Withstands the Test of Time,’ Globe, 3 May 1991, and ‘Introduction,’ xii. See also Wagner, ‘Saving the Nation’s Aesthetic Soul,’ 177– 98. ‘Dr. Sandwell’ [obituary], Saturday Night, 25 December 1954; Owram, Government Generation, 141; Who’s Who; Canadian Encyclopedia; Boyer, A Passion for Justice, 400 n. 35; Abella and Troper, None Is Too Many, 41, 64; Sandwell, ‘The Makers of Refugees,’ Saturday Night, 20 April 1940. Saturday Night: ‘Why Is Censorship?’ 27 July 1940, Sandwell, ‘Enemy Propaganda,’ 27 April 1940, ‘The Limits of Liberty,’ 23 March 1940, ‘A Question of Method,’ 25 May 1940, ‘The Communist Party,’ 8 June 1940, ‘What Canadians Read,’ 15 June 1940. ‘The Canadian Tribune Case,’ Canadian Forum, April 1941. Woodsworth, ‘Defeat Hitler,’ Canadian Forum, March 1940; House of Commons Debates, 1940, 158, and 1941, 3662; ‘A Program for Canada,’ New Commonwealth, 30 November 1940. Social Credit MPs (at that time called the New Democracy Party) were surprisingly critical of the government, and the civil libertarian position was also supported by the quasiCommunist ‘Unity’ member of Parliament, Dorise Nielsen. ‘The Tribune Case,’ New Commonwealth, 28 February 1941. Cook, ‘Canadian Liberalism in Wartime,’ 117; ‘Civil Liberties,’ Canadian Forum, December 1939. ‘Conservative Silence,’ Saturday Night, 30 November 1940; Diefenbaker, The Crusading Years, 1895 –1956, 93, 108, 140 –1, 218 –24; House of Commons, Debates, 13 June 1940, 748, 4 May 1942, 2093 – 4, 15 July 1943, 4852, and 21 July 1943, 5198. R.S. Lambert, ‘This Freedom: A Guide to Good Citizenship in Time of War,’ Food for Thought, January 1940, ‘Mind under Fire: The March of Propaganda in Wartime,’ May 1940, and ‘Youth, War and Idealism: A Plea for Dynamic Democracy,’ October 1940; Socknat, Witness against War, 200 –3, 201, 214 –15 [on the FCSO], 201 and 215 –16 [on FOR]. ‘Canadian Congress of Labour Memorandum,’ New Commonwealth, 28 February 1941; ‘Defending Canada,’ Saturday Night, 20 January 1940; ‘The Case for Canada’s Labor Leaders,’ Canadian Tribune, 12 April 1941. ‘The War and Civil Liberty,’ FLPP, vol. 7, file 133. Saturday Night: ‘Hearings in Court, 19 October 1940, ‘Why Incommunicado?’ 29 June 1940. .

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Notes to pages 81–7—403 32 ‘New War Decrees Again Threaten Civil Liberties,’ New Commonwealth, 18 January 1940; G.M.A. Grube, ‘Amending the Defence Regulations,’ New Commonwealth, 30 June 1941. 33 ‘Defence Regulations,’ Canadian Forum, December 1939. 34 ‘Defending Canada,’ Saturday Night, 20 January 1940; ‘The Millard Case,’ Canadian Forum, January 1940. 35 Purcell, ‘Wartime Press Censorship in Canada,’ 19 –20. 36 ‘Superman Runs Afoul of Defence Regulations – Is in Protective Custody, Canadian Tribune, 2 March 1940; Purcell, ‘Wartime Press Censorship in Canada,’ 142–3. 37 Purcell, ‘Wartime Press Censorship in Canada,’ 3 – 4, 51– 64. 38 Canadian Forum: ‘Civil Liberties,’ December 1939; Leopold Infeld, ‘The Story of Samuel Levine,’ November 1941. 39 House of Commons, Debates, 1940, 745. 40 Parent, ‘Remembering Federal Police Surveillance in Quebec, 1940s –70s,’ 236. 41 Keyserlingk, ‘Breaking the Nazi Plot,’ 60, and ‘Which Fatherland in War?’ 155; Granatstein, A Man of Influence, 90. 42 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The War Series, 1939 –1941, 267. 43 Canadian Tribune: ‘Three Ottawa Men Receive Heavy Sentence from Justice Chevrier,’ and ‘Communist Party Now Illegal,’ 18 May 1940, ‘King Gov’t Outlaws 16 National Bodies – Thousands Are Affected,’ 8 June 1940. 44 Whitaker, ‘Repression of Communism,’ 147. 45 Lenihan, Patrick Lenihan, 39 – 41. 46 Repka and Repka, Dangerous Patriots, 190 –1. 47 Keyserlingk, ‘Breaking the Nazi Plot,’ 60; ‘Smearing the Radicals,’ Saturday Night, February 1940; Canadian Forum: ‘C’est La Pointe,’ October 1941, ‘Civil Liberties,’ February 1942, and ‘Civil Liberties – 1942,’ June 1942; MacDowell, Renegade Lawyer, 178. 48 ‘Messrs. Hepburn and Buck,’ Saturday Night, 3 October 1942. 49 F.A. Brewin, ‘Under Which King, Bezonian?’ Canadian Forum, July 1941. 50 Kaplan, State and Salvation, 65, 76 –7, 114 –15, 119, 121, 210 –13; Penton, Jehovah’s Witnesses in Canada, 127–9. 51 ‘Why Technocracy?’ CLU Bulletin, no.11 (April 1940), CCFP, vol. 146, file ‘Civil Liberties Union’; Secret Memorandum ‘Re: Technocracy Incorporated,’ Report of the Special Committee on the Defence of Canada Regulations, vol. 2481, file 17, SCDOCR; Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The War Series, 1939 –1941, 170 –2; ‘Total .

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404—Notes to pages 83–93

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Conscription: Men, Machines, Materiel, Money!’ and ‘History and Purpose of Technocracy’ (both of these are wartime Technocracy pamphlets, kindly given to the author by a former Technocracy activist). Ramirez, ‘Ethnicity on Trial: The Italians of Montreal and the Second World War,’ 71– 84; Globe: ‘The Day Freedom Ended,’ and ‘Ottawa Says No to Redress for Six Groups,’ 9 June 1990, 15 December 1994, and ‘Dictator’s Image Survives in Church,’ 27 August 2002; Granatstein, A Man of Influence, 91. J.H. Osler [CLAT secretary] ‘To all members of the Association,’ 6 August [1941], GRPP, vol. 17, file Civil Liberties Associations, 1936 –1946; MacDowell, Renegade Lawyer, 179 – 80. ‘The New Regulations,’ Saturday Night, 27 January 1940; ‘New War Decrees Again Threaten Civil Liberties,’ New Commonwealth, 18 January 1940. House of Commons, Debates, 11 June 1940, 658 – 62; Canadian Forum, ‘Civil Liberties,’ August 1940; Report of the Special Committee on the Defence of Canada Regulations, vols. 2481, 2483, SCDOCR. House of Commons, Debates, 1941, 3655 –78; House of Commons, Journals [text of committee final report], 4 June 1941, 442– 6; Canadian Forum, ‘The Defense Regulations,’ July 1941; ‘Is Mr. Lapointe A Liberal?’ Globe, 21 August 1941; ‘A Police State?’ Canadian Tribune, 21 June 1941. Cook, ‘Canadian Liberalism in Wartime,’ 171. ‘Report of the Special Committee on the Defence of Canada Regulations,’ vol. 2481, files 6, 7, 8, and vol. 2484, file 84, SCDOCR. Cook, ‘Canadian Liberalism in Wartime,’ 83, 113; Phillips, ‘The Impact of the Defence of Canada Regulations upon Civil Liberties.’ ARMLP, vol. 146, files 17–19; Lower, My First Seventy–Five Years, 167. Berger, The Writing of Canadian History, chapter 5 and 202–3; Lower, My First Seventy–Five Years, 182, 233 – 4, 275. Lower, My First Seventy-Five Years, 236, 238; ‘Private and Confidential,’ n.d. [25 November 1939?], CCFP, vol. 146, file ‘Civil Liberties Union.’ I have referred here to CLAW, but technically it changed its name from that of the ‘Provisional Committee’ only in April 1940 (Cook, ‘Canadian Liberalism in Wartime,’ 152). Cook, ‘Canadian Liberalism in Wartime,’ 143; ‘Jack’ [Pickersgill] to Lower, 21 December 1939, ARMLP, box 46, file 16. John R. Baldwin, ‘Parliament and Liberty,’ Saturday Night, 20 January 1940; ‘Civil Liberties Sharply Curtailed, Washington Post, 24 November 1939; Canadian Tribune: ‘An Open Letter to the Prime Minister of Canada,’ ‘Canada at War,’ ‘Canada Leads Democracies in Curbing Rights, Says .

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Report,’ 27 January, 10, 17 February, and 16 November 1940; ‘Canadians, Shut Your Eyes,’ New Republic, 15 January 1940. CLAW memorandum to W.L.M. King, 8 April 1940; Cook, ‘Canadian Liberalism in Wartime,’ 148 – 52. J.L. Cohen, ‘Is Canada Setting Up a Gestapo?’ Saturday Night, 25 November 1940; J.M. Osler [CLAT secretary], Notice of Meeting, 12 June 1941, GRPP, vol. 17, file ‘Civil Liberties Associations, 1936 –1946’; CLAT memorandum, 16 April 1942, WEAP, file 164; House of Commons, Debates, 4 May 1942, 2096 –7. ‘Let Them In,’ CNCR pamphlet, n.d. [1943?], WEAP, file 4. New Commonwealth: ‘Civil Liberties Union Plans for Expansion,’ and ‘Large Group of Citizens Attack “Defence” Laws,’ 18 January, 15 February 1940. ‘Report of the Reorganization Committee of the Civil Liberties Union,’ 7 March 1940, CCFP, vol. 147, file ‘Civil Liberties Union’; Andrew to Lower, 18 February 1940, ARMLP, vol. 46, file 17; ‘3 Who Oppose Communism Booed at Rally,’ Montreal Daily Star, 20 May 1940. Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The War Series, 1939 –1941, 267; ‘Members of the Council of the Civil Liberties Association of Toronto,’ ARMLP, vol. 46, file 17; Underhill to Lower, 12 February 1940, ARMLP, vol. 46, file 17; R.S. Lambert, ‘Association a Laughing Stock Unless It Disowns Sandwell’s Undemocratic Viewpoint,’ Canadian Tribune, 27 April 1940. Brewin to Lower, 21 February 1941, ARMLP, vol. 46, file 19; House of Commons, Debates, 3 May 1950, 2132. Hannant, The Infernal Machine, 225; WLMKP, vol. 333, 5 February 1942. Sandwell to ‘Dear Sir or Madam,’ 23 September 1943, WEAP, file 164. CLU Bulletin, no. 7 (January 1939), no. 8 (April 1939), no. 11 (April 1940), CCFP, vol. 146, file ‘Civil Liberties Union’; on Boyer and Chapman, see the next chapter; information about Mary Jennison was supplied by an acquaintance, Alice Berry, in an interview, 27 May 1998. Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The War Series, 1939 –1941, 381. CCFP: Lewis to Forsey, 6 January 1940, vol. 146, file ‘Civil Liberties Union,’ Lewis to Ballantyne, 17 January 1940, vol. 147, file ‘Civil Liberties Union,’ Lewis to Calder, 25 April 1940, vol. 146, file ‘Civil Liberties Union.’ Lewis to Forsey, 6 January 1940, CCFP, vol. 146, file ‘Civil Liberties Union.’ Lower, My First Seventy-Five Years, 237; Lower to Owens, 27 November 1940, ARMLP, vol. 46, file 18. .

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406—Notes to pages 97–100 79 Cook, ‘Canadian Liberalism in Wartime,’ 162–3; Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, Part V, 1938 –1939, 123, 135; Jack Batten, Judges, chapter 5; interview with Nathan Nemetz, 12 April 1995; interview with David Freeman, a friend of Nemetz and former member of VCLU, 14 April 1995; John Stanton, Never Say Die! 15. 80 CLU Bulletin, November 1939, and Bulletin, no. 11, April 1940, CCFP, vol. 146, file ‘Civil Liberties Union’; R.S. Lambert, ‘Civil Liberties in Canada,’ New Statesman and Nation, 3 February 1940. 81 ‘National Civil Liberties Conference This Month,’ New Commonwealth, 17 May 1940. 82 CLU Bulletin, no. 11, April 1940, CCFP, vol. 146, file ‘Civil Liberties Union’; Ballantyne to Lower, 3 February 1940, ARMLP, vol. 47, file 17; ‘Canadian Civil Liberties Union – Draft National Constitution,’ CCFP, vol. 146, file ‘Civil Liberties Union’; Ballantyne to Lower, 8 May 1940, ARMLP, vol. 46, file 17. 83 ‘3 Who Oppose Communism Booed at Rally,’ Montreal Daily Star, 20 May 1940; Sandwell, ‘Saviors of Liberty,’ Saturday Night, 25 May 1940; Appleton to Leopold, 29 May 1940, CSISF, document 158. 84 Canadian Tribune: ‘Civil Liberties Congress Opposes Curtailment of Democratic Rights,’ and ‘A Charter of Liberty’ 25 May 1940, ‘Must be Undemocratic to Save Democracy’ Says Montreal Church Leader,’ 1 June 1940, ‘Montreal Firm Dismisses Employees for Joining Civil Liberties Union,’ 15 June 1940; reminiscences of Campbell Ballantyne in Laurin, Des Luttes et des droits, 35. 85 Canadian Tribune: ‘Civil Liberties Union Gives Answer to Critics,’ 8 June 1940, ‘Civil Liberties Union to Form National Body; Condemns Defence Laws,’ 7 June 1941; Parkin to Macdonnell, 18 March 1941, GRPP; Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The War Series, 1939 –1941, 381. 86 ‘King Gov’t Outlaws 16 National Bodies – Thousands Are Affected,’ Canadian Tribune, 8 June 1940; A.E. Smith, All My Life, 205 –12; Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The War Series, 1939 –1941, 402. 87 Canadian Tribune: ‘Greater War Effort Via More Freedom in Canada Aim of National Council,’ 30 August 1941, ‘Drive to Free Anti-Fascists Is Undertaken,’ 4 October 1941, ‘All Out for Total War, NCDR Conference Urges,’ 28 February 1942, Stanley Ryerson, ‘The Ban on the Communist Party Must Be Lifted – NOW!’ 6 March 1943; ‘Report of [NCDR] Delegation to Minister of Justice,’ 25 February 1942, AESC, microfilm PP SMI, reel no. 1. .

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Notes to pages 100–5—407 88 Canadian Tribune: ‘National Unity for Victory,’ 18 July 1942, ‘ A.E. Smith Joins Tribune,’ 27 February 1943; Report of the Special Committee on the Defence of Canada Regulations, SCDOCR, vol. 2483, file 87. 89 Scott to Lower, 3 April 1946, ARMLP, vol. 46, file 21; Cam [Ballantyne] to Frank [Park], n.d. [1947?], FLPP, vol. 7, file 133; Canadian Tribune: ‘Additions to Tribune Staff,’ 4 October 1941, ‘C. Ballantyne Joins Quebec Victory Group,’ 6 June 1942. 90 Hunter Lewis to Frank Scott, 16 April 1947, FRSP, vol. 10, file ‘Civil Liberties, National Council 1946 –1951’; Cook, ‘Canadian Liberalism in Wartime,’ 263. 91 ‘Report of the Special Committee on the Defence of Canada Regulations,’ SCDOCR, vol. 2483, file 85, and vol. 2481, files 6, 27; ‘Repeal the Ban,’ Canadian Forum, August 1942; ‘We Stand for Freedom,’ Canadian Tribune, 11 July 1942. 92 ‘An Appeal for Justice – The Case of the Seized Properties of the Ukrainian Labor Farmer Temple Association’ [1944 CLAT pamphlet], CLCP, vol. 335, file ‘Civil Rights – Civil Liberties Association of Toronto – An Appeal for Justice’; Kolasky, The Shattered Illusion, 23 – 42; Sandwell, ‘Property Rights,’ Saturday Night, 1 July 1944. 93 Kaplan, State and Salvation, 94 –5; ‘Jehovah’s Witnesses,’ Saturday Night, 26 October 1940. 94 Cohn, ‘The Persecution of Japanese Canadians and the Political Left in British Columbia, December 1941–March 1942’; F.R. Scott, ‘What Ought to Be Done with Our Japanese, (a) Native Born, (b) Others?’ Financial Post, 21 March 1942; Report of the Special Committee on the Defence of Canada Regulations, SCDOCR. 95 ‘Of Old Errors,’ Saturday Night, 29 January 1944; George Grube, ‘The LeBel Report and Civil Liberties,’ Canadian Forum, December 1945; Monette, ‘Report of Committee on Civil Liberties.’ 96 Chitty, ‘The Report of the Civil Liberties Committee,’ Fortnightly Law Journal, 15 September 1944, 49. 97 R.S. Lambert, ‘Civil Liberties in Canada,’ New Statesman and Nation, 3 February 1940; Lower, My First Seventy-Five Years, 234, 6. 98 Horowitz, ‘Conservatism, Liberalism, and Socialism in Canada.’ But compare this to Ajzenstat and Smith, eds., Canada’s Origins. 99 Eggleston, ‘Press Censorship,’ 323; see also Chitty, ‘The Wrong Way to Solve Canada’s Problem,’ Fortnightly Law Review, 16 December 1940. 100 Inglehart, Culture Shift in Advanced Industrial Society. .

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408—Notes to pages 106–10 3. The Japanese-Deportation Issue 1 2 3 4 5

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Keyserlingk, ‘Which Fatherland in War?’ Young, ‘Chauvinism and Canadianism.’ G.M.A. Grube, ‘Civil Liberties in War Time,’ Canadian Forum, July 1940. McIlwain, ‘Constitutional History and the Present Crisis of Constitutionalism,’ 147. Canadian Forum: ‘Scientific Aspects of the Race Problem,’ December 1942, Douglas MacLennan, ‘Racial Discrimination in Canada,’ October 1943, ‘Combatting Anti-Semitism’ and ‘The Races of Mankind,’ February 1944, ‘Pandering To Prejudice,’ August 1944, ‘The Red Man’s Burden,’ October 1944. E.L. Chicanot, ‘How Can We Keep Our British Racial Balance?’ Saturday Night, 11 December 1943. Canadian Tribune: ‘Dyson Carter Explains: ‘Why I’ve Joined the LPP,’ 15 December 1945, ‘Ask “Races” in Schools,’ review of ‘The Races of Mankind,’ 14 October 1944. ‘Refugees Have Rights,’ Saturday Night, 9 October 1943; Sandwell to Drummond Wren, 30 November 1943, WEAP, file 164; To ‘Property Owners Association of Toronto,’ 21 April 1944, JCRCC, JPRC Correspondence 1947, reel no. 1, file 24; ‘A Matter of Personal Culture,’ Toronto Star, 26 April 1944; CLAT letter from Mrs J.A. Dower, GRPP, vol. 17, file ‘Civil Liberties Associations, 1936–1946’; letter from Eleanor Godfrey [secretary, Committee for Inter-Cultural Relations], 23 January 1945, JCRCC, JPRC Correspondence 1947, reel no. 1, file 24; ‘A Plan to Found a Permanent Organization to Study and Promote Inter-Cultural Relations,’ December 1944, GRPP, vol. 17, file ‘Civil Liberties Association.’ Report of the Special Committee on Orientals in British Columbia, 8 – 9; Angus, ‘The Effect of the War on Oriental Minorities in Canada.’ Fowke, They Made Democracy Work; Kitagawa, This Is My Own, 44; Sunahara, Politics of Racism, 89 –90; ‘Admiration for Stout Folks East,’ New Canadian, 4 September 1943. Sunahara, The Politics of Racism, 116 –17. Broadfoot, Years of Sorrow, Years of Shame, 325; minutes of the Co-operative Committee on Japanese-Canadian Arrivals in Toronto, CCJCP, vol. 1, file ‘Correspondence and Minutes 1943 –56’; CLAT newsletter, ‘To Members of the Civil Liberties Association, Past and Present,’ June 1946, FLPP, vol. 8, file 150; L.M. Atkinson, ‘The Japanese Controversy Is Reviving Liberalism,’ Saturday Night, 15 July 1944. .

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Notes to pages 111–15—409 13 Fowke, They Made Democracy Work, 7; Norman Fergus Black, ‘The Problems of Japanese Canadians, and Solutions,’ Saturday Night, 5 February 1944. 14 House of Commons, Debates, 4 August 1944, 5917. 15 Granatstein, A Man of Influence, 162–7; Granatstein and Johnson, ‘The Evacuation of the Japanese Canadians,’ 121. 16 Fowke, They Made Democracy Work, 9. 17 Nishiguchi, ‘“Reducing the Numbers,”’ 101; Fowke, They Made Democracy Work, 10; R.G.R. [Gordon Robertson, cabinet secretary] to [Hume] Wrong [External Affairs], 24 October 1945, RGRP, vol. 1, file 11. 18 ‘Slim Majority of Canadians Favor “Repatriation” Says Poll,’ New Canadian, 8 January 1944. 19 ‘Exclusion Looms’ and ‘Labour Progressive’s Racist Platform Draws C.C.F. Fire,’ New Canadian, 16 December 1944, 13 January 1945. 20 Vancouver Sun: ‘Jap Exclusion Move Will Be International,’ and ‘Start Now to Plan for Jap Exclusion,’ 31 August 1942, ‘Churchmen Opposed to “Nazi Way,”’ 10 December 1942, ‘Keep the Japs Out,’ 18 April 1944; ‘Oriental Canadians,’ Saturday Night, 23 September 1944; Lucille Giscome, ‘Problems of Anti-Fascist Japanese-Canadians,’ Canadian Tribune, 14 July 1945. 21 ‘City Council Swings toward Total Exclusion of Japanese,’ Vancouver Sun, 10 July 1944. 22 Sunahara, The Politics of Racism, 16, 113, 124; Montreal Gazette, 6 June 1944, quoted in Nishiguchi, ‘“Reducing the Numbers,”’ 15. 23 Nishiguchi, ‘“Reducing the Numbers,”’ 115; Sunahara, The Politics of Racism, 114. 24 Vancouver Sun: ‘Churchmen Opposed to “Nazi Way,”’ 10 December 1942, ‘Anglo-Saxons to Blame for Race Hatreds,’ 24 August 1944, Elmore Philpott, ‘Soldiers Insulted’ and ‘Anti-Jap Libel of BC Nailed by MPs,’ 23 November 1945. 25 ‘Keep Them Out,’ Saturday Night, 4 September 1943; Japanese Repatriation Committee Petition, summer 1946, CCJCP, vol. 3, file 2; Kitagawa, This Is My Own, 50 –1; Broadfoot, Years of Sorrow, Years of Shame, 313. 26 Moritsugu, ed., Teaching in Canadian Exile, 263 – 5, quote from May Inata. 27 Fowke, They Made Democracy Work, 10 –11; ‘Co-operative Committee for Japanese Canadians Formed,’ New Canadian, 30 June 1945; interview with Kinzie Tanaka, 11 June 2002. 28 Douglas Walkington, ‘United Church Ministers, 1925 –1980,’ VUA; Albert Watson, ‘Profile: People, Pacifism Finlay’s Concerns,’ United Church Observer, May 1984; Kitagawa, This Is My Own, 44, 139. .

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410—Notes to pages 115–21 29 Kitagawa, This Is My Own, 213. 30 List of affiliated organizations, CCJCP, vol. 1, file 1 (part 2). 31 Friesen, ‘Adult Education and Union Education,’ 163 – 88. For a critical overview of social unionism, see Palmer, Working-Class Experience, 280 – 4, 337, 371. 32 Smith, Cold Warrior. 33 MacDowell, ‘The Career of a Canadian Trade Union Leader’; Morley, Secular Socialists, 177– 8. 34 ‘Students Organize Committee to Protest Expatriation Move,’ New Canadian, 24 October 1945; Nisei Affairs 1, 2 (28 August 1945). 35 Minutes of the Consultative Committee, WPBP, vol. 1, file 3. 36 ‘Memorandum of Representations Made to His Worship the Mayor and Vancouver City Council,’ 9 September, 1942, WPBP, vol. 1, file 3; VCC to W.L.M. King, 29 May 1944, WLMKP, vol. 354, reel no. C-7048, document 308236 –7. 37 Ito, We Went to War, 212, 224 – 6; W.H.H. Norman: ‘The Solution Is Simple – Just Give the Chance for Job, Home, School,’ United Church Observer, 1 June 1944; ‘Do Christians Keep Faith?’ United Church Observer, 15 August 1944, 7; ‘What About the Japanese Canadians?’ UBCA; A.W. Neill and Rev. W.H.H. Norman, ‘Pro and Con – Should Japanese-Canadians Be Sent Back to Japan?’ British Columbia Digest 1 (December 1945), 2–11. 38 ‘Toronto Groups Will Campaign: Seek Fair Treatment for Niseis,’ New Canadian, 30 June 1945. 39 New Canadian: ‘Three Evacuees Will Contest Validity of Repatriation in BC Supreme Court,’ ‘BCSC Announced Dissolved As Court Case Enters New Phase,’ and ‘Repat. Test Case Reopens,’ 19 July, 8 August, 14 August 1945. 40 ‘FOR Secretary to Speak on Nisei,’ New Canadian, 29 August 1946; Minutes of ‘Enlarged Committee of Co-operative Committee on Japanese-Canadians,’ 29 June 1945, CCJCP, vol. 1, file ‘Correspondence and Minutes, 1943 –56.’ 41 ‘Brief Re Patriation of Japanese Canadians,’ 25 July 1945, CCJCP, vol. 2, file 5. 42 Fowke, They Made Democracy Work, 12; Interview with Kinzie Tanaka, 11 June 2002. 43 ‘Report of G.J.A. Reany on Visit of Delegation to Ottawa re the Japanese in Canada, Monday, July 30th, 1945,’ CCJCP, vol. 2, file 13. 44 Draper, ‘Fragmented Loyalties,’ 165 [on Robertson]; Nisei Affairs 1, 3 (1946), 5, quoted in Kitagawa, This Is My Own, 210. 45 Fowke, They Made Democracy Work, 12; W.H.H. Norman, ‘What About the Japanese Canadians?’ UBCA. .

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Notes to pages 122–6—411 46 CCJC letter, 7 September 1945, CCJCP, vol. 2, file 9. 47 R.G.R. [Gordon Robertson] memorandum, ‘Re Treatment of Japanese Persons in Canada,’ 9 October 1945, RGRP, vol. 1, file 12. 48 ‘Kilted Highland MLA Goes “Over the Border” for Scots,’ Vancouver Sun, 8 March 1945. 49 Sunahara, The Politics of Racism, 16; Vancouver Daily Province, 1 June 1945. 50 NIAC to King, CCJCP, vol. 2, file 9; House of Commons, Debates, 5 October 1945, 799 [first reading of Bill 15]; 23 November 1945, 2448 [second reading of Bill 15]. 51 Mrs Hugh MacMillan to ‘Dear Friend,’ 29 October 1945, and copy of pamphlet, CCJC files, vol. 2, file 12; Fowke, ‘They Made Democracy Work,’ 13, 14. 52 House of Commons, Debates, 22 October 1945, 1335 [first reading of Bill 20]; R.G.R. to Wrong, 24 October 1945, RGRP, vol. 1, file 11. 53 RCMP report, quoted in Nunoda, ‘A Community in Transition,’ 210. 54 Toronto Star: ‘The Plight of Japanese-Canadians,’ 7 August 1945, ‘The Seeds of Fascism,’ 23 November 1945 [editorial by Charles Herbert Huestis], ‘Urges Sending Japs Home,’ 23 November 1945, ‘Whose Fault? Not Theirs’ [attacking the Halifax Herald], 17 December 1945, ‘10,000 JapCanadians Affected by Decision’ and ‘Take Japs to Privy Council Must Separate Families?’ 20 February 1946, ‘If I Go What Would I Do? I Can’t Even Talk Japanese,’ 22 February 1946, ‘Detailed “For Interrogation,”’ 26 February 1946, ‘Jap-Canadians’ Fight Gets Montreal Help,’ 28 February 1946. 55 House of Commons, Debates, 17 July 1944, 4918, 12 August 1944, 6414, 17 December 1945, 3702, 9 April 1946, 698, 24 April 1947, 2368; Winnipeg Free Press: ‘We Will Regret Racialism,’ 19 September 1945, ‘Have We Shoddy Citizenship?’ 28 September 1945, ‘Shall Decency Prevail?’ 6 October 1945, ‘Emergency Controls,’ 17 October 1945, ‘Manitoba Can Take a Lead,’ 18 October 1945, ‘Our Japanese Issue, Vital,’ 19 October 1945, ‘Halt Deportation Proceedings,’ 9 November 1945, ‘Morally Indefensible,’ 7 December 1946. 56 R.G.R[obertson] to Wrong, 24 October 1945, RGRP, vol. 1, file 11. 57 Cabinet Conclusions, 31 October 1945, PCOR, vol. 2637, reel no. T2364, 00793; House of Commons, Debates, 21 November 1945, 2375 – 6. 58 CCJC to W.L.M. King, 24 November 1945, WLMKP, vol. 387, reel no. C-9877, document 346970; Owens to King, 30 November 1945, WLMKP, vol. 389, reel no. C-9879, document 349331–2; ‘Dear Sirs,’ n.d., WLMKP, vol. 389, reel no. C-9879, document 349334; Fowke, ‘They Made Democracy Work,’ 15 –17; ‘1000 Claim Nationality law “Unjust,”’ Vancouver Sun, .

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28 November 1945; David Freeman [Vancouver CLU secretary] to W.L.M. King, 7 January 1946, WLMKP 1946, reel no. C-9167, document 361521. MacInnis: House of Commons, Debates, 30 June 1943, 4214, 21 November 1945, 2385, 2389. See also CCF MP Albert Herridge, 22 November 1945, 2400 –1; Cohn, ‘The Persecution,’ 14; Grace and Angus MacInnis, ‘Oriental Canadians – Outcasts or Citizens,’ CCJCP, vol. 3, file 16. House of Commons, Debates, 3 December 1945, 2843, 4 December 1945, 2908, 7 December 1945, 3009, 17 December 1945, 3696 –7; Cabinet Conclusions, 15 December 1945, PCOR, vol. 2637, reel no. T2364, 00856. ‘Our Backstairs Japanese Policy,’ Maclean’s, 1 February 1946; ‘Defiance of Parliament,’ Saturday Night, 23 February 1946. ‘Appointment of CCJC Steering Committee,’ and Minutes of ‘Enlarged Meeting of Representatives of Co-operating Groups,’ 21 December 1945, CCJCP, vol. 1, file ‘Correspondence and Minutes, 1943 – 56’; Tatham to CLAT members, 2 January 1946, JCRCC, JPRC Correspondence 1947, reel no. 1, file 24. Morley, Secular Socialists, 177. Fowke, They Made Democracy Work, 18 –19 [in the SCC decision, Shimoyama’s first name is given as Utaka]; ‘Writs Are Issued Challenging Move to Deport Japs,’ Globe, 27 December 1945; Brennan, Reporting the Nation’s Business, x–xi. List of CCJC affiliates, DLP, vol. 1, file 12; ‘Winnipeg Group Will Withhold Action,’ New Canadian, 12 January 1946. ‘Mass Meeting Unit [sic] in Opposing Japanese Ousting,’ Toronto Globe, 11 January 1946. Abella and Troper, None Is Too Many, chapter 2, 45; Senate, Debates, 30 June 1944, 282–3, 285; Iacovetta, ‘A Respectable Feminist,’ 63 – 85. Betcherman, The Little Band, 34. Abella, ‘Oshawa 1937,’ 113; Cook, ‘Canadian Liberalism in Wartime,’ 239 – 40; Abella and Troper, None Is Too Many, 183, 229; House of Commons, Debates, 17 July 1944, 4924; Roebuck to [Minister of Labour] Mitchell, 14 January 1945, ARP, vol. 4, file 9. Feinberg, Storm the Streets of Jericho, 62–5, 103, 142; Dorothy Sangster, ‘The Impulsive Crusader of Holy Blossom,’ Maclean’s, 1 October 1950; for a slightly less sympathetic view of Feinberg and Holy Blossom, see the reminiscences of Canadian journalist Michele Landsberg, in Zuckerman, ed., Half the Kingdom, at 57– 60. Sangster, ‘The Impulsive Crusader’; ‘Rabbi Raps Fascist Tendencies in Treatment of Japanese Canadians,’ New Canadian, 8 December 1945. .

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Notes to pages 130–3—413 72 CCJC Resolution, 10 January 1946, CCJCP, vol. 1, file 3; Manitoba government press release, 20 December 1945, ARMLP, vol. 46, file C-21; CCJC news bulletin, 24 January 1946, ARP, vol. 4, file 9; ‘Committee Acts to Remove Ban on Entries into Toronto’ and ‘Avoid Concentration Says Supervisor,’ New Canadian, 16 February 1946. 73 R.G.R[obertson]. to W.L.M. King, 4 March 1946, RGRP, vol. 1, file 1–9; R.G.R. to Mr [Norman] Robertson, 6 December 1945, and R.G.R. to Mr [Hume] Wrong, 24 October 1945, RGRP, vol. 1, file 1–11; CCJC news bulletin, 24 January 1946, CCJCP, vol. 2, file 1; ‘The Gallup Poll,’ Winnipeg Free Press, 5 January 1946. 74 ‘Unworthy of Canada,’ Globe, 14 January 1946. 75 Olyan, ‘Democracy in Action,’ 65 – 8, 73 – 4. 76 Fowke, ‘They Made Democracy Work,’ 19. 77 Nishiguchi, ‘“Reducing the Numbers,”’ 3, 128; Fowke, They Made Democracy Work, 19; F.P. Varcoe [deputy minister of justice] to Norman Robertson, 4 January 1946, WLMKP, vol. 283, file 2965. 78 Fowke, They Made Democracy Work, 13 –14, 19 –20; minutes of CCJC meeting, 19 November 1945, and report of CCJC Meeting, 22 January 1946, CCJC files, vol. 1, file ‘Correspondence and Minutes’ 1943 –56.’ 79 Fowke, They Made Democracy Work, 20, ‘Japanese Canadians,’ Canadian Forum, January 1946, and ‘Japanese Canadians’ [pamphlet], CCJCP, vol. 3, file 16; report of CCJC meeting, 22 January, 1946, CCJCP, vol. 1, file ‘Correspondence and Minutes 1943 –56’; ‘Toronto Committee Starts Drive for Funds,’ New Canadian, 26 January 1946. 80 Fowke, They Made Democracy Work, 20; CCJC flyer, 28 December 1945, CCJCP, vol. 2, file 13; ‘Correspondence – Japanese Canadian Committee for Democracy; Citizens’ Defence Committee,’ MTC; Tatham to CLAT members, 2 January 1946, JCRCC, JPRC Correspondence 1947, reel no. 1, file 24. 81 ‘City Barristers Critical of Ottawa Action to Deport Japanese Nationals,’ Winnipeg Free Press, 5 January 1946; Lower to Green, 7 April 1946, ARMLP, vol. 46, file C–21; OCLA Council Minutes, 13 June 1946, FLPP, vol. 9, file 151. 82 ‘Jap-Canadians’ Fight Gets Montreal Help,’ Montreal Star, 28 February 1946; ‘Committee Plans Meeting to Protest Deportation,’ New Canadian, 30 March 1946; assorted documents, FRSP, vol. 17, file ‘Japanese-Canadians 1943 – 47,’ reel no. H-12745; F.R. Scott to editors, 4 January 1946, reproduced in his Essays on the Constitution, 190–2. 83 Comeau and Nadeau, ‘Actions de Jacques Perrault’; ‘Pure List for Roncarelli case,’ FRSP, vol. 104, file 16; Behiels, Prelude to Québec’s Quiet .

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414—Notes to pages 134–7 Revolution, 328 n.37; Black, Duplessis, 262–3, 342, 345, 384, 653; Trofimenkoff, ‘Thérèse Casgrain and the CCF in Québec,’ 151; Casgrain, A Woman in a Man’s World; Kaplan, State and Salvation, 246 –7, 320 n.52. ‘Orders-in-Council Threaten Your Citizenship!’ CCJCP, vol. 3, file 16. McEvoy, ‘A Symbol,’ 34; Toronto Star, 25 January 1947; CRCIA brief, JCCA files, vol. 13, file 21; Bangarth, ‘“We Are Not Asking You to Open Wide the Gates for Chinese Immigration.”’ In the Matter of a Reference As to the Validity of Orders-in-council of the 15th Day of December, 1945 (P.C. 7355, 7356 and 7357), in Relation to Persons of the Japanese Race, [1946] SCR 248; ‘Deportation Decision,’ Saturday Night, 16 March 1946. Minutes of CCJC executive meeting, 5 April 1946, CCJC files, vol. 1, file ‘Correspondence and Minutes, 1943 – 56’; La Violette, ‘Our Japanese Canadians; Citizens, Not Exiles,’ April 1946, CCJC files, vol. 3, file 16; ‘$10,500 Needed’ and ‘Toronto Group Issues Pamphlet on Japanese,’ New Canadian, 13 April and 18 May 1946. ‘Financial Statement,’ 1 May 1946 –30 June 1947, FRSP, vol. 17, file ‘Japanese-Canadians 1943 – 47,’ reel no. H-12745; CCJC news bulletin, no. 7, 14 September 1946, CCJCP, vol. 1, file ‘Notes, Reports 1946 –1953’; CCJC Financial Statement, 1 May 1946 –30 June 1947, OLCP, vol. 11, file 10. R.G. Robertson to W.L.M. King, 22 February 1946, Secretary of State for Citizenship and Immigration, vol. 283, file 2965; Cabinet Conclusions, 25 February 1946, PCOR, vol. 2637, reel no. T2364, 001017; ‘Attorney-General of B.C. Wants Japs Deported at Once,’ Globe, 21 February 1944. Cabinet Conclusions, 6 March 1946, PCOR, vol. 2637, reel no. T2364, 001036-7. Sunahara, The Politics of Racism, 139; R.G. Robertson to W.L.M. King, 27 February and 4 March 1946, RGRP, vol. 1, file 9. ‘Minutes of a Meeting concerning the Japanese in Canada,’ 26 March 1946, Secretary of State for Citizenship and Immigration, vol. 283, file 2965; CCJC News Bulletin, no. 5, 30 March 1946, CLCP, vol. 335, file ‘Racial Discrimination–Japanese Canadians’; ‘Liberal prided himself on being in vanguard’ [Croll obituary], Globe, 13 June 1991; ‘Habeas Corpus Is Basis of Law, Order-in-Council Revokes This, Decides Jap-Canadian Forum,’ Varsity [University of Toronto], 15 February 1946, CCJC files, vol. 3, file 20. ‘Memorandum for the Members of the House of Commons,’ April 1946, CCJCP, vol. 3, file 16; ‘Minutes of a Meeting,’ 3 – 4. Sunahara, Politics of Racism, 140 – 3; Frank Moritsugu, ‘Why the Japanese Are against Moving East,’ Saturday Night, 30 November 1946; telephone interview with Frank Moritsugu, 9 June 2002. .

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Notes to pages 137–44—415 95 Saturday Night, 22 June 1946. 96 Co-operative Committee on Japanese Canadians v. A.G. Canada, [1947] A.C. 87, 1 DLR 577; ‘Canada’s Jap Deportation Order Ruled Valid by Privy Council,’ Winnipeg Free Press, 2 December 1946. 97 CCJC executive meeting minutes, 23 November 1946, CCJCP, vol. 1, file ‘Correspondence and Minutes’ 1943 – 56’; CCJC, News Bulletin, no. 7, 14 September 1946, CCJCP, vol. 1, file ‘Notes, Reports 1946–1953’; Olyan, ‘Democracy in Action,’ 86 –7; CCJC public statement, CCJC files, vol. 2, file 13; VCC to ‘Dear Friend,’ 6 March 1947, CCJCP, vol. 2, file 10. 98 ‘Remove the Stain,’ Globe, 4 December 1946; Roy W. Brown, ‘Japanese Settlement, Vancouver Sun, 13 December 1946; JWP [Jack Pickersgill] to the prime minister, RGRP, vol. 1, file 9. 99 CCJC executive meeting minutes, 12 December 1946, CCJCP, vol. 1, file ‘Correspondence and Minutes, 1943 – 56’; VCC to ‘Dear Friend,’ 6 March 1947, CCJCP, vol. 2, file 10; federal government press release, 24 January 1947, CCJCP, vol. 2, file 13; ‘Revoke Japs Deportation Order’ and ‘No More Japs Will Be Deported, Ottawa Says,’ Toronto Star, 24 January 1947. 100 Fowke, They Made Democracy Work, 24 – 31. 101 La Violette, The Canadian Japanese and World War II. 102 Roy, Mutual Hostages, 182. 103 Nunoda, ‘A Community in Transition,’ 224 – 5; ‘Backstage at Ottawa,’ Maclean’s, 15 April 1946. 104 La Violette, The Canadian Japanese and World War II, 285. 105 Nunoda, ‘A Community in Transition,’ 395 – 6. 106 Pierre Berton, ‘They’re Only Japs’ [and also Jack Scott, ‘Why BC Draws the Color Line’], Maclean’s, 1 February 1948; Lee, ‘The Road to Enfranchisement.’ 107 Pierre Berton, ‘Marie Went Back to the Dark Ages,’ Maclean’s, 15 July 1951. 108 Interview with Peter and Marie Katsuno (née Kawamoto), 17 June 2002. .

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4. The Gouzenko Affair, Civil Libertarians, and the Shugar Case 1 Phillips, ‘The Impact of the Defence of Canada Regulations upon Civil Liberties,’ 298. 2 NCCSF documents, WEAP, MU 4003, file 4; poll-survey information taken from Whitaker, ‘Official Repression of Communism during World War II,’ 165. 3 ‘Capitalism Is Now OK, But Where Does Mr. Tim Buck Go to Next?’ Saturday Night, 22 January 1944; Young, Anatomy of a Party, 275 – 6. .

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416—Notes to pages 144–51 4 Whitaker, ‘Official Repression of Communism,’ 137, 164 – 5; Hannant, ‘The Man with a Bag on His Head.’ 5 W.L.M. King Diaries, NAC, 6 September 1945. 6 Ibid., 10 September 1945. 7 Taschereau and Kellock, The Report of the Royal Commission to Investigate the Facts Relating to and the Circumstances Surrounding the Communication, by Public Officials and Other Persons in Positions of Trust of Secret and Confidential Information to Agents of a Foreign Power, 649 – 50. 8 House of Commons, Debates, 18 March 1946, 50 –1; 19 March 1946, 91–2. 9 E.K. Williams, ‘The Corby Case: The Documents,’ 7 December 1945, DJR, vol. 2121, file 150262. 10 Report of the Royal Commission, 7. 11 Snell and Vaughan, The Supreme Court of Canada, 152, 157– 8, 213. 12 Ibid., 151, 203. 13 Whitaker, ‘Official Repression of Communism,’ 147. 14 Cabinet Conclusions, 14 February 1946, PCOR, vol. 2637, reel no. T2364, 000993-4. 15 ‘Persons Held in Spy Inquiry Have Not Even Seen Each Other,’ Ottawa Journal, 25 February 1946; for a later defence of the authorities and the RCMP, see Harvison, The Horsemen. Harvison specifically denies (at 156) that the interned prisoners were intentionally kept awake by bright lights. 16 Interview with David Shugar, 6 June 1999. 17 Executive meeting of NCCSF, and national executive meeting, 6 December 1943, 6 January 1944, WEAP, file 4. 18 The Canadian Scientist [CASW publication], vol. 1, no. 4, January 1946; ‘Formation and Draft Program of the Canadian Association of Scientific Workers,’ FLPP, vol. 10, file 172; Montreal Bulletin of CASW, no 1, December 1944. 19 Report of the Royal Commission, 281–318, quote at 313. 20 Interview with David Shugar, 6 June 1999. 21 Shugar to minister of justice, 5 March 1946, Shugar to Diefenbaker, 12 April 1946, JGDP, vol. 82, reel no. M-7450, documents 065323 and 065333. 22 ‘Dined on Brahms, Sibelius in Hunger Strike – Shugar,’ Toronto Star, 1 May 1946. 23 Interview with Grace Shugar, 6 June 1999; ‘Wife of Man Detained Charges RCMP Using Gestapo Methods,’ Ottawa Journal, 27 February 1946; ‘Letter to Client Held Up – Suspect’s Counsel Charges,’ Toronto Star, 9 March 1946. 24 Toronto Star: ‘Dr. Shugar’s Serious Charges,’ 26 April 1946, and ‘Star Chamber Methods,’ 30 April 1946; Saturday Night: ‘A Grave Mistake,’ 27 .

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Notes to pages 152–8—417 April 1946, and Paul Gardner, ‘Character Judgment Is a Nazi Legal Device,’ 29 June 1946; ‘A Blot on the Record,’ Maclean’s, 1 June 1946; House of Commons, Debates: 8 May, 1323, 1336, 15 July, 3440, 29 July, 3970 –1, 7 August, 4412, and 31 August, 5741. Callwood, Emma 143 – 4, 149; note, however, that David Shugar does not recall any anti-Semitic harassment (interview with David Shugar, 6 June 1999). An Act respecting Official Secrets, SC 1939, c. 49. Shugar to minister of justice, 9 March 1946, JGDP, vol. 82, reel no. M-7450, document 065326. An Act respecting Witnesses and Evidence, RSC 1927, c. 59; Report of the Commission, 676. Granatstein, A Man of Influence, 178. ‘The Man with A Notebook [Blair Fraser],’ ‘Backstage at Ottawa: Spy Hunt Hang-Over,’ 15 Maclean’s, 1 April 1946. Pickersgill and Forster, The Mackenzie King Record, vol. 3, 136; see also 282. Ibid., 138. ‘Atom Secret Leaks to Soviet,’ Globe, 16 February 1946; Wilfrid Eggleston, ‘Canada’s First Spy Case Remains a Mystery to Puzzled Public,’ Saturday Night, 6 March 1946. Report of the Royal Commission, 693 and 697. Canadian Tribune: ‘“Inflamed Anti-Soviet Prejudice” Aim of Ottawa “Spy” Report – Buck,’ 9 March 1946; ‘“Witch Hunt” Say Leaders,’ 2 March 1946. Granatstein, A Man of Influence, 174 –5; ‘Why Did They Spy?’ and ‘How Did the Reds Get under the Bed?’ Maclean’s, 15 April, 1 September 1946. Kellock-Taschereau Second Interim Report, appendix B of Report of the Royal Commission, 697–703; House of Commons, Debates, 15 March 1946, 6. House of Commons, Debates, 19 March 1946, 92. Paul Romney, ‘From Constitutionalism to Legalism,’ 121. House of Commons, Debates, 18 March 1946, 88. Ibid., 19 March 1946, 65 – 6; 21 March 1946, 174; 22 March 1946, 195; 26 March 1946, 260. Ibid., 18 March 1946, 56. Lower to Henderson, 24 July 1946, ARMLP, vol. 46, file 21. House of Commons, Debates, 21 March 1946, 137– 40. ‘Friends of Liberty,’ Saturday Night, 20 April 1946; House of Commons, Debates, 21 March 1946, 169 –73. Cronkite, ‘Civil Liberties in Canada,’ Saskatchewan Bar Review 11 (December 1946), 61 – 72, at 68. .

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418—Notes to pages 158–62 47 Kellock-Taschereau Second Interim Report, appendix B of Report of the Royal Commission, 697–703, at 700. 48 Bothwell and Granatstein, The Gouzenko Transcripts, 249 – 51, 270 – 8; Report of the Royal Commission, 170. 49 Kellock-Taschereau second interim Report, 702; ‘On the Treatment of Untried Suspects by Royal Commission Reports,’ AAMP, file 25. 50 An Act respecting Official Secrets, SC 1939, c. 49, s. 3 (2). My thanks to Reg Whitaker for pointing this out. 51 Report of the Royal Commission, 315 –16; Shugar to St Laurent, 1 August 1948, JGDP, vol. 82, reel no. M-7450, document 065357; Toronto Star: ‘Gross Invasion of Rights Charged in Spy Hearing,’ 17 April 1946, ‘Shugar Free, Criticizes Inquiry,’ ‘Dr. Shugar Acquitted of Conspiracy Charge,’ and ‘Not Impressed by Commission Either – Shugar,’ 25 April 1946; ‘Memorandum to the Cabinet (Royal Commission on Disclosure of Confidential Information; payment of salaries to suspended Government employees),’ 17 June 1947, PCOR, vol. 54, file 1-40-3. 52 ‘Spy Order Suspending Normal Legal Rights Revoked by Cabinet,’ Globe, 2 April 1946. 53 ‘Memorandum’ to CLAT executive from ECCR, 26 October 1946, WLMGP, vol. 47; ‘To Members of the Civil Liberties Association, Past and Present,’ FLPP, vol. 8, file 150. 54 Callwood, Emma, 204. 55 Dawson, William Lyon Mackenzie King, 37; Robert Fulford, ‘Crosscurrent: Thoughts on a Man Whose Written Record Withstands the Test of Time,’ Globe, 3 May 1991; ‘No Counsel Wanted,’ Saturday Night, 16 March 1946. 56 Saturday Night: ‘No Safeguards,’ 30 March 1946, ‘A Tragic Error,’ 18 May 1946. 57 ‘Fact and Prejudice,’ Saturday Night, 1 June 1946. 58 ‘To Members of the Civil Liberties Association, Past and Present,’ June 1946, FLPP, vol. 8, file 150; Sandwell to Charles W. Wilson, OLCHRP, vol. 9, file 2. 59 Faris, The Passionate Educators, 36. 60 Interview with Martyn Estall, 19 June 1995; Hutchinson, ‘The Fellowship,’ 63, 236 – 9. 61 Minutes of executive meeting of NCCSF, 6 December 1943, WEAP, file 4; Endicott, James G. Endicott, 49 – 50 [on Ketchum]. 62 Executive meeting of NCCSF, 6 December 1943, WEAP, file 4; Leopold Infeld, Quest, and Why I Left Canada, 28 – 9, 38, and ‘The Story of Samuel Levine,’ Canadian Forum, November 1941; RCMP Report, May 1946 and 22 August 1946, CSISF, vol. 3440, file ‘Civil Rights Union,’ 929 and 905 –7. .

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Notes to pages 163–6—419 63 Infeld, Atomic Energy and World Government; ‘Prof. Infeld in Warsaw Resigns Post at U. of T.,’ Toronto Star, 21 September 1950; ‘Did They Protest Too Much?’ Victoria Times, 20 November 1950; Infeld, Why I Left Canada, 60–1; Horn, Academic Freedom in Canada, 203 – 9. 64 Callwood, Emma, 106 – 7; Macpherson, When in Doubt, 60 –1. 65 Macpherson, When in Doubt, 79; Macpherson, ‘Review,’ International Journal 4 (spring 1949): 169 – 70. 66 S.B. Ryerson, ‘Property and Some Limitations on Liberty,’ in Papers Presented at the Fifty-second Annual Meeting of the Canadian Political Science Association (1980), 12, quoted in Kealey, ‘Stanley Bréhaut Ryerson,’ 147. 67 Minutes of conference of Committee for the Defence of Trade Union Rights, c. 1947 [on Hurley], CLCP, vol. 210, file 11; Lambertson, ‘The Rosedale Red’ [on Spaulding], The Beaver (June/July 2003), 22 –7. 68 Gould to Roebuck, 30 July 1946, ARP, vol. 1, file 15; ‘Judges as Commissioners,’ Toronto Star, 6 August 1946; interview with Mary Spaulding, 7 June 1996; Whitaker, Double Standard, 152; Harkness, J.E. Atkinson of the Star, 315; ‘Meeting of the Emergency Committee for Civil Rights,’ 18 May 1946, JCRCC, JPRC Correspondence 1947, reel no. 1, file 24. 69 ‘Civil Rights’ [CRU newsletter], vol. 2, no. 2, July-August 1948, FLPP vol. 8, file 143; letter to the author from Reg Whitaker, discussing Frank Park, 6 July 2002; National Archives of Canada finding aid on Frank Park; Macpherson, When in Doubt, 49, 61; Callwood, Emma, 106, 148; Whitaker, Cold War Canada, 236, 414, 465 n.21; Frank Park, ‘Gouzenko: Guilt and Innocence’ [review of Bothwell and Granatstein, The Gouzenko Transcripts], Canadian Forum, March 1983. 70 Whitaker, Cold War Canada, 236; Park, Moscow – As Two Canadians Saw It; Frank L. Park, ‘Soviet Russia – A Review of a Review,’ International Journal 2 (spring 1947): 173 –7. 71 Socknat, Witness against War, 167– 9; Avakumovic, The Communist Party in Canada, 125. 72 RCMP memorandum to Inspector Leopold, 23 April 1947, and ECCR/ CRU Financial Statement (24 April–31 December 1946), in RCMP Report, 16 April 1947, CSISF, vol. 3440, file ‘Civil Rights Union,’ 856 and 865 –79, at 864; ‘On Magna Carta Day,’ Globe and Toronto Star, 15 June 1946; ‘Dominion Day 1867–1946, An Open Letter to the Prime Minister of Canada,’ Globe and Toronto Star, 29 June 1946. 73 ‘Meeting Called on “Denial” of Rights,’ Vancouver News-Herald, 21 March 1946; David Freeman [VCLU secretary] to W.L.M. King, 7 January 1946, WLMKP 1946, reel no. C-9167, no. 361521; Report of the Royal Commission, 364, 366, 435, 224; Lunan The Making of a Spy, 95. .

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420—Notes to pages 166–71 74 ‘Civil Liberties Group Formed in Montreal,’ Canadian Tribune, 12 November 1946; de Mestral, Mémoires d’un homme libre (Montreal: Méridien, 1986). 75 ‘Freedom ... Is Your Affair,’ Montreal Star, 12 November 1946. 76 Lower to Fraser, 9 March 1946, and Fraser to Lower, 14 March 1946, ARMLP, vol. 46, files C-20 and C-21; Owens to Diefenbaker, 2 May 1946, JGDP, Series 3, vol. 2, reel no. M-7414, document 001203; Owens to King, 9 May 1946, WLMKP, 1946, vol. 411, reel no. C–9174, document 371082; Owens to Martin, 20 June 1946, ARMLP, vol. 46, file 21. 77 ‘In defence of liberty,’ Ottawa Citizen, 13 May 1946; Stanley Rands [chairman, pro tem, organizing committee] to Wilfrid Eggleston, 9 May 1946, WEP, vol. 14, file 14. 78 Minutes of the general organizational meeting of the OCLA, 22 May 1946, FLPP, vol. 9, file 151; Heaps to Baldwin, 24 June 1946, ACLUP, vol. 2732; Eggleston, While I Still Remember; and ‘Canadian Espionage Report Will Be a Best Seller This Year,’ Saturday Night, 27 July 1946; Erichsen-Brown obituary, Globe, 23 August 1997. 79 Rands to Eggleston, 9 May 1946, WEP, vol. 14, file 14; ‘Lives Lived’ [obituary of wife, Doris Rands], Globe, 26 August 1997; telephone interview with Lukin Robinson, 16 September 1996. 80 Minutes of General Meeting of OCLA, 18 June 1946, FLPP, vol. 9, file 151. 81 ‘Summary of the Report of a Fact-Finding Committee,’ WEP, vol. 14, file 14; Fyfe, ‘Some Legal Aspects of the Report of the Royal Commission on Espionage.’ 82 OCLA Council Minutes, 13 June 1946, FLPP, vol. 9, file 151, and 26 September 1946, WEP, vol. 14, file 18. Eggleston letter to members, 8 July 1949, WEP, vol. 14, file 14. 83 H.L.S., ‘Current Magazines: The Espionage Shock in Canada,’ 241; Clément, ‘The Royal Commission on Espionage, 1946 –1948,’ 12–13, and ‘The Royal Commission on Espionage and the Spy Trials of 1946 –9,’ 158. 84 ‘Rights of 13 Held Flouted by Gestapo Tactics – Chitty,’ Toronto Star, 28 February 1946; ‘Inter Alia,’ Fortnightly Law Journal, 1 October and 15 October 1945; R.M.W. Chitty, ‘Beware the Bureaucrat,’ [speech quoted in] ‘The Twenty-Eighth Annual Meeting [of the CBA],’ Canadian Bar Review 24 (1946); 702. 85 ‘Inter Alia,’ Fortnightly Law Journal, 15 March 1946. 86 ‘Crusade Urged for Freedom,’ Montreal Star, 17 May 1946; House of Commons, Debates, 7 May 1946, 1306; 20 February 1953, 2242; 7 February 1955, 894. .

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Notes to pages 171–6—421 87 Sandwell, ‘A Dubious Future for Japanese Children Who Get Deported,’ Saturday Night, 22 June 1947. 88 ‘Running Wild,’ Saturday Night, 20 April 1946; ‘What’s Become of Magna Charta?’ Maclean’s, 15 May 1946. 89 Winnipeg Free Press: Bruce Hutchison, ‘The Spectre in Ottawa,’ 11 April 1946, ‘Star Chamber Methods,’ 30 April 1946, ‘Lawyers and Liberty,’ 29 August 1946. 90 Toronto Star: ‘Detained “for Interrogation,”’ 26 February 1946; ‘Rights of Detained Persons,’ 27 February 1946, ‘Civil Rights in State of Suspense,’ 28 February 1946, ‘The Police Mind,’ 1 March 1946, ‘Time for a Return to Normal,’ 19 March 1946, ‘Invasion of Civil Rights in Canada,’ 7 May 1946. 91 Canadian Forum: ‘The Spy Business,’ April 1946, Phillips, ‘“Preventive Detention” in Canada,’ June 1946, Donald C. MacDonald, ‘The Deepening Crisis,’ November 1946. 92 Maclean’s: ‘Liberty Is Still Vital,’ 1 April 1946, ‘There’s Danger in Power,’ 15 April 1946, ‘Backstage at Ottawa: How Did the Red Get under the Bed?’ 15 April 1946, ‘A Blot on the Record,’ 1 June 1946, ‘Spy Trial Procedure Unjustified,’ 1 September 1946. 93 Canadian Tribune: ‘Rule by Atom Called Goal of Militarists,’ 30 March 1946, ‘Soviet Press Discusses Canada Espionage Cases, Called Menace to Peace,’ 4 May 1946, ‘LPP Plans for “Ban the Bomb” Peace Week,’ 13 July 1946. 94 Canadian Tribune: ‘Spy Scare Used to Gag Science,’ 30 March 1946, ‘“Share Atom Secrets” – Science,’ 18 May 1946, ‘Must Keep World Peace,’ 8 June 1946.’ 95 Tribune: ‘Shugar Freed in “Spy” Charge,’ 4 May 1946, ‘Defend Rights Is Aim of New Ottawa Group,’ 25 May 1946, Probe “Spy” Report Civil Union Urges,’ 25 January 1947; Globe: ‘Labour Council Protests Action in Rose Case,’ ‘Seditious Leaflet Said Distributed by Student,’ 6, 9 December 1946. 96 ‘“Must Cooperate with USSR,”’ Canadian Tribune, 6 April 1946. 97 Cronkite, ‘Civil Liberties in Canada,’ 61; ‘Most Voters Think Government “Acted Wisely” in Spy Case,’ Toronto Star, 15 May 1946; ‘General Ilsley Beats a Slow Retreat,’ Maclean’s, 1 May 1946. 98 Report of the Royal Commission, 19, 83. 99 Gonick, A Very Red Life, 80 –1; Weisbord, The Strangest Dream, 91–2, 130; Lunan, The Making of a Spy, 92, 98 –9. 100 Weisbord, The Strangest Dream, 93, 130. .

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422—Notes to pages 177–81 101 ‘Justice and Justice Only?’ HWHP, vol. 22, file 12; ‘Resolution of Protest by the Ottawa Civil Liberties Association,’ WLMKP, vol. 401, reel no. C– 9169, document 363934. 102 ‘Roebuck Says Probe Judges “Amateurs in Police Work,”’ Toronto Star, 30 July 1946. 103 Report of the Royal Commission, 281–318. 104 ‘Memorandum to the Cabinet (Royal Commission on Disclosure of Confidential Information; payment of salaries to suspended Government employees),’ 17 June 1947, PCOR, vol. 54, file 1-40-3; Shugar to St Laurent, 1 August 1946, JGDP, vol. 82, reel no. M-7450, document 065357-60. 105 Shugar to Eggleston, 20 July 1946, WEP, vol. 14, file 14; G.D. Cameron [for deputy minister of national health and welfare] to Shugar, 19 July 1946, JGDP, vol. 82, reel no. M-7450, document 065338. 106 Gardner to Eggleston, 21 July 1946, Eggleston to Gardner, 22 July 1946, and Gardner to Eggleston, 23 July 1946, WEP, vol. 14, file 14. 107 Minutes of OCLA meeting, 24 July 1946, letter from Eggleston, with resolutions appended, 31 July 1946, and minutes of OCLA council, 29 July 1946, FLPP, vol. 9, file 151; ‘Canadian liberty – 1946’ [advertisement], Ottawa Journal, 2 August 1946. 108 Irvine to Eggleston, 14 August 1946, WEP, vol. 14, file 14; minutes of OCLA meeting, 17 September 1946, and letter from Masson [vicepresident of OCLA], with resolutions appended, 29 October 1946, FLPP, vol. 9, file 151. 109 T.M. Dauphinée [CASW chair] to Hon. Dr McCann, 27 July 1946, JGDP, vol. 82, reel no. M-7450, document 065348; Canadian Scientist [CASW publication], vol. 1, no. 4, January 1946. 110 ‘Re-Arrest Shugar,’ Toronto Star, 7 August 1946; ‘Charge against Dr Shugar Is One of Conspiring,’ Ottawa Citizen, 14 August 1946; ‘“Rubbish” Says Dr. David Shugar of New References,’ and ‘Devotes 38 Pages to Shugar Case,’ Ottawa Journal, 16 August 1946. 111 Erichsen-Brown to Scott, 7 February 1947, FRSP, vol, 10, file 7; ‘Civil Rights,’ vol. 1, no. 1, 15 August 1946, WEP, vol. 14, file 5. 112 ‘Civil Rights,’ vol. 1, no. 1, 15 August 1946, WEP, vol. 14, file 5; Toronto Star: ‘Civil Rights Group Raps Shugar Charge,’ 8 August 1946, and ‘Rebuke Spy Probe Judges, Civil Rights Brief Urges,’ 14 August 1946; ‘Justice and Justice Only?’ WEP, vol. 14, file 16. 113 Spaulding [for ECCR] to Diefenbaker, 10 August 1946, JGDP, 1940 –56 series, vol. 9, file ‘Civil Liberties – General, n.d., 1943 –1955,’ reel no. M7417, document 006282. .

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Notes to pages 181–6—423 114 ‘Civil Rights,’ vol. 1, no. 3, 31 October 1946, AAMP, file 12. 115 Irving to OCLA, 14 August 1946, WEP, vol. 14, file 14; House of Commons, Debates, 31 August 1946, 5741–2; James McCann [Acting Minister, Department of National Health and Welfare] to M.M. Callan [Secretary of Ottawa branch of CASW], 7 August 1946, and Dauphinée [CASW chair] to McCann, 21 August 1946, JGDP, vol. 82, reel no. M-7450, documents 065362–3. 116 House of Commons, Debates, 31 August 1946, 5743 (quoted in ‘Civil Rights,’ vol. 1, no. 2, 15 September 1946, FLPP, vol. 9, file 155). 117 ‘Civil Rights,’ vol. 1, no. 2, 15 September 1946. 118 Toronto Star: ‘Most in Dominion Know Their Rights under Law,’ ‘Find 75–82 P.C. Don’t Know Basis of Our Civil Rights,’ ‘Next Step – Fingerprinting?’ 7, 10 August, 29 July 1946; ‘Unlawful Parties’ [Rélations proposal], Saturday Night, 6 July 1946. 119 Report of the Committee on Civil Liberties,’ August 1944, Canadian Bar Review 22 (1944): 617; Report of ‘The Twenty-Eighth Annual Meeting’ of the CBA, August 1946, Canadian Bar Review 24 (1946), 697–711, at 705 – 6. 120 ‘The Twenty-Eighth Annual Meeting,’ 706 –7. 121 Sniderman, Fletcher, Russell, and Tetlock, ‘The Fallacy of Democratic Elitism: Elite Competition and Commitment to Civil Liberties’; ‘Members of Bar Wait for Report on Civil Liberty,’ Globe, 30 August 1946. 122 Whitaker, ‘A Spy Story: Lifting Gouzenko’s Cloak’; Cronkite, ‘Civil Liberties in Canada,’ 65. 123 ‘Bar Group Will Study Protection of Civil Liberties,’ Globe, 30 August 1946; Report of the Twenty-Eighth Annual Meeting of the CBA, August 1946, Canadian Bar Review 24 (1946), 697–711, at 706. 124 ‘The Twenty-Eighth Annual Meeting,’ 708. 125 Callwood, Emma, 104, 125; Weisbord, The Strangest Dream, 70ff.; Laurin, Des Luttes et des droits, 22, 143. 126 Rex v. Boyer (1949), 94 CCC 195, at 251, quoting Justice Fitzpatrick in Re Gray (1918), 57 SCR 150, at 160. For a summary of the judicial decision, see Clément, ‘The Royal Commission on Espionage,’ 162– 4. 127 Lunan, The Making of a Spy, 207; interview with David Shugar, 6 June 1999; Globe: ‘Shugar Conduct Called ‘Disgusting’ by Prof. Beamish,’ 28 November 1946, ‘Gave Russia No Data, Shugar Says in Defense,’ 30 November 1946, ‘Shugar’s Reason for Meeting Carr “Very, Very Lame,”’ 2 December 1946. 128 ‘Backstage at Ottawa,’ Maclean’s, 1 September 1946; Report of the Royal Commission, 81–2. 129 Report of the Royal Commission, 281–318. .

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424—Notes to pages 187–90 130 ‘Shugar Cleared for Second Time of Spy Charge,’ Globe, 8 December 1946; Shugar to Martin, 22 December 1946, JGDP, vol. 82, reel no. M-7450, document 065367. 131 Shugar to W.L.M. King, JGDP, vol. 82, reel no. M-7450, document 065369. 132 Interview with David Shugar, 6 June 1999; letter from Shugar to the author, 28 July 2003. 133 Interview with David Shugar, 6 June 1999; Ilsley to Shugar, 8 March 1947, JGDP, vol. 82, reel no. M-7450, document 065370. 134 Interview with David Shugar, 6 June 1999; WLMKP: Spaulding to King, 16 May 1947, vol. 432, reel no. C-11044, document 394059-61, Owens to King and Martin, 24 February 1947, 1947, vol. 426, reel no. C-11040, document 387874-5, Prime Minister’s Office to Owens, 6 March 1947, vol. 424, reel no. C-11038, document 385904; Diefenbaker to Shugar, 25 March 1947, JGDP, Series 3, vol. 82, file ‘Royal Commission on Espionage – Dr. David Shugar,’ reel no. M-7450, document 065374. 135 Owram, The Government Generation, 174; Bercuson, True Patriot, 142–3. 136 E-mail from David Shugar [concerning his employment in the Department of Health], 25 May 2003. I am grateful to Reg Whitaker for suggesting that perhaps Shugar had been under suspicion before the Gouzenko affair. 137 Bercuson, True Patriot, 143; ‘Action Has Already Been Taken to Purge Service of “Reds,”’ Ottawa Journal, 16 August 1946; Whitaker and Marcuse, Cold War Canada, chapter 7. 138 Interview with David Shugar, 6 June 1999. 139 ‘Civil Rights Union’ [brief history], Special Joint Committee on Human Rights and Fundamental Freedoms, SJCHRP, vol. 51, file ‘Human Rights (1947– 48)’; ‘Civil Rights Union Asks RCMP Probe,’ Globe, 17 February 1947; Spaulding to Ilsley, 5 February 1947, DFR, vol. 349, file 101-85-24-0; Spaulding to prime minister, 16 May 1947, WLMKP, reel no. C-11044, 394059 – 61. 140 ‘Meeting of the Emergency Committee for Civil Rights,’ 18 May 1946, JCRCC, JPRC Correspondence 1947, reel no. 1, file 24; Executive meeting of NCCSF, 6 December 1943, WEAP, file 4. 141 Snell and Vaughan, The Supreme Court of Canada, 197. 142 Waines and Owens to Ilsley, 21 June 1947, SJCHRP, vol. 51, file ‘Human Rights (1947– 48).’ 143 Whitaker and Marcuse, Cold War Canada, chapter 7; House of Commons, Debates, 30 January 1947, 1. .

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Notes to pages 190–200—425 144 A comprehensive list of the accused, and the outcomes of their trials, is in appendix D of Sawatsky’s Gouzenko, at 286. 145 Clément, ‘The Royal Commission on Espionage’ and ‘The Royal Commission on Espionage and the Spy Trials of 1946 – 9.’ 146 Harvison, The Horsemen, 166. 147 Bothwell and Granatstein, The Gouzenko Transcripts, 17. 148 Burton H. Kellock, ‘Methods of Probe’ [letter to the editor], Globe, 12 November 1981. 149 Weisbord, The Strangest Dream, 151. 150 Lunan, The Making of a Spy, 173 [suggesting that the Gouzenko affair prepared the public for the Cold War]. 151 Interview with David Shugar, 6 June 1999. 152 Canadian ambassador in Paris to the Canadian secretary of state for external affairs, 17 August 1949, and secretary of state to ambassador, 18 August 1949, RG2, vol. 54, file 1– 40 –3. 153 ‘Government Revokes Citizenship of Rose, Moves against Shugar,’ Globe, 28 June 1957. 154 David Shugar e-mail to the author, 28 July 2003. 155 Callwood, Emma, 264 –5. .

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5. The Canadian Jewish Congress and the Human Rights Community 1 House of Commons, Debates, 17 July 1944, 4921 [King], 4929 [Nielsen]. 2 Walker, ‘The “Jewish Phase” in the Movement for Racial Equality in Canada.’ 3 Brown, ‘From Stereotype to Scapegoat.’ 4 Tulchinsky, Taking Root, chapter 12. 5 Speisman, ‘Antisemitism in Ontario,’ 115. 6 Betcherman, The Swastika and the Maple Leaf. 7 Tulchinsky, Branching Out, 180; Speisman, ‘Antisemitism in Ontario,’ 121. 8 Reiter, ‘Secular Yiddishkait,’ 121– 46, 133; Abella, ‘Anti-Semitism in Canada in the Interwar Years,’ 243. 9 Speisman, ‘Antisemitism in Ontario, 122. 10 Toronto Telegram, 26 March 1932. 11 Speisman, ‘Antisemitism in Ontario,’ 122; Sohn, ‘Human Rights Policy in Ontario,’ 44; Walker, ‘The “Jewish Phase.”’ 12 Speisman, ‘Antisemitism in Ontario,’ 122–3; Schmeiser, Civil Liberties in Canada, 213. 13 Robin, Shades of Right, 128–35; Rome, Clouds in the Thirties, section 2, 42–50. .

426—Notes to pages 200–6 14 Rosenberg, In the Midst of Freedom, 41–2; Abella and Troper, None Is Too Many, 10. 15 Rosenberg, In the Midst of Freedom, 42 – 4; B.G. Kayfetz, ‘Introduction’ to the ‘Finding Aid of the Joint Community Relations Committee 1938 –78,’ OJA; ‘Anti-Defamation Report’ [JPRC], CJCA, za1938, box 1, file 3. 16 Interview with Ben Kayfetz, 7 June 1996; ‘Public Relations,’ CJC Congress Bulletin, 22 October 1949. 17 Tulchinsky, Branching Out, 180 –2. 18 J.V. McAree, ‘Can’t Block Jews as Property Owners,’ Globe, 12 February 1946. 19 ‘Review of Congress Activities,’ September 1938, JCRCC, box 72, file ‘Pre 1943.’ 20 Abella and Troper, None Is Too Many, chapter 2. 21 Bercuson, ‘The Zionist Lobby and Canada’s Palestine Policy, 1941–1948,’ 194; Sohn, ‘Human Rights Policy in Ontario,’ 47– 8; Ontario Command of Canadian Legion to Oscar Cohen [CJC], 19 July 1938 and 17 April 1939, JCRCC, box 1, file PR 156. 22 ‘Anti-Semitism Is Under Study of Jewish Body,’ Globe, 23 September 1940. 23 Tulchinsky, Branching Out, 209 –14; Donald Avery, ‘Canada’s Response to European Refugees, 1939 –1945,’ 200; Rosenberg, In the Midst of Freedom, 45 – 6. 24 ‘Fellowship,’ vol. 1, no. 1, June 1940, JCRCC, box 2, file PR10; ‘Group to Fight Anti-Semitism,’ Globe, 12 January 1944; Tulchinsky, Branching Out, 238. 25 Tulchinsky, Branching Out, 184, 287; Rosenberg, In the Midst of Freedom, 49. 26 ‘Congress Acts Brought Ban on Discrimination in Jobs,’ Congress Bulletin, January 1943, CJCA; ‘Racial Discrimination in Canada’ Canadian Forum, October 1943. 27 ‘Labour Council Backs Negro Picketing Plan,’ Toronto Star, 23 March 1943; JPRC Activity Report, April 1944, JCRCC, vol. 3, file 1; ‘The Churches,’ Congress Bulletin, 22 October 1949. 28 ‘Anti-discrimination Law Negroes’ Goal,’ Toronto Star, 22 October 1943; J. Glass, ‘Footnotes on Our Times,’ Jewish Standard, 15 January 1971; ‘Outlaw Anti-Semitism, Unite for Victory: Rose,’ Canadian Tribune, 10 July 1943. 29 Walker, ‘“The Jewish Phase,”’ 2–3. 30 Walker, ‘Race,’ Rights and the Law, chapter 3. 31 Bagnall, ‘The Ontario Conservatives,’ chapter 1; Frank Rasky, ‘Canada’s Communists Wither Away’ [profile of Salsberg], Saturday Night, 12 October 1957; ‘Salsberg Urges Anti-racist Bill,’ Canadian Tribune, 19 February 1944. .

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Notes to pages 207–11—427 32 ‘Racial Bill Not the Cure,’ Globe, 10 March 1944; Toronto Telegram: ‘“Discrimination” Bill Not Worth Patching Up,’ ‘An “Insult to Intelligence” Orangemen Term Race Bill,’ 9 March 1944, and ‘Anti-Discrimination Bills Denounced at Meeting,’ 31 March 1944; An Act to Prevent the Publication of Discriminatory Matter Referring to Race or Creed, SO 1944, c. 51. 33 Tarnopolsky, Discrimination and the Law in Canada, 27 – 8. 34 House of Commons, Debates, 20 March 1944, 1626. 35 The Gospel Witness and Protestant Advocate, vol. 23, no. 3, 18 May 1944, UBCA, SPAM 10297; ‘Racist Forgeries Sold in Toronto,’ Canadian Tribune, 15 January 1944. 36 Anderson case: ‘Club Held Unchristian,’ Globe, 29 April 1944; Icelandia (Gairey) case: ‘Barred from Skating Rink, Negro Boy Aims to Be M.D.,’ Toronto Star, 22 November 1945; Beard case: ‘New Yorker Bars Negro from Bridge Club Game Here Despite Club’s Protest,’ Globe, 2 December 1946; Desmond case: ‘Racial Segregation, Saturday Night, 7 December 1946; Scott case: ‘Churchmen Flay Racial Bigotry in Hospitals,’ Globe, 30 September 1947. 37 Irving Abella, ‘Jews, Human Rights, and the Making of a New Canada,’ 7; Joseph H. Fine, ‘The Principles of Public Relations Work in Canada,’ Congress Bulletin, August 1947, 13. 38 Globe: ‘Brands Anti-Semitism Threat to Racial Peace,’ 26 May 1947; ‘Brotherly Love Lacking in Toronto, Visitor Told,’ 28 February 1949. 39 Re Drummond Wren, [1945] OR 778, 4 DLR, 674; Radforth and Sangster, ‘”A Link between Labour and Learning”: The Workers’ Educational Association in Ontario.’ 40 A Victory for Democracy [WEA pamphlet], CLCP, vol. 355, file: ‘Racial Discrimination, part 2, 1945 –1952’; Globe: ‘Property Buyers Fight Clause Barring Jews,’ 24 August 1944; ‘Adjournment in Land Case,’ 25 August 1944; ‘Further Action Planned on Anti-Semitic Clause,’ 1 September 1944. 41 Lappin [JPRC] to Hayes [CJC], 31 August 1944, JCRCC, JPRC Correspondence 1947, file 45, reel no. 2. 42 Mutchmor to Feinberg, 1 and 11 September 1944, JCRCC, JPRC Correspondence 1947, file 45, reel no. 2. 43 Personal communication from Mrs [Evelyn] Himel; June Callwood, ‘A social activist’s legacy,’ Globe, 22 June 1985; Irving Himel, curriculum vitae (kindly provided by Mr Himel); ‘Chinese Seeking Removal of Ban on Immigration, Toronto Star, 31 October 1946; Himel obituary, and Kew Dock Yip obituary, Globe, 27 July 2001; interview with Irving Himel, 26 July 1994. .

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428—Notes to pages 211–18 44 ‘Transcript of Hearing before Justice Mackay in the Drummond Wren case,’ JCRCC, JPRC Correspondence 1947, file 45, reel no. 2; ‘A Victory for Democracy,’ JPRC minutes, 12 March 1945, JCRCC, vol. 72, file ‘1945 – 6.’ 45 ‘Transcript of Hearing before Justice Mackay in the Drummond Wren case,’ JCRCC, JPRC Correspondence 1947, file 45, reel no. 2. 46 ‘Anti-Semitic Land-Sale Clause Declared Illegal,’ Globe, 1 November 1945. 47 ‘Blow to Prejudice,’ Globe, 2 November 1945; Hayes, Power and Influence, 57– 60. 48 Bogart, Courts and Country, 4, chapter 2; Rosenberg, The Hollow Hope, 338; Shelley v. Kraemer, 334 US 1 (1948); Congress ‘Bulletin,’ July 1949, CJCA, vol. 5, file 54. 49 ‘A Victory for Democracy,’ JCRCC, JPRC Correspondence 1947, file 45, reel no. 2. 50 WEA Board Minutes, 2 November 1947, WEA Papers; CLCP, vol. 242, file 7; Zaitlin to Hayes, 28 February 1947, CJCA, ZA 1947, vol. 10, file 127; Zaitlin to Grand, 18 March 1947, and Grand to Zaitlin, 21 March 1947, JCRCC, JPRC Correspondence 1947, file 50, reel no. 2. 51 ‘Report on Labor Relations,’ A.H.J.Z. [Zaitlin] to Fine, 7 June 1946, and ‘Organized Labour in Canada,’ CJCA, CD vol. 2, file 28z. 52 Rabbi A.L. Feinberg, ‘Public Relations – Some Basic Principles,’ Congress Bulletin, August 1947; JPRC Minutes, 17 September and 23 October 1947, JCRCC, JPRC Correspondence 1947, vol. 3, file 2. 53 ‘Opinion Polls and Social Control,’ Information and Comment, no. 2 (March 1946); Pierre Berton, ‘No Jews Need Apply,’ Maclean’s, 1 November 1948. 54 Canadian Tribune: ‘Salsberg Demands Ban of “Racism on the Job,”’ 24 March 1945, Nat Cohen, ‘Anti-Semitism in Ontario,’ 11 August 1945; JPRC Minutes, 17 June 1946, JCRCC, box 3, file 1. 55 Sydney Lawrence Wax, ‘A Survey of Restrictive Advertising and Discrimination by Summer Students in the Province of Ontario,’ Information and Comment (June 1948): 10 –13. 56 Walker, ‘“The Jewish Phase,”’ 11; Patrias and Frager, ‘“This Is Our Country,”’ 35 – 7. 57 JPRC Minutes, 17 June 1946, JCRCC, box 3, file 1; Sohn, ‘Human Rights Policy in Ontario,’ 91–3, 120 –1. 58 Ben Kayfetz biography, OJA; interview with Ben Kayfetz, 7 June 1996. 59 Sohn, ‘Human Rights Policy in Ontario,’ 91–3; Feinberg to Daley, 24 December 1947, and Daley to Feinberg, 27 December 1947, JCRCC, JPRC Correspondence 1947, reel no. 2, file 10; OHRCR, RG 76-1, file RG 76-1-1-5. .

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Notes to pages 218–21—429 60 Zaitlin to Jones [CCCJ], 16 July 1947, CJCA, CD box 2, file 28z; Mrs Freda Green to Feinberg, 12 February 1947, JCRCC, JPRC Correspondence 1947, reel no. 2, file 10, ‘Rabbi A.L. Feinberg’; Kayfetz to Feinberg, 22 April 1947, JCRCC, JPRC Correspondence 1947, reel no. 2, file 10, ‘Rabbi A.L. Feinberg’; transcript of radio broadcast [n.d.] on the institute by Les Wismer of the Toronto labour committee, JLC Papers, vol. 34, file 1. 61 ‘Legion speaks out,’ Globe, 30 September 1947; ‘Resolutions Adopted at the Biennial Convention of the Ontario Command, Canadian Legion,’ 21– 4 September 1947, and Grand to Wingate Branch, 22 December 1947, JCRCC, JPRC Correspondence 1947, reel no. 3, file 8. 62 Grand [JPRC] to Kaplansky [JLC], 24 September 1947, JCRCC, JPRC Correspondence 1947, reel no. 3, file 21; The Saskatchewan Bill of Rights Act, SS 1947, c. 35. 63 Globe: ‘Can’t Cure Intolerance by Law, Says Blackwell as CCF Bill Defeated,’ 29 October 1947, ‘Bill to Outlaw Race Intolerance Defeated,’ 1 April 1948. 64 ‘Activities Report’ to JPRC, 28 May 1947, JCRCC, JPRC Correspondence 1947, file 23, reel no. 3; Manfred Saalheimer, ‘F.E.P. Laws for Canada?’ Information and Comment, 6 (August 1947), 1–12. 65 Morton and Granatstein, Victory 1945: Canadians from War to Peace, 253; Inglehart, Culture Shift in Advanced Industrial Society. For an application of Inglehart’s ideas to the 1970s and 1980s in Canada, see Howe, ‘Human Rights in Hard Times: The Post-war Canadian Experience.’ 66 Report of Toronto Labour Committee for Human Rights secretary, 30 April 1948, JLCP, vol. 41, file 41-4. 67 Sohn, ‘Human Rights Policy in Ontario,’ appendix C [human rights bills introduced by private members in the Ontario legislature], 375. 68 Noble and Wolf v. Alley et al., [1951] SCR 64, [1951] 1 DLR 321; ‘Noble and Wolf Manuscript,’ ERP, file ‘Noble and Wolf, 1951–1953’; Edward Richmond, ‘Racially Restrictive Covenants and the Judiciary in Canada,’ unpublished document, n.d. [personal copy, kindly made available by Mr Richmond]; Ben Kayfetz, ‘Wolf Legacy: End to Restrictive Property Clauses,’ Canadian Jewish News, 22 January 1987. For a full discussion of the law and politics surrounding Drummond Wren and Noble and Wolf, see Walker, ‘Race,’ Rights, and the Law, chapter 4. 69 Kayfetz, ‘Wolf Legacy; Walker, ‘Race,’ Rights and the Law, 211. 70 Re Noble and Wolf, [1948] OR 579, 596 –7. 71 Hayes to ‘Ben’ [Kayfetz], 5 July 1948, CJCA, ZA 1948, vol. 6, file 75b; Kayfetz, ‘Wolf Legacy.’ .

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430—Notes to pages 221–8 72 Kayfetz, ‘Wolf Legacy.’ 73 JPRC (Central Region) Minutes, 17 September 1947, JCRCC, JPRC Correspondence 1947, box 3, file 2; Canadian Labour Reports, June 1948, quoted in Kaplansky, ‘Notes,’ 1948, 64, KKP, vol. 20, file 5; JPRC (Central Region) Minutes, 17 September 1947, JCRCC, JPRC Correspondence 1947, box 3, file 2. 74 Wilfrid List, ‘Friendly Overtures by Premier Frost Finds Good Response in Labor Circles,’ Globe, 2 February 1951. 75 Form letter from ACL founders, 2 March 1949, OLCHRP, vol. 9, file 1; finding aid, RSKSP; SCMP; miscellaneous ACL papers; finding aid, WLMGP; Christian, George Grant, 50. 76 Bercuson, ‘The Zionist Lobby and Canada’s Palestine Policy, 1941–1948’; Oscar Cohen to Rabbi Feinberg, 7 December 1946, JCRCC, JPRC Correspondence 1947, reel no. 1, file 24, ‘Civil Liberties Association, 1942– 47.’ 77 Sohn, ‘Human Rights Policy in Ontario,’ 277; Committee on Group Relations membership list, and ‘Committee on Group Relations of the Association for Civil Liberties,’ OLCHRP, vol. 9, file 1. 78 ‘Ask Government Inquiry in Racial Bar to Jobs,’ Globe, 22 April 1949. 79 Minutes of Committee on Group Relations in Canada, 14 November 1949, OLCHRP, vol. 9, file 1; ‘Brief in Respect to Legislation Dealing with Expressions of Racial and Religious Discrimination in Ontario,’ WLMGP, vol. 47, file ‘Notes and Memoranda Civil Liberties Association’; ‘Delegation Impresses Frost: Says He’ll Act on Race Discrimination,’ Toronto Star, 8 June 1949. 80 Working list of CCJC organizations, CCJCP, vol. 1, file 1 [part 2]; Oscar Cohen to Rabbi Feinberg, 7 December 1946, JCRCC, JPRC Correspondence 1947, reel no. 1, file 24. 81 Welton, ‘“On the Eve of a Great Mass Movement”: Reflections on the Origins of the CAAE,’ 15; CAAE national conference report, 26 –29 May 1947, OLCHRP, vol. 335, file ‘Racial Discrimination’; ‘Minutes of Committee on Group Relations in Canada’, 14 November 1949, OLCHRP, vol. 9, file 1. 82 ‘Delegation Impresses Frost,’ Toronto Star, 8 June 1949. 83 Interview with A.O.C. Cole, reporter for the Toronto Star, reported by Bagnall, ‘The Ontario Conservatives,’ 122 – 4. 84 Kaplansky, ‘Report,’ June 1949, KKP, vol. 20, file 8. 85 Howe and Johnson, Restraining Equality, 26. 86 Oliver, Unlikely Tory, 111; Bagnall, ‘The Ontario Conservatives,’ 183 n. 6, 33, 200, 276, 338 n. 114, 383; Sohn, ‘Human Rights Policy in Ontario,’ 3. .

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Notes to pages 228–33—431 87 Kayfetz to A. Lampel, 15 March 1949, Lampel to Kayfetz, 21 March 1949, JCRCC, vol. 3, file ‘Restrictive Covenants, 1949’; ‘English, Irish Jews Reported among Those Barred from Property,’ Toronto Star, 28 February 1949. 88 ‘Resort Owners’ Right to Bar Jews, Negroes Upheld in Appeal Court,’ Globe, 10 June 1949; Re Noble and Wolf, 523. 89 ‘Should Change Law, Rabbi Feinberg Says as Covenant Upheld,’ Toronto Star, 16 June 1949. 90 ‘Tolerance and Law,’ Globe, 11 June 1949. 91 ‘The Law Should Be Changed,’ Toronto Star, 13 June 1949. 92 Kayfetz to Richmond, 2 November 1950, JCRCC, vol. 72, file ‘Restrictive Covenants’; ‘Without Hysteria,’ Hebrew Daily Journal, 13 June 1949. 93 ‘Canadian Public Opinion on Racial Restrictive Covenants,’ CJCA, ZA 1949, vol. 5, file 54; Kayfetz to Wolf, 22 August 1949, JCRCC, vol. 3, file, ‘Restrictive Covenants, 1949.’ 94 Richmond to Kayfetz, 30 June 1949, Kayfetz to Richmond, 5 July 1949, Richmond to Kayfetz, 19 July 1949, Kayfetz to Richmond, 3 August 1949, Richmond to Kayfetz, 16 August 1949, ERP, file ‘Noble and Wolf, 1949.’ 95 Kaplansky ‘Notes,’ 1949, 89 – 99, vol. 20, file 7. 96 Nancy Fraser [CGR] to Kaplansky, 10 March 1950, and Kaplansky to Roby Kidd [CAAE], 12 January 1950, JLCP, vol. 19, file 7; ‘Brief from 70 Groups Asks Wider Legislation to Fight Discrimination,’ Globe, 25 January 1950. 97 Kaplansky, ‘Notes,’ 1950, 4, vol. 20, file 9; ‘Public Relations I.O.I. – [JPRC] Inter-Office Information Bulletin,’ no. 97, 2 February 1951, CJCP, vol. 4; Patrias and Frager, ‘“This Is Our Country,”’ 21. 98 ‘A Brief to the Premier of Ontario,’ CCLP, vol. 335, file ‘Civil Rights – Association for Civil Liberties.’ 99 ‘Got Frost “Brush-Off” over Discrimination, Delegation “Disgusted,”’ Toronto Star, 24 January 1950; Bagnall, ‘The Ontario Conservatives,’ 145–55; Ontario Legislature, Debates, 6 April 1950, EE–10, EE–19; Labour Relations Act, SO 1950, c. 34 (b). 100 Ontario Legislature, Debates, 22 March 1950, D–7; memo from Ben Kayfetz to Rabbi A.L. Feinberg, 8 March 1950, CJCA, ZA 1951, vol. 7, file 64. 101 Ontario Legislature, Debates, 28 February 1950, A-7 to A-8; 22 March 1950, C-6 to E-5. 102 Graham, Old Man Ontario, 172–3, 262 – 6. 103 Bagnall, ‘The Ontario Conservatives,’ chapter 4. .

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432—Notes to pages 233–8 104 Hayes to Ilsley, 9 June 1948, RG14 ACC ‘87–‘88 / 146, vol. 51; ‘Ontario Leads the Way,’ Saturday Night, 13 February 1951; Donald Bellamy, ‘Social Policy in Ontario’; Howe, ‘Incrementalism and Human Rights Reform’ 103. 105 Bagnall, ‘The Ontario Conservatives,’ 197, 229 –31, 307. 106 Graham, Old Man Ontario, 263. 107 Sohn, ‘Human Rights Policy in Ontario,’ 111; Tarnopolsky, Discrimination and the Law in Canada, 34 –5. 108 Borins to Richmond, 9 May 1950, ERP, file 1950. 109 ‘Race Bar in Land Deed Upset by Supreme Court,’ Globe, 21 November 1950; Noble and Wolf v. Alley, [1951] SCR 64, 1 DLR 321. 110 Richmond to Kayfetz, 11 April 1951, and Wolf to Kayfetz, 16 October 1951, BWP, file 3. 111 Wolf to Kayfetz, 16 October 1951, BWP, file 3. 112 Walker, ‘Race,’ Rights and the Law, 190, 236 – 42; Sangha, ‘“Home, Sweet Home”’; ‘Aide-Mémoire,’ 12 November 1951, JCRCC, vol. 4, file 2; JPRC Minutes, 23 September 1952, JCRCC, vol. 5, file 2; Hayes to Finkelman, 8 December 1950, CJCA, ZA 1950, vol. 5, file 44; Manfred Saalheimer, ‘Canadian Group Relations and the Law: Progress Report for the Year Ended June 30, 1955,’ Information and Comment 17 (October 1955), 5. 113 BCCLA position paper, 1968, ‘Restrictive Covenants’; Jan Wong, ‘Free Clams, an Eyeball and Suzuki’s World View,’ Globe, 20 February 1997; Land Titles Act, SBC 1978, c. 25, s. 28. 114 ‘Minority Groups Hail Judgment as Landmark,’ Globe, 21 November 1950. 115 ‘Racial Ban Invalid,’ Toronto Star, 21 November 1950; ‘Practicing What We Preach,’ Montreal Daily Star, 21 November 1950; ‘Restrictive covenants,’ Globe, 22 November 1950. 116 Kaplansky, ‘Notes,’ 1950, 41, vol. 20, file 9. 117 Globe: ‘No Discrimination Rider Urged in Hall Licenses,’ 18 January 1947, ‘Police Board Approves Cancelling of Licences for Race Discrimination,’ 15 February 1947, ‘Anti-discrimination By-law Approved by Police Board,’ 22 February 1947, ‘Committee Urges City Prohibit Discrimination by All Licence Holders,’ 18 May 1950; Manfred Saalheimer, ‘Antiminority Discrimination and the Law: A Canadian Progress Report,’ Information and Comment 10 (August 1950), 1–5; ‘Toronto Bans Discrimination in City-Licensed Places,’ Congress Bulletin, vol. 6, no. 7 (June 1950), 19. 118 Sohn, ‘Human Rights Policy in Ontario,’ 119 –21; Kaplansky, ‘Report,’ October, November, vol. 20, file 10. .

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Notes to pages 238–44—433 119 ‘Public Relations I.O.I. – [JPRC] Inter-Office Information Bulletin,’ no. 97, 2 February 1951, CJCP, vol. 4; Arnold Bruner, ‘Citizen Power: The Story of Ontario Human Rights Legislation,’ 11; Walker, ‘“The Jewish Phase,”’ 24–5. 120 Walker, ‘“The Jewish Phase,”’ 31–2; Sohn, ‘Human Rights Policy in Ontario,’ 122, 125; Ontario Legislature, Debates, 28 March 1951, A-27; ‘Democracy in Employment,’ Toronto Star, 15 January 1951; Kaplansky, ‘Notes,’ 1951, 1–2, vol. 20, file 11; Gladwell, The Tipping Point. 121 Wilfrid List, ‘Friendly Overtures by Premier Frost Finds Good Response in Labor Circles,’ and ‘Recognizing the Emergency’ [editorial], Globe, 2 February 1951. 122 ‘Ontario Leads the Way,’ Saturday Night, 13 February 1951; ‘Recognizing the Emergency,’ Globe, 2 February 1951. 123 ‘Fair Employment Bill,’ Globe, 27 February 1951; An Act to promote Fair Employment Practices in Ontario, SO 1951, c. 24; An Act to ensure Fair Remuneration to Female Employees, SO 1951, c. 26; Shirley Tillotson, ‘Human Rights Law as Prism.’ 124 Sohn, ‘Human Rights Policy in Ontario,’ 118, 337; Toronto labour committee ‘Report of Progress,’ 1951, JLCP, vol. 41, file 4; Kaplansky, ‘Notes,’ 1951, 17–18, 24 – 6, 35 – 6, vol. 20, file 11. ‘Public Relations I.O.I. – [JPRC] Inter-Office Information Bulletin,’ no. 100, 16 March 1951, and no. 102, 13 April, CJCP, vol. 4. 125 ‘Public Relations I.O.I. - [JPRC] Inter-Office Information Bulletin,’ no. 102, 13 April, CJCP, vol. 4. 126 Howe and Johnson, Restraining Equality, chapter 1. 127 Abella, ‘Jews, Human Rights, and the Making of a New Canada,’ 14. 128 Manfred Saalheimer, ‘Canadian Group Relations and the Law: Progress Report for the Year Ended June 30, 1953,’ Information and Comment 14 (September 1953), 1–13; idem., ‘Canadian Group Relations and the Law: Progress Report for the Year Ended June 30, 1954,’ ibid., 15 (October 1954), 1–13; idem., ‘Fundamental Rights and Freedoms in Canada: Progress Report for the Year Ended June 30, 1958,’ ibid., 21 (October 1958), 1–21; idem., ‘Fundamental Rights and Freedoms in Canada: Progress Report for the Year Ended June 30, 1960,’ ibid., 24 (October 1960), 1– 5. .

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6. Civil Liberties Groups and the Cold War 1 ‘Defending Liberty,’ Saturday Night, 6 April 1946. 2 ‘Minutes of Exploratory Conference,’ 28 –9 December 1946, FLPP, vol. 9, file 156. .

434—Notes to pages 245–50 3 ‘A Bill of Rights for Canada,’ Toronto Star, 31 January 1947; Spaulding to Ilsley, 5 February 1947, FLPP, vol. 9, file 155. 4 Fyfe to Scott, 17 March 1947, Scott to Grube, 21 March 1947, and Lewis to Scott, 16 April 1947, FRSP, vol. 10, file 8, reel no. H-1222; ‘Memorandum on Contentious Points in Draft Constitution’ and ‘Canadian Civil Liberties Council Constitution,’ FLPP, vol. 9, file 156. 5 Brewin to Scott, 24 March 1947, FRSP, vol. 10, file ‘Civil Liberties, National Council 1946–1951,’ reel no. H-1222. 6 ‘Memorandum on Contentious Points in Draft Constitution’; Cam [Ballantyne] to Frank [Park], 1947, FLPP, vol. 7, file 133. 7 Macdonald to Scott, 19 February 1947, FRSP, vol. 10, file 7, reel no. H-1222, as well as Scott to Macdonald, 21 February 1947, and Scott to Fyfe, 14 February 1947, file 8; ‘Canadians or Communists?’ [and cartoon], Saturday Night, 3 April 1948. 8 Lower to Owens, 23 February 1947, ARMLP, vol. 2, file A-28. 9 RCMP Report, 4 April 1947, CSISF, vol. 3440, file ‘Civil Rights Union,’ 860 –5. 10 ‘Barring Communists,’ Saturday Night, 19 July 1947. 11 Kaplan, Everything That Floats, 48 –50; ‘Civil Rights,’ vol. 2, no. 1, 25 May 1948, FLPP, vol. 9, file 155; CRU ‘Information Bulletin,’ 27 October 1948, FLPP, vol. 9, file 154; RCMP Report, 13 April 1949, CSISF, vol. 3440, file ‘Civil Rights Union,’ 651. 12 RCMP Report, 16 April 1947, CSISF, vol. 3440, file ‘Civil Rights Union,’ 860 –5; ‘This Is a Free Country’ [advertisement], Toronto Star, and Windsor Daily Star, 12 April 1948. On the Prince Edward Island tradeunion legislation, see chapter 8. 13 Whitaker, Double Standard, 6. 14 Whitaker and Marcuse, Cold War Canada, 162–9; Saturday Night: ‘An Error about Liberty,’ 10 April 1948, ‘Civil Rights Union,’ 26 June 1948, Michael Barkway, ‘This “Screening” Business,’ 3 January 1950; C.B. Macpherson, ‘Civil Rights and the Official Mind’ [radio broadcast], 18 February 1947, CSISF, vol. 3440, file ‘Civil Rights Union,’ 870 –3; CRU ‘Information Bulletin,’ n.d. [1948?], CRU ‘Information Bulletin,’ 27 October 1948, FLPP, vol. 9, file 154. 15 Miscellaneous documents in FLPP, vol. 9, file 154, CSISF, vol. 3440, file ‘Civil Rights Union,’ and JEP, vol. 63, file 1320; ‘Growing Demand for Peace, Bill of Rights,’ Canadian Tribune, 14 November 1948. 16 ‘Civil Rights Rally’ [advertisement flyer], 15 December 1948, JCCAP, vol. 13, file 22; Horne, Communist Front [on Patterson]. .

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Notes to pages 250–4—435 17 CRU ‘Information Bulletin’ (‘Freedom of Speech Defense Fund’), n.d. [1948?], and CRU ‘Information Bulletin’ (‘Freedom of Speech Defense Fund – For an Appeal in the Patterson Case’), no. 2, 17 December [1948], FLPP, vol. 9, file 154. Photograph in Ukrainian Canadian, 1 January 1949 [copy in JEP, vol. 63, file 1316]. 18 CRU ‘Information Bulletin,’ no. 2, 17 December 1948, FLPP, vol. 9, file 154. 19 CRU ‘Information Bulletin’ (‘Report on Proposed Congress of Human Rights’), n.d. [December 1948?], FLPP, vol. 9, file 154. 20 ‘The Border Ban,’ Saturday Night, 25 December 1948. 21 ‘Freedom Fund Drive,’ n.d. [1948?], FLPP, vol. 9, file 154; RCMP Report, 17 June 1948, CSISF, vol. 3440, file ‘Civil Rights Union,’ 798. 22 Tribune articles: 25 January 1947, 19 June 1948, 26 June 1948, 3 July 1948, 14 November 1948, 17 November 1952, 24 November 1952. References in CSISF: 26 June 1948, 790 (Vestnik); 1 November 1948, 743 (Tribune); 3 March 1950, 620 (Pacific Tribune); 10 March 1950, 616 (Liaudies Balsas); 15 March 1950, 615 (Ukrainian Canadian); 8 February 1951, 503 (Wochenblatt); 24 July 1951, 388 (Canadian Hungarian Worker). 23 Miscellaneous documents: FLPP, vol. 9, files 154, 155, and CSISF, vol. 3340; CRU ‘Information Bulletin,’ n.d. [April 1950?], JEP, vol. 63, file 1316. 24 ‘Freedom Is Your Affair,’ n.d. [1947?], FLPP, vol. 9, file 154. 25 Tatham to ‘Dear Friend’ [form letter], 6 March 1949, JCRCC, JPRC Correspondence 1947, reel no. 6, file ‘Civil Liberties Committee.’ 26 Nicol to King, 22 February 1947, WLMKP, vol. 425, reel no. C-11040, document 387688; ‘A Brief Submitted June 28, 1947 by the Vancouver Branch Canadian Civil Liberties Union to the Special Joint Committee of the Senate and the House of Commons Appointed to Continue and Complete the Examination and Consideration of the Indian Act,’ UBCLL; Disbrow, ‘Exclusion by Due Process,’ especially 110, 113, 138, 190, 194 – 5, 205, 210. 27 ‘Students Form Union Branch,’ Ubyssey, 11 February 1947; ‘Votes for BC Japanese Asked by UBC Civil Liberties Union,’ New Canadian, 15 March 1947; miscellaneous reports of Vancouver labour committee for human rights, 22 February 1950, September 1953, November 1954, JLCP, vol. 45, file 17, 20, and vol. 46, file 3. 28 Owens to King, 25 January 1947, WLMKP, vol. 426, reel no. C-11040, document 38773; ‘Tedlie Arrest Hit by Group’ and ‘Civil Liberties Union Warns of Hutterite Discrimination,’ Winnipeg Tribune, 11 May, 24 July 1948. 29 Heaps to Baldwin, 21 June 1946, ACLUP, vol. 2732; Erichsen-Brown to Scott, 7 February 1947, FRSP, vol. 10, file 7, reel no. H-1222. .

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436—Notes to pages 254–8 30 ‘The Rights of Civil Servants,’ Ottawa Citizen, 23 June 1948; ‘Dear Friend,’ from Winnifred Harvey and others, 6 April 1950, WEP, vol. 14, file 17. 31 Cameron to the MCLA membership, 27 March 1948, FLPP, vol. 7, file 133; Scott to Himel, 1 February 1950, 13 November 1950, FRSP, vol. 9, file 10, reel no. H-1221; MCLU ‘Civil Rights Bulletin,’ no. 1, 1 May 1948, FRSP, vol. 10, file 7, reel no. H-1222. 32 Himel to ACLU, 9 December 1948, and Himel to Fuller, 22 December 1948, ACLUP, vol. B, file 2; ‘Dear Friend’ [announcing the founding meeting of the ACL, 2 March 1949], OLCHRP, vol. 9, file 1; Tatham to Lower, 15 November 1949, ARMLP, vol. 46, file C-22. 33 Himel to Tanaka, 9 May 1949, and Himel to Porter, 17 May 1949, JCCAP, vol. 15, file 23; Double Standard, 219 [on Sedgwick]. 34 ‘Constitution of the Association for Civil Liberties (Toronto),’ OLCHRP, vol. 9, file 3. 35 Miscellaneous papers in ARMLP, vol. 46, file C-22; OLCHRP, vol. 9, file 4, CCFP, vol. 147, file ‘Civil Liberties Union’; CLCP, vol. 335, file ‘Civil Rights – Association for Civil Liberties’ and file: ‘Civil Liberties – General, 1949–1963’; Select and Standing Committees of the Senate and House of Commons, vol. 1 (1953), ‘Minutes of Proceedings and Evidence of the Special [House of Commons] Committee on Bill No. 93 (Letter O of the Senate), report no 4, (10 and 11 March 1953), 137–50, appendix ‘A’ (160). 36 Himel to Fuller, 22 December 1948, ACLUP, vol. B, file 2; interview with Irving Himel, 26 July 1994; interview with Harry Arthurs, 21 July 1994. 37 Scott to Baldwin and Scott to Himel, 23 November 1949, Scott to Wells [Sarco Canada], 29 November 1949, Baldwin [ACLU] to Ernst, 8 December 1949, Himel to Scott, 23 January 1950, FRSP, vol. 9, file 10, reel no. H-1221; interview with Irving Himel, 6 June 1996. 38 Himel to Tanaka, 12 January 1950, JCCAP, vol. 13, file 18; Himel to Scott, 19 October 1950, FRSP, vol. 9, file 10, reel no. H-1221. 39 ‘Statement of Purpose,’ 21 April 1950, FLPP, vol. 9, file 154; ‘What Is the League for Democratic Rights?’ September 1951, FLPP, vol. 9, file 161. LDR ‘Brief to the [Senate] Special Committee on Human Rights and Fundamental Freedoms,’ 27 April 1950, FLPP, vol. 8, file 173. 40 CSISF, vol. 3394, file ‘Civil Liberties Union (LDR)’; ‘LDR National Executive to All LDR Branches and Affiliated or Associated Organizations,’ 16 September 1952; RCMP report, 8 October 1952,’ 191–2; Financial Report for 1952 and 1953; ‘Dear Friends: Regarding Bill 93,’ 23 March 1953, 125 and 303 – 5; ‘Literature Report, 15 April 1953, 298. 41 LDR Constitution, n.d. [1950?], FLPP, vol. 9, file 161; Whitaker, Double Standard, 177; ‘LDR Statement Replies to Garson Charges,’ Tribune, 15 .

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Notes to pages 258–62—437 December 1952; House of Commons, Debates, 2 May 1950, 2085 – 6 [Drew]; RCMP report on LDR National Conference, 5 November 1951, CSIS files, vol. 3394, file ‘Civil Liberties Union (LDR),’ 550 –1; ‘Our Heritage of Liberty,’ FLPP, vol. 8, file 143; RCMP report, 10 October 1951, CSISF, vol. 3440, file ‘Civil Rights Union,’ 330, 386. RCMP report, 5 November 1951 (‘Report on National Conference Oct. 26 – 28, 1951’), CSISF, vol. 4035, part 19, 550 –1; RCMP report, 27 February 1952 (Buhay ‘To All LDR Branches,’ 13 March 1952), CSISF, vol. 4035, part 19, 489. Kidd, The Struggle for Canadian Sport, 156 –7, 173; Scott, ‘The Montreal Sedition Cases,’ Canadian Bar Review 9 (December 1931), 756–61; CRU ‘Information Bulletin,’ September-October 1951, FLPP, vol. 9, file 161; interview with David Kashtan, 20 June 1995; miscellaneous files, DKP. Thomas C. Roberts, ‘The Story of the Padlock Law,’ JEP, vol. 63, file 1329; Senate Special Committee on Human Rights and Fundamental Freedoms, Minutes of Proceedings and Evidence (1950), 238. Roberts, ‘The Story of the Padlock Law’; Cushing to Brogden, 28 October 1952, CLCP, vol. 18, file 11. ‘What Is the League for Democratic Rights?’ September 1951, FLPP, vol. 9, file 161; Roberts to the Special Committee on Immigration, 18 June 1952, CCLP, vol. 18, file 11; Roscoe Rodd, ‘Freedom! The People’s Prerogative,’ 26 – 8 October 1951, AAMP, file 5, and ‘Our Heritage of Liberty,’ LDR pamphlet, FLPP, vol. 8, file 143. Information kindly provided by Dr Miriam Garfinkle. ‘Resolutions Submitted to National Conference, 26 –7 October 1951,’ FLPP, vol. 9, file 161; CRU ‘Information Bulletin,’ December 1951, AAMP, file 13; Roberts to ‘The Special Committee on Immigration,’ 18 June 1952, JGDP, 1940–1956 series, vol. 10, file ‘Civil Liberties – League for Democratic Rights, 1952–1954’; Clarke, ‘“Keep Communism Out of Our Schools,”’ 118. ‘Conservatives Would Outlaw Communists,’ Montreal Star, 21 May 1948; House of Commons, Debates, 20 February 1950, 44 – 5, and 2 May 1950, 2077 ff., especially 2082; Wilfrid Eggleston, ‘How to Deal with Communists,’ Saturday Night, 16 May 1950; Whitaker and Marcuse, Cold War Canada, 188 –91. Ibid., 191–2, 201. Ibid., chapter 8; quote at 196. Scott Young, ‘Should I Keep My Commie Friend?’ Saturday Night, 10 November 1951. An Act to Confer Certain Emergency Powers upon the Governor in Council, SC 1951, c. 5. .

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438—Notes to pages 263–7 54 House of Commons, Debates, 24 June 1951, 4632. 55 Reedie, ‘The Process of Criminalization: An Examination of the Treason and Sedition Laws in Canada.’ 56 Arthur Blakely, ‘Ottawa Day by Day,’ Montreal Gazette, 3 May 1951; David Kashtan, ‘You Can Now Get 10 Years in Jail,’ Canadian Tribune, 7 April 1952. 57 Saturday Night: ‘Treason Is Getting Very Vague,’ 21 August 1951, ‘What’s Treason Nowadays?’ 3 May 1952; House of Commons, Debates, 25 June 1951, 4632, 4659, 4662; Senate, Debates, 29 June 1950, 741– 63; Globe: ‘Penalties for Subversive Acts,’ 28 June 1951, ‘The New Law of Treason,’ 16 May 1952, ‘No Hurry with New Code, 14 June 1952, ‘A Badly Drafted Code,’ 23 June 1952; Citizen: ‘Changes in the Criminal Code,’ 11 April 1952, ‘What Is Treason?’ 2 May 1952, ‘Revised Laws on Treason,’ 8 April 1954. 58 House of Commons, Debates, 25 June 1951, 4632, 4663; Senate, Debates, 29 June 1951, 741– 63. 59 House of Commons, Debates, 25 June 1951, 4639 – 40. 60 Whitaker and Marcuse, Cold War Canada, 200 –1. 61 An Act to amend the Criminal Code, SC 1951, c.47; Canadian Tribune: Tim Buck, ‘Their Viciousness Shows Their Fear,’ and ‘A Lawyer Looks at the Garson Gag Laws’ [anonymous], 6 July 1951, David Kashtan, ‘You Can Now Get 10 Years in Jail,’ 7 April 1952, ‘An Open Letter to MP’s from Tim Buck,’ 5 January 1953; CRU ‘Information Bulletin,’ August 1951 and September–October 1951, JEP, vol. 63, file 1316; ‘The Recent Amendments to the Criminal Code,’ FLPP, vol. 8, file 139. 62 Ibid. 63 ‘Minutes of Proceedings and Evidence of the Special [House of Commons] Committee on Bill No. 93 (Letter O of the Senate),’ in Select and Standing Committees of the Senate and House of Commons, vol. 1, 1953, 10 – 40, and vol. 3, 1953 – 4, 60. 64 ‘Broaden Treason Law to Cover Spies, Plotters,’ Globe, 14 May 1952; House of Commons, Debates, 23 January 1953, 1272; ‘Proceedings of the Standing Committee on Banking and Commerce,’ 11 June and 15 –16 December 1952, in Select and Standing Committees of the Senate and House of Commons, vol. 4, 1952, and vol. 2, 1953. 65 LDR brief, JEP, vol. 63, file 1317. 66 Canadian Tribune: Tim Buck, ‘Their Viciousness Shows Their Fear,’ 6 July 1951; David Kashtan, ‘You Can Now Get 10 Years in Jail,’ 7 April 1952; CRU ‘Information Bulletin,’ August, September-October 1951; ‘Keep McCarthyism Out of Canada,’ Globe, 22 January 1954; ‘It’s a Free Country .

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Notes to pages 267–72—439

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69 70 71 72 73 74 75 76 77

– Isn’t It?’ CLCP, vol. 18, file 11; ‘Magna Charta,’ 28 May 1953, JEP, vol. 63, file 1317. ‘To All LDR Branches and Affiliated or Associated Organizations,’ 16 September 1952, RCMP report, 8 October 1952, CSISF, vol. 4035, part 22, 191. CLCP: LDR press release of 19 November 1952, vol. 18, file 11, Roberts to trade union officials, vol. 28, file 11, Roberts to TLC, 20 November 1953, and Rodd to ‘the Canadian Trade Union Movement,’ vol. 18, file 11; LDR ‘Emergency Bulletin’ [n.d., summer of 1953?], AAMP, file 5; ‘Strike Penalty’ [n.d. June 1952?], ‘It’s a Crime’ [January 1953], and ‘It’s Still a Crime’ [n.d. 1953?], UBCA, SPAM 10877, 13146, and 19575; RCMP report, 22 January 1952, CSISF, vol. 4035, part 21, 327; LDR report, 22 December 1952, and ‘Protect Our Democratic Rights’ [September 1952], FLPP, vol. 9, file 161; LDR financial statement, 16 October 1951–31 December 1952, and LDR ‘Bulletin – Bill 7 Campaign,’ 5 March 1954, JEP, vol. 63, file 1317. ‘Minutes of Proceedings ... on Bill No. 93,’ vol. 1, 1953, 79 – 94 and appendix A. ‘Strike Penalty.’ House of Commons, Debates, 5 April 1954, 3665 ff.; Reedie, ‘The Process of Criminalization,’ 65. Senate, Debates, 29 June 1951, 741; ‘Strike Penalty.’ In the 1954 amendment, sabotage was prohibited by s. 52, and the saving clause was subsection (3). House of Commons, Debates, 8 April 1954, 3887–9. Ibid., 3899–916. ‘Ford-UAW Protests Anti-Union Bill H-8,’ Canadian Tribune, 24 November 1952. ‘Minutes of Proceedings ... on Bill No. 93,’ vol. 1 (1953), House of Commons, Debates, 19 January, 5 –7 April 1954. Correspondence on the Bill H–8 campaign, CLCP, vol. 18, file 11; CCL Circular Letter no. 319, 9 April 1954, AAMP, file 5; House of Commons, Debates, 6 April 1954, 3910. Whitaker and Marcuse, Cold War Canada, 210; House of Commons, Debates, 23 January 1953, 1278. House of Commons, Debates, 6 April 1954, 3708. Reedie, ‘The Process of Criminalization’; Whitaker and Marcuse, Cold War Canada, 203. The sedition case was Boucher v. R., [1951] SCR 265. ‘Duplessis Plans Revival of Quebec “Padlock Law,”’ Canadian Tribune, 13 April 1946; Montreal Gazette: ‘Police Raid Communist Offices to Seize .

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84 85

86 87 88

Rose Defence Leaflet,’ 10 December 1946, and ‘Padlock Law Is Fully Applied to Close Local Communist Paper,’ 17 February 1948. ‘Duplessis Policy Is to Smash Reds,’ Montreal Gazette, 29 January 1949. ‘The Padlock Law Threatens You,’ CLCP, vol. 335, file ‘The Padlock Law, 1955’; Montreal Gazette: ‘McGill Disclaims Link by Switzman,’ 29 January 1949, ‘McGill union suspends LPPers – Switzman hits at Padlock Law,’ 3 February 1949. Switzman v. Dame Elbling et Vir et le Procureur Général de la Province de Québec, [1954] B.R. 421; Scott’s factum, FRSP, vol. 105, file 4. Djwa, The Politics of the Imagination, 297–317. Scott to Forsey, 12 December 1955, FRSP, vol. 29, file 13, reel no. H-1290; Partridge, Glendon Partridge: Remembrances, 30, 138; miscellaneous files, GPP; RCMP report, 6 April 1954, CSISF, vol. 3394, file ‘Civil Liberties Union [LDR]’, 184 – 5; ‘Liste des Délégués’ of the International Conference, kindly provided by Dr Miriam Garfinkle. Marcus to Scott, 8 March 1955, FRSP, vol. 29, file 13, reel no. H-1290. Djwa, The Politics of the Imagination, 298; Comeau and Nadeau, ‘Actions de Jacques Perrault.’ RCMP report, 13 May 1955 and 26 May 1955, CSISF, vols. 2294 and 3394, file ‘Civil Liberties Union (LDR),’ 39 and 287–91; ‘Dear Friend,’ and ‘Cher confrère,’ 8 March 1955 [letters from Normandin], CCFP, vol. 147, file ‘Civil Liberties Union’; LDR ‘Civil Rights,’ vol. 1, no. 1 (July 1955), and no. 2 (October 1955), FLPP, vol. 9, file 161; ‘Fourth National Convention, United Jewish People’s Order – Record of Proceedings,’ 21 May 1954, and ‘Minutes – [UJPO] National Executive,’ 7 February 1956, UJPOP, file 01. Langford and Frazer, ‘The Cold War and Working-Class Politics in the Coal Mining Communities of the Crowsnest Pass, 1945–1958,’ 73; Rumilly, Maurice Duplessis, 540; Forsey to J.A. Corry, Larry Mackenzie to Scott, 6, 9 December 1955, Scott’s replies, 12 December 1955, 19 January 1956, and ‘Trust Fund to Contest the Padlock Law,’ 16 January 1958, FRSP, vol. 29, file 13, reel no. H-12; LDR ‘Civil Rights,’ vol. 1, no. 2 (October 1955), FLPP, vol. 9, file 161. Members of the trust board included: G.C. PapineauCouture, Q.C., the Rev. Charles C. Cochrane, Charles M. Cotton, Dr J. Cyril Flanagan, Dr Charles A. Kirkland, MLA, and Goodridge Roberts (JGDP, Series 3, vol. 10, file ‘Civil Liberties – Padlock Law,’ document 006909, reel no. M-7417). ‘The Padlock Law Again,’ Globe, 18 February 1948; ‘Centre Padlocked by Police, Literature Seized, Home Raided,’ and letter of protest, Montreal Gazette, 28 January and 14 March 1950; Saturday Night: ‘Who Is Subversive?’ 14 August 1948, ‘The Montreal Seizures,’ 15 February 1949, ‘Property Rights in Quebec, 21 February 1950. .

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Notes to pages 277–81—441 94 Switzman v. Elbling and AG of Quebec [1957] SCR 285; Globe: ‘Padlock Law in Quebec Said Invalid,’ 9 November 1956, ‘Padlock Law Ruled Invalid for Invading Federal Field,’ 8 March 1957. 95 Black, Render unto Caesar, 356. 96 Russell, The Supreme Court of Canada As a Bilingual and Bicultural Institution, 201. 97 Ken Lefolii, ‘The Poet Who Outfought Duplessis,’ Maclean’s, 11 April 1959; ‘Duplessis Policy Is to Smash Reds,’ Montreal Gazette, 29 January 1949; Quinn, The Union Nationale, 129; Sarra-Bournet, L’Affaire Roncarelli, 145. 98 Abella, Nationalism, Communism, and Canadian Labour; Avakumovic, The Communist Party in Canada, chapter 8; Fortin and Richardson, Life of the Party, 186. 99 RCMP report, 8 August 1957, CSISF, vol. 3394, file ‘Civil Liberties Union (LDR),’ 6. 100 Interview with Harry Arthurs, 21 July 1994, and June Callwood, 27 July 1994; minutes of the Steering Committee setting up the CCLA, 3 December 1964, JCP, vol. 18, file 18–11; Giesbrecht to Orlikow, 6 January 1963, JLCP, vol. 47, file 5. 101 Selected JLCP files, vol. 45: Charlton to Kaplansky, 22 February 1950, file 17, ‘Who’s Who at the Joint Labor Institute,’ 20 April 1952, file 18, ‘Report on Activities,’ September 1953, file 20, Buttedahl to Kaplansky, 15 November 1953, file 22; Sheldon Goldfarb [UBC AMS Archivist] to author, 26 August 1996. 102 Selected JLCP files, vol. 44: ‘Report of [Winnipeg] Joint Labor Committee to Combat Racial Intolerance,’ 9, 16 February, 17 May 1952, file 4, Kaplansky to Tipping, 19 September 1952, and McNab to Kaplansky, 22 December 1952, file 5, Orlikow to Kaplansky, 7 September 1954, file 11, ‘Report,’ January, April, September, December 1955, and January 1956, files 13, 15, 16; brief to the government of Manitoba, 1956, file 16. 103 Elkins, Simeon, et al., Small Worlds, 295. 7. The Dresden Story: The Jewish Labour Committee and Blacks in Dresden, Ontario 1 An earlier version of this chapter appeared in Labour/Le Travail as ‘“The Dresden Story”: Racism, Human Rights, and the Jewish Labour Committee of Canada.’ 2 Jewish Labour Committee finding aid, NAC; JLC brief to the Canadian House of Commons Standing Committee on Industrial Relations, reproduced at 40 of Kalmen Kaplansky’s ‘Notes,’ 1953, vol. 20, file 15; Kaufman,

442—Notes to pages 282–5 An Ambiguous Partnership, 12–16, 46; Paris, Jews, 129 –35, 147. There was also a third strand of Jewish socialism, the Zionists. Groups such as the Poale Zion wanted to achieve a Jewish workers’ state in Palestine. Tulchinsky, ‘The Jewish Experience.’ Kaplansky, ‘Notes,’ 1946 –7, 5 – 6, 22, 73 – 4, 222–3, vol. 20, file 3; Smith, The Unfinished Journey, chapters 10 and 11; Lewis, The Good Fight, 22, 135, 225, 295. Kaplansky, ‘Notes,’ 1946 –7, 5, 9 –19, vol. 20, file 3; Report on Labour Relations from Fine to JPRC (Eastern Division), 7 June 1946, and memorandum from Zaitlin to Hayes, 23 September 1946, CJCA, CD vol. 2, file 28; ‘Voice of the Unconquered,’ vol. 4, nos. 1 and 2, January-February 1946, CJCA, CD vol. 2, file 28z; Abella, None Is Too Many, 84, 116, 236, 259; Avery, Reluctant Host, 139; JLC finding aid, NAC; ‘Report of Activities for Improved Human Relations of the Jewish Labor [sic] Committee of Canada for the Year Ending July 31, 1947,’ vol. 20, file 4. Kaplansky, ‘Notes,’ 1946 –7, 17, vol. 20, file 3. Kaplansky, ‘Notes,’ 1946 –7, 94, vol. 20, file 3. Kaplansky, ‘Notes,’ 1946 –7, 193 – 8, vol. 20, file 3; Hayes to Stapleford [Charities Branch, Department of National Defence], 4 October 1941; Hayes to national officers of the United Jewish Refugee War Relief Agencies, 21 October 1941, CJCA, CA, vol. 14, file 94. Interview with Kalmen Kaplansky, 12 June 1996. CJCA: Cohen to Hayes, 8 July 1946, and Zaitlin to Hayes, 23 September 1946, vol. 2, file 28z; Zaitlin, ‘Report on Labour Activities,’ 21 February 1947, and Zaitlin to Hayes, 15 July 1947, ZA 1947, vol. 11, file 127a; Zaitlin to Hayes, 28 February 1947, ZA 1947, vol. 10, file 127; Kaplansky, ‘Notes,’ 1946 –7, 132–5, vol. 20, file 3. Interview with Kalmen Kaplansky, 12 June 1996; Kaplansky, ‘Notes,’ 1946 –7, 47, vol. 20, file 3. CJCA: Rubinstein to Fine [JPRC eastern region chair], 20 October 1944, Caiserman Papers, vol. 2, file 3; Zaitlin to Hayes, 4 November 1946, vol. 2, file 28z; Zaitlin to Hayes, 23 January 1947, ZA 1947, vol. 11, file 127a; Zaitlin, ‘Report on Recent Activities National Joint Public Relations Committee,’ 21 February 1947; Zaitlin to National Public Relations Committee [JPRC], 5 May 1947, CD vol. 2, file 28z; Kaplansky, ‘Notes,’ 1946 –7, 29, 162–3, vol. 20, file 3. Kaplansky, ‘Report,’ 31 July 1947, 1, KKP, vol. 20, file 4; Kaplansky, ‘Notes,’ 1946 –7, 1–3, 37– 45, 150, vol. 20, file 3; ‘Notes,’ 1950, 58 –9, 88, vol. 20, file 9; details of Kaplansky’s life from interview, 12 June 1996. Tulchinsky, Taking Root,’ 314 –15. .

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Notes to pages 286–94—443 15 Kaplansky, ‘Notes,’ 1946 –7, 104, vol. 20, file 3. 16 ‘Smoke Out and Fight Anti-Semitism, Racism Convention Demands,’ Canadian Tribune, 28 October 1944; Kaplansky, Notes,’ 1946 –7, 101, vol. 20, file 3. 17 Bothwell, Drummond, and English, Canada since 1945, 3. 18 ‘Voice of the Unconquered; Monthly Newsletter of the [American] Jewish Labor Committee,’ January-February 1946, CJCA, CD box 2, file 28z; Kaplansky, ‘Notes,’ 1946 –7, 1–2, 72 106, 108 –10, vol. 20, file 3; Kaplansky, ‘Report,’ 11 October 1948, vol. 24, file 3. 19 Kaplansky, ‘Notes,’ 1946 –7, 85, 90–2, vol. 20, file 3; ‘Notes,’ 1948, 22–8, vol. 20, file 5. 20 Kaplansky, ‘Notes,’ 1946 –7, 68, 88 – 9– 99, vol. 20, file 3; ‘Notes,’ 1954, 60 –2, vol. 21, file 2. 21 Kaplansky, ‘Notes,’ 1946 –7, 94 – 8, vol. 20, file 3. 22 Kaplansky, ‘Notes,’ 1946 –7, 106, 108 –10, 155, 163, 211, vol. 20, file 3; ‘Charge Labor Group Aim Is Largely “Soviet Baiting,”’ Toronto Star, 11 February 1947; Kaplansky interview, 12 June 1996. 23 Kaplansky, ‘Notes,’ 1946 –7, 193, 210 –11, vol. 20, file 3; ‘Notes,’ 1952, 62, vol. 20, file 13; Kaplansky interview, 12 June 1996. 24 Kaplansky, ‘Notes,’ 1946 –7, 87– 8, 169 –84, 193, vol. 20, file 3; Kaplansky interview, 12 June 1996. 25 Bengough to Zaitlin, 11 March 1947, and Mosher to Zaitlin, 12 March 1947, CJCA, ZA 1947, vol. 10, file 127; Zaitlin to Hayes, 15 July 1947, CJCA, ZA 1947, vol. 11, file 127a. 26 Kaplansky, ‘Notes,’ 1946 –7, 129 –143, vol. 20, file 3; ‘Labour Committee Minutes,’ CJCA, ZA 1947, vol. 11, file 127a. 27 Kaplansky, ‘Notes,’ 1946 –7, 57, 60, 155 –71, 211, 250 –1, vol. 20, file 3; ‘Notes,’ 1948, 36 –7, 74 – 5, 79, vol. 20, file 5; ‘Notes,’ 1949, 120, vol. 20, file 7. 28 Kaplansky, ‘Notes,’ 1946 –7, 165, vol. 20, file 3. 29 Kaplansky, ‘Notes,’ 1948, 6, vol. 20, file 5; interview with Kaplansky, 12 June 1996; ‘Notes,’ 1950, 110, vol. 20, file 9; Kaplansky to Orlikow, 25 February 1954, JLCP, vol. 44, file 10; ‘Notes,’ 1954, 64 – 6, 95, vol. 21, file 2; interview with Knute Buttedahl, 28 July 1997; ‘Report’ to Kaplansky, March 1954, JLCP, vol. 46, file 1; Buttedahl to Kaplansky, 19 December 1954, 10 January 1955, 8 February 1955, JLCP, vol. 46, files 3, 4. 30 Kaplansky, ‘Notes,’ 1953, 81, vol. 20, file 15. 31 Kaplansky, ‘Notes,’ 1946 –7, 49 –51, 61– 6, 151– 4, 167, vol. 20, file 3; ‘Notes,’ 1948, 4 –7, vol. 20, file 5; ‘Notes,’ 1949, 6, vol. 20, file 7. 32 Kaplansky, ‘Notes,’ 1950, 46, 84 –5, vol. 20, file 9; ‘Notes,’ 1953, 79, vol. 20, file 15; interview with Donna Hill, 8 June 1996. .

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444—Notes to pages 294–9 33 Blum to Campbell, 16 April 1962, JLCP, vol. 13, file 9; Kaplansky, ‘Notes,’ 1953, 81–2, 106, vol. 20, file 15; ‘Notes,’ 1954, 32, 73 – 4, vol. 21, file 2; ‘Notes,’ 1955, 45, vol. 21, file 4; ‘Notes,’ 1956, 113, vol. 21, file 6; Uncivil Obedience, 203 – 4; interview with Alan Borovoy, 11 June 2002. 34 Interview with Kalmen Kaplansky, 12 June 1996; Kaplansky, ‘Notes,’ 1946 –7, 130, 188 – 92, vol. 20, file 3; ‘Notes,’ 1952, 76 –7, vol. 20, file 14; ‘Notes,’ 1954, 3, vol. 21, file 2; Kaplansky to Milling, 15 May 1952, JLCP, vol. 41, file 6; Hill to Kaplansky, 16 November 1953, JLCP, vol. 41, file 14; ‘Donations, 1948 –1955,’ OLCHRP, vol. 2, file 1; Toronto committee’s ‘Financial Statement,’ April 1954, November 1954, April 1955, May 1955, JLCP, vol. 41, files 16, 18, 20; Andras to Kaplansky, 18 June 1953, and Kaplansky to Milling, 25 June 1953, JLCP, vol. 13, file 20, vol. 41, file 11. 35 Kaplansky, ‘Notes,’ 1954, 3 – 4, vol. 21, file 2; ‘Report of Progress, 1951,’ JLCP, vol. 41, file 4; Milling to Kaplansky, 11 February 1952, JLCP, vol. 41, file 5; Kaplansky to Markle, 23 August 1956, and Markle to Blum, 9 September 1959, JLCP, vol. 13, files 8, 9; Kaplansky, ‘Report,’ December 1949, 26 February 1953, 4 November 1953, vol. 20, file 8, vol. 41, file 9, vol. 41, file 14; interview with Dennis McDermott, 24 July 1994. 36 Kaplansky, ‘Notes,’ 1946 –7, 160, vol. 20, file 3; ‘Notes,’ 1949, 113 –15, vol. 20, file 7. 37 Kaplansky, ‘Report,’ March 1948, vol. 20, file 8; Kaplansky, ‘Notes,’ 1946 – 7, 59, 78, 80, 161, vol. 20, file 3; Kaplansky to Mosher, 29 August 1947, JLCP, vol. 13, file 15; ‘You Belong to a Minority,’ AMMC, vol. 39A, file 11. 38 Kaplansky, ‘Notes,’ 1949, 129, vol. 20, file 7. 39 Kaplansky, ‘Notes,’ 1948, 10, 78, vol. 20, file 5; ‘Notes,’ 1951, 63, vol. 20, file 11; ‘Notes,’ 1952, 49, vol. 20, file 13. 40 ‘TLC convention drafts drive for 65-cent wage,’ Globe, 27 September 1947. 41 Kaplansky, ‘Notes,’ 1946 –7, 149, vol. 20, file 3; ‘Notes,’ 1946 –7, 58, 184, 190, vol. 20, file 3; ‘Notes,’ 1955, 52–5, vol. 21, file 4. 42 Tillotson, ‘Human Rights Law As Prism’; Frager, Sweatshop Strife, 507–23. But note Kaplansky’s claims of JLC involvement in the FEFRA campaign, ‘Notes,’ 1951, 27– 9, vol. 20, file 11. 43 Sidney Katz, ‘Jim Crow Lives in Dresden,’ Maclean’s, 1 November 1949; ‘The Dresden Story’ [video]; Kaplansky, ‘Report,’ July–August 1949, vol. 20, file 7; ‘Hugh Burnette’s remarks on Dresden,’ 18 January 1954, and Sid Blum, ‘Report on Visit to Dresden,’ 22, 23 July 1954, OLCHRP, vol. 12, file 2. 44 McLean, Welcome Home, 78. 45 Winks, The Blacks in Canada, 294; Bartley, ‘A Public Nuisance,’ 164. 46 The Dresden Story [video]. In the documents examined for this chapter, Burnett signed his name ‘Burnette.’ According to historian James Walker, .

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Notes to pages 300–5—445

47

48

49 50 51 52 53 54

55 56 57 58 59

60 61 62

who knew Burnett well, later in life he found that the tomb of his grandfather or great-grandfather spelled the name ‘Burnett,’ and he adopted that spelling. Gordon Donaldson, ‘Fear “Martyr” Atmosphere if Prosecutions in Dresden,’ Telegram, 3 September 1954; Walker, ‘Race,’ Rights and the Law, 176; Regina v. Emerson; Regina v. McKay (1955), 113 CCC 56 [referring to Burnett’s earlier lawsuit]. McLean, Welcome Home, 82; ‘Hugh Burnette’s remarks on Dresden,’ 18 January 1954, OLCHRP, vol. 12, file 2; Katz, ‘Jim Crow’; Burnett to Kayfetz, 9 April 1949, JCRCC, JPRC Correspondence 1947, reel no. 6, file 12. JLCP: Park to Himel, 24 March 1954, and Hill to Kaplansky, 28 March 1954, vol. 41, file 15; Blum to Borovoy, 23 July 1959, vol. 42, file 14. Kaplansky, ‘Notes,’ 1948, 44, vol. 20, file 5. Kaplansky, ‘Report,’ July-August 1949, ‘Notes,’ 1949, 85 – 8, vol. 20, file 7; Katz, ‘Jim Crow.’ Blum, ‘Report on visit to Dresden,’ OLCHRP, vol. 12, file 2; McLean, Welcome Home, 81. Ontario Legislative Assembly, Debates, 1 April 1954, 1085 – 6. Globe: ‘Dresden Voters Reject Equality for Negroes,’ 6 December 1949, ‘Wide Criticism Follows Plebiscite in Dresden,’ 7 December 1949, ‘Dresden Draws the Color Line,’ 8 December 1949. Frank Tumpane, ‘Private Prejudice,’ Globe, 22 June 1954. ‘To Mayor Walter S. Weese and Council’ [NUA brief], 5 February 1951, LMFP (General Correspondence), vol. 48, file 87–G. Kaplansky, ‘Report,’ May 1951, April and May 1953, vol. 20, file 12, and vol. 21, file 1; ‘Now,’ Windsor Daily Star, 9 May 1951. Kaplansky, ‘Report,’ June 1953 and November 1953, vol. 21, file 1. ‘Discrimination “Not Illegal” in Ontario,’ and ‘No Ontario Law against “Jim Crow” Negro Group Told,’ Telegram, 10 and 11 December 1953; Hill to Burnett, 16 December 1953, Burnett to Hill, 24 December 1953, OLCHRP, vol. 12, file 1; Hill to Burnett and Kayfetz, 2 February 1954, OLCHRP, vol. 12, file 1; Kayfetz to Laskin, 7 January, Kayfetz to Grizzle and to Burnett, 9 February 1954, JCRCC, vol. 5, file 3. Himel to ‘Dear Friends,’ 5 February 1954, JLCP, vol. 19, file 6; ‘Discrimination Protest Heard by Frost, Cabinet,’ Toronto Star, 24 March 1954. Sohn, ‘Human Rights Policy in Ontario,’ 137; Roberts to Frost, 5 March 1954, LMFP, vol. 162, file ‘Racial Discrimination, Letters re.’ ‘Outlawing Discrimination,’ Globe, 31 March 1954; An Act to Promote Fair Accommodation Practices in Ontario, SO 1954, c. 28; Ontario Legislative Assembly, Debates, 29 March 1954, 974, and 1 April 1954, 1087, 1080. .

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446—Notes to pages 305–8 63 Graham, Old Man Ontario, 172– 4; Bruner, ‘The Genesis of Ontario’s Human Rights Legislation,’ 249; ‘Outsiders Stir Trouble at Dresden, MPP Claims,’ Toronto Star, 2 April 1954. 64 Tarnopolsky, Discrimination and the Law, chapter 2. 65 Hill to Kaplansky, 5 April, 4 May, 1954, JLCP, vol. 41, file 16; ‘Discrimination and the Law’ [letter from Blum], Globe, 18 September 1955. 66 ‘Mr. Frost on Discrimination,’ Toronto Star, 29 March 1954; ‘Outlawing Discrimination,’ Globe, 31 March 1954. 67 Blum to Hill, 23 April, 1954, JLCP, vol. 41, file 16; ‘Leaflet for NUA Sixth Annual Banquet,’ OLCHRP, vol. 12, file 2; notarized statement by Hugh Burnett, 17 June 1954, Blum to Burnett, 21 June 1954, OLCHRP, vol. 12, file 1. 68 Blum to Toronto labour committee members, 1 August 1954, OLCHRP, vol. 12, file 1. 69 ‘Official sent to Dresden in racial fuss,’ Telegram, 25 June 1954; Blum to Rev. Grant L. Mills [Dresden United Church], 11 August 1954, OLCHRP, vol. 12, file 2l; Burnett to Blum, n.d. [1954], OLCHRP, vol. 12, file 1; Blum’s report of ‘telephone conversation with Mr. Nutland,’ 13 July [1954], OLCHRP, vol. 12, file 22. 70 McLean, Welcome Home, 82. 71 McLean, Welcome Home, 82–3, 85; Burnett to Magone [deputy attorney general], 28 June 1954 (c.c. to Blum), OLCHRP, vol. 12, file 1; press release, 30 June 1954, and Blum to Nutland, 29 June 1954, OLCHRP, vol. 12, file 2; Telegram, 19 June 1954. 72 ‘Dedication’ of Borovoy, Uncivil Obedience; Blum, ‘Report on Visit to Dresden,’ 22, 23 July 1954, OLCHRP, vol. 12, file 2; ‘Dresden, the Fair Accommodation Practices Act, and the Frost Government,’ 26 July 1954, JLCP, vol. 41, file 17. 73 Blum to Daley, 3 September 1954, OLCHRP, vol. 12, file 2; Blum to Toronto labour committee members, 1 August 1954, OLCHRP, vol. 12, file 1; ‘Ontario Govt. Ignores Own Law, Labor Charges,’ Toronto Star, 6 August 1954; ‘Dresden – Labour Jim Crow Still Stalks,’ Telegram, 6 August 1954; Gordon Donaldson, ‘Race Law Fails, Negroes Insulted,’ Telegram, 2 September 1954, and ‘Fear “Martyr” Atmosphere if Prosecutions in Dresden,’ Telegram, 3 September 1954; Donaldson, ‘I Saw Race Hatred in a Canadian Town,’ Liberty, December 1955; Kaplansky, ‘Report,’ September 1954, November 1954, vol. 21, file 3; Kaplansky, ‘Notes,’ 1954, 76, 79, vol. 21, file 2; Blum to Burnett, 14 October 1954, OLCHRP, vol. 12, file 2. 74 Kaplansky, ‘Report,’ August, 1954, vol. 43, file 23. .

Notes to pages 308–12—447 75 ‘Negro Tourists Refused Meal, Is Dresden Charge,’ Toronto Star, 28 August 1954; ‘Racial Bar Test Could Set Canadian Precedent,’ Vancouver Sun, 27 September 1954. 76 ‘Report of His Honour Judge W.F. Schwenger in the Matter of the Fair Accommodation Practices Act, 1954, and in the Matter of a complaint of Hugh R. Burnette,’ and ‘Report of His Honour Judge W.F. Schwenger in the Matter of the Fair Accommodation Practices Act, 1954, re: Complaint of Lyle Emerson Talbot,’ OPA, RG 76 – 3 – 0 –2, ‘Legal Rulings 1954 –1958 FAPA’; Kaplansky, ‘Report,’ September 1954, vol. 21, file 3. 77 ‘Admit Refusing Food To Colored Customers to “Protect Business,”’ Toronto Star, 28 September 1954. 78 ‘Decide against Prosecution,’ Globe, 21 October 1954; Schwenger, ‘Report.’ 79 ‘Slap on the Wrist,’ Globe, 21 October 1954; ‘Fetters on Law,’ Telegram, 22 October 1954; Frank Tumpane, ‘Daley’s Cream Puff,’ Globe, 23 October 1954; interview with Bromley Armstrong, 26 July 1994; Armstrong and Taylor, Bromley. 80 Interview with Bromley Armstrong, 26 July 1994. The account given by Armstrong at page 85 of his book Bromley is slightly different from the story he gave to the author in the interview, but the interview is somewhat closer to the account given by Blum in his summary – Blum to Burnett, 6 December 1954, OLCHRP, vol. 6, file 10. 81 Gordon Donaldson, ‘Daley Backs Faith,’ Telegram, 30 October 1954; ‘Dresden’s Color Bar,’ Toronto Star, 30 October 1954; ‘Daley Words Despicable, Dresden Groups Charge,’ Toronto Star, 24 May 1955; Report of the Joint Labour Committee, 31 March and 14 May 1956, JLCP, vol. 42, file 2. 82 ‘Let’s Face Our Own Color Problems First,’ Maclean’s, 12 May 1956. 83 Blum to Giesbrecht [Vancouver Labour Committee for Human Rights], 24 December 1957, JLCP, vol. 46, file 14. 84 Blum to Kaplansky, 10 February 1956, JLC Papers, vol. 42, file 1; ‘Daley Consents to Charge Dresden Restaurant Man,’ Toronto Star, 3 November 1954; Regina v. McKay [1955], 113 CCC 56; Regina v. Emerson [1955], 113 CCC 69. 85 Kaplansky, ‘Notes,’ 1955, 92, vol. 21, file 4. 86 JPRC Minutes, 19 September 1955, JCRCC, vol. 6, file 2. 87 Kaplansky, ‘Notes,’ 1955, 92, vol. 21, file 4; Kaplansky, ‘Report,’ March 1956, vol. 21, file 7. 88 Irving Himel, ‘Dresden,’ Canadian Forum, October 1955; Kaplansky, ‘Notes,’ 1955, 93 – 4, vol. 21, file 4. .

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448—Notes to pages 312–18 89 Kaplansky, ‘Notes,’ 1955, 89 –97, 113 –15, vol. 21, file 4; Kaplansky, ‘Report,’ September 1955 and October 1955, vol. 21, file 5. 90 Kaplansky, ‘Notes,’ 1956, 7–12, vol. 21, file 6. 91 Kaplansky, ‘Notes,’ 1956, 27, vol. 21, file 6. 92 ‘Draw Blind, Lock Door McKay’s System of “No Service” – Crown,’ Toronto Star, 18 January 1956. 93 ‘Fair Practices New Deal Sought by 11 Groups,’ Globe, 10 February 1956; Sohn, ‘Human Rights Policy in Ontario,’ appendix J (at 390). 94 Blum to Kaplansky, 10 February 1956, JLCP, vol. 42, file 1. 95 ‘Summary of Evidence re: Complaints of Denial of Service,’ OLCHRP, vol. 12, file 2; Regina ex Rel. Nutland v. McKay (1956), 115 CCC 104; ‘Café Man Fined; Denied Service to Two Negroes,’ Globe, 29 February 1956; Kaplansky, ‘Notes,’ 1956, 26, vol. 21, file 6. 96 R. ex rel. Nutland v. McKay, [1956] 5 DLR (2d) 403, 105 CCC 56; Kaplansky, ‘Notes,’ 1956, 71, vol. 21, file 6; Ronald Collister, ‘Guilty in Color Case – Won’t Change Stand,’ Telegram, 23 May 1956. 97 ‘Actions Speak Louder,’ Globe, 28 May 1956. 98 Kaplansky, ‘Report,’ June 1956, and November 1956, JLCP, vol. 42, file 4. 99 McLean, Welcome Home, 89; ‘Claim Lake Cottage Refused U.S. Negroes,’ and ‘Reputations in Danger,’ Globe, 4 July 1960; ‘Discrimination Here: Far from Licked,’ Toronto Star, 1 September 1960; ‘Why Martin Luther King Didn’t Spend His Summer Vacation in Canada,’ Globe, 14 January 1995. 100 Kaplansky, ‘Report,’ March 1954, vol. 21, file 7. 101 Maxwell to Blum, reports for May 1958 and June, 2 July 1958, JLCP, vol. 42, files 10, 9; MacDonald, ‘Race Relations and Canadian Law,’ 126 –7; Sohn, ‘Human Rights Policy in Ontario,’ chapter 5. 102 Kaplansky, ‘Notes,’ 1956, 28, vol. 21, file 6; Kaplansky, ‘Report,’ October 1956, vol. 21, file 7. 103 Tarnopolsky, Discrimination and the Law, chapter 2. 104 KKP finding aid, NAC. 105 M. Rubinstein, ‘Address,’ 29 October 1959, JLCP, vol. 9, file 22. 106 JLCP, vol. 40. 107 Ibid., vol. 42, especially files 19, 20. 108 Ibid., vol. 45. 109 Ibid., vol. 46. A partial look at this can be found in Lambertson, ‘The Black, Brown, White, and Red Blues.’ .

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8. The Canadian Human Rights Community and the Bill of Rights 1 Mills, Fool for Christ, 245.

Notes to pages 319–25—449 2 League for Social Reconstruction Research Committee, Social Planning for Canada, 503 – 8. 3 Scott, Civil Liberties and Canadian Federalism, 12. 4 Lower, Colony to Nation; Loring C. Christie, ‘Notes on the Question of a Canadian Bill of Rights,’ 31 December 1937, DEAP, vol. 722, file 60. 5 Elkins, Small Worlds, 298; Cairns, ‘Recent Federalist Constitutional Proposals’; Mills, ‘Of Charters and Justice.’ 6 Cairns, ‘The Judicial Committee and Its Critics’ [references to F.R. Scott at 308 –11]; Cairns, Charter versus Federalism, 19. 7 Hutchison, The Far Side of the Street, 164 – 6; Donnelly, Dafoe of the Free Press. 8 J.W. Dafoe, ‘The Challenge to Democracy,’ UTL pamphlet, 1933; ‘Protecting Our Birthrights: Disallowance or Bill of Rights?’ [Winnipeg Free Press Pamphlet, quoting from editorials written on 18 August, 28 October, and 22 December 1937, as well as 8 February and 8 July 1938, 8 June and 15 August 1939, and May 1954], RCP, vol. 2153, file 1. 9 ‘Brief Submitted to Royal Commission on Dominion-Provincial Relations by the Native Sons of Canada,’ 8 December 1937, Royal Commission on Dominion-Provincial Relations, vol. 2, 17, 20, 26. 10 MacLennan, Toward the Charter, 32, 54. 11 Lower, My First Seventy-Five Years, 212; Lower’s brief to the prime minister, 8 May 1951, ARMLP, vol. 46, file 22. 12 Reference re Alberta legislation [1938] SCR 107. 13 Stubbs, A Majority of One, 162. 14 Ballantyne to Lewis, 2 March 1939, and Lewis to Ballantyne, 18 March 1939, CCFP, vol. 146, file ‘Civil liberties Union.’ 15 Scott, ‘The Constitution and the Post-war World,’ 81–2; Lewis and Scott, Make This Your Canada, 184; Coldwell, Left Turn, Canada, appendix B, 236 –7. 16 Grube, ‘Freedom and the CCF,’ 14; Underhill, ‘Dominion-Provincial Relations,’ 156. 17 ‘Program of the LPP,’ Canadian Tribune, 25 November 1944. 18 Pickersgill, The Mackenzie King Record, vol. 1, 354 –5; Hutchison, ‘We Need a Bill of Rights,’ Winnipeg Free Press, 29 February 1944. 19 ‘Report of Committee on Civil Liberties,’ Canadian Bar Review 22 (1944): 598 – 617, at 617. 20 For a summary of arguments at the time, see Tarnopolsky, The Canadian Bill of Rights, 12–13. For a discussion of democracy and the Charter, see Morton and Knopff, The Charter Revolution, chapter 7. 21 Dominion-Provincial Conference (1945): Dominion and Provincial Submissions and Plenary Conference Discussions, 180. .

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450—Notes to pages 326–33 22 House of Commons, Debates, 13 September 1945, 135 – 8, at 138; 10 October 1945, 900. 23 Ibid., 13 September 1945, 136, 8 May 1946, 1340; Barsky, ‘How ‘Numerus Clausus’ Was Ended’ [on Stewart]. 24 House of Commons, Debates, 21 March 1946, 137. 25 Diefenbaker, One Canada, vol. 1, The Crusading Years; vol. 2, The Years of Achievement. 26 Belliveau, ‘Mr. Diefenbaker,’ 43. 27 House of Commons, Debates, 21 March 1946, 137– 8; 16 May 1947, 3158. 28 ‘Invasion of civil rights in Canada,’ Toronto Star, 7 May 1946. 29 Tarnopolsky, The Canadian Bill of Rights, 92. 30 House of Commons, Debates, 7 July 1960, 5886. 31 Ibid., 5909. 32 Scott, ‘Dominion Jurisdiction over Human Rights’; Minutes of Proceedings and Evidence of the Special Committee on Human Rights and Fundamental Freedoms, 1960, 24, 193, 408 [Fulton]; Belliveau, ‘Mr. Diefenbaker, 96 –7. 33 Tarnopolsky, The Canadian Bill of Rights, 65. 34 Lower to Henderson, 24 July 1946, ARMLP, vol. 46, file 21; Warren Baldwin, ‘Ottawa Repeals Orders Held Valid in Courts for Deportation of Japs,’ Globe, 25 January 1947. 35 House of Commons, Debates, 16 May 1947, 3158. 36 Ibid., 12 April 1948, 2856. 37 Diefenbaker, Those Things We Treasure. 38 House of Commons, Debates, 21 March 1946, 137. 39 Campbell and Christian, Parties, Leaders, and Ideologies in Canada, 203; House of Commons, Debates, 23 November 1945, 2454 – 5; Smith, Rogue Tory, 347. 40 An Act respecting the Rights of Alberta Citizens, SA 1946, c. 11; Schmeiser, Civil Liberties in Canada, 72–3; Macpherson, Democracy in Alberta, 208 –9. 41 AG for Alta v. AG for Canada, [1947] AC 503. 42 House of Commons, Debates, 2 April 1946, 494. 43 Bercuson and Cooper, ‘From Constitutional Monarchy to Quasi Republic’; House of Commons, Debates, 3 May 1946, 1208; W.J. Morton, ‘A Study of the Citizenship Act’ [transcript of radio broadcast], 17 January, 1947, FLPP, vol. 9, file 152. 44 House of Commons, Debates, 2 April 1946, 513; 2 May 1946, 1145, 1214; 7 May 1946, 1303 – 9. 45 Ibid., 7 May 1946, 1300, 8 May 1946, 1340, 16 May 1946, 1576; ‘We Need a Bill of Rights,’ Ottawa Journal, 15 May 1946; ‘Mr. Diefenbaker’s Fine Service,’ Globe, 10 May 1946; radio transcripts, FLPP, vol. 9, file 152. .

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Notes to pages 333–8—451 46 Lower to Fraser, 9 March 1946, ARMLP, vol. 46, file C–20; Lower, My First Seventy-Five Years, 292. 47 Berger, The Writing of Canadian History, 131; Young, ‘Chauvinism and Canadianism,’ 45 – 6. 48 CLAW to senators and members from Manitoba in the Parliament of Canada, n.d. [November 1945], ARMLP, vol. 46, file C–34; Lower, ‘Some Reflections on a Bill of Rights,’ 235. 49 Lower to King, 6 May 1946, WLMKP, Reel C–9172, document 367910; Lower to Owens, 17 June 1946, ARMLP, vol. 46, file 21. 50 ‘Bill of Rights’ and ‘Bill of Rights Idea,’ Saturday Night, 2 February 1946, and 18 May 1946; Lower to Henderson, 24 July 1946, ARMLP, vol. 46, file 21. 51 Lower to Owens, 17 June 1946; Lower to Henderson, 24 July 1946, ARMLP, vol. 46, file 21; Lower to Garson [federal minister of justice], 25 November 1948, ARMLP, vol. 2, file A-31. 52 Correspondence between Lower and the ECCR, 18, 20, and 24 July 1946, ARMLP, vol. 46, file 21; ‘Civil Rights’ [ECCR newsletter], vol. 1, no. 1, 15 August 1946, WEP, vol. 14, file 15. 53 Lower to Owens, 23 February 1947, ARMLP, vol. 2, file A-28. 54 Owram, Government Generation, 185; Brennan, Reporting the Nation’s Business, x–xi, 5. 55 Free Press: ‘Diefenbaker Seeking Larger Bill of Rights,’ 20 May 1946, ‘Lawyers and Liberty,’ 29 August 1946. 56 Saturday Night: ‘Freedom, Security,’ 26 October 1946, ‘Bill of Rights,’ 15 February 1947, ‘Against U.N. Principles,’ 21 June 1947, ‘Communists and Rights,’ 24 April 1948; ‘Constitutionalism,’ Fortnightly Law Journal, 1 October 1946. 57 ‘Minutes of Exploratory Conference between the Montreal, Ottawa and Toronto Civil Liberties Associations and the Civil Rights Union (formerly the Emergency Committee for Civil Rights),’ 28 –29 December 1946, FLPP, vol. 9, file 156; Scott, ‘Dominion Jurisdiction over Human Rights and Fundamental Freedoms.’ 58 ‘Dick Ruling on Civil Rights Held Example for Ottawa,’ Toronto Star, 28 January 1947. 59 Lower, ‘Some Reflections on a Bill of Rights.’ 60 Chitty to Lower, 30 January 1947, ARMLP, vol. 2, file A–28; Lower to Diefenbaker, 28 January 1947, JGDP, 1940 –1956 series, vol. 10, file ‘Civil Liberties – Manitoba, 1946 –1948’; Diefenbaker to Lower, 7 February 1947, ARMLP, vol. 2, file A–28; House of Commons, Debates, 16 May 1947, 3156; Fortnightly Law Journal: ‘The Proposal of a Bill of Rights,’ 2 July 1946, ‘The Proposal for a Bill of Rights,’ ‘Democratic Limitations on Legislative Sovereignty,’ 15 February 1947. .

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452—Notes to pages 338–43 61 House of Commons, Debates, 30 January 1947, 1, and 12 April 1948, 2861; ‘A Bill of Rights for Canada,’ Toronto Star, 31 January 1947; House of Commons, Debates, 16 May 1947, 3182; Spaulding to Ilsley [minister of justice], 5 February 1947, FLPP, vol. 9, file 155; ‘Public Opinion and Civil Liberty,’ Winnipeg Free Press, 28 February 1947; Brewin to Baldwin [ACLU], 5 March 1947, ACLUP, vol. A, file 7; Kaplan, State and Salvation, ‘Epilogue’; Botting, Fundamental Freedoms and Jehovah’s Witnesses, chapter 4. 62 McWhinney, ‘The Bill of Rights, the Supreme Court, and Civil Liberties in Canada,’ 271. 63 House of Commons, Debates, 16 May 1947, 3140ff. 64 Mackenzie to King, 18 November 1946, WLMKP, vol. 401, reel no. 9173, document 368906; MacLennan, ‘Toward the Charter,’ 132–6. 65 Ryan, ‘More about a Bill of Rights.’ 66 House of Commons, Debates, 16 May 1947, 4646; 9 May 1947, 3215. 67 Minutes of Proceedings and Evidence of the Special Joint Committee of the House of Commons and Senate on Human Rights and Fundamental Freedoms, 1948, 75. 68 ‘Submission of Committee for a Bill of Rights in Support of Statement for a Bill of Rights to the Special Joint Committee of the Senate and House of Commons on Human Rights and Fundamental Freedoms,’ JCCAP, vol. 13, file 2. 69 Minutes of Proceedings [1948 committee], 67, 132 – 4. 70 Minutes of Proceedings and Evidence of the Special Joint Committee of the House of Commons and Senate on Human Rights and Fundamental Freedoms, 1947, 113, 115, and viii of the final report. On the role of the National Council of Women, see MacLennan, Toward the Charter, 96 – 8. 71 Himel to Baldwin, 21 September 1946, ACLUP, vol. 2732; Brewin to Scott, 24 March 1947, FRSP, vol. 10, file ‘Civil Liberties, National Council 1946 – 1951,’ reel no. H-1222; Maude Grant, for the ‘Citizens’ National Committee for a Bill of Rights’ [form letter], March 1947, WLMGP, vol. 47, file ‘Notes and Memoranda Civil Liberties Association’; CFBR to Lorne Pierce, 15 May 1947, LPP, vol. 19, file 5; ‘A Written Constitution for Canada,’ Toronto Star, 2 August 1947; Brewin to Scott, 23 May 1947, FRSP, vol. 10, file 8, reel no. H-1222. 72 O’Halloran, ‘Inherent Rights,’ Obiter Dicta 22: 1–3 (1947); ‘The TwentyNinth Annual Meeting of the Canadian Bar Association,’ Canadian Bar Review 25 (1947): 743 –54, at 751; ‘The Thirtieth Annual Meeting of the Canadian Bar Association,’ Canadian Bar Review 26 (1948): 1097–1103, at 1110; ‘The Thirtieth Annual Meeting of the Canadian Bar Association,’ Canadian Bar Review 26 (1948): 831– 43, at 837. .

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Notes to pages 344–7—453 73 ‘TLC Convention Drafts Drive for 65-cent Wage,’ and ‘Left-Wing Union Move on Bill of Rights Issue Splits TLC Convention,’ Globe, 27 September 1947. 74 Kaplansky, ‘Notes,’ 1946 –7, 253 – 4, vol. 20, file 3; MacLennan, Toward the Charter, 95. 75 Waines to Diefenbaker, 7 March 1947, and Diefenbaker to Waines, 13 March 1947, JGDP, 1940 –1956 series, vol. 10, file ‘Civil Liberties – Manitoba, 1946 –1948’; Lower to Diefenbaker, 12 November 1947, ARMLP, vol. 2, file A-29. 76 Diefenbaker to Lower, 13 January 1948, ARMLP, vol. 2, file 30. 77 House of Commons, Debates, 31 March 1948, 601–6, 12 April 1948, 2861, 2863; Globe: ‘Can’t Cure Intolerance by Law, Says Blackwell as CCF Bill Defeated,’ 29 October 1947, ‘Bill to Outlaw Race Intolerance Defeated,’ 1 April 1948; Lee, ‘The Road to Enfranchisement’; ‘The Padlock Law Again,’ Globe, 18 February 1948. 78 ‘A World Bill of Rights’ and ‘Toward a Bill of Rights,’ Winnipeg Free Press, 14 February 1947 and June 1947 [reprinted in WFP pamphlet ‘Bill of Rights for Canada’]; ‘A Bill of Human Rights,’ Toronto Star, 25 January 1947; ‘Second Class Citizens’ and ‘Human Rights,’ Canadian Forum, April 1948 and January 1949; ‘The New Declaration,’ Saturday Night, 15 March 1949; Humphrey, ‘The Draft International Declaration’ and ‘The Universal Declaration of Human Rights’; House of Commons, Debates: 12 April 1948, 2856, 2861, 14 March 1950, 726, 24 March 1952, 721. 79 House of Commons, Debates, 9 April 1948, 2842; Minutes of Proceedings [1948 committee], 91, 112, 183, 197, 202. 80 House of Commons, Debates, 9 April 1948, 2845; ‘The Joint Committee on Human Rights and Fundamental Freedoms,’ Canadian Bar Review 26 (1948): 706 –14. 81 House of Commons, Debates, 9 April 1948, 2846 –7, 12 April 1948, 2863 [ruled out of order by the speaker at 2871], 22 September 1949, 148, 25 October 1949, 1173 [ruled out of order], 4 December 1951, 1561, 24 March 1952, 714, 21 January 1953, 1191, 7 February 1955, 894. 82 Minutes of Proceedings [1948 committee], 146, 210. On the role of the CJC, see MacLennan, Toward the Charter, 98 –9. 83 ‘Submission of Committee for a Bill of Rights in Support of Statement for a Bill of Rights to the Special Joint Committee of the Senate and the House of Commons on Human Rights and Fundamental Freedoms,’ Special Joint Committee on Human Rights and Fundamental Freedoms Papers (1947 and 1948), vol. 51. .

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454—Notes to pages 349–57 84 Forsey, ‘The Prince Edward Island Trade Union Act, 1948’; ‘P.E.I. Labor Law,’ Saturday Night, 3 July 1948. 85 How, ‘The Too Limited Jurisdiction of the Supreme Court of Canada; ‘Anomalies of Appeal to the Supreme Court,’ Fortnightly Law Journal, 2 July 1946, 38. 86 Brief of CRU to Special Joint Committee on Human Rights, 4 June 1948, AAMP, file 3; Canadian Tribune, 26 June 1948. 87 ‘Civil Rights Union,’ Saturday Night, 26 June 1948. 88 Minutes of Proceedings [1948 committee], 188, 202, 209. 89 L’Action Catholique, 14 October 1948; ‘Anti-Bill of Rights Case,’ Saturday Night, 31 January 1950. 90 Scott, ‘Dominion Jurisdiction over Human Rights.’ 91 House of Commons, Debates, 9 February 1949, 317; Kaplan, State and Salvation, 258 – 9; Kaplansky, ‘Notes,’ 1946 –7, 147, 240, 253 (vol. 20, file 3); Kaplansky, ‘Notes,’ 1948, 93 –7 (vol. 20, file 5); Kaplansky, ‘Notes,’ 1949, 1, 44 (vol. 20, file 7). 92 MacLennan, Toward the Charter, 90 –1; Carrigan, Canadian Party Platforms, 175, 180, 200. 93 House of Commons, Debates, 26 October 1949, 1173; Senate, Debates, 3 November 1949, 215–18, and 9 December 1949, 464 –7). Himel to Baldwin, 2 November 1949, ACLUP, vol. C, file 14; 1950 Senate Committee [hereafter, Roebuck committee] Minutes, 33. 94 Roebuck committee Minutes, 33; Garson to Norman Robertson [secretary to the cabinet], 6 July 1950, PCOR, RG2, box 253, file U – 41–H (vol. 2), 1950–1; MacLennan, Toward the Charter, chapter 3. 94 Roebuck committee Minutes, 304 –7. 96 Proceedings of the Constitutional Conference of Federal and Provincial Governments, 10–12 January 1950, 36; MacLennan, Toward the Charter, 102–3. 97 Saturday Night: ‘In the Absence of a Bill of Rights,’ 25 July 1950, ‘Four Days That Shook Canada,’ 3 October, 1950, ‘That “Supreme” Parliament,’ 27 February 1951; A.R.M. Lower: ‘What Is Democracy?’ and ‘How to Maintain Democracy,’ Winnipeg Free Press, 7 and 13 November 1950, and ‘Whence Cometh Our Freedom,’ Food for Thought, February 1951; ‘“Fight for Freedom” Empty – Group Asks “Bill of Rights,”’ Toronto Star, 8 May 1951; House of Commons, Debates, 14 May 1951, 2980; Canadian Unionist 25: 8 (June 1951); ‘Keeping Discussion Calm,’ Saturday Night, 5 June 1951. 98 ‘Reminder to Ottawa,’ Globe, 15 May 1951; Scott to Sandwell, 25 April 1951, FRSP, vol. 9, file 11, reel no. H-1221. 99 House of Commons, Debates, 21 May 1951, 3209. .

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Notes to pages 357–61—455 100 MacLennan, Toward the Charter, 106 –7; Roebuck committee Minutes, 82, 211, 229, 253, 269; ‘Time of Emergency,’ Saturday Night, 23 May 1950; House of Commons, Debates, 2 May 1950, 2104. 101 CRU Bulletin, June 1951, FLPP, vol. 9, file 155; LDR newsletter, 28 May 1953, LDR special bulletin, 23 October 1953, JEP, vol. 63, file 1317; House of Commons, Debates, 7 February 1955, 906. 102 Kaplansky, ‘Notes’ for 1952, 4, 25, 87– 92, 1953, 26, 1955, 129 –30, 1956, 48, vol. 20, files 13 and 15, and vol. 21, files 4 and 6; MacLennan, Toward the Charter, 96. 103 For Diefenbaker outside Parliament, see: ‘Need Seen Urgent for Bill of Rights,’ Montreal Gazette, 17 March 1950, ‘PC Party and Bill of Rights,’ Saturday Night, 10 July 1951, ‘Freedom and Responsibility,’ Food for Thought, 13 (October 1952), 15 –18. For supporters within Parliament, see House of Commons, Debates, 16 October 1951, 87, and 24 March 1952, 730 [Stewart]; 6 April 1954, 3714 [Knowles]; 14 April 1954, 4087 [Castledon]; 7 February 1955, 894 – 5 [Croll and Coldwell]; 30 January 1956, 690 [Coldwell]. 104 Saumur v. Québec, [1953] 2 SCR 299; Laskin, ‘Our Civil Liberties: The Role of the Supreme Court,’ 471. 105 ‘Needed – A Reference to Supreme Court,’ Winnipeg Free Press, 21 January 1954; ‘A Dangerous Amendment,’ Saturday Night, 3 February 1954. 106 Winnipeg Free Press: ‘Protecting Our Birthrights: Disallowance or Bill of Rights?’ [Free Press pamphlet no. 51, May 1954], 20, ‘Constitutional Freedom in Peril,’ January 1954, and ‘Citizenship: The Threat to Our Freedom’ [no. 49]. 107 Sifton to Lower, 22 June 1954; Lower to Himel, 6 July and 23 August 1954, ARMLP, vol. 46, file C–22. 108 Himel to Lower, 22 July 1954, ARMLP, vol. 46, file 22. 109 ‘Revised Laws on Treason,’ Ottawa Citizen, 8 April 1954; House of Commons, Debates, 7 February 1955, 906 [Garson]. 110 Fraser, ‘Can McCarthy Happen Here?’ Maclean’s, 15 March 1954. 111 Gallup poll, 2 February 1957, JGDP, Series 4, reel no. M-5557, vol. 22, file 413.1. 112 Corrigan, Canadian Party Platforms, 221, 239; Young, Anatomy of a Party, appendix A (Winnipeg Declaration), 316. 113 ‘In the Absence of a Bill of Rights,’ Saturday Night, 25 July 1950; Bruce Hutchison, ‘Hard Money and Soft Heads,’ Financial Post, 19 March 1955. 114 Andrew Brewin, ‘Case and Comment,’ Canadian Bar Review 35 (1957): 554 – 8, at 558. .

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456—Notes to pages 362–6 115 MacLennan, Toward the Charter, 117, 122; Pound, Chief Justice W.R. Jackett: By the Law of the Land, 115 –21 [on Jackett’s role in drafting the bill]; Winnipeg Free Press, 14 March 1958; House of Commons, Debates, 5 September 1958, 4638ff.; a copy of the original bill was published in Canadian Bar Review 37 (March 1959): 1–3. 116 House of Commons, Debates, 5 September 1958, 4641 ff.; MacLennan, Toward the Charter, 120 –1, 139. 117 House of Commons, Debates, 1940, 748; Diefenbaker, The Years of Achievement 1957–1962, 262–3; House of Commons, Debates, 1 July 1960, 5651 [Lester Pearson]. 118 Belliveau, ‘Mr. Diefenbaker,’ 67; House of Commons, Debates, 6 January 1958, 2917–18 [Caron]; 5 September 1958, 4642– 4 [Balcer]; House of Commons, Debates, 5 September 1958, 4648 [Pearson]. 119 Toronto Star: ‘Tories’ Bill of Rights “Rather Drab,”’ 3 October 1958 [Roebuck], ‘PM’s Proposed Bill of Rights Held Inadequate,’ 11 November 1958 [Scott]; Laskin, ‘An Inquiry into the Diefenbaker Bill of Rights,’ Canadian Bar Review 37 (1959): 77–134. 120 Belliveau, ‘Mr. Diefenbaker,’ 91–2; MacLennan, Toward the Charter, 127– 8, 133 –5; United Nations, The United Nations and Human Rights. 121 ‘P.M. Raps Critics of His Bill of Rights,’ Ottawa Journal, 30 April 1959. 122 Himel correspondence, April 1959, CBAP, vol. 9, file 128; ‘Extract from [CBA] Annual Meeting Transcript, Morning Session,’ 5 September 1959, CBAP, vol. 13, file 200; MacLennan, ‘Toward the Charter,’ 313 – 4. 123 Maclean, ‘That Bill of Rights,’ Saturday Night, 27 September 1958; Pauline Jewett, ‘Mr. Diefenbaker’s Proposed Bill of Rights,’ Canadian Forum, December 1958; M.S. Donnelly, ‘Why Pass a Useless Bill of Rights?’ Maclean’s, 3 January 1959; Canadian Bar Review 37 (March 1959); A.R.M. Lower, ‘The Bill of Rights,’ Canadian Commentator 3 (March 1959): 2–3; ‘The Bill of Rights and Its Sleeping Partner’ [CBC radio broadcast], 13 March 1959 [cited in MacLennan, ‘Toward the Charter,’ 309 n. 34]; Beck, ‘One Bill of Rights or Two,’ 3–42; Ryan, ‘Charting Our Liberties’; Scott, Civil Liberties and Canadian Federalism, 56 [Alan B. Plaunt Memorial Lectures, at Carleton University, March 1959]. 124 MacLennan, Toward the Charter, 144 –5; ‘PM Links Rights Bill, Constitution,’ and ‘PM Describes Rights Bill As Conscience of Canada,’ Globe, 1 and 2 July 1960; House of Commons, Debates, 1 July 1960, 5643 – 50. 125 Minutes of Proceedings [1960 committee]; House of Commons, Debates, 4 July 1960, 5657 [Pearson], 5666 [Argue], 1 August 1960, 7378 [Pearson]; Scott, Civil Liberties and Canadian Federalism; MacLennan, Toward the Charter, 146, 133 [pointing out that one letter to Diefenbaker dealt with homosexual rights]. .

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Notes to pages 366–86—457 126 House of Commons, Debates, 1 July 1960, 5651 [Pearson], 7 July 1960, 5908 [Pickersgill]; ‘Belated ‘Liberal’ Concern for Our Freedoms,’ Ottawa Journal, 1 May 1959. 127 House of Commons, Debates, 4 July 1960, 5709 [Broome], 5703 [Bourque]; Senate, Debates, 4 August 1960, 1206 [Pouliot]. 128 See Diefenbaker’s introduction of C–79 in House of Commons, Debates, 1 July 1960, 5648–50. See also Minutes of Proceedings [1960 committee], 20 –1. 129 Tarnopolsky, The Canadian Bill of Rights, 92. 130 Ibid., 95. 131 House of Commons, Debates, 4 July 1960, 5671 [Argue]; Minutes of Proceedings [1960 committee], 545. 132 Belliveau, ‘Mr. Diefenbaker,’ 111; Minutes of Proceedings [1960 committee], 521, 545; House of Commons, Debates, 7376, 7378 [Pearson and Argue]. 133 MacLennan, ‘Toward the Charter,’ 333 – 4. 134 R. v. Drybones, [1970] SCR 282; Lavell v. AG Canada, [1974] SCR 1349. .

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Conclusion 1 Urquhart, ‘The Rights Stuff,’ 41. 2 McAdam, McCarthy, and Zald, Comparative Perspectives on Social Movements, 2– 6; Canel, ‘New Social Movement Theory and Resource Mobilization: The Need for Integration.’ 3 Gladwell, The Tipping Point, chapter 2, especially 38, 48, 54. 4 American intellectuals who have swum against the conventional wisdom after 11 September include Susan Sontag and Michael Moore as well as (of course) Noam Chomsky. In Canada, several columnists also took an admirable stand against group-think; see, for example, Rick Salutin, ‘The Fear of Thinking,’ and Ray Conlogue, ‘Why Not Discuss the West’s Own Religious Rhetoric?’ Globe, 5 and 6 October 2001. For a discussion of the American situation, including the unfortunate backlash against clear thinking and opposition to cant, see Simon Haupt, ‘The War on Dissent,’ Globe, 6 October 2001. 5 Henry Kissinger, quoted in Kaplan, ‘Kissinger, Metternich, and Realism,’ 76. 6 Mill, On Liberty, in Utilitarianism, Liberty, and Representative Government, 111–12. 7 House of Commons, Debates, 6 January, 1958, 2909; Lower, My First Seventy-Five Years, 234; interview with Neil Spaulding, 9 June 1996. 8 Rhyme and Reason [video on F.R. Scott]; Djwa, The Politics of the Imagination, 238, 298; Warkentin, The Art of Geography, 169. .

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470—Bibliography Inglehart, Ronald. Culture Shift in Advanced Industrial Society. Princeton, N.J.: Princeton University Press, 1990. James, R. Warren. The People’s Senator: The Life and Times of David A. Croll. Vancouver: Douglas and McIntyre, 1990. Johnson, Walter S. ‘The Reign of Law under an Expanding Bureaucracy.’ Canadian Bar Review 22 (1944): 380 – 90. Kaplan, Robert D. ‘Kissinger, Metternich, and Realism.’ Atlantic Monthly 283: 6 (June 1999). Kaplan, William. Everything That Floats: Pat Sullivan, Hal Banks, and the Seamen’s Unions of Canada. Toronto: University of Toronto Press, 1987. – State and Salvation: The Jehovah’s Witnesses and Their Fight for Civil Rights. Toronto: University of Toronto Press, 1989. Kaufman, Menahem. An Ambiguous Partnership: Non-Zionists and Zionists in America 1939 –1948. Detroit: Wayne State University Press, 1991. Kealey, Gregory S. ‘Stanley Bréhaut Ryerson: Canadian Revolutionary Intellectual,’ part 2. Studies in Political Economy: A Socialist Review 9 (fall 1982): 133 – 70. – ‘State Repression of Labour and the Left in Canada, 1914 – 20: The Impact of the First World War.’ Canadian Historical Review 73, 3 (1992): 281– 314. Kealey, Gregory S., and Reg Whitaker, eds. R.C.M.P. Security Bulletins: The Depression Years, Part I, 1933 –1934. St John’s: Committee on Canadian Labour History, 1993. – R.C.M.P. Security Bulletins: The Depression Years, Part II, 1935. St John’s: Committee on Canadian Labour History, 1995. – R.C.M.P. Security Bulletins: The Depression Years, Part III, 1936. St John’s: Committee on Canadian Labour History, 1996. – R.C.M.P. Security Bulletins: The Depression Years, Part IV, 1937. St John’s: Committee on Canadian Labour History, 1997. – R.C.M.P. Security Bulletins: The Depression Years, Part V, 1938 –1939. St John’s: Committee on Canadian Labour History, 1997. – R.C.M.P. Security Bulletins: The War Series, Part I, 1939 –1941. St John’s: Committee on Canadian Labour History, 1989. – R.C.M.P. Security Bulletins: The War Series, Part II, 1942 –1945. St John’s: Committee on Canadian Labour History, 1993. Keyserlingk, Robert H. ‘Breaking the Nazi Plot: Canadian Government Attitudes towards German Canadians, 1939 –1945.’ In On Guard for Thee: War, Ethnicity, and the Canadian State, 1939 –1945, ed. Norman Hillmer, Bohdan Kordan, and Lubomyr Luciuk, 53 – 69. Ottawa: Ministry of Supply and Services, 1988. .

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Bibliography—479 Stubbs, Lewis St George. A Majority of One: The Life and Times of Lewis St George Stubbs. Winnipeg: Queenston House, 1983. Sunahara, Ann Gomer. The Politics of Racism: The Uprooting of Japanese Canadians during the Second World War. Toronto: James Lorimer, 1981. Tarnopolsky, Walter S. The Canadian Bill of Rights. Toronto: Carswell, 1966. – Discrimination and the Law in Canada. Toronto: Richard De Boo, 1982. Taylor, Charles. ‘The Politics of Recognition.’ In Multiculturalism and ‘the Politics of Recognition,’ ed. Amy Gutman, 25–73. Princeton, N.J.: Princeton University Press, 1992. Tennant, Paul. Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1949 –1989. Vancouver: UBC Press, 1990. Thompson, E. P. Whigs and Hunters: The Origin of the Black Act. New York: Pantheon, 1975. Thompson, John Herd. The Harvests of War: The Prairie West, 1914 –1918. Toronto: McClelland and Stewart, 1978. Tillotson, Shirley. ‘Human Rights Law As Prism: Women’s Organizations, Unions, and Ontario’s Female Employees Fair Remuneration Act, 1951.’ Canadian Historical Review 72, 4 (1991): 532–57. Trofimenkoff, Susan Mann. ‘Thérèse Casgrain and the CCF in Quebec.’ In Beyond the Vote: Canadian Women and Politics, ed. Linda Kealey and Joan Sangster, 139–68. Toronto: University of Toronto Press, 1989. Tulchinsky, Gerald. Branching Out: The Transformation of the Canadian Jewish Community. Toronto: Stoddart, 1998. – ‘The Jewish Experience in Ontario to 1960.’ In Patterns of the Past: Interpreting Ontario’s History, ed. Roger Hall, William Westfall, and Laurel Sefton MacDowell, 301–27. Toronto: Dundurn 1988. – Taking Root: The Origins of the Canadian Jewish Community. Toronto: Lester 1992. Underhill, Frank H. ‘Dominion-Provincial Relations.’ In Planning for Freedom: 16 Lectures on the CCF – Its Policies and Program, ed. Ontario CCF. Toronto: 1944. United Nations. The United Nations and Human Rights. New York: United Nations Department of Public Information, 1984. Urquhart, Brian. ‘The Rights Stuff.’ Review of Aryeh Neier, Taking Liberties: Four Decades in the Struggle for Rights. New York Review of Books 50: 8 (15 May 2003). Wade, Mason. The French Canadians, 1760 –1967. Vol. 2. 1911–1967. Toronto: Macmillan, 1968. Wagner, Anton. ‘Saving the Nation’s Aesthetic Soul: B.K. Sandwell at the Montreal Herald, 1900 –1914, and Saturday Night, 1932–1951.’ In Establishing .

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Bibliography—481 Film and Radio National Film Board of Canada. The Dresden Story [video], 1954. – Rhyme and Reason [video], 1982. – The UnCanadians [video], 1996. Smith, Doug. ‘The Defence of Canada: Civil Liberties during World War II.’ CBC Radio Ideas Transcript. Toronto: Canadian Broadcasting Corporation, 1991.

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Index—483

Index

Abella, Irving, 202 Aberhart, William, 89 Aboriginal Canadians (native Indians/First Nations), 8, 11, 14, 15, 16, 19, 115, 225, 253, 279, 304, 317, 354, 371 academic freedom, 70, 255 L’Action Catholique, 351 Adams, Eric, 166 Alberta, 28, 31; Alberta Bill of Rights Act, 331–2, 350; and bill of rights, 369; censorship by, 256; Defence of Canada Regulations (DOCR) supported by, 89; and Hutterites, 354; legislation and Ottawa, 55, 60; sexual-sterilization legislation of, 40 Alberta, University of, 28 Alberta Conference of the United Church, 324 Alberta Farmers Union, 259 Alberta Press case, 56, 65, 274, 322, 324, 348, 358, 359 Alexander, W.H., 28 All-Canadian Congress of Labour (ACCL), 98 Alleyne, Jake, 312, 313

altruism, 12, 16, 374 Amalgamated Building and Construction Workers, 259 Amalgamated Clothing Workers Union, 282 America. See United States of America American Civil Liberties Union (ACLU), 24, 28, 30, 47, 97, 243, 249, 255, 338, 342 American Contract Bridge League, 208 American Federation of Labor, (AFL), 52 American Jewish Congress, 217 American Newspaper Guild (Montreal local), 50 Amherst (N.S.), 316 anarchists, 24, 69, 58 Anderson, Marian, 108, 208, 219 Andrew, Geoffrey, 94 Anglican Church, 26, 110, 127, 204, 223, 234, 255, 275 anti-discrimination legislation, 6, 11, 107, 315, 356, 376, 377–8, 380, 382, 384; alternatives to, 216, 357, 359; American models of, 219–20, 222,

484—Index 238; by 1960, 371; earliest proposals for, 205; human rights codes evolution from, 315–6; municipal by-laws as, 110 196, 199, 226, 237– 8, 300, 301, 315; opposition to, 171, 199, 213, 315; pre-war attempts at, 199–200. See also Bill of Rights (Ont.); Conveyancing and Law of Property Act; Fair Accommodation Practices Act (FAP); Fair Employment Practices (FEP) Act; Female Employees Fair Remuneration Act (FEFRA); Racial Discrimination Act anti-Semitism, 42, 54, 106, 107, 115, 130, 162, 186, 196, 197–8, 201, 202, 203, 204, 205, 207, 208, 209, 210, 212, 214–15, 220, 223, 278, 282, 287, 326 Arcand, Adrien, 54, 83, 198, 203, 208 Archambault Royal Commission, 76 Arendt, Hannah, 5 Argue, Hazen, 369 Armstrong, Bromley, 309, 310, 311, 312, 313 Armstrong, E.A., 134 artists (painters, writers, musicians, etc.): attacked by government, 87; as activists, 59, 94, 95, 164, 210, 347, 381 Ashley, C.A., 162, 189 Asians, 19, 20, 21, 102, 126, 134, 199, 202, 207, 332, 366, 377, 385. See also Chinese; Indo-Canadians; Japanese Association for Civil Liberties (Toronto; the ACL): Committee on Group Relations, 224, 238; founding of in 1949, 223–4, 255, 257; replaced by Canadian Civil Liberties Association, 211, 256, 279;

and relationship with Canadian Jewish Congress (CJC) and Jewish Labour Committee (JLC), 224, 297, 300; resources of, 255–6, 300, 382; weakness of, 382 Association for Civil Liberties (Toronto; the ACL), campaigns of: bill of rights, 270, 353, 359, 364; Fair Accommodation Practices (FAP) Act (including Dresden), 231, 301, 302, 304–5, 313; Fair Employment Practices (FEP) Act, 224, 225, 226, 228, 231, 238, 240, 297, 300; other campaigns, 254–5; Toronto municipal anti–discrimination measures, 237–8 Association of United Ukrainians, 276 Atkinson, J.E., 128, 132, 165 Atlantic Charter, 5, 123, 212, atomic (nuclear) bomb, 154, 155, 162, 163, 174, 192, 367 authoritarianism, 3, 4, 22, 23, 35, 42, 54, 58, 62, 63, 72, 73, 74, 78, 85, 89, 90, 92, 98, 104, 105, 147, 157, 160, 169, 175, 182, 183, 191, 277, 334, 337, 340, 363, 372, 182, 183, 191, 192 autoworkers. See United Automobile Workers of America Avakumovic, Ivan, 166 Backhouse, Constance, 4 Baldwin, Roger, 24, 342 Ballantyne, R.A. Campbell, 50–1, 54, 77, 95, 100–1, 323 Baptist Church, 37, 117, 204, 256 Barber, Benjamin, 13 Barclay, Mr Justice Gregor, 274 Beach O’Pines resort (Ont.). See Noble and Wolf case

Index—485 Beament, A.W., 150, 151 Beaucage, Azelus, 248, 272 Bédard v. Dawson, 64, 65, 277 beer parlour offences, 81 Benedict, Ruth, 107 Bennett, J.M. 211, 213 Bennett, R.B., 23, 30, 40, 45, 320 Benning, Scott, 176 Bentham, Jeremy, 6, 337 Bercuson, David J., 202 Berger, Carl, 91, 333 Berton, Pierre, 141, 142, 215–16, 301, 317 Bethune, Norman, 35, 38, 260 Biderman, Morris, 249 Bill 0, amending Criminal Code (Ottawa), 266 Bill 7, amending Criminal Code (Ottawa), 267 Bill H-8, amending Criminal Code (Ottawa), 266, 267, 268 Bill 15. See National Emergency Transitional Powers Act Bill 55, ‘An Act respecting Workmen’s Wages’ (Quebec), 50 Bill C-60, ‘An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms’ (Ottawa), 362, 367 Bill C-79, ‘An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms’ (Ottawa), 365, 367, 369 Bill 93, amending Criminal Code (Ottawa), 266 Bill 209, ‘The Fair Wage Act’ (Quebec), 50 Bill 391, amending Criminal Code (Ottawa), 262–3 Bill of Rights, 3, 5, 6, 12, 91; absence

of (in constitution), 18, 74, 134; Bill of Rights (1689), 17, 177, 330; Bill of Rights (1960), 3, 5–7, 12, 196, 245, 328, 372, 378, 379, 380; Bill of Rights (Alberta), 331–2, 350; Bill of Rights (Ont., proposed), 219, 237; Bill of Rights (Saskatchewan), 218, 345; Bill of Rights (USA), 318, 323– 4, 343, 327, 352, 359–60; implied (in BNA Act), 65, 66, 322, 358, 361; International, 7 Bill of Rights (1960): alternative options for (declaratory, statutory, constitutional), 327–9; Cold War era and (1951–7), 357–61; Diefenbaker government and (1957–60), 361–71; early post–war proposals for (1945–7), 325–41; entrenchment of, 18, 319, 320, 322, 323, 325, 327, 328, 329, 342, 347, 352, 355, 356, 357, 367, 369, 370; Ottawa’s parliamentary committees on (1945–51), 341–57; pre–war suggestion for, 318–23, 326–7; proposed national version, 11, 66, 125, 127, 129, 157, 172, 173, 179, 216, 241, 244–5, 249, 253, 260, 267, 276, 280, 317; Quebec shift on, 369; wartime suggestions for, 323–5; weaknesses of, 367–9 Black, Conrad, 46, 277 Black, Norman, 110, 118 blacks, 11, 20, 107, 108, 115, 129, 202, 204, 205, 206, 208, 218, 219, 224, 293, 294, 298, 299, 301, 302, 303, 305, 306, 307 , 308, 309, 312, 313, 314, 316, 383 Blackwell, Leslie, 217 Bland, Salem, 37 Bloc Populaire, 156

486—Index Blum, Sid: background and character, 292, 293, 294, 307; director of Jewish Labour Committee (JLC), 294, 316; and Dresden, 306–15; as secretary of Toronto labour committee, 294, 306 B’nai Brith, 130, 201, 225 Bordeaux jail (Quebec), 25 Borins, Norman, 250 Borovoy, Alan, 13–14, 294, 317, 388n16 Bortolotti, Arthur, 69 Bothwell, Robert, 191 Bourassa, Henri, 201 Boyer, Raymond, 95, 150, 159, 166, 176, 179, 184–5, 192, 195 Bracken, John, 155 Brand, Ford, 290 breach of contract, criminal, 268, 269 Brennan, Patrick, 335 Brewin, Andrew: background of, 127; and bill of rights, 245, 336, 342, 361; as CCF activist, 86, 127; Civil Liberties Association of Toronto (CLAT), member of, 86, 94, 95, 127; and Japanese-Canadian deportation, 128, 131, 132, 134, 135, 137, 138; Toronto Association for Civil Liberties (ACL), member of, 223, 245, 255, British Columbia: and bill of rights, 369; and civil liberties in wartime, 71; discrimination against Asians by, 21, 23, 202; and Doukhobors, 341; and Japanese Canadian Reference case, 134, 135; and Japanese Canadians, 108, 109, 112, 122, 137, 140, 141, 253; MPs, 113, 123, 125, 126, 141, 340; and sexualsterilization law, 340

British Columbia Bar Association, 253, 343 British Columbia Civil Liberties Association (BCCLA), 9, 236, 243, 279 British Columbia Human Rights Coalition, 9 British Columbia Security Commission, 117, 118 British North America (BNA) Act, 7, 17, 23, 64, 130, 320, 323, 325, 327, 328, 329, 336, 340, 347, 348, 354, 362; preamble of, 17, 18, 65, 359 Brodie, Steve, 57 Bronfman, Samuel, 204 Brotherhood of Sleeping Car Porters, 313 Brown, Arthur, 120, 121 Brown v. Board of Education (U.S. Supreme Court), 359 Brownlee case, 31 Bruce, Percy, 312, 313 Buck, Tim, 15, 35, 36, 51, 100, 129, 154, 250, 259, 264, 271 Buhay, Beckie, 39, 100, 258 Burke, Edmund, 23, 325 Burman, Samuel, 166 Burnett, Hugh, 299, 300, 301, 304, 306, 307, 308, 310, 312, 313, 314, 315, 386 Buttedahl, Knute, 292, 293 Cairns, Alan, 319, 320 Calder, Robert Louis: background and values of , 34–6; and Communists, 35; member, Emergency Committee for the Protection of Civil Liberties, 34; member, Montreal branch of the Canadian Civil Liberties Union (CLU), 48, 51;

Index—487 and Padlock Law protests, 53, 56, 57, 62, 63, 64, 65, 66, 163; and Frank Scott, 36, 43, 48; and Spanish Republican riots, 43 Calgary (Alta.): Calgary labour committee for human rights, 316; League for Social Reconstruction, 28, 29; municipal government, 28, 85; and Trades and Labor Congress convention, 230–1 Callaghan, Morley, 59 Callwood, June, 151, 160, 195 Cameron, Angus de M., 166 Canada Evidence Act, 152, 153, 182 Canadian Association for Adult Education (CAAE), 79, 161, 162, 226, 231, 296 Canadian Bar Association (CBA), 49, 170, 172, , 325, 335, 337, 364–5; in B.C., 343; Committee on Civil Liberties (1944), 103, 158, 160, 166, 182, 324; Committee on Civil Liberties (1946), 182–4; Section on Civil Liberties (1947, 1948), 244–5, 343, 365 Canadian Bar Review, 168, 184, 336, 338, 345, 349, 352, 365 Canadian Broadcasting Corporation (CBC), 72, 103, 252, 256, 299, 308, 365 Canadian Brotherhood of Railway Employees, 295 Canadian Business, 261 Canadian and Catholic Confederation of Labour, 270, 291 Canadian Citizenship Act (Ottawa), 123, 326, 332, 333, 339, 349 Canadian Civil Liberties Association (CCLA), 13, 211, 243, 256, 279, 313

Canadian Civil Liberties Council (proposed), 245 Canadian Civil Liberties Protective Association (CCLPA, Edmonton), 31 Canadian Civil Liberties Union, 243, 374; created in 1937, 47; proposed in 1930s, 29, 34, 44. See also branches listed under Montreal, Ottawa, Toronto, and Vancouver Canadian Commentator, 365 Canadian Committee to Aid Spanish Democracy, 37, 39 Canadian Committee to Secure Clemency in the Rosenberg Case, 275 Canadian Congress of Labour (CCL), 32, 79, 120, 167, 181, 182, 259, 270, 286, 287, 289, 290, 191, 269, 293, 294, 296, 297, 316, 344, 355; committee on racial tolerance, 288, 290, 295, 297, 315, 357; member organizations of, 238, 259, 286, 290, 291 Canadian Council of Christians and Jews, 116, 204, 218, 223, 225, 226 Canadian Council of Churches, 131 Canadian Daily Newspapers Organization, 342, 347 Canadian Federation of Agriculture, 364 Canadian Forum, 25, 27, 29, 32, 33, 41, 42, 47, 50, 52, 54, 60, 61, 62, 70, 74– 5, 77, 79, 81, 85, 90, 106, 107, 131, 132, 162, 165, 173, 251, 345, 365 Canadian Institute of International Affairs (CIIA), 26, 27, 58, 91, 133, 154, 165 Canadian Institute of Public Opinion. See polls

488—Index Canadian Jewish Congress (CJC), 10, 207, 256, 257, 289, 373, 375, 384; and anti-Semitism, 208–9, 215; beginnings, 197, 200–1; and Communist ties, 214, 215, 284; funding for Kaplansky network, 294; and Jewish Labour Committee (JLC) tensions, 283–5, 290–1; and JLC and Association for Civil Liberties, 224, 297, 300. See also Jewish Canadians; Joint Public Relations Committee Canadian Jewish Congress, campaigns of: anti-discrimination legislation (FEP and FAP), 210, 216– 18, 219, 220, 221–28, 231–4, 237–41, 297, 311; bill of rights, 241, 347; black community relationships, 204–5; Christian church relationships, 204, 205; Criminal Code amendments, 270; earliest efforts, 202–5; hate-propaganda legislation, 241; interned Jewish refugees, 203; Japanese-Canadian deportation, 115; kosher food legislation, 241; redress, 4–5; refugees, 202, 203–4; restrictive covenants, 214 (see also Drummond Wren case and Noble and Wolf case); Selective Service Bureau employment policy, 204; trade union (‘anti-defamation’) work/ ‘Labour Service’ program, 214–15, 284 Canadian Journal of Economics and Political Science, 107 Canadian Labor Defense League (CLDL), 24–5, 28, 30, 31, 33, 36, 37, 38, 39, 53, 57–8, 63, 96, 97, 99, 129, 258, 373 Canadian Labour Congress (CLC), 288, 295, 357; National Committee on Human Rights of, 315, 316

Canadian Labour Reports, 288, 295, 296 Canadian League Against War and Fascism (CLAWF), 37, 40, 41, 374 Canadian League for Peace and Democracy (CLPD), 37, 39, 53, 56, 57, 84, 163 Canadian Legion, 112, 181, 203, 218 Canadian National Committee on Refugees and Victims of Political Persecution (CNCR), 76, 93, 108, 128, 202, 203, 223, 373 Canadian Nationalist Party (Manitoba), 198 Canadian Palestine Committee, 223 Canadian Peace Congress, 249, 260 Canadian Polish Congress, 225 Canadian Rights and Liberties Federation, 184 Canadian Seamen’s Union (CSU), 84, 247–8, 252, 253, 256 Canadian-Soviet Friendship Society, 96 Canadian Tribune, 37, 39, 77, 78, 90, 94, 98, 99, 100, 101, 107–8, 165, 173, 174, 207, 216, 251, 258, 267, 270, 273, 274, 324, 350 Canadian Unionist, 182 Canadian Youth Committee to Aid Spain, 166 Canadian Youth Congress, 83, 98, 165–6, 259 Cannon, Mr Justice L.A.D., 65, 348, 358 capital punishment. See death penalty Capmakers and Millinery Union, 206 Carr, Sam, 150, 158, 184, 186, 190 Carter, Mrs Bernard, 311 Carter, William, 300, 301 Cartwright, Mr Justice John R., 132, 134, 185, 211, 234, 235

Index—489 Casgrain, Thérése, 133, 166 Cassidy, Harold M., 255 censorship, 14, 27, 28, 37, 46, 59, 80, 81, 82, 244, 256, 348, 354. See also Criminal Code (s. 98); Padlock Law Chamber of Commerce, 367 Chapman, Agatha, 48, 96, 99, 166, 168, 251 Charlottetown Accord, 15 Charter of Rights and Freedoms (1982), 3, 316, 319–20, 325, 366, 371, 372 Chatham (Ont.), 25, 299, 303, 313 Chevrier, Mr Justice E.R.E., 84 Chief Constables Association of Canada, 182 Chinese Canadians, 4, 21, 23, 115, 134, 141, 211, 219, 225, 310, 342, 347, 375; Chinese Canadian National Council, 4; Chinese Exclusion Act, 211, 337; Chinese Immigration Act, 134, 162, 211, 244, 290, 375. See also Committee for the Repeal of the Chinese Immigration Act; National Congress of Chinese Canadians Chipman, Warwick, 33, 44 Chitty, R.M.W., 73, 103, 170, 171, 173, 184, 336, 337, 343 Chrétien, Jean, 384 Christian Council on Palestine (Toronto branch), 204 Christian Social Council of Canada, 98, 110 Christie, Loring, 319, 322, 370 Christie Pitts riot (Toronto), 198 Christie v. York, 206, 300 Church of All Nations (Toronto), 225 churches/church groups, 10, 12, 30, 58, 62, 102, 113, 115, 117, 121, 123,

125, 126, 132, 202, 204, 222, 225, 231, 234, 298, 302, 364, 373, 374, 375, 376, 381. See also individual denominations Churchill, Winston, 5, 143, 212 Citizens Defence Committee (Toronto), 40, 58 Citizen’s Defence Movement, 40 Citizens’ Forum, 162 Citizenship Act. See Canadian Citizenship Act civil liberties as human rights, 7 Civil Liberties Association of Manitoba: members of, 133, 167, 326, 335; national conference and, 244, 245; replaces Civil Liberties Association of Winnipeg (1946), 167 Civil Liberties Association of Manitoba, campaigns of: bill of rights, 338, 342, 344, 350; Fair Employment Practices (FEP) Act, 279–80; Japanese Canadians, 133, 253; other issues, 253; Shugar case, 187, 189 Civil Liberties Association of Toronto (CLAT): founding of (1940), 94; ideological divisions within, 94–5, 99, 160–1, 247, 346; members of, 59, 75, 93–4, 116, 127, 130, 164, 165, 211, 224, 346; termination of (1949), 223, 252–3, 254–5, 256. See also Committee for a Bill of Rights Civil Liberties Association of Toronto (CLAT), campaigns of: bill of rights, 245, 260, 324, 336, 338, 359; creating national organization, 244; Defence of Canada Regulations (DOCR), 74, 86, 88, 89–91, 93, 98, 101, 102; Gouzenko affair, 160–

490—Index 1; Japanese-Canadian deportation, 110, 120, 124, 127, 128, 132, 137; racial discrimination, 108, 205; Ukrainian Labor Farmer Temple Association, 102 Civil Liberties Association of Winnipeg (CLAW): and bill of rights, 334; and Communists, 97; and DOCR, 89, 91–2, 93, 101; founded, 72, 91; and Japanese Canadians, 126, 133; members of, 96, 128, 157, 326; as national organization (proposed), 98, 244; and racism, 333; replaced by Civil Liberties Association of Manitoba, 167; and Winnipeg Free Press, 90 civil liberties groups/organizations, 9, 19, 24, 51; egalitarian rights emphasis, 68, 106, 107; and Gouzenko affair, 160, 166; left– right schisms, 49, 94–9, 169, 170–1, 173, 178, 243, 244, 245–8; mass groups vs. elite groups (open vs. closed), 49, 245–7; national group, absence of and attempts to create, 11, 30, 31, 34, 36, 40–1, 44, 47, 243– 5, 257–8, 279, 280, 336, 374, 375, 382; post-war groups, 161, 166–7, 189; pre-war groups, 6, 9 17, 28–31, 34, 47, 56–9; quasi-civil liberties groups, 37, 99; regionalism and, 280; Second World War groups, 72–3, 75–7, 79–81, 86, 88–96, 101–3, 126. See also Communist front groups: Civil Rights Union (CRU); Emergency Committee on Civil Rights (ECCR); League for Democratic Rights (LDR) civil rights: as human rights, 7. See also libertarian rights; property rights

Civil Rights Congress (USA), 249, 250 Civil Rights Defence Committee (Winnipeg), 128 Civil Rights Union (CRU): as Communist front organization, 164, 244, 382; disappearance of, 279, 367; founding of (1946), 189; League for Democratic Rights, created by (1950), 257; members of, 96, 189, 251, 259–60, 385; ‘right wing’ groups and, 226, 244–8, 336, 375 Civil Rights Union (CRU), activities of, 247–52; bill of rights, 336, 338, 342, 347, 350–1, 357; national meeting, 244–5; Shugar case, 187. See also Montreal Civil Liberties Union: Padlock Law; Patterson, William civil servants’ rights (security screening), 188, 190, 244, 249, 254, 350, 351 Clarion, 52, 77 Clarté, 77 class: class analysis, 227, 233; differences in, bridged, 383; middle (bourgeoisie), 15, 24, 26, 30, 37, 38, 41, 57, 58, 116, 129, 141, 176, 197, 204, 247, 260, 282, 284, 301, 380, 381; working (proletariat), 26, 64, 98, 144, 246 (dictatorship of proletariat), 284, 285 Claxton, Brooke, 188–9 Clément, Dominique, 190 CNR train operator case (Manitoba), 253 coalitions, 10, 33, 34, 140, 202, 225, 347, 373, 374, 375, 376, 383 Coatsworth, Alan, 210, 211 Cohen, J.L., 74, 88, 89, 93, 95

Index—491 Cohen, Maxwell, 3 Cohen, Nathan, 77 Coke, Sir Edward, 337 Cold War: activists divided by, 10, 11, 12, 116, 169, 178, 226, 247, 251, 259, 263, 280, 375; and anti-discrimination law, 234, 237, 302, 310; and bill of rights campaign, 12, 344, 349, 350, 357, 360; and civil liberties, 6, 147, 192, 195, chapter 6, 280, 378, 383, 385; defence system (U.S. forces in Canada) and, 263; Gouzenko precipitates, 149, 192; rhetoric of, 163, 215, 252, 262, 271, 310; and trade union divisions, 225, 343 Coldwell, M.J., 60, 78, 136, 156, 167, 168 Coleman, William, 9 Le Combat, 272, 276 Comintern (USSR), 34, 38, 52 Comité du travail contre l’intolérance raciale. See Montreal Labor Committee Against Racial Intolerance Comment s’éteint la Liberté, 36 Committee for a Bill of Rights, 245, 253, 255, 342, 347–50, 351, 352, 354, 356, 358, 359 Committee for the Defence of Trade Union Rights (Ont./Que.), 245 Committee on Group Relations, of Association for Civil Liberties (ACL), 224, 238; of CAAE and Societé Canadienne d’Enseignement Postscolaire, 226, 231 Committee for Industrial Organization (CIO), 52, 59, 81, 98, 116 Committee on Jewish-Gentile Relations, 201 Committee for Medical Aid to Spain, 41

Committee for the Maintenance of Peace Time Liberties (Vancouver), 72 Committee for the Repeal of the Chinese Immigration Act (CRCIA), 134, 162, 211, 244, 290, 375 common law rights, 17, 328 communism: dividing civil libertarians, 10, 41, 178, 244, 245–8, 251, 252, 253, 254, 255, 257; dividing Jewish socialists, 281; and human rights, 170, 220, 233–4, 237, 247, 304, 343–4, 360; idealistic attractions of, 164,184, 260; and infiltration of civil liberties groups, 95, 96, 97; and mistrust of liberal rights, 15; and organizational skills, 95; Quebec opposition to, 43, 45, 51, 144, 272, 278; right-wingers’ attitudes towards, 156, 157, 261; and Soviet instructions, 38, 99, 100, 101, 246, 260; Third Period of (international), 38; weakening threat of, 280, 360. See also Canadian Tribune; Canadian Youth Congress; Clarion; Communist front groups; Communist Party (CPC); Labor Progressive Party (LPP); Marxism, Popular Front; Red Scare; Soviet Union; United Front Communist front groups (real and alleged), 56, 95, 161, 164, 254, 270, 274, 347 Communist Party of Canada (CPC), suppression of, 24, 25, 33, 42, 45, 84–6 Community Conference for Public Relations (Toronto), 240 Community Halls Act (Ont.), 212 community rights, 277 Conant, George, 71, 89

492—Index Confederation, 17, 197; compact theory of, 355 Connectors (The Tipping Point), 383 Conroy, Pat, 290 conscription, 67, 81, 82, 84, 87, 100, 103 conservatism, 22, 23, 42, 46, 49, 52, 59, 70, 105, 112, 129, 147, 148, 169, 170, 182, 183, 184, 186, 191, 197, 199, 207, 213, 216, 221, 228, 229, 232, 239, 252, 261, 276, 286, 288, 319, 324, 330, 340, 343, 350, 352, 360, 362, 367, 379, 381, 384. See also Quebec, conservative values of Conservative Party, 27, 29; in British Columbia, 122, 329; in Ontario, 219, 78, 199, 206, 213, 216, 217, 224, 232, 239, 302, 305; in Ottawa, 51, 78, 82, 94, 125, 126, 155, 156, 157, 163, 167, 169, 170, 171, 213, 329, 331 261, 264, 341, 358, 360, 361, 363; in Quebec, 35. See also Toryism constitution of Canada, 18; amendment of, 319, 322, 329, 342, 351, 353, 355, 356, 357; and civil liberty, 103; and the United Kingdom constitution, 7, 17, 65; and minority rights, 318; opposition to, 54; patriation of, 342, 355; spirit of, 158, 192. See also bill of rights; British North America (BNA) Act; Charter of Rights and Freedoms; rights of denominational schools; linguistic rights Continuation of Transitional Measures Act (Ottawa), 262 Conveyancing and Law of Property Act (Ont.), 234, 303 Cook, Ramsay, 78, 90, 101

Cooperative Committee on Japanese Canadian Arrivals, 110 Cooperative Committee on Japanese Canadians (CCJC): activists in coalition of, 114–15, 127, 128–30; dispersal and, 111; evaluation of, 140–1; groups in coalition of, 115– 17, 133, 134; origins of, 109–10, 114; as pioneering rights group, 10, 140 Cooperative Committee on Japanese Canadians (CCJC): and deportation, 114, 118ff; litigation, 127–8, 132, 134–5, 138–9; lobbying government, 119–21, 126, 130, 131, 135, 136–7, 139; publicity, 121–2, 123, 128, 130–1, 132–3, 136, 137–8 Cooperative Commonwealth Federation (CCF), 27, 28, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 44, 47, 48, 56, 60, 66, 74, 75, 77, 78, 91, 94, 95, 96, 102, 117, 124, 125, 126, 132, 136, 144, 156, 157, 165, 167, 178, 181, 207, 247, 264, 270, 271, 274, 282, 285, 293, 301, 309, 318, 323, 338, 341, 350, 353, 369; in British Columbia, 37, 71, 97, 118, 122, 126, 345, 385; in Manitoba, 91, 293; in Ontario, 37, 47, 72, 75, 86, 116, 127, 144, 173, 209, 219, 221, 222, 234, 239, 240, 252, 255, 290, 293, 297, 323, 345; in Quebec, 35, 44, 48, 49, 50, 52, 54, 60, 133, 293, 384; in Saskatchewan, 134, 218, 346; Youth Movement of, 39 Coote, J.A., 33 Corbett, E.A., 94, 161, 226, 255, 342 Corby committee, 145–6, 183 Cotterill, Murray, 290 Council of Jewish Women, 209, 224

Index—493 Coyne, J.B., 321 Criminal Code (Ottawa), 244, 248; Cold War amendments, 256, 280, 357, 360, 379, 383; first set of amendments, 261–265; hate propaganda amendment, 241; influence of activists on, 270–2; legislation preceding, 262; political context of, 261–2; s. 98 of, 22, 25, 31, 37, 40, 45, 46, 81, 105, 143, 248, 324, 378, 383; second set of amendments, 266–70. See also Bills 7, 0, 93, and H-8 Croll, David, 136–7, 187, 223, 250, 255, 341, 344, 346, 358 Cronkite, F.C., 175 Czecho-Slovakian National Alliance, 89 Dafoe, J.W., 321, 324, 335 Daley, Charles, 217, 228, 306, 309, 310, 311 Dalhousie Review, 169, 365 David bill (Certain Meetings Advertising Act, Que.), 33, 34, 37 death penalty, 266, 268, 269 Defence of Canada Regulations (DOCR), 68, 71, 72, 79–91, 92, 93, 94, 99, 100, 101, 103, 106, 129, 143, 161, 162, 323, 326, 330, 333, 346, 379; armed forces, interfering with, 80; censorship (Regulations 15, 39, 39A), 80, 81, 84, 88–9, 101; detention (Regulation 22), 89, 161; Gouzenko case and, 145; illegal organizations (Regulation 37), 80; liberty of the subject/acts prejudicial to public or state safety (Regulation 21), 80, 89, 93, 101

delegations, Dresden town council (anti-discrimination by-law): 1948, 300 delegations, Ontario (anti-discrimination legislation): 1938, 202; 1949, 224–7, 300–1, 356; 1950, 231–2, 234, 237, 302; 1951, 238; 1954, 304–5; 1956, 313; 1958, 355–6 delegations, Ottawa: 1938 (Padlock Law), 59–60; 1941 (Defence of Canada Regulations – DOCR), 100; 1942 (Defence of Canada Regulations – DOCR), 93; 1945 (JapaneseCanadian rights), 118, 119–21, 131; 1946 (Japanese-Canadian rights), 131, 139; 1951 (bill of rights), 355– 6; 1953 (Criminal Code), 268; 1959 (bill of rights), 364–5 delegations, Toronto: 1947 (municipal anti-discrimination policy), 252 Delorimier Liberal Reform Club, 33 DeLury, A.T., 162, 189 de Mestral, Claude, 166 democracy, 23, 27, 34, 35, 38, 39, 51, 58, 59, 60, 78, 81, 81, 105, 107, 112, 143, 164, 170, 172, 183, 184, 200, 213, 214, 226, 233, 265, 270, 277, 287, 325, 332, 337, 338; majoritarian vs. minority rights, 21, 199, 324, 334. See also Canadian Committee to Aid Spanish Democracy; Canadian League for Peace and Democracy; discourses (democratic); Japanese Canadian Committee for Democracy; liberal democracy; social democracy Democratic Rights Movement (Victoria), 72

494—Index denominational school rights. See rights of (list) deportation: of anarchists (during Second World War), 69; of Japanese Canadians, 10, 12, 106– 142, 149, 157, 161, 166, 167, 169, 170, 171, 172, 174, 189, 196, 211, 244; of radicals, 21, 25; of Reid Robinson, 249 Depression, Great (1930s), 24, 32, 35, 43, 143, 148, 198, 260, 287, 320, 321, 324, 378 Desaulniers, Hubert, 44, 48, 51, 53 Desmond, Viola, 208 Dewey, Thomas E., 239 Dexter, Grant, 335 Dicey, A.V., 18, 19, 73, 157, 319, 340, 367 Dickens, Charles, 53 Diefenbaker, John, 11; background of, 78, 362; and Bill 391, 264; and bill of rights idea in House, 157, 326–7, 329; and Bill of Rights legislation, 362ff; and bill of rights proposed outside house, 338; and Citizenship Act, 332, as Conservative Party leader in 1956, 360; and Defence of Canada Regulations (DOCR), 79, 156–7; and ECCR, 180; elected Prime Minister, 361–2; executive despotism opposition to, 81 (‘order in council government’), 157, 171, 330–1, 332, 368, 380; ideology of, 78, 157, 330–1, 362–3; and Lower on bill of rights, 330, 337, 344, 359; as member of Parliamentary Committees on human rights, 341, 346; reference case on proposed bill of rights, request for, 330, 353, 358; and

Shugar case and, 167, 187–8; and UDHR, 345 disallowance (of provincial legislation), 49–50, 55, 56, 59, 60–1, 92, 236, 321, 322, 330, 341, 349 discourses: anti-Nazi 107, 109, 111, 117, 119, 131, 137, 124, 125, 151, 170, 203, 213, 218, 229; British heritage, 19, 29, 35, 328; British justice, 45, 129, 155, 159, 173, 213; British liberalism, 86, 91; British liberty/liberties, 16, 17, 19, 21, 22, 23, 24, 25, 27, 30, 59, 68, 88, 91, 103, 119, 126, 143, 156, 157, 158, 160, 166, 183, 185, 192, 196, 213, 233, 252, 260, 322, 330, 334, 340, 376; British principles, 172, 178, 340; British rights, 34; British system of government, 203; British traditions, 7, 18, 22, 23, 81, 172, 200, 319, 325, 330, 336, 367; democratic, 59, 125, 200, 209, 230, 233, 252, 325; human rights, 3, 5–6, 10, 16, 18, 19, 119, 122, 123, 196, 212, 213, 233, 252, 286, 318, 355, 375, 376, 379, 381; manliness, 354, 355; Star Chamber criticism of government, 80, 172, 344 division of powers technique (of judiciary), 23, 64–5, 276–7 Dominion-Provincial Conference on Reconstruction, 325, 355 Dorion, Frederic, 156 Douglas, T.C. [Tommy], 37, 191, 218, 325, 369 Doukhobors, 8, 279, 341 Dow, Ruth, 48 Dowling, Fred, 286 Draper, Dennis, 71 Dresden (Ont.), 11, 12, 260, 293, 294,

Index—495 354, 378, 386; background, 298–9; and black activists, 299, 301; and alleged Communist influence, 304, 305, 310–11; early complaints about, 300; FAP complaints filed regarding, 306; fear of miscegenation in, 307, 383; labour inspector visits, 306–7; and Premier Frost, 304; racism in, 299–300; referendum on discrimination in, 302; Schwenger commission on, 308, 309; tests of discrimination in, 306, 309–10, 312–13, 314; trials concerning discrimination in, 311, 313–14; violence threats in, 307 ‘The Dresden Story’ [CBC documentary], 299, 315 Drew, George, 130, 163, 206, 207, 216, 219, 224, 261, 262, 302, 360 Drummond Wren case, 209–14, 216, 220, 228, 229, 240, 378 Dubin, Charles L., 211 Duff, Mr Justice Lyman Poore, 65, 71, 322, 348, 358 Duplessis, Maurice, 149, 247, 379; and anti-communism, 46, 49, 52, 272, 278; and elections, 42, 67, 369; and Jehovah’s Witnesses, 244, 274, 363; and libertarianism, 47; and Padlock Law, 45, 56, 67, 249, 254, 272, 345, 348; on trade unions, 42– 3, 50; values and policies of, 42, 54, 56, 67, 277, 278, 320, 355, 356, 363. See also Switzman; Roncarelli; and Saumur cases Eaton, John David, 143 economic: competition and rights, 112, 287; economic prosperity and labour-management relations, 286,

378, 380; economic prosperity and rights, 5, 6, 105, 219, 232–3, 287, 295, 379–80. See also rights to (list) Edmonton (Alta.), 28, 31, 259; Edmonton Labour Council (CCL), 259; municipal government, 259. See also Canadian Civil Liberties Protective Association (Edmonton) education: and anti-discrimination legislation, 237, 241, 306, 315–16; bill of rights and public, 327–8; and Doukhobors, 341; and human rights, 287; rights groups engaged in, 246, 267, 284, 286, 288, 295, 296, 306, 308, 315, 323, 370. egalitarian (equality) rights, 373, 374, 375, 377, 378, 380, 382; defined, 8; groups, introduction to, 9, 16, 17. See also right to (list of rights) Eggleston, Wilfrid, 168, 178, 336 Eisendrath, Rabbi M.N., 58, 129, 201 Eldorado affair, 153, 171 Elkins, David, 319 Emergency Committee for Civil Rights (ECCR): alleged Communist front organization, 161; becomes Civil Rights Union (CRU), 189; and the bill of rights, 335, 347; discourse used by, 252; founding of (1946), 161, 247, 375; and the Gouzenko affair, 166, 179– 82; members of, 161–5, 193, 259; and ‘right wing’ civil liberties groups, 169 Emergency Committee for the Protection of Civil Liberties (Montreal), 34, 36 Emergency Powers Act (Ottawa), 252 Emerson’s Soda Bar Restaurant (Dresden, Ont.), 308, 309, 311

496—Index Endicott, James, 249 England, see United Kingdom Equal Rights Protective Association, 16 equality rights. See egalitarian rights; right to (list) Erichsen-Brown, J.P., 168, 254 Estall, Martyn, 162, 163, 166, 189 ethnic organizations, 4, 12, 13, 24, 255, 364, 372, 374, 375, 376 Eviction (play), 33 executive despotism, 29, 46, 103, 127, 157, 170, 171, 175, 324, 330, 332, 334, 362, 363 Fabian socialism, 26, 30, 32 Fahrni, Mildred, 118, 301 Fair Accommodation Practices (FAP) Act: British Columbia, 317; Manitoba, 317; replacement with human rights codes, 315 Fair Accommodation Practices (FAP) Act, Ontario: as activists’ success, 378–9; campaign for, 302–4; compared with modern antidiscrimination legislation, 305; details of legislation, 305–6; enforcement of, 306–14, 378–9; introduction, 304, 382; lobbying for, 241, 302, 304; lobbying for improvement of, 315–16; opposition to, 305, 306 Fair Employment Practices (FEP) Act: American models, 219, 286–7; Connecticut, 217; Massachusetts, 217; New York, 216, 229, 231–2, 239 Fair Employment Practices (FEP) Act: British Columbia, 317; federal version, 303; Manitoba, 317; Nova

Scotia, 316, replaced with human rights codes, 241, 315 Fair Employment Practices (FEP) Act, Ontario: as activist’s success, 378–9; change in public attitudes to, 239; details of, 240–1, 305; early proposals and support for, 216–19, 221–4; enforcement of, 241, 303, 314, 317; Fair Employment Practices Commission proposal, 240; introduction of legislation, 239, 241, 304, 382; lobbying for, 224–7, 237–9, 302–3; lobbying for improvement of, 314–16; model for other provinces, 241; opposition to, 227–8 Fairley, Barker, 189 Fairley, Margaret, 47, 77 fascism, 37, 38, 39, 196, 386; antifascists, 39, 41, 44, 54, 57, 58, 59, 83, 94, 100, 143, 251; in Canada, 37, 57, 58, 69, 77, 78, 83, 84, 87, 130, 175, 198, 203, 207, 321; in Germany, 38, 41, 99, 203; in Ontario, 198, 209, 214; in Quebec, 32, 33, 37, 45, 48, 54, 60, 149, 198; social fascists, 36, 38, 49. See also Arcand, Adrien; National Unity Party Fauteux, Gerald, 184 federalism, 7, 17, 18, 138, 280, 320, 321, 329–30, 337, 340, 343, 346, 352, 355, 358; as barrier to creation of national organizations, 280; compact theory of, 355; federal– provincial conference on, 353, 369. See also constitution of Canada; division of powers technique; rights of provinces Federation of Labour Youth, 274 Federation of the Unemployed, 51

Index—497 Feinberg, Rabbi Abraham: and antidiscrimination law proposals, 217, 218, 225, 226–7, 228, 229–30, 237; and Association for Civil Liberties (ACL), 255; background and values of, 129–30, 215; bill of rights and, 336; Communists and, 215, 237; Drummond Wren decision (restrictive covenant) and, 213; Holy Blossom Temple, becomes rabbi of, 129; Japanese Canadians and, 129– 30; as Joint Public Relations Committee (JPRC) member, 223 Feiner, Abraham, 64, 274, 275 Fell, Lloyd, 255 Fellowship, 204 Fellowship for a Christian Social Order (FCSO), 30, 41, 44, 79, 98, 117, 118, 162, 205, 252, 259–60 Fellowship of Reconciliation (FOR), 29, 58, 75, 79, 106, 109, 114, 115, 116, 118, 119, 127, 132, 218, 301 Female Employees Fair Remuneration Act (FEFRA, Ont.), 239, 297 feminism, 6, 105, 133,163, 298, 350, 372. See also women Fenian guns, 70–1 Ferguson, George V., 128 fifth columnists, alleged: wartime enemies as, 71, 83; Communists as, 99, 176 Financial Post, 38, 49, 261 Fine, Joseph, 131, 208 Fineberg, Louis, 63, 64, 66, 67 Fineberg v. Taub, 64, 274, 277, 322, 323 Finkelman, Jacob, 211, 238 Finlay, James, 114–5, 255 Finns, 88, 129 firearms control, 263 First World War, 24, 34, 143, 185, 197

Flavelle, Ellsworth, 93, 94, 95, 143, 223 Food for Thought, 226 Forsey, Eugene: background and values of, 32, 54; and bill of rights, 323; CCF ties, 34; and Communists, 51, 95, 97; and Emergency Committee for the Protection of Civil Liberties, 36; and fascism in Quebec, 48; and Japanese-Canadian deportation, 120; Montreal branch of the Canadian Civil Liberties Union (CLU), member of, 47, 95; Montreal United Church’s Committee on Social and Economic Research, member of, 33–4; and Padlock Law, 45, 54, 56, 57, 60, 63, 66, 276; and Prince Edward Island Trade Union Act, 348–9; and Spanish Republicans, 43, 44; and Zynchuk affair, 32, 33 Fortin, Gérard, 278 Fortnightly Law Journal, 73, 170, 336 Fournier, Paul, 48 Fowke, Edith, 114, 132 Fowler, J.H., 120 Frager, Ruth, 231, 298 Franco, Don, 120 Fraser, Blair, 153, 154, 167, 175, 186, 360 Freedom Festival (1949), 252 Freedom of Speech (La Libre Parole), 197 free thought movement, 24 Friends of the Soviet Union, 35, 51 Frome, Anthony. See Feinberg, Abraham Frost, Leslie: premier, 224; and caucus, 227, 231–2, 305; and Fair Accommodation Practices (FAP) Act campaign, 302, 303, 304–5,

498—Index 311, 313; and Fair Employment Practices (FEP) Act campaign, 224, 226, 227, 232, 237, 238–9, 240, 302; and restrictive covenant legislation campaign, 226, 232; values of, 228, 232–4 Frye, Northrop, 24 Fulton, Davie, 155, 264, 328, 329, 332, 346, 361 Fyfe, Morris, 168, 245, 254 Gairey, Harry, 208, 219 Gardner, Paul, 178 Garfinkle, James, 260, 268, 275 Garneau, Constance, 166 ‘garrison mentality,’ 24 Garson, Stuart, 264, 265, 269, 270, 271, 353, 357, 359 Gauthier, Pierre, 156, 175 Gentleman’s Agreement (film), 220 German Canadians: discrimination against, 70, 78, 362; German Canadian Congress and reparations, 5. See also internment; mob violence; reparations; right to vote Germany: Jewish boycott of goods from, 201; immigrants from, 208; invades USSR, 100; Jews in, 42, 76, 128, 198, 201, 203; war with, 66, 72, 83, 152 ‘Gestapo Affair,’ 103 Giesbrecht, Bill, 292, 317 Girard, Romeo, 293 Gladwell, Malcolm, 239, 383 Glass, John J., 199, 200, 205, 206 Globe and Mail (Toronto), 32, 38, 74, 89, 131, 139, 154, 170, 200, 207, 213, 214, 229, 237, 239, 264, 267, 276, 297, 302, 306, 310, 314, 333, 345, 356 Godbout, Adélard, 67, 272

Godfrey, Eleanor, 75 Golden, Lou, 94 Gollancz, Victor, 52 Goodman, Edwin, 217 Gordon, King, 30, 33, 36, 40, 77 Gouin, L.M., 341, 346, 350 Gould, Margaret, 127, 165 Gouzenko, Igor, 144–5, 147, 150, 154, 164, 176, 178 Gouzenko affair, 10, 12, 48, 95, 96, 143–95, 211, 251; and bill of rights struggle, 326, 327, 330, 333, 335, 337, 338, 344, 348, 360, 362, 375, 378, 379; and Canadian Bar Association, 182–4; and civil liberties groups, 160–1, 166–9, 170– 1, 176–81; and Communists, 154, 173–4; detentions during, 147, 150, 151–2; evaluation of, 190–2, 195; Gouzenko defects, 144; and House of Commons, 156–8; as major post-war focus of civil libertarians, 244, 280; and the press, 169–70, 171–4. See also Association of Scientific Workers; Corby Committee; Igor Gouzenko; Kellock– Taschereau royal commission; David Shugar Granatstein, J.L., 111, 191, 219 Granite Club (Toronto), 108, 208 Grant, Maude (Mrs. W.L.), 223, 225, 255, 342 Great Britain, see United Kingdom Green, Howard, 133 Greene, Lorne, 252, 347 Greenshields, Justice R.A.E., 64, 65, 66 Grierson, John, 165 Grieve, Isabel, 58 Grizzle, Stanley, 313

Index—499 Grosch, Mr. Justice Henry, 311 group defamation: civil lawsuit (Quebec), 197; legislation against (Manitoba), 200 Grube, George, 47, 75, 94, 106, 245, 323 habeas corpus. See right to Habeas Corpus Act (1679), 177 Halifax (N.S.), Halifax Herald, 70, 124; labour committee on human rights, 316; V–E riots in, 146 Halperin, Israel, 177, 195 Hamilton (Ont.), 71, 72, 202, 302, 303; and labour committee on human rights, 316. V-E riots in 146 Hannant, Larry, 73 Hansell, E.G., 346 Hanson, Joseph, 311 Harris, Lawren, 347 Harry, Eric, 168 Harvey, Jean-Charles, 48, 99 Harvison, C.W., 190 hate propaganda, 54, 241; Criminal Code and, 241; proposed legislation on, 207–8. See also anti-Semitism; Protocols of the Elders of Zion Havelock, Eric, 41 Hayes, Saul, 204, 241 head tax (Chinese), 4 Heaps, David, 168 Heart of Spain (film), 59 Hebrew Daily Journal, 230 Hemmeon, J.C., 48 Henkin, Louis, 3 Henson, Josiah, 298 Hepburn, Mitchell, 59, 71, 129, 136 Herald Tribune (USA), 174 Hewart, Lord, 29 Hill, Donna, 293–4, 304, 306

Himel, Irving: and Association for Civil Liberties (ACL), 211, 223–4, 255, 256, 257, 279, 300, 382; and bill of rights campaign, 342, 354–5, 356, 359, 364, 365; and Civil Liberties Association of Toronto (CLAT), 211, 255; and Committee for the Repeal of the Chinese Immigration Act, 211, 342; early life of, 210–11; and Workers’ Educational Association, 211 Holy Blossom Temple (Toronto), 58, 129, 201, 213, 225 Home Service Association (Toronto), 205, 218 Horn, Michiel, 70 Houde, Camillien, 81, 82 How, Glen, 339, 349 Howe, Brian, 227, 233 Humanists, 20; Humanist Club (University of Toronto), 120 human rights: and ‘age of rights,’ 3; as collective rights, 7, 8; defined, 6, 376; ‘human rights and fundamental freedoms,’ 190, 339, 366, 373; as individual rights, 7; as programmatic rights, 7, 364; reasons for modern acceptance of, 5, 6–7, 282, 295, 373, 376, 377, 378, 379–81, 384– 6; as universally accepted idea, 3. See also discourses; International Covenants; Universal Declaration of Human Rights human rights activists: as altruistic or self-interested, 384; divided into civil libertarians and egalitarian rights groups, 8–9; facing opposition, 385–6 human rights codes, 241, 281, 181, 315, 371, 372, 378, 382; Ontario, 316

500—Index human rights groups: causes of, 379– 83; defined, 8; limitations, 14; modern, 376; national, 376; successes and failures of, 378–9; tangential, 12, 374, 375, 376, 382; universal values basis, 13–4, 206, 373, 374, 375. See also Connectors; interest groups; nodal actors human rights (policy) community: and bill of rights, 11, 318; defined, 9; divisions: 12, 68, 88, 94, 97, 167– 8, 243, 244, 246, 284, 364, 375, 376, 383; and new issues after the war, 142, 242 Humphrey, John, 345 Hungarians and Defence of Canada Regulations (DOCR) 88; Hungarian uprising, 360 Hunter, George, 255 Hunter, Peter, 25 Hurley, Jefferson, 164, 189 Hutchison, Bruce, 172, 321, 324, 335, 361 Hutterites, 8, 254, 256, 354 Icelandia skating rink discrimination, 208, 218, 237, 303 ‘Ideas’ (CBC), 72 Ignatieff, Michael, 3, 372 Illustration Nationale, 54 Ilsley, J.L., 92, 187, 341, 344, 345, 346, 350, 353 immigration: diminishing British (alleged dangers of), 78, 197, 333, 343; policy, as discriminatory, 202, 203, 204, 303, 375; policy, eliminating discrimination, 6, 377; policy and anti-discrimination policy, 17, 233, 238, 380; policy and public values, 4, 18, 106, 134, 200, 202, 208,

289. See also Chinese Immigration Act; Committee for the Repeal of the Chinese Immigration Act Immigration Act (Ottawa), 21–2, 25, 31, 123. See also Chinese Immigration Act incrementalism, 216, 231, 232, 304, 339, 366, 382 Independent Labour Party (ILP), 26, 318 Indo-Canadians, 4, 23, 141 Industrial Workers of the World (IWW/‘Wobblies’), 21, 143, 259 Infeld, Helen, 163 Infeld, Leopold, 162–3, 174, 189, 193, 347 Inglehart, Ronald, 105, 219, 287 Inquiries Act (Ottawa), 152 Insurance Act (Ont.), 199, 212 integration/assimilation, 102, 109, 120, 124, 137, 140, 142, 282, 287, 300; majority groups scepticism about, 108, 112, 122, 197, 288; minority group scepticism about, 227, 230 intellectuals/academics as activists, 29, 38, 44, 48, 56, 97, 161–4, 246, 327, 373, 381 interest groups/organizations, 8; as civil liberties groups, 9, 16; as equality (egalitarian) rights groups, 9; private, 12–3, 373; public, 12–4, 24. See also specific groups listed by name, and human rights groups International Association of Scientific Workers: British branch, 174, 192; Canadian branch (see Canadian Association of Scientific Workers [CASW])

Index—501 International Bill of Rights, 7 International Committee for Political Prisoners, 92 International Conference of Lawyers for the Defence of Democratic Liberties, 275 International Covenant on Civil and Political Rights, 7 International Covenant on Economic, Social, and Cultural Rights, 7, 15 International Journal (CIIA), 165 International Labour Organization (ILO), 316 International Ladies Garment Workers’ Union (ILGWU), 282, 288 International Typographical Union, 285 internationalism, 149–50, 162, 184 internment, 69, 72, 82, 85, 88, 90, 101, 106; in Britain, 69; of Communists, 71, 84, 85, 99, 100, 144; of Fascists, 83, 203; of Germans, 5, 69, 84, 87, 88, 106; of Italians, 4, 5, 87, 106; of Japanese, 4, 69, 102, 108, 109, 113, 120, 323; of Jehovah’s Witnesses, 86, 157; of Jews from Germany, Austria, and Italy, 203; of political figures, 78, 81–2; of trade unionists, 84, 88, 89, 116; of Ukrainians, 4 Inuit, 83 Irvine, William, 178, 181 Italian Canadians, 4, 5, 69, 87, 88, 106, 109, 198, 202, 203; redress for, 4, 5, 88. See also internment; National Congress of Italian Canadians Jackson, A.Y., 164 Jackson, C.S., 84, 85, 86, 88, 101, 116, 164, 189, 251–2

Jacobs, S.W., 201 Jamieson, Laura, 17, 118, 122 Japan: missionaries to, 121; surrender of, 121, 125, 144, 325 Japanese Americans, 111, 141 Japanese Canadian Citizens Association, 225, 255, 345, 357 Japanese Canadian Reference case, 131– 6 Japanese Canadians: deportation (‘repatriation’) of, 10, 12, chapter 3 (especially 112ff.), 131–2, 142, 157, 167, 169, 174, 178, 189, 244, 336–7, 377, 378; discrimination against, in Eastern Canada, 110; dispersal and internment of, 69, 88, 102–3, 106, 108–9; enemies of, 75, 109, 112–13, 122, 124, 329, 333, 339; loyalty of, 87, 111, 113, 122, 125, 126–7, 132; as post–war human rights activists, 224, 348; post–war limitations on freedoms of, 141–2, 253, 340; post– war references to treatment of, 323, 330, 348, 357, 362; property losses of, 118, 120, 139, 140; property ownership, restrictions on, 120, 139; redress for, 4; relocation policy for, 110–12, 117, 120, 121, 130, 137, 141; travel restrictions on, 139, 140, 248. See also Cooperative Committee on Japanese Canadians; Japanese Canadian Citizens Association, right to vote Japanese Language School (Canadian Army), 118 Japanese Repatriation League, 113 Jehovah’s Witnesses: banned during wartime by Ottawa, 79,86–7, 102, 103, 104. 157; and bill of rights campaign, 338, 339, 342, 344, 347,

502—Index 348, 349, 352, 355, 358, 363; harassed in Ontario, 72; harassed in Quebec, 25, 35, 133, 244, 248, 256, 260, 272, 274, 278, 338, 340, 363; and Supreme Court of Canada, 378. See also Roncarelli and Saumur cases Jenkins, W.P., 255 Jennison, Mary, 96 Jewett, Pauline, 365 Jewish Canadians, 8, 11; antiSemitism, responses to, 58, 197, 198–203, 204–5, 206–7; discrimination against, 107, 198, 208–9; immigration limitation on, 19, 76, 203; immigration and settlement of, 197–8, 281–2; ‘the Jewish phase,’ in the equal rights struggle, 197, 241; progressive values/ politicization of, 285; universities’ exclusion of, 20, 285, 326. See also B’nai Brith; Canadian Jewish Congress (CJC); Jewish Labour Committee (JLC); mob violence; United Jewish People’s Order (UJPO); United Jewish Refugee and War Relief Agencies Jewish Labor Committee (USA), 281, 282, 283, 296; Michigan Labor Committee to Combat Intolerance, 296 Jewish Labour Committee (JLC): beginnings of, 281–2; and Canadian Jewish Congress, 283–5, 290– 1; and Canadian Jewish Congress (CJC) and Association for Civil Liberties of Toronto (ACL), 224, 297, 300; Communists and, 284, 289, 310–11; ideology and CCF ties, 281–2; Kaplansky appointed as director of, 285; Kaplansky

network and, 11, 287–97; successes, reasons for, 382 Jewish Labour Committee (JLC), campaigns of: anti-discrimination legislation (FEP and FAP), 224, 225, 231, 375; bill of rights, 344, 357; wartime refugees, 282 Jews: in Europe, 5, 10, 72, 76, 118, 128, 202, 204, 204, 373, 376. See also Germany; internment; Nazis; refugees to Canada Jodoin, Claude, 283, 288, 296, 297 Johnson, David, 227 Johnson, Harold, 293, 308 Johnson, Rev. Hewlett, 256 Joint Council of Negro Youth (Toronto), 108 Joint Public Relations Committee (JPRC), 130, 201, 205, 206, 208, 209, 211, 213, 216, 217, 221, 223, 223, 224, 226, 228, 231, 234, 237, 238, 239, 255, 292, 304, 309, 311 Joliffe, E.B. (Ted), 47, 252, 255 Judicial Committee of the Privy Council, 63, 135, 137, 138, 235, 278, 319, 320, 335 judicial independence, 171, 340 Kaplan, William, 102 Kaplansky, Kalmen, 383; background of, 285; and bill of rights campaign, 344, 357; and his network, 286–8, 291, 293, 294–5, 297, 306, 315; opponents of, 289, 290–1; shift from education to lobbying, 297; supporters of, 286, 7, 289, 309; values and tactics of, 282–3, 284, 285, 311 Kashtan, David, 258–9 Katsuno, Marie. See Kawamoto

Index—503 Katz, Sidney, 301 Kawamoto, Marie, 142 Kayfetz, Ben: background of, 217; and FAP Act campaigns, 231, 304, 305; and FEP Act campaigns, 222, 231; Noble and Wolf case (restrictive covenant) and, 221, 229, 231, 304 Kayne, Oscar, 62 Kellock, Burton H., 192 Kellock, Mr Justice Roy Lindsay, 146–7, 152, 190, 361 Kellock–Taschereau Royal Commission, 146–61, 153, 160, 165, 167, 168, 174, 177, 180, 184, 185, 186, 188 189, 193, 365; appointment of, 146; begins hearings, 147–8; commissioners of, 147; criticisms of, 152–3, 155–8, 168, 176–7, 178, 179, 191–2; first interrogations by, 151–2; interrogation of David Shugar, 152, 159; report recommending creation of, 144–5; reports by, 152, 154–5, 158–9, 160, 175–6, 178, 179, 187, 189–90 Ketchum, J.D., 162, 163, 189 Khrushchev, Nikita, 278, 279, 360 King, Garfield, 97 King, John G. ‘Jack,’ 39–40, 41, 44, 77 King, Martin Luther, 314 King, William Lyon Mackenzie (Prime Minister), 25, 45, 50, 60, 71, 75, 81, 83, 87, 89, 90, 91, 93, 92, 95, 109, 111, 113, 117, 119, 121, 122, 123, 124, 126, 131, 132, 134, 136, 137, 139, 143, 144, 145, 146, 150, 151, 153, 154, 156, 160, 167, 173, 175, 180, 187, 189, 196, 320, 325, 334, 339, 340, 353, 362 King Township (Ont.), 70 Kitagawa, Muriel, 115

Knights of Columbus, 56, 61 Knowles, Stanley, 338, 358 Kohlberg, Lawrence, 14 Komagata Maru incident, 4 Kon, Irene, 51 Kon, Louis, 35, Korean War, 236, 239, 252, 262, 263, 264, 357, 360 Ku Klux Klan, 19, 20, 299; cross burning in North Buxton (Ont.), 303 Labor Progressive Party (LPP): bill of rights demands of, 324, 335, 344, 350, 353, 357; and Dresden story, 302; founded (1943), 100; and the Gouzenko affair, 154, 173, 174, 175; League for Democratic Rights and, 258–60; members of, 150, 155, 158, 159, 161, 162, 164, 165, 178, 168, 190, 215, 233, 247, 264, 273, 275, 335; and Moscow, 144, 154, 360; Padlock Law campaign of, 275; and racism, 112, 205, 206, 207, 324; suppression of, 182, 248, 261, 264– 5, 267, 271, 272, 273, 278; and workers’ rights, 350. See also Criminal Code, Cold war amendments; Gouzenko affair; Padlock Law Labour Defense Committee of Timmins (Ont.), 257 labour rights. See right to (list) laissez-faire (and free market), 32, 228, 314, 321 Lambert, R.S., 94, 103, 104–5 The Land of the Free, 53 Lang, Mr Justice H.D., 313–14 language rights. See right to (list) Lapedes, Sam, 343

504—Index Lapointe, Ernest, 50, 55, 56, 59, 60, 92, 133 Lappin, Ben, 223 Laskin, Bora, 211, 358, 364, 365, 370 Laurier, Sir Wilfrid, 18, 22, 156 Laval University, 194 La Violette, Forrest E., 135, 141 League for Democratic Rights (LDR): and Communists, 258–60; end of, 279; founding of (1950), 257; leaders of, 258–60; liberal nature of demands of, 381, 382; member groups of, 257–8; ostracized, 243 League for Democratic Rights (LDR), campaigns of: bill of rights, 257, 260, 360, 367; Criminal Code amendments, 261, 263, 264, 265, 266, 267, 268, 269, 270, 271, 357; Dresden, 310; Padlock Law, 273, 274, 275, 276, 357 League of Nations (Charter), 5; League of Nations Society, 128 League for Social Reconstruction (LSR), 28, 29, 30, 31, 33, 41, 48, 52, 60, 75, 98, 117, 317–8 Lederman, W.R., 365 Lee, J. Norman, 99 legalism (vs. constitutionalism), 155– 6, 161, 191 Lenihan, Pat, 85 Leopold, John, 250 Lesage, Jean, 369 Lessard, François-Xavier, 61–2, 66, 67 Lévesque, Andrée, 32 Levine, Samuel, 82, 162 Lewis, David, 39, 40, 44, 60, 92, 96, 97, 276, 282, 309, 323, 382 Lewis, Hunter, 245 Lewis, John L., 52 Lewis, Morris, 282,

Lewis, Sinclair, 208 liberal democracy, 24, 86, 102, 105, 111, 125, 194, 215, 272, 376 liberalism, classical version of: and anti-discrimination laws, 10–11, 171, 199–200, 207, 213, 214, 237, 239; and bill of rights, 334–5; and executive despotism, 29, 362, 170, 171; rights and freedoms, 7, 76, 173, 248 liberalism and liberals, 191; as activists, 37, 41, 51, 91, 95, 96, 97, 99, 166, 173, 179, 244, 246, 247, 255, 260, 334, 366, 375, 377; attacked by right-wingers, 52; Catholic, 22; CCFers as, 27; criticisms of, 14–15; in government, 140; reform version of, 7, 11, 27, 91, 128, 171, 213, 229, 321, 377, 380; in trade unions, 278; transition from classical to reform, 377. See also liberal democracy Liberal Party: of British Columbia, 97; national, 27, 29, 32, 45, 55, 61, 66, 71, 87, 92, 104, 113, 125, 126, 128, 129, 136, 144, 156, 157, 160, 167, 169, 170, 171, 175, 187, 191, 213, 250, 255, 261, 266, 321, 325, 328, 331, 340, 341, 344, 346, 353, 360, 361, 362, 363, 366, 369, 372, 379; of Ontario, 59, 129, 136, 144, 205, 213; of Quebec, 32, 35, 42, 45, 60, 67, 133, 147, 272, 369. See also Delorimier Liberal Reform Club; Quebec Liberal Party bloc libertarian rights (liberty, freedom), 372, 373, 374, 375, 378, 381, 383; defined, 8; groups, 8–9 libertarian rights, issues of: Bill of Rights, chapter 8; Cold War and

Index—505 civil liberties, chapter 6; Gouzenko affair and civil liberties, chapter 4; Padlock Law, chapter 1; Second World War civil liberties, chapter 2. See also right to (list) Liberty (magazine), 308 La Ligue des droits de l’Homme (France), 193 La Ligue des droits et libertés (Quebec), 243 Lismer, Arthur, 347 Lithuanian Society, 71 Livesay, Dorothy, 33, 347 Locke, John, 23, Lor, Ruth, 310 Low, Solon, 156, 261 Lower, Arthur: background and values of, 91–3, 333–4, 337; and bill of rights, 321, 322, 330, 333–5, 337, 342, 344, 350, 352, 354, 355, 359, 360, 365, 383; and Civil Liberties Association of Winnipeg, 90ff., 337 (leaves Winnipeg); and Communists, 247, 335, 344; and connections with ‘influentials,’ 60, 92, 330, 359, 383; and Defence of Canada Regulations (DOCR), 68, 91–2, 97, 104, 385; and Gouzenko affair, 156–7, 167, 219, 247; and Japanese Canadians, 133, 333 loyalty commission (Japanese Canadians) 126, 135 Lucock, Rae, 95 Lunan, Gordon, 151, 154, 163, 166 MacDonald, Donald C., 173 MacDonald, R.C. ‘Claymore,’ 122 Macdonnell, J.M., 94, 95, 99, 346, 385 MacFarlane, R.O., 321 MacInnis, Angus, 78, 126, 207, 264

MacInnis, Grace, 126 Mackay, Keiller, 211, 212, 214, 221, 228, 235, 240 Mackenzie, Catherine, 48 Mackenzie, Ian, 113, 123, 136, 141, 339–40, 344 Mackenzie, William Lyon, 258 Mackenzie-Papineau Battallion, 260 Maclean’s Magazine, 127, 130, 141, 154, 171, 173, 186, 215, 301, 310, 317, 359, 360, 365 MacLennan, Christopher, 322, 362 MacLennan, Hugh, 347 MacLennan, J.A., 134 MacLeod, Angus A., 37, 40, 57, 233 Macleod, G.W., 31 MacMillan, Donalda, 114, 120, 127, 131, 132 Macmillan, Sir Ernest, 347 MacMillan, Hugh, 132, 136, 137 Macpherson, C.B., 56, 163, 164, 165, 189, 245, 249, 335, 336 Macpherson, Kay, 163 Madonna della Difesa church, 87 Magazine Digest, 187 Magna Carta, 17, 157, 158, 166, 170, 172, 177, 182, 183, 203, 252, 330 Mahood, Vivien, 225, 227, 231 293, 301 Major, Edmond, 259 Manitoba: discriminatory restrictive covenant prohibition, 234, 236; fair accommodation and fair employment practices acts (FAP and FEP), 317; fascists in, 198; government and MLAs, 71, 124, 322; group defamation legislation, 200; and Japanese Canadian rights group, 117; judicial independence case in (Stubbs), 28; MPs and senators

506—Index from, 126; University of, 321, 326. See also Civil Liberties Association of Manitoba; Civil Liberties Association of Winnipeg Manning, Ernest, 331 March of Time (film) 71 Marcus, Albert, 64, 274, 275 Marcuse, Gary, 261, 262, 271 Maritain, Jacques, 7 married women’s property acts, 340–1 Marshall case (John Marshall), 253 Martin, Argue, 199, 200 Martin, Paul, 167, 186, 332, 369 Martin case (Gordon Martin), 253 Marxism, 15, 38, 144, 163, 164, 246, 259 Massey, Vincent, 26 May, Alan Nunn, 145, 150, 174 Mazerall, Edward W., 151, 154, 195 McCarthyism, 195, 262, 360 McCorkle, Gary, 299, 307 McCurdy, Howard, 317 McCurdy, Jarvis, 124, 127 McDermott, Dennis, 295 McGill University, 3, 20, 32, 34, 42, 43, 44, 48, 60, 75, 135, 148, 223, 257, 273, 274, 285, 345, 386 McGuigan, Cardinal James, 238 McIlwain, C.H., 107 McKay, Morley, 300, 301, 307, 308, 309, 310, 311, 312, 313, 314 McLaren, John P.S., 21 McLean, J.S., 132 McLean, Stuart, 299 McRae, Kenneth, 329 McRuer, J.C., 127 McWhinney, Edward, 339, 365 Members of Parliament (MPs). See parliament

Mendelsohn, Lillian W., 34, 44 Mennonites, 8 Mercury Club (Toronto), 303 Mergler, J.K., 48, 62, Methodists, 91, 114; Grant AfroMethodist Episcopal Church, 227 Midanik, S.J., 223 Mill, John Stuart, 73–4, 76, 168, 385 Millard, Charles, 81, 116, 136, 223, 255, 286, 383 Milling, Gordon, 293 Mine, Mill and Smelter Workers of America (Mine-Mill), 249, 258, 259 minority rights. See right to minority equality and/or liberty Mitchell, Humphrey, 125 mob violence, against: Baptists, 256; blacks, 307; Communists, 28, 42, 43, 51, 60; German Canadians, 70; Japanese, 102, 108; Jehovah’s Witnesses, 256; Jews, 197, 198; Plymouth Brethren, 354 Monetary Times, 107 Montreal, 20, 25, 26, 27, 28, 29, 30, 33, 34, 41, 42, 43, 44, 182, 214, 273, 285; blacks in, 206; English minority in, 45; Jews in, 63, 197, 198, 201, 229; Members of Parliament for, 201; University of, 133 Montreal Civil Liberties Association (MCLA): and Communists, 254; defunct, 274; founding of, 166; members of, 166; and national civil liberties conference, 244, 336; and Shugar case, 181 Montreal [branch of the Canadian] Civil Liberties Union (CLU): and Communists, 48, 50, 54, 95, 96, 97, 98, 99, 200, 246; Defence of Canada Regulations (DOCR), 79–81, 97–8;

Index—507 founding of (1937), 47–8, 374; members of, 32, 47, 50, 133, 166, 176, 184; Padlock Law, 49–67, 322, 323; withering away of, 100–1, 166 Montreal Civil Liberties Union (MCLU): closes down, 279; and Communists, 274; creating LDR, 257–8; members of, 259, 274–5; Padlock Law campaign of, 274, 275, 276; Montreal Civil Rights League, 254 Montreal Committee on Canadian Citizenship, 133, 166, 133 Montreal Forum, 206 Montreal Gazette, 45, 50, 82, 161, 169, 170 Montreal Herald, 42 Montreal High School for Girls, 48 Montreal Labor Party, Central Branch, 33 Montreal Labour Committee for Human Rights. See Montreal Labour Committee against Racial Intolerance Montreal Labour Committee against Racial Intolerance, 289, 291, 293, 315 Montreal municipal government, 43, 51 Montreal sedition cases, 259 Montreal Star, 42, 274, 276, Montreal Trades and Labor Council, 48 Montreal Women’s Clubs, 33 Moore, Donald, 313 Moravians, 83 Moritsugu, Frank, 137 Morse, Eric, 168, 334 Morse, Wayne, 238 Mosher, Aaron, 31, 167, 290

Mulroney government, 4 multiculturalism, 6, 115, 362, 384 Mundell, David W., 365 Murphy, J.W., 228, 335 Mutchmor, J.R., 210 Nasu, Yae, 128 National Action Committee on the Status of Women, 163 National Association of Canadians of Origins in India, 4 National Association of Technical Employees, 149 National Committee on Human Rights. See Canadian Labour Congress National Congress of Chinese Canadians, 4 National Congress of Italian Canadians, 5 National Council for CanadianSoviet Friendship (NCCSF), 143, 149, 162, 164, 165, 189 National Council for Civil Liberties (United Kingdom), 24, 47 National Council on Democratic Rights (NCDR), 99–100, 101, 258 National Council of Women, 116, 225, 231, 342 National Emergency Transitional Powers Act (Ottawa), 123, 126, 170, 262 National Film Board, 256 National Interchurch Advisory Committee on the Resettlement of Japanese-Canadians, 123 ‘national security state,’ 249, 261 National Social Christian Party, 54, 198 National Unity Association (NUA),

508—Index 300, 301, 302, 303, 304, 306, 307, 308, 310, 311, 314 National Unity Party, 83 natural law/natural rights, 6, 18, 337, 376 Nazis: anti-Nazi protest, 198, 201; reaction against, 10, 196, 203, 333; treatment of alleged Nazis in Canada, 69, 70, 83, 84, 87, 88, 106, 109. See also discourse; Jews in Europe; refugees Negro Citizenship Association, 313 Nemetz, Nathan, 97 New Commonwealth, 47, 78 New Democratic Party (NDP), 282, 361 The New Despotism, 29 New Outlook (United Church), 29 ‘new reform elite,’ 26 New Republic, 92 New York Post, 92 New York Times, 92 Nielsen, Dorise, 196, 101 Nisei Affairs, 120, 121 Noad, A.S., 43, 44, 48 Noble, Annie, 220, 230, 235, 237. See also Noble and Wolf case Noble and Wolf case, 250, 311; background of, 220–1; impact of Supreme Court of Canada decision, 235–6; Ontario Court of Appeal decision in, 228; Ontario Supreme Court decision in, 221; Supreme Court of Canada appeal in, 230, 234–5 nodal actors, 26, 129, 161, 223, 382–3 Norman, Herbert, 118 Norman, W.H.H. (Howard), 118, 121 Normandin, Paul, 274, 275, 276 North Buxton (Ont.), 303

Nunoda, Peter, 140–1 Nutland, J.F., 307 Obiter Dicta, 343 ‘O Cadenas’ (song), 61 Oelbaum, Irving, 223 l’Office des Droites de Détenu-e-s (Quebec), 184 Official Secrets Act (Ottawa), 152, 159, 177, 179, 186, 192 O’Halloran, C.H., 343 One Big Union (OBU), 291 Ontario (province): attorney general and department, 71, 89, 129, 130, 217, 224, 232, 234, 238, 303, 304, 307, 312; labour minister and department, 129, 217, 228, 240, 306, 307, 308, 309, 310, 312; wartime policies of, 89, 103, 130. See also anti-discrimination legislation; Drew; Frost; Hepburn Ontario Court of Appeal, 147, 221, 228, 235 Ontario Federation of Labour, 237 Ontario Human Rights Commission, 294–5, 315–16 Ontario Liquor Board, 303, 309 Ontario Supreme Court, 84, 210, 211– 13, 214, 221, 314 Ontario Teachers’ Federation, 231 Ontario Union Defence Committee, 73 On-to-Ottawa trek, 40 Orange Lodge, 199, 207, 211, 228, 232, 290, 299 Orlikow, David, 292, 293, 317 Ortenberg v. Plamondon, 197, 200 Ottawa (government): cabinet secretary, 135, 136; Defence, 6, 82; External Affairs, 70, 18, 120, 154,

Index—509 193, 322, 341, 353; Health and Welfare, 148, 159, 180, 186, 188, 189; Justice, 50, 55, 56, 59, 60, 61, 69, 80, 87, 89, 90, 131, 133, 145, 148, 150, 152, 155, 177, 183, 187, 262, 264, 265, 269, 270, 271, 300, 328, 330, 337, 338, 340, 341, 342, 344, 345, 351, 353, 357, 359, 361, 363, 365; Labour, 110, 120, 125; secretary of state, 80, 167; Veterans Affairs, 113, 178, 339. See also Diefenbaker, Fulton, Garson, Ilsley, King, Lapointe, St. Laurent, Varcoe Ottawa [branch of the Canadian] Civil Liberties Union (OCLU), 96–7 Ottawa Citizen, 125, 160, 167, 264 Ottawa Civil Liberties Association (OCLA), 133, 167–9, 173, 178, 181, 244, 254, 334 Ottawa Journal, 49, 333, 352, 366 Ouimet, Roger, 133, 166 Owen Sound (Ont.), 208, 303 Owens, David, 91, 92, 167, 245, 247 Owram, Doug, 26 pacifists, peace movement, 24, 29, 37, 47, 70, 71, 72, 79, 96, 100, 114, 115, 116, 127, 174, 249, 252, 253, 260, 262, 264, 272; Russian peace initiative, 173. See also Canadian Peace Congress; ‘Witness Against the War’ manifesto; Women’s International League for Peace and Freedom; World Peace Conference Padlock Law, 10, 11, 12, 14, 321, 375, 378, 379, 383, 384; and bill of rights campaign, 321, 322, 323, 324, 340, 341, 345, 357, 358, 361; civil

liberties implications of, 46–7; and Cold War, 244, 249, 254, 256, 260, 261; first campaign against (1930s), 47–67; and Gouzenko affair, 143, 149, 163, 165, 176; passage of, 45; second campaign against (1950s), and Second World War, 85, 92, 93, 97, 104, 105, 272–8, 280. See also Fineberg v. Taub case; Switzman v. Elbling case Palmer, Brian, 51 Pannell, Olive, 115 Papineau, Louis-Joseph, 258 Parent, A., 61 Parent, Madeleine, 83, 248, 272, 343 Park, Eamon, 255, 290, 297 Park, Frank, 56, 163, 165, 180, 336 Parkin, G.R., 91 Parliament of Canada, 18, 21–2, 31, 55; committee on the bill of rights (1960), 366–7, 369; committee on Criminal Code amendments, 266, 270; committee on Defence of Canada Regulations (DOCR), 79, 89, 90, 93, 94, 100, 101, 106; committee on human rights/bill of rights, 190, 245, 347, 338, 341, 342, 344, 346, 347, 350, 351; Members of Parliament, 55, 59, 60, 66, 78, 91, 93, 101, 113, 116, 121, 123, 124, 126, 129, 141, 134, 136, 137, 155, 156, 157, 167, 169, 174, 175, 178, 179, 181, 187, 190, 196, 250, 255, 264, 265, 267, 270, 317, 325, 329, 338, 341, 347, 360. See also Senate parliamentary supremacy (or sovereignty), 18, 185, 319, 328, 329, 330, 334, 336, 337–8, 340, 341, 345, 352, 357, 362, 367, 370, 371, 378, 380

510—Index Partridge, Glendon, 274–5, 276 Patrias, Carmela, 231 Le Patriote, 198 Patterson, William, 249–51 Patullo, Duff, 71 pay equity. See Female Employees Fair Remuneration Act (Ont.) PC 6444 (Gouzenko affair), 145, 147, 158, 160, 161 PC 6577 (suspected American deserters), 172 Pearson, Lester B., 353, 369 Penfield, Wilder, 347 Penner, Jacob, 71 Pentland, Clare, 189 People’s Cooperative Bookstore Association (Vancouver), 259 Perrault, Jacques, 133, 166, 275 Perry, W.C., 227 Peterson, Oscar, 303 Petition of Right (1627), 177 Phillips, Nathan, 237 Philpott, Elmore, 126 Pickersgill, J.W. (‘Jack’), 60, 92, 328 Planning for Freedom, 323 pluralism, 227–8 Plymouth Brethren, 354 Poland, 27, 32, 148, 162, 163, 169, 193, 194, 285. See also Canadian Polish Congress; Toronto Polish community Poland, Fred, 163 Poland, Phyllis, 151 police, 25, 27, 80, 82, 88, 114, 145, 172, 249, 250, 263, 269, 343; Chatham (Ont.), 25; Dresden, (Ont.), 307; France, 193; Montreal, 33–4, 43, 61– 4, 174, 272; Ontario, 71, 103; (‘Gestapo Affair’), 207, 256; police state concept, 90, 172; Quebec, 25,

36, 45–7, 52–3, 60, 63, 273, 276, 277; Quebec City, 61; RCMP, 31, 34, 39, 53, 54, 57, 69, 72, 83, 84, 85, 87, 90, 94, 96, 97, 98. 99, 100, 148, 150–1, 155, 156, 162, 163, 169, 171, 180, 185, 187, 188, 191, 250, 251, 258, 261, 263, 264, 266, 269, 272, 275, 279; Regina, 40; Toronto, 29, 71; Vancouver, 57 policy networks (human rights policy networks) 9, 304, 318, 364, 374, 375 political culture, 4, 15; Ontario, 233; Quebec, 22, 104, 277, 278 polls, 112, 125, 131, 144, 175, 182, 208, 215, 219, 230, 360 popular front, 38, 53, 57, 58, 59 populism, 78, 157, 325, 331, 334, 366 Port Arthur (Ont.), 276 Porter, Dana, 224, 232, 238 postmaterialism, 219, 372 Power, C.G., 156–7, 158, 172, 175, 182 pragmatism/self-interest, 10, 13, 14, 27, 78, 79, 106, 180, 183, 205, 223, 215, 278, 283, 288, 375, 384, 385 Pratt, E.J., 347 Presbyterian Church, 204, 274 press, the, 74, 81, 82, 87, 133, 151, 181, 217, 238, 240, 246, 250, 262, 267, 303, 309, 319, 354, 366, 381; civil libertarian, 85; Communist, 54, 106, 174, 251 (ethnic), 275 (ethnic), 276; Conservative, 23; Conservative Quebec, 352; Liberal, 124, 128, 335; liberal, 90, 106, 131, 139, 174; social democratic, 106; Soviet, 174. See also individual newspapers; right to (list) Prince Albert (Sask.), 78

Index—511 Prince Edward Island trade union legislation, 248, 256, 348–9 principled individuals, groups, decisions, 12–14, 16, 26, 27, 37, 51, 78, 79, 121, 172, 205–6, 209, 215, 223, 260, 275, 276, 282, 283, 301, 345, 384, 385 Progressive Conservative Party. See Conservative Party ‘Prometheus,’ 150, 186 property: and the franchise, 19; married women’s property acts, 339–40; provincial jurisdiction over, 64, 65, 138, 320, 340, 352, 355, 356, 358; state expropriation of, 102, 111, 118, 120, 139–40; state protection of, 22, 250, 263. See also right to own property; restrictive covenants Pross, Paul, 9 Protestants 23, 56, 198, 199, 213, 225; minority rights of, in Quebec, 7; Protestant Ministerial Association (Montreal), 33. See also individual churches Protocols of the Elders of Zion, 201, 208 Provisional Committee for Canadian Civil Liberties (Winnipeg), 91 Provisional Committee for a World Conference on Human Rights (UK), 249–50, 250–1 Quebec (province): anglophones in, 14, 43, 46, 56; Bill 209, 50; Bill 55, 50; ; Code of Civil Procedure, 35–6; communism, opposition to, 43, 51, 144, 272, 278; conservative values of, 22, 32–3, 42, 52, 104, 277, 366, 379, 384; David bill, 60, 256; francophones in, 18, 43, 46, 48, 49,

133, 156, 166, 366, 367; francophones as human rights activists, 14, 48; Freedom of Worship Act, 358; judges on Supreme Court of Canada, 277, 278; law against riot in, 22; Liberal Party bloc, 104, 169, 191, 320, 340, 379; Members of Parliament for, 50, 55, 59, 51, 104, 205, 360; nationalist values in, 42, 278, 319– 20; Protestant minority rights in, 7; provincial rights/collectivism, 8, 14, 15, 278, 320, 341, 355; trade unions in, 50, 52, 291; Quiet Revolution in, 14. See also antiSemitism; censorship; communism; fascism; Jehovah’s Witnesses; Padlock Law; the press; Roman Catholic Church; Union Nationale; Zynchuk case Quebec Appellate Court, 66, 274 Quebec City, 42, 52, 197, 244 Quebec City Civil Liberties Association, 244 Quebec Committee for Allied Victory, 101 Quebec Committee for the Defence of Trade Union Rights, 245 Quebec Supreme Court, 64 Queen’s Quarterly, 27, 365 Race Relations Institutes, 209, 218, 222, 296 Racial Discrimination Act (Ont.), 206–7, 208, 212, 213, 216–7, 234, 240, 302, 305, 382 racial discrimination/racism: Canadians ignorance of, 4, 195, 199, 208, 217–18, 297, 298, 317; changing attitudes about, 6, 9, 10,

512—Index 68, 106–8, 113, 124, 196, 333, 376–7; and Communists, 112, 205; and dispersal and deportation of Japanese Canadians, 111, 113, 124; and fear, 383; official forms of, 5, 19, 109, 113, 137; post-war examples of, 219, 227; private forms of, 20; reasons for, 19; and science, 107; wartime concerns about, 106. See also right to racial equality Rand, Mr Justice Ivan, 277; Rand formula, 286 Rands, Stanley, 168 Reany, George, 120 Reconstruction Party, 38 Red Cross, International, 122, 125 Red Dean of Canterbury. See Johnson, Rev. Hewlett Red Scare, 251, 269, 360 reference cases, 55–6, 65, 131, 132, 134, 330, 346, 352, 353, 358, 363 refugees, 5, 76, 93, 104, 108, 128, 129, 202, 203, 204, 223, 282, 283, 373 Regina: Regina Civil Liberties Committee, 72; Regina Manifesto (of CCF), 31, 32; riot, 40; soldiers’ riot in, 70 Reid, Escott, 23 Rélations, 182 Relief Camp Workers’ Union, 40 Religion-Labour Foundation of Canada, 116 religious organizations, see churches/church groups repatriation (of Japanese Canadians). See deportation respectability, 27, 35, 38, 48, 57, 58, 59, 70, 93, 94, 95, 99, 112, 120, 127, 129, 133, 136, 141, 164, 181, 197, 213, 222, 426, 251, 255, 276, 285,

299, 300, 305, 312, 335, 339, 334, 347, 367; and activists, 381 responsible government, 17 restrictive covenants (discriminatory), 20, 201–2, 216, 226, 228, 305; British Columbia law, 236; Manitoba legislation, 234; Ontario legislation, 232–4, 303; Saskatchewan legislation, 218–19. See also Drummond Wren case; Noble and Wolf case Richmond, Edward, 221, 229 right to (list includes claims to rights as well as violations of rights): academic freedom, 70, 255; ancestry, no discrimination on basis of, 240, 305; arrest, freedom from capricious or arbitrary, 327; assembly, 25, 28, 31, 34, 36, 47, 55, 59, 323, 326, 331, 348; association, freedom of, 4, 5, 8, 17, 24, 29, 32, 47, 68, 73, 77, 78, 80, 83, 88, 157, 218, 229, 247, 248, 261, 318, 321, 327, 330, 348, 385; bail, reasonable, 348; bargain collectively, 50, 296, 350; colour, no discrimination on basis of, 240, 305; contract, 206, 212, 213, 237, 377; counsel, 169; denominational schools (Protestant and Catholic minority rights), 7, 8, 19, 336, 348; disability, mental, physical, equality of, 14, 316, 366; economic freedoms, 350; education, 327, 331; fair trial, 17, 55, 78, 153, 161, 348; habeas corpus, 80, 145, 151, 155, 172, 182, 330, 332, 348, 362; home and property, ownership of, 331; linguistic freedom and/or equality, 7, 8, 19, 21, 348; minority equality and/or

Index—513 liberty, 7, 72, 199, 208, 228, 318, 323, 324, 325, 326, 336, 339, 376, 377; mobility, 321; nationality/ national origin, no discrimination on basis of, 6, 31, 240, 289, 305, 326; national self-determination, 7; organize (form unions), 50, 286, 350; picket, 173, 261, 269, 286, 350; place of origin, no discrimination on basis of, 240, 305; political belief, 31, 326; press, freedom of, 55, 65, 74, 322; prisoners being treated fairly, 25, 26, 76, 184, 222, 256; procedural fairness, 19 (rule of law), 169, 327, 348, 386n16; property ownership, 8, 26, 46, 55, 80, 101, 102, 173, 202, 213–14, 230, 231, 239, 309, 331; provinces’ equality or autonomy (provincial rights), 8, 14, 50, 55, 61, 320–1, 328, 354, 357, 363; racial equality, 7, 31, 54, 58, 117, 119, 133, 152, 197, 198, 203, 204, 206–9, 211, 212, 213, 216, 220, 222, 228, 231, 232, 233, 234, 237, 239, 240, 244, 282, 283, 284, 286 (in USA), 287, 288, 289, , 291, 292, 293, 296, 300, 301, 302, 304, 305, 306, 307, 309, 310, 311, 312, 313, 314, 315, 316, 318, 325, 326, 348, 375, 380, 381, 382; reasonable bail, 348; religious equality, 6, 7, 8, 9, 10, 11, 19, 23, 31, 106–8, 119, 199, 202, 203, 204, 206, 207, 212, 216, 218, 237, 240, 241, 283, 287, 288, 298, 298, 301, 305, 315, 316, 318, 326, 348, 372, 374, 375, 376, 377; religious freedom, 8, 17, 24, 38, 43, 72, 85, 87, 102, 104, 321, 323, 325, 326, 327, 330, 331, 339, 348, 358; remain silent, 169; rule of law, 15,

17, 19, 62, 73, 103, 125, 155, 157, 182, 184, 191, 195, 248, 327; sexual/ gender equality, 6, 7, 11, 14, 19, 20, 23, 116, 119, 207, 239, 240, 298, 303, 316, 318, 348, 349–50, 376, 381; sexual-orientation equality, 14, 316, 366, 372, 381; speech/ expression, freedom of, 4, 5, 7, 8, 17, 21, 23, 24, 25, 28, 29, 30, 31, 32, 34, 36, 41, 42, 47, 52, 54, 55, 59, 65, 66, 68, 70, 73, 74, 75, 77, 78, 79, 81, 83, 86, 88, 92, 104, 157, 199, 247, 250, 256, 261, 265, 268, 271, 272, 274, 277, 318, 321, 322, 323, 326, 331, 348, 385; strike, 173, 261, 269, 286, 350; trade union activities, 173, 348; vote, 19, 23–4, 109, 118, 120, 124, 129, 196, 253, 304, 321, 340, 348; want, freedom from, 350; work of choice, 331 rights consciousness, 214, 339 Ringwood, I., 31 Roberts, Kelso, 217, 303, 304, 312 Roberts, Leslie, 46 Roberts, Thomas, 259, 267, 268 Robertson, Gordon, 125, 135 Robertson, Norman, 70, 120, 121, 154 Robertson, Mr Justice Robert Spelman 229 Robeson, Paul, 249, 260 Robinette, J.J., 234, 235 Robinson, Judith, 47, 75, 94 Robinson, Lukin, 168 Rodd, Nora, 260, 264, 272, Rodd, Roscoe S., 40, 259–60, 268 Roebuck, Arthur, 128–9, 136, 167, 177, 264, 269, 270, 334, 337, 341, 342, 346, 350, 364. See also Senate Committee on Human Rights and

514—Index Fundamental Freedoms (Roebuck Committee) Roman Catholic Church: antiCommunist sentiment of, 57, 144, 277; discrimination towards, 16, 209, 228; minority rights outside Quebec, 7, 21; in Ontario, 225, 229, 238, 298; prejudice against, 56, 282, 299; in Quebec, 22, 42, 43, 52, 56, 86, 100, 144; in Vancouver, 57. See also Canadian and Catholic Confederation of Labour; Knights of Columbus Romanians, 88, 202 Romney, Paul, 155 Roncarelli v. Duplessis, 274, 276 Roosevelt, Franklin D., 5, 143, 212 Roper, Elmo, 40 Rose, Fred, 155, 174–5, 176, 190, 205, 272 Rosenberg, Ethel and Julius, 259, 260, 267, 275 Rowell-Sirois Commission. See Royal Commission on DominionProvincial Relations Rowley, Kent, 133, 248, 272 Royal Canadian Mounted Police. See police Royal Commission on DominionProvincial Relations, 321, 322, 330, 333, 352, Rubinstein, Michael, 282 Russell, Peter, 277 Russell, Ross, 252 Russia. See Soviet Union Ryerson, Stanley B., 164 sabotage, 87, 104, 263, 265, 268, 269, 349 Sago, Mitch, 85

St Andrew’s constituency (Ont.), 199, 216 St Catharines (Ont.), 316 St Laurent, Louis, 66, 89, 145, 155, 156, 175, 177, 181, 261, 262, 266, 353, 355, 356, 357, 361 Salsberg, J.B., 206–7, 215, 216, 220, 233, 284, 302, 304, 310 Sandwell, B.K.: and anti-discrimination legislation, 239; and Association for Civil Liberties (ACL), 223; background and values of, 75–7, 94, 171, 173, 382, 383, 384; bill of rights, 334, 336, 338, 342; 349, 350, 351, 355–6, 361; and Canadian National Committee on Refugees and Victims of Political Persecution (CNCR), 93, 108; and Civil Liberties Association of Toronto (CLAT), 94, 95, 98; and civil servant loyalty tests, 351; and Communists, 95, 98, 144, 246, 247– 8, 251; and Criminal Code amendments, 263–4; death of, 359; and Defence of Canada Regulations (DOCR), 101; and fingerprinting, 73; and Gouzenko, 157, 161, 171; and Japanese, 120, 127, 128, 131, 134, 136, 137, and national organization proposal, 243; and racism, 108; and Ukrainian Labor Farmer Temple Association (ULFTA), 102 Sarco Canada Limited, 257 Saskatchewan: discriminatory restrictive covenants and, 234, 236; government of, 37, 134, 135, 325, 355, 369; Saskatchewan Bill of Rights, 218, 345, 346, 350 Saturday Evening Post, 76 Saturday Night, 75, 76, 79, 85, 86, 87,

Index—515 90, 92, 93, 102, 107, 110, 127, 131, 137, 157, 160, 168, 170, 171, 239, 243, 247, 262, 263, 345, 351, 352, 359, 365 Saturday Night Club (Montreal), 34 Saumur v. Québec, 358 Schneider, F.K., 82 Schroeder, Mr Justice Walter, 221, 226, 228, 234, 235 Schwenger, Mr Justice William F., 308, 309 Scott, Frank R.: and Association for Civil Liberties (ACL), 257; attacks on, 70, 274, 386; background and values of, 25–7, 29, 49, 246, 319, 320; and bill of rights 319–20, 323, 329, 336, 350, 352, 354, 356, 365, 366, 370; and Canadian Civil Liberties Protective Association (CCLPA), 28–9, 31; and CCF, 26, 34, 274; and Communists, 27, 34, 41, 44, 49, 95, 246, 274–5, 384; and early civil libertarian protests, 27, 33, 259; and Japanese Canadian deportation, 133; and Japanese Canadian internment, 102; and Jehovah’s Witness case, (Roncarelli), 274; and League for Social Reconstruction (LSR), 319– 20; and Montreal branch of the Canadian Civil Liberties Union (CLU), 48–9, 66, 95; and Montreal civil liberties group (attempts to organize), 30, 36, 44; and Montreal Committee on Canadian Citizenship, 133; and Montreal Civil Liberties Association (MCLA), 166, 245, 254, 336; and national civil liberties group (attempts to

organize), 40–1, 44–5, 245, 246, 257; and Padlock Law case (Switzman), 274, 275, 276, 277; on property and civil rights, 352, 358; and Regina riot, 40; and Spanish Republicans, 41, 42, 43, 44; and Trudeau, 42, 320 Scott, Marisse, 208, 219, 297, 303 Scott, R.B.Y, 44, 48 search powers (of police), 263 Second World War, 4, 5, 10, 12, 17, 21, 24, 32, 37, 68–105, 106, 142, 143, 203, 259, 282, 298, 299, 337, 369, 376, 379, 385 Sedgewick, Garnett G., 57, 97 Sedgwick, Joseph, 59, 255 sedition, 22, 25, 37, 65, 129, 248, 259, 263, 264, 265, 268, 269, 271, 272, 350 Seeley, Reginald Sidney Kingsley, 223, 225, 231, 255, Selective Service Bureau (Ottawa), 204 self-interest (as opposed to principle), 13–4, 373, 373, 375, 384 Senate (of Canada), 17, 134, 257, 260, 264, 266, 269, 353, 354; Senate Committee on Human Rights and Fundamental Freedoms (Roebuck Committee), 257, 260, 353–5, 356, 357, 359, 370; Senate Committee on Immigration and Labour in 1948, 134 September 11 (2001), 382–3, 385 sexual-sterilization legislation, 340 Shane, Bernard, 282, 288 Sharp, Mitchell, 91 Shawinigan Falls (Que.), 354 Shimoyama, Yutaka, 128 Shoyama, Thomas, 109 Shugar, David, 148 ff.; allegations

516—Index against, 150, 158–9; background of, 148–50, 162; after the Gouzenko affair, 187–9, 192–5; internment of, 149–50, 167; interrogation of, 152; prejudice against, 169; supporters, real and potential of, 167, 173, 174, 178, 179, 180, 181, 182, 187, 189, 190; trials, 159, 177, 185–6; veteran’s benefits of, 178–9, 181, 187, 193; work at Department of National Health and Welfare, 148, 159, 177, 180, 181–2, 186–7, 189 Shugar, Grace, 151, 194 Sifton, Clifford, 93 Sifton, Victor, 358–9 Sikhs, 4. See also Indo-Canadians Silcoff, Maurice, 282 Silcox, Claris E., 201 Sinclair, Lister, 252 Singer, Frederick, 199, 200 Skelton, O.D., 70 Skogstad, Grace, 9 Smith, Adam, 321 Smith, A.E., 25, 37, 99, 100 Smith, Denis, 331 Smith, W. Norman, 28 Social Credit Party, 126, 208, 261; and Alberta government, 38, 236, 331; MPs in Ottawa, 126, 156, 347, 360 social democrats/democratic socialists: attacks on, 43, 49; and Canadian Forum, 25; and CCF, 26; and Communists, 36, 37, 38, 49, 255, 260, 278, 281, 284, 350; fascism and, 41, 54; as human rights activists, 25, 27, 29, 32, 36, 37, 43, 44, 48, 51, 57, 78, 91, 94, 95, 96, 97, 110, 116, 117, 133, 136, 166, 168, 189, 223, 244, 246, 252, 255, 275, 319, 335, 373, 375, 377; and League

for Social Reconstruction (LSR), 98; liberal values of, 27; and labour rights, 173; and RCMP, 34; and social democratic rights, 7, 15; and trade unionists, 116, 222, 278, 281, 284; and welfare state, 19, 173. See also New Democratic Party (NDP); socialism Social Gospel, 26, 28, 30, 32, 33, 37, 40, 79, 99, 114, 115, 117, 130, 141, 161, 162, 205, 210, 223, 226, 374 socialism, 15, 26, 27, 30, 31, 34, 35, 38, 75, 159, 164, 168, 206, 247, 281, 282, 321, 331, 360, 366; United States suppression of, 24, 129. See also Fabianism; social democracy social movement theory, 381 Social Planning for Canada, 319 For Social Progress, 53 social-service providers as activists, 381. See also Canadian Association for Adult Education (CAAE); Christian Social Council of Canada; Fellowship for a Christian Social Order (FCSO); Fellowship of Reconciliation (FOR); United Church Board of Evangelism and Social Service Workers’ Educational Association (WEA); YMCA; YWCA social unionism, 115, 286 Société Canadienne des Droits de l’Homme, Section de Montréal, see Montreal [branch of the Canadian] Civil Liberties Union (CLU) Societé Canadienne d’Enseignement Postscolaire, 226 society-centred theory, 227–8 Society of Friends of Indians, 16 Soldiers’ Vote Bill, 109 Sorel (Que.), 54

Index—517 South River incident (mob violence), 70 Southam, Harry, 168 sovereignty (independence): Canadian, 8, 27, 319, 322, 342, 353, 354, 355, 370; ending Supreme Court appeals to Privy Council, and, 320; Quebec, 8 Soviet Union: civil liberties weakened by threat of, 170, 191–2; Cold War attitudes to, 278, 360; Communist Party of, 278; Communist Party of Canada tactics dictated by, 38, 99, 100, 101, 246, 260; constitution of, 213; during Gouzenko affair, 10, 96, 144–5, 148, 150–2, 154, 158, 164, 165, 168, 173, 175, 184, 186, 192; peace initiatives of, 173, 174; Quebec attitudes to, during 1930s, 43, 53; during Second World War, 84, 99, 101–2, 143–4, 149, 162, 166, 184, 259; superiority of, alleged, 107, 164, 165, 207. See also Comintern; Friends of the Soviet Union Spain, 38, 42, 43; Civil War in, 41, 43, 260; Republicans/Loyalists, 35, 38, 41, 149; Spanish Republican delegation to Montreal, 43–4. See also Canadian Committee to Aid Spanish Democracy; Canadian Youth Committee to Aid Spain; Committee for Medical Aid to Spain; Heart of Spain (film); Mackenzie-Papineau Battalion Spaulding, Margaret, 382, 385, 386; background and values of, 164; and Civil Rights Union (CRU), 165, 187, 189, 226, 247, 250, 347; and Emergency Committee for Civil

Rights (ECCR), 164; and League for Democratic Rights (LDR), 259 Speisman, Steven 197 Spry, Graham, 41, 44 Stalin, 51, 67, 143, 164, 165, 251, 278, 279, 360 Statute of Westminster, 1931 (U.K.), 319 Steelworkers. See United Steelworkers of America Steeves, Dorothy, 126 Stewart, Alistair, 91, 157, 325–6, 332, 341, 346, 350, 352, 359, 359 Stiernotte, Alfred, 28, 29, 30, 31, 117 Stinson, Lloyd, 91 Stubbs, Lewis St George, 28, 133, 174, 322 Student Christian Movement, 117, 162, 205, 225, 310 Sullivan, Pat, 84, 86, 247 Sunahara, Ann Gomer, 137 Superman (censored by government), 81–2 Supreme Court of Canada: anglophone/francophone value differences reflected in decisions of, 277–8; bill of rights emasculated by, 370–1; bill of rights reference proposed for, 330, 346, 352, 353, 358, 362, 363; First World War attitude to civil liberties by judges sitting on, 185; human rights codes given quasi-constitutional status by, 316; Jehovah’s Witnesses, protected by, 339; judges of, on Gouzenko royal commission, 145–7, 171, 177, 180, 181, 183,188, 190; Judicial Council of the Privy Council, and, 320, 349; jurisdiction of, 349, 351; liberal

518—Index activist nature of, during the 1950s, 280, 339, 340, 378; Padlock Law reference proposal for, 55, 65, 66; sedition law struck down by, 272. See also Alberta Press case; bill of rights (implied); Christie v. York case; Fineberg v. Taub case; Japanese Canadian Reference case; Noble and Wolf v. Alley case; Roncarelli case; Saumur case; Switzman v. Elbling case Suzuki, David, 236 Swastika Clubs, 198 Switzman, John, 273–4, 278–9 Switzman v. Elbling, 11, 273–278, 361, 378 Sydney, N.S., 37, 257, 316 Talbot, Lyle, 308–9 Tanaka, George, 255, 357, 383 Tanaka, Kinzie, 120, 127, 137 Tarnopolsky, Walter, 316, 327 Tarr, E.J. 91, 133, 136 Taschereau, L.A (and his government in Quebec), 32, 34, 35, 42, 46, 147 Taschereau, Robert, 147 Tatham, George, 127, 128, 131, 223, 253, 255, 386 Taub, Muni, 63, 64, 66, 67, 85 Taylor, Charles, 14 technocracy, 87, 104 This Was My Choice: Gouzenko’s Story, 164 Thompson, E.P., 15 Thompson, John Herd, 21 Timbres, Ella and Harry, 31 Time Magazine, 187 Timmins (Ont.) Labour Defense Committee of Timmins

tolerance vs. protection by legal rights, 229, 237, 297, 314, 349 Toronto: black community in, 205, 208, 218, 224, 227; Chinese community in, 225; Japanese Canadians in, 115, 117, 224; Jewish community in, 30, 129–30, 197–8, 199, 201, 206, 209, 210, 215, 223, 224, 230, 240, 282, 284; municipal government of, 71, 110, 199, 206, 212, 237, 248–9, 252, 260; Polish community in, 225; public meetings of activists in, 53, 100, 119, 128–30, 162, 174, 218, 257; suppression of libertarian rights in, 27, 29, 71, 252 Toronto Association for Civil Liberties. See Association for Civil Liberties (ACL) Toronto [branch of the Canadian] Civil Liberties Union (TCLU): created (1937), 47, 58–9, 374; and Defence of Canada Regulations (DOCR), 72, 75; members of, 47–8, 58–9, 75, 93; and Padlock Law, 59, 62; replaced by Civil Liberties Association of Toronto (CLAT) in 1940, 93–4 Toronto Citizens’ Committee, 40 Toronto District Labor Council, 57, 231 Toronto and District Trades and Labour Council, 225 Toronto Joint Labour Committee to Combat Racial Intolerance: background, 290, 291, 292, 293, 294, 295; becomes Toronto Joint Labour Committee for Human Rights, 292; begins as Provisional Labour Committee to Combat Racial Intolerance, 218, 222, 289;

Index—519 and Canadian Jewish Congress (CJC ) and Association for Civil Liberties (ACL), 224, 297, 230; created formally (in 1948), 287, 289; discriminatory restrictive covenants, opposition from, 231; FAP campaigns (including Dresden), and, 11, 281, 298, 301, 304–17; FEP campaigns, and, 225, 227, 231, 238, 240, 297; liquor licences campaign, and, 303 Toronto Joint Labour Committee for Human Rights. See Toronto Joint Labour Committee to Combat Racial Intolerance Toronto Labour Committee for Human Rights. See Toronto Joint Labour Committee to Combat Racial Intolerance Toronto Labour Council, 205 Toronto News, 75 Toronto school system, 260 Toronto Star, 58, 75, 77, 81, 124, 125, 127, 128, 131, 132, 159, 165, 172, 213, 229, 238, 306, 327, 338, 345 Toronto Symphony Six, 256 Toronto Telegram, 161, 169, 199, 207, 213, 307, 308 Toronto Trades and Labor Council, 39 Toronto, University of. See University of Toronto Toryism/Tories 22–3, 47, 50, 75, 78, 104, 157, 207, 219, 228, 255, 319, 333; red tories, 94, 206, 233. See also Conservative Party; conservatism Trades and Labor Congress (TLC), 33, 48, 79, 230, 269, 270, 283, 286, 288, 289, 290, 291, 296, 297, 343,

344, 355; National Standing Committee on Racial Discrimination, 230–1, 287, 288, 295, 315, 357; regional bodies and member organizations of, 39, 48, 225, 237, 238, 290, 291, 293. See also Canadian Labour Reports trade unions (and workers): attacks on, 21–2, 32, 40, 43, 50, 52, 54, 57, 59, 73, 79, 84, 87, 93, 182, 232, 248, 249, 252, 256, 265–6, 272, 348; Canadian Jewish Congress and, 214–15; communism and, 38–9, 47, 52, 53, 57, 79, 101, 116, 176, 206, 247, 251, 258, 259, 260, 267, 270–1, 276, 278, 289, 343, 350; human rights violations by, 240, 287; industrial, 52, 286; ‘private interest group’ categorization of, 12; rights intersecting with other rights, 282, 296; rights other than those specifically connected to, 33, 34, 37, 38, 56, 58, 62 , 90, 98, 102, 115, 149, 222, 225, 238, 276, chapter 7 (Jewish Labour Committee), 353, 364, 373–374, 375, 376, 380, 381; rights specifically connected to, 24, 40, 59, 79, 149, 173, 240, 245, 268, 269–70, 286, 343, 380; women’s rights and, 297–8. See also right to economic freedoms; right to trade union activities treason, 86, 152, 191, 262, 265, 266, 268, 269, 271 Trépanier, Raoul, 48, 57 Tribune. See Canadian Tribune Troper, Harold, 202 Trudeau, Pierre Elliott, 14, 32, 42, 320, 355, 371, 372, 386 Trueman, Ernest, 110

520—Index Tulchinsky, Gerald, 198, 285 Turcotte, Edmond, 48 Ukrainian Canadians, 4, 386; Ukrainian Canadian Civil Liberties Association, 4; Ukrainian Canadian Congress, 4; Ukrainian Civil Liberties Committee, 245; Ukrainian Labor Farmer Temple Association (ULFTA), 101–3. See also Association of United Ukrainians ultramontanes, 22 Uncivil Disobedience: The Tactics and Tales of a Democratic Agitator, 294 Uncle Tom’s Cabin, 298 Underhill, Frank, 29–30, 41, 70, 94, 323 Union Nationale, 42, 45, 54, 272, 367 Union of Unemployed Workers (Toronto), 249 Unitarian Church, 28, 117, 166, 225, 255 United Automobile Workers of America (UAW), 116, 270, 295, 309 United Cap, Hat and Millinery Workers Union, 282 United Church 30, 33, 70, 91, 114, 115, 117, 118, 166, 201, 204, 225; Alberta Conference, 342; Board of Evangelism and Social Service, 56, 116, 210; Foreign Missions, 134; Montreal United Church’s Committee on Social and Economic Research, 33; Secretary of Foreign Missions, 134; women’s missionary societies, 110. See also New Outlook United Electrical, Radio and Machine Workers of America (UE), 84, 88, 116, 164, 252, 258, 259

United Farmers of Alberta (UFA), 28, 31, 56 United Front, 34, 38, 40, 41, 44, 176, 243, United Garment Workers, 343 United Jewish People’s Order (UJPO), 249, 252, 258, 275, 276, 281, 284 United Jewish Refugee and War Relief Agencies, 203–4, 283 United Kingdom (Great Britain, England), 5, 52, 75, 127, 145, 249, 251; and bill of rights, 18, 340, 345, 349; and Canada, 4, 98, 104–5, 336, 349; civil liberties in the Cold War, 265; civil liberties groups, 34, 47; civil liberties in Second World War, 69, 81, 98, 203, 261; colonial relationship to Canada, 8, 24, 70, 322, 342, 356; and constitution, 7, 17, 65; and immigration to Canada, 233 United Mine Workers of America, 258 United Nations: Association in Canada, 167, 334; Charter of, 5. See also Universal Declaration of Human Rights (UDHR) United Packinghouse Workers, 225, 286, 295 United States of America: American authoritarianism compared with Canadian, 4, 24, 92, 98, 104; American ethnic/racial discrimination compared with Canadian, 209, 286–7, 299; barring entry of Canadians, 249, 256; Canadian activists born in, 129, 293, 294; Canadian attitudes about rights in, 195, 208, 302; and Cold War

Index—521 relationship with Canada, 263, 265; criticism of Canadian authoritarianism by press in, 92, 137, 174; influence on Canadian antidiscrimination campaigns, 4, 217, 221, 282, 286–7, 296, 304, 324, 338, 339, 344, 347; influence on Canadian bill of rights campaigns, 18, 157, 318, 324, 327, 337, 339, 343, 349, 352, 359–360; influence on Canadian civil liberties groups, 30, 34, 47; and treatment of Japanese Americans, 111, 141; and wartime literature, 81–2, 87. See also American Civil Liberties Union (ACLU); Civil Rights Congress United States Supreme Court, 214, 323, 349, 359 United Steelworkers of America, 52, 116, 256, 286, 287, 289, 290, 295 United Textile Workers, 343 United Theological College (Montreal), 30, 44 Universal Declaration of Human Rights (UDHR), 3, 5, 7, 17, 190, 226, 233, 240, 256, 305, 341, 345–6, 350, 352–5, 364, 371, 380 University of British Columbia (UBC), 57, 97, 245, 253; UBC Civil Liberties Association, 253, 279, 350 University of Toronto, 29, 30, 47, 70, 120, 124, 127, 136, 162, 163, 189, 195, 211, 217, 223, 260, 310, 312, 386; Trinity College, 221, 255; University College, 58, 223 Upper Canada College, 94 USSR. See Soviet Union Vaara, Aaro, 129 Vancouver (B.C.): British Properties,

20; city council, 112, 113, 117; Parks Board, 253, 259, 308; post office strike, 57; riots against Asians in, 20 Vancouver branch of the Canadian Civil Liberties Union (VCLU): and aboriginals, 253, 279; and bill of rights, 253, 350; and Communists, 97, 253, 279; Defence of Canada Regulations (DOCR), 97, 101; and Doukhobors, 279; founding of, 56– 7, 373; and Gouzenko affair, 166; and Japanese Canadians, 126, 134, 166, 253; members of, 57, 97, 118, 245; and proposed national civil liberties group, 258, 279, 350, 374; replaced by BC Civil Liberties Association, 279 Vancouver branch of the Canadian Labour Defence League (CLDL), 57 Vancouver branch of the Cooperative Committee on Japanese Canadians, 132 Vancouver branch of the Joint Public Relations Committee, 201 Vancouver branch of the League for Democratic Rights, 257, 258 Vancouver Christian Youth Federation, 117 Vancouver Civic Unity Association (CUA), 292 Vancouver Consultative Council (VCC), 117, 118, 121, 122, 133, 134, 139, 301 Vancouver Joint Labor Committee to Combat Racial Discrimination (later known as Vancouver Labour Committee for Human Rights), 279, 291, 292, 315, 316, 317

522—Index Vancouver Labour Committee for Human Rights. See Vancouver Joint Labor Committee to Combat Racial Racial Discrimination Vancouver Sun, 75, 112, 126, 139 Varcoe, F.P., 341, 351, 354, 370 Victoria (B.C.), 72, 253 Villeneuve, Cardinal Roderique, 22, 42, 56 Vlastos, Gregory, 40 Walker, B.A. 303 Walker, James, 197, 205, Wallace, Malcolm, 58, 101, 223, 342 Ward, Harry, 252 war hysteria, 70, 83, 88,102, 106, 131 War Measures Act (WMA), 21, 67, 68, 83, 88, 123, 126, 134, 153, 160, 170, 176, 191, 262, 337, 363, 364, 365, 367, 368, 369 Wartime Information Board, 163, 165 Washington Post, 137 welfare state, 27, 29, 127, 170, 171, 233, 287, 321, 349, 362, 378, 382 Wells, Clement, 256–7 Wells, H.G., 5 Whitaker, Reg, 147, 249, 261, 262, 271, 434n50 White Canada League, 112–3 Wilfrid LaCroix, 59, 156, 249, 253, 261, 346, 350 William Pitt Hotel case (Chatham, Ont.), 303 Williams, E.K., 146, 147, 148, 183 Willsher, Kathleen Mary, 151 Wilson, Cairine, 128, 167, 202 Wilson, J.C., 27 Windsor, 259, 270, 312; anti-discrimination measures, 237; Windsor Interracial Council, 309; Windsor

Joint Labour Committee for Human Rights, 291, 293, 298, 303, 308, 309, 316 Winks, Robin, 299 Winnipeg (Man.), 47, 60, 91–2, 125, 133, 174, 197, 201, 247, 286, 293, 321, 335; Winnipeg city council, 71; Winnipeg Consultative Council, 117 Winnipeg Declaration (CCF), 361 Winnipeg Free Press, 49, 75, 90, 124, 125, 128, 131, 172, 321, 324, 335, 338, 343, 345, 358, 359 Winnipeg Labor Committee to Combat Racial Intolerance, 279–80, 289, 291, 292, 315, 316, 317, Winnipeg Labour Committee for Human Rights. See Winnipeg Labor Committee to Combat Racial Intolerance Winnipeg Strike, 21–2, 143 Wismer, Les, 218, 293 ‘Witness against the War’ manifesto, 70, 79, 114 Wives of Interned Labour Leaders, 89 ‘Wobblies.’ See Industrial Workers of the World (IWW) Woikin, Emma, 151, 154, 168 Wolf, Bernard, 220, 221, 230, 235. See also Noble and Wolf case women: groups, 239, 297, 364, 373, 374; Women’s International League for Peace and Freedom, 116, 225. See also Council of Jewish Montreal Women’s Clubs; Female Employees Fair Remuneration Act; feminism; married women’s property acts; Montreal Women’s Clubs; National Action Committee

Index—523 on the Status of Women; National Council of Women; right to sexual equality; right to vote; United Church, women’s missionary societies Woodsworth, J.S., 26, 28, 36, 37, 49, 50, 56, 77, 78, 149, 318 Woodsworth, Ken, 165 Workers’ Educational Association (WEA), 95, 209, 210, 211, 212, 214, 220, 225, 347 Workers Experimental Theatre, 33 Workers Political Defense League, 24 Workers’ Sports Association of Canada, 259 Workers’ Unity League, 38, 40, 52

Workmen’s Circle, 281, 282, 285 World Peace Conference, 163 Wren, Drummond, 95, 212, 215, 226, 347. See also Drummond Wren case Yip, Kew Dock, 211 YMCA, 110, 117, 120 Young, Scott, 252 Young Communist League, 62, 259 Young and Rubicam (Montreal office), 51 YWCA, 110, 116, 231 Zaitlin, A.H.J., 214 Zionism, 203, 284 Zynchuk, 32–3, 373