The Canadian Bill of Rights 9780773595439

Table of contents :
Cover
Title
Copyright
Dedications
Contents
Preface
Preface to the Second Revised Edition
Chapter I: Introduction
1. "Rights," "Freedoms," and "Liberties”
2. The Rise of Interest in Civil Liberties in Canada
3. Judicial Decisions on Civil Liberties in Canada and Discussions on Bills of Rights
4. The Legislative Background to the Canadian Bill of Rights
5. Subsequent Amendments and a Canadian Charter of Human Rights
Chapter II: The Distribution of Legislative Power with Respect to Civil Liberties
1. The B.N.A . Act and Civil Liberties
2. Judicial Interpretation of the B.N.A . Act
3. Legislative Jurisdiction with Respect to Political Civil Liberties
4. Legislative Jurisdiction with Respect to Economic Civil Liberties
5. Legislative Jurisdiction with Respect to Legal Civil Liberties
6. Legislative Jurisdiction with Respect to Egalitarian Civil Liberties
Chapter III: The Entrenchment Question and the Canadian Bill of Rights
1. Bills of Rights
2. Discussions in Parliament on the Effect of the Bill of Rights
3. Parliamentary Sovereignty, "Manner and Form" Requirements, and Judicial Review
Chapter IV: The Effect of the Canadian Bill of Rights on Canadian Law
1. The Preamble
2. The Responsibility of the Minister of Justice Under the Bill of Rights
3. Interpretation of the Terms of the Bill of Rights
Chapter V: Political Civil Liberties and the Canadian Bill of Rights
1. Section 1 of the Canadian Bill of Rights
2. Freedom of Religion
3. Freedom of Speech and of the Press
4. Freedom of Assembly and Association
Chapter VI: Economic Civil Liberties and the Canadian Bill of Rights
Chapter VII: Legal Civil Liberties and the Canadian Bill of Rights
1. The "Due Process" Clause
2. The Specific Provisions in Section 2 of the Bill of Rights
Chapter VIII: The Egalitarian Civil Liberties and the Canadian Bill of Rights
Chapter IX: The War Measures Act and the Canadian Bill of Rights
1. Section 6 of the War Measures Act
2. The Overriding Power of Parliament in "Emergency" Situations
3. The Canadian Bill of Rights in "Emergency" Situations
4. The Apprehended Insurrection of October, 1970
Appendix I: The Canadian Bill of Right 8-9 Elizabeth II
Appendix II: The American Bill of Rights
Appendix III: The Proposed Canadian Charter of Human Rights
Appendix IV: Excerpts from the Canadian Constitutional Charter
List of Abbreviations Used
Table of Statutes
Table of Cases
Bibliography
Index

Citation preview

THE CANADIAN BILL OF RIGHTS S E C O N D , R E V IS E D E D IT IO N by Walter Surma Tarnopolsky

The Carleton Library No. 83 Published by Macmillan o f Canada Limited in association with the Institute o f Canadian Studies at Carleton University

TH E CARLETON LIBRARY A series of Canadian reprints, original works and new collections o f source material relating to Canada, issued under the editorial supervision of the Institute o f Canadian Studies of Carleton University, Ottawa. D IR E C TO R O F T H E IN ST ITU T E

S. F. Wise

G E N E R A L EDITO R

Michael Gnarowski e x e c u t iv e e d it o r

Virgil D. D uff (Macmillan o f Canada) e d it o r ia l b o a r d

B. Carman Bickerton (History) Dennis Forcese (Sociology) David Knight (Geography) J. George Neuspiel (Law) Thomas K. Rymes (Economics) Derek G. Smith (Anthropology) Michael S. W hittington (Political Science) pu b l ic a t io n s e d it o r

James Marsh

COPYRIGH T © T he M acm illan C om pany o f C anada L im ite d 1978

A L L R IG H T S R E S E R V E D F irst p ub lish ed by T he C anadian Publishers M cC lelland an d S tew art L im ited , 1975 R ep rinted by T h e M acm illan C o m p an y o f C a n a d a L im ited , 1978 ISBN 0-7705-1757-9 P rinted in C a n a d a for T h e M acm illan C o m p an y o f C a n a d a L im ited 70 B ond S treet T o ro n to , O n tario M 5B 1X3

TO MY PARENTS HARRY AND M ARY TARNOPOLSKY

C O N T E N T S

Preface ix Preface to the Second Revised Edition C hapter I IN TRO D U CTIO N

1

1. “ R ig h ts," “ Freedom s,” and “ Liberties” 2. The Rise of Interest in Civil Liberties in Canada 3. Judicial Decisions on Civil Liberties in C anada and D iscussions on Bills o f Rights 4. T he Legislative Background to the Canadian Bill of Rights 5. Subsequent A m endm ents and a Canadian C harter o f Hum an Rights C hapter II T H E D ISTRIBU TION O F LEG ISLA TIV E POW ER W ITH R ESPECT TO CIVIL LIBERTIES 29 1. The B .N .A . Act and Civil Liberties 2. Judicial Interpretation o f the B .N .A . Act 3. Legislative Jurisdiction with Respect to Political Civil Liberties 4. Legislative Jurisdiction with Respect to Econom ic Civil Liberties 5. Legislative Jurisdiction with Respect to Legal Civil Liberties 6. Legislative Jurisdiction with Respect to Egalitarian Civil Liberties

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C h a p te r III T H E EN TREN CH M EN T QUESTION AND TH E CA N A D IA N BILL OF RIGHTS

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1. Bills o f Rights 2. Discussions in Parliam ent on the Effect o f the Bill of Rights 3. Parliam entary Sovereignty, "M ann er and Form ” R equirem ents, and Judicial Review C hapter IV TH E EFFECT O F T H E CA NADIAN BILL OF RIGHTS ON CA N ADIAN LAW 117 1. The Pream ble 2. T he Responsibility o f the M inister of Justice Under the Bill o f Rights 3. Interpretation of the Term s o f the Bill o f Rights C hapter V PO LITICA L C IV IL LIBERTIES A N D TH E CA N A D IA N BILL O F RIGHTS 1. 2. 3. 4.

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Section 1 o f the Canadian Bill o f Rights Freedom o f Religion Freedom o f Speech and o f the Press Freedom o f Assem bly and A ssociation

C h a p te r VI ECO N O M IC C IV IL LIBERTIES AND T H E CA N AD IAN BILL O F RIGHTS

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C h a p te r VII LEG A L C IV IL LIBERTIES AND TH E CA N A D IA N BILL OF RIGHTS 1. The “ Due Process” Clause

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2. The Specific Provisions in Section 2 of the Bill of Rights (a) — "A rbitrary D etention, Im prisonm ent or E xile" (b) — "C ru el and Unusual Treatm ent or Punishm ent” (c) — (i) "P rom pt Inform ing o f the Reason for the A rrest or D etention" (iii) “ H abeas C orpus” (c) (ii) and (d) -T- “ Right to C ounsel” (d) — “ Self-C rim ination and O ther Constitutional S afeguards". (e) - and (0 — "F a ir H earing" (f) — “ Presum ption o f Innocence" (f) — "F a ir and Public H earing” (f) — "R ig h t to Reasonable B ail" (g) — "A ssistance o f an Interpreter” C h a p te r VIII TH E EG ALITA RIAN C IV IL LIBERTIES A N D TH E CA NADIAN BILL OF RIGHTS

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C hapter IX T H E W AR M EA SURES ACT AND THE CA N AD IAN BILL OF RIGHTS

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1. Section 6 o f the Canadian Bill o f Rights 2. The O verriding Pow er o f Parliam ent in "E m ergency" Situations 3. The Canadian Bill o f Rights in “ E m ergency" Situations 4. T he A pprehended Insurrection o f O ctober. 1970 A ppendix I TH E CA N A D IA N BILL OF RIGHTS

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A ppendix II T H E A M ERICAN BILL O F RIGHTS

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A ppendix III TH E PROPOSED CA N A D IA N CH ARTER O F HUM AN RIG H TS A ppendix IV EX CERPTS FROM T H E CA N A D IA N CO N STITU TIO N AL CH A RTER 364 List o f A bbreviations Used T able o f Statute^ 377 T able o f C ases 385 Bibliography 401 Index 424

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Preface On A ugust 10th, 1960, the Canadian Bill of Rights becam e law. This event was preceded and followed by controversy over the state o f civil liberties in C anada, and the most effective m easures for prom oting and protecting them. T he controversy is largely between those who favour the traditional English method o f relying upon the com m on law to protect the citizen, and those w ho support a bill of rights as being the m ost effective. T he question o f prom otion and protection o f civil liberties in Canada is inextricably bound up with the issue o f federalprovincial jurisdiction, and the m eaning and applicability o f the doc­ trine o f Parliam entary sovereignty. T hus, the first four chapters are concerned with these m atters— controversies over m eans, federalprovincial jurisdiction. Parliam entary sovereignty, and the Canadian Bill of Rights as an exam ple o f the issues involved, and as legislation which does or could affect them. The next four chapters deal with the civil liberties within federal jurisdiction, and attem pt to indicate how these may be affected by the Bill o f Rights. The final chapter deals with the overriding pow er of Parliam ent and the G overnm ent of C anada during “ em ergency” situa­ tions, and with the W ar M easures Act and its effect on the Bill of Rights. Because the Bill o f Rights is only six years old, and because judicial pronouncem ents on civil liberties in Canada have been few , considera­ ble attention has been given to the experience o f other countries with sim ilar legal and constitutional experience. In the course o f writing this book I have becom e indebted to a large num ber o f people. P rofessorS . A. de Sm ith and Miss Olive M . Stone o f the London School o f Econom ics and Political Science read the m anuscript in its early stages. Professor (now M r. Justice) Bora Laskin and Professor Edward M cW hinney of the University o f Toronto, read various parts o f the m anuscript. M y colleagues at the U niversity of Saskatchew an, Professors D. A. Schm eiser and B. L. Strayer read parts o f the m anuscript, and Dean O. E. Lang read the whole. M y wife helped on the original draft, aild m ade pertinent suggestions on style, particularly in m inim izing jargon. The University o f Saskatchew an helped me with research grants. G eorge W. Baynton and M ichael B. Phillips were my research assistants. Miss O stapow ich, Miss Eberle, Mrs. K ing. M iss Sim onson, M rs. Brown and M rs. Sanderson typed the m anuscript. Despite all this help, it m ust be obvious to any reader o f

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prefaces that any mistakes still to be found are my responsibility, as are, to the best o f my know ledge, the conclusions reached and the proposi­ tions advanced. W alter S. Tarnopolsky A pril, 1966.

Preface to the Second Revised Edition W hen I first contem plated preparing a second revised edition o f this book, I thought it would involve a m ere editing job with insertion o f a few new m aterials and the cases reported since 1966. H ow ever, it soon becam e evident that such a superficial updating would not be sufficient. A num ber o f important developm ents in C anada since 1966 have affected civil liberties and the Canadian Bill o f R ights. T hus, the constitutional debates o f 1968 to 1971, and the im plications o f the invocation o f the W ar M easures Act in O ctober, 1970, required addi­ tions to C hapters I and VI. and C hapter IX respectively. The M cRuer Report, the spread o f the O m budsm an institution in C anada, and the rapid proliferation o f hum an rights codes and com m issions in the various Provinces required extensive revisions to C hapter II. Judicial decisions on the Bill o f R ights, and especially the landm ark decisions o f the Suprem e Court in the D rybones. B row nridge, and Lavell cases, necessitated extensive revisions to C hapters IV , V . VII and VIII. The result is that every chapter in the book has had extensive addition or change, except Chapter III on the entrenchm ent question. The revisions and additions include decisions rendered, and statutes enacted, up to D ecem ber 31, 1973. M y task in preparing this revised edition was greatly facilitated by my research assistant. W illiam Scott. All through the sum m er o f 1973, and the academ ic term 1973-74. he worked diligently and effectively, and with the greatest patience in m eeting all my requests. The com ple­ tion o f this work would have been considerably delayed were it not for the speed, accuracy, and tirelessness o f my secretary. Pearl Darlington. Both o f them helped me through the periods o f frustration which inevitably accom pany preparation for publication. My wife Joanne patiently bore the alm ost nightly departures for my office, throughout the winter. Allen M . Linden read parts o f the revision, while Peter W. Hogg helped me trem endously in reading all of the revisions, making valuable suggestions, always within a day o r two o f my subm itting the parts to him . H ow ever, my colleagues could not rewrite the whole book, and so any errors that may yet be found are my responsibility. I am indebted to the federal D epartm ent o f Justice, which provided me with a sum m er research grant, and to Osgoode Hall Law School at York U niversity, for funding my research assistant through the academ ic term . xi

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Finally, I am grateful to J. G eorge Neuspiel and Jam es M arsh of Carleton U niversity, who m ust have w orked overtim e to get the man­ uscript ready for publication in short order. W . S. T.

CH A PTER I

Introduction 1. “ R ights,” “ F reedom s,” and “ L iberties” In discussing basic or fundam ental rights and freedom s one is con­ cerned with the relationship between the individual or a group and the state. In its sim plest form this relationship may be thought o f in two ways. It may be that an individual o r a group dem ands non-interference from the state, at least in certain activities: this is a claim for freedom or liberty. It m ay be, how ever, that the dem and is for state intervention to protect o ne’s way o f life against encroachm ent by others, or to provide it either as a m inim um living standard or on the basis o f equality with others: this is a claim for the positive assistance o f the state in the securing o f certain rights. T here is som e confusion in the use o f the term s “ righ t,” “ free­ d o m ,” and “ liberty” because they have differing legal and ordinary m eanings. The intention here is to use them in their legal, or at m ost, their political sense. A further com plication arises from the profusion o f definitions given to them by legal w riters. For instance, som e jurists o f the natural law school may treat them as im m utable concepts, whereas the positivists define them in term s o f a specific relationship between two or m ore persons, or betw een individuals and the state. A great part o f this book is concerned with a discussion o f these terms as they are defined and applied by the legislatures, the com m on law , and the courts, and to that extent the definitions used by the positivists will be em ployed. H ow ever, it is necessary to keep in m ind that dem ands for the protection o f the state o r its non-interference are often based upon som e form o f “ natural law ,” and that the w hole field o f hum an rights and fundam ental freedom s has been greatly influenced by asser­ tions that certain rights o f man as an individual and as a citizen are im m utable and/or universal. A “ right” may be said to be a claim o r an advantage possessed by a person or persons, which is conferred or protected by law , and which implies a corresponding duty on the part o f another. T hus, if A lends B a certain sum o f m oney, A has a “ right” to the repaym ent o f a like sum , and B is under a “ d u ty " to repay it. O r if A has a “ right” to free education until age sixteen, there is a corresponding duty on the part of som e authority to provide that free education. But there is another kind o f advantage conferred by law which has been distinguished from a “ rig h t,” and that is a “ pow er.” In Salm ond’s term s, a "p o w e r” I

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is “ an ability conferred upon a person by the law to determ ine, by his own will directed to that end, the rights, duties, and liabilities or other legal relations either of him self o r o f other persons.” In discussing hum an rights and fundam ental freedom s, reference is m ade to “ rights” such as the “ right to vote” or the “ right to retain counsel” which are actually p ow ers.1 For our purposes, how ever, no attem pt will be made to distinguish betw een "rig h ts” and “ pow ers,” and they will be referred to by the more general term “ righ ts.” Legal theorists refer m ore to “ liberties” than to “ freedom s.” A “ liberty” is what a person may do without being prevented from doing so by law. He may thus be at “ liberty” to express him self on public affairs, to w orship as he pleases, or to walk on a footpath. H ow ever, it m ust be kept in mind that many “ liberties” or "freed om s” cannot exist m erely because there is absence o f legal restraint— they m ay actually need legal protection and definition or the creation, in term s of H ohfeld's jural opposites, o f a “ duty” on the part o f another tow ards the holder o f the “ privilege” or “ liberty.” Furtherm ore, this "free­ dom ” may only have m eaning to the extent which the law provides protection against unlawful interference by others, creating in those others, in term s o f H ohfeld’s jural correlatives, a "n o -righ t” to inter­ fere with the possessor o f the "p riv ileg e” o r "free d o m .” In those term s, then, we speak o f "freedom o f w orship.” but only as defined by law , and not including such practices as human sacrifice, for exam ple. Such a freedom can also be protected by law , for instance by forbidding unlawful interference with the conduct of a religious ser­ vice. Here the term s "lib erty ” and “ freedom ” will be used synony­ m ously as including those acts which one may do without legal inter­ ference, as well as “ freedom s” which are assured by legal protection against outside interference. In C anada, until recently, we have used the traditional English term “ civil liberties” 2 in referring to the rights and freedom s we are con­ cerned with here. H ow ever, at least since W orld W ar II they have increasingly been referred to as “ hum an rights and fundam ental free­ d o m s.” This change has probably resulted from the influence o f the United Nations C harter and the U niversal D eclaration o f Human R ights, and from recent attem pts in C anada to distinguish between “ civil liberties” and the term "civil rights,” as the latter term is used in s. 92 o f the British N orth Am erica Act* for one o f the Heads o f pow er in relation to which provincial legislatures have jurisdiction. H ere, "civil liberties” and "h u m an rights and fundam ental freedom s” will be used interchangeably. It will readily be seen that there are many kinds o f civil liberties. Before they can be discussed in any detail, therefore, it is necessary to

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sub-divide and classify them . T here are alm ost as many classifications as there are writers on the subject,4 but here the one put forth by Professor Bora Laskin (as he then was) has been adopted.5 He lists them as follows: political liberties— traditionally including freedom s o f association, assem bly, utterance, press or other com m unications m edia, conscience, and religion; econom ic liberties— the right to own property, and the right not to be deprived thereof without due com pen­ sation, freedom o f contract, the right to withhold o ne’s labour, etc.; legal liberties— freedom from arbitrary arrest, right to a fair hearing, protection o f an independent judiciary, access to counsel, etc.; egalitarian liberties o r hum an rights— right to em ploym ent, to ac­ com m odation, to education, and so on, without discrim ination on the basis o f race, colour, sex, creed, or econom ic circum stances. This is not the place for an elaboration of each o f these classes of hum an rights and fundam ental freedom s. An attem pt will be m ade to do so in the chapters which follow. 2. The R ise o f Interest in C ivil Liberties in Canada N oticeable interest in, and concern for the protection o f certain human rights and fundam ental freedom s began to increase in C anada during W orld W ar II, possibly as part o f a world-w ide interest in these values. Before then, som e concern was expressed about violations o f hum an rights and liquidations o f individuals in totalitarian states, but the violations o f civil liberties in Canada were not discussed widely, except in such journals as thc Canadian F orum .6 Before 1939, the bar and the judiciary were concerned with individual instances o f legislative or adm inistrative encroachm ents upon what were considered the rights and liberties o f free men under the com m on law , but these were not necessarily considered part of a w hole plethora o f civil liberties. W hat then brought on this increased interest after 1939? No doubt the events in Europe showed that civilized nations could revert to barbarity too easily, but few people thought that this could happen in countries with the English tradition o f civil liberties. M ore im m ediate and more im portant reasons were the m easures taken by the governm ent to fight a total war. The resources o f the nation were m arshalled on a scale never before know n. O rders in Council poured forth restricting econom ic freedom , freedom to criticize, freedom to m ove about. The govern­ m ent was om nipresent. It regulated every type of activity, private and public, and the fears which had arisen even before the w ar about “ the new despotism ’’ o f increased adm inistrative action in an increasingly welfare-conscious state, grew even greater. The exigencies of the total w ar effort put em phasis on the values for which people were supposed to be fighting and sacrificing. W e w ere told, and we believed, that we

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fought for the dignity and the individuality o f man against a to­ talitarianism which buried these values. T he allied countries, ourselves included, em phasized the rights of m an. and even before the w ar ended they were enshrined in the U nited N ations C harter. Since C anada was one o f the countries which stressed this role o f the United N ations, we could hardly fail to be concerned with civil liberties at hom e. T hen, im m ediately after the w ar. two events shook the nation and caused increased concern about civil liberties. T he first was the realiza­ tion o f what had been done to Japanese-C anadians during and after the w ar. W hen threatened across the Pacific Ocean by the Japanese Em­ pire. the C anadian governm ent interned the Japanese-C anadians who lived in British Colum bia, and forcibly resettled them in other parts of C anada. At the tim e there was little opposition because fear was great, but as soon as the w ar ended and the danger passed, the inhum anity of the m easures taken brought a sense o f sham e and a resolution to prevent them in future.7 The second event was the sensational expose of Soviet espionage, and the trials which followed. The reactions were those of fear and indignation. There cam e a realization that there were C ana­ dians who were prepared to pass state secrets to a foreign pow er, and to plot the eventual overthrow o f the governm ent in favour o f a system w hich, it was generally assum ed, denied the worth o f the individual. Shortly afterw ards, especially from mem bers o f the bar, cam e criti­ cism s o f the m ethods used to deal with suspected m em bers o f the spy ring, including the denial o f m any o f the protections o f the person norm ally considered to be a part o f our law , such as the right to habeas corpus, the right to retain counsel, protection against self crim ination, etc.8 W hat created most apprehension about the espionage affair and the treatm ent o f the Japanese-C anadians was that everything had been done pursuant to Orders in Council. In 1941, a case com m ent in the Canadian B ar R eview attem pted to draw to the attention of the legal profession a less dram atic form of infringem ent o f civil liberties.9 It dealt with two Ontario cases10 which considered m unicipal by-laws regulating the distribution o f handbills and leaflets, and suggested that this raised issues of legislative en­ croachm ent on civil liberties. In one way this was a portent o f the fam ous post-w ar case o f Saum ur v. City o f Q uebec, " but the case com m ent in the Canadian B ar R eview seem ed not to arouse any great interest at the tim e it was written. Perhaps the w ar effort overshadow ed what must have appeared to be isolated cases. The C anadian Bar A ssociation, for its part, first set up a Civil Liberties Section at its 1943 Annual M eeting.12 This had been preceded by a resolution of the Ontario section o f the A ssociation passed late in 1939, and taken up by the C anadian Cham ber o f C om m erce, on the subject o f encroachm ents upon property and civil rights resulting from

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“ m odem legislation.” 13 Then, in 1942, the Q uebec section o f the Canadian Bar A ssociation volunteered to find out which laws were of such a nature as to encroach upon civil liberties and property rig h ts.14 In the sam e year the Law Society o f British C olum bia passed a resolu­ tion on the subject of civil liberties, suggesting that the B ar A ssociation and the various provincial Bars should create m achinery to scrutinize the regulations being passed at the tim e by the various governm ents, and to consider the repeal o f m any statutes w hich deprived the public of recourse to the co u rts.IS Follow ing these initiatives the m atter was discussed at the m id-year m eeting o f the Council of the Canadian Bar A ssociation, and the president appointed a chairm an o f a com m ittee, to be selected by that chairm an, to prepare a prelim inary report for the 1943 A nnual M eeting.16 It is interesting that at that tim e, and for the next few years, members of the Canadian Bar attending the Annual M eetings seem ed to regard the profusion o f Orders in Council and regulations, and the broad executive pow ers, as the main encroachm ents on civil liberties.17 M oreover, much o f the concern was with interference with what have been called econom ic freedom s, e .g ., the right to choose the place and the type o f one’s em ploym ent; to buy and sell available goods in the open m arket; to fix, or bargain for, prices; to import and export; to enter into or expand business; to be free o f price control; to lease and to term inate leases.18 M any o f the restrictions com plained o f have since been accepted as necessary and indeed required by an econom y con­ cerned with the w elfare o f its citizens and the protection o f its weaker ones. It was accepted that these restrictions were necessary during the war, but it was clear that the C anadian B ar A ssociation expected them to be rem oved after the w ar ended. In adopting a resolution to set up a Civil Liberties Section the A ssociation adopted the follow ing resolu­ tion, which can be taken to be its policy at least until the end o f the w ar:19 Be it resolved that whilst the Association recognizes the necessity o f G overnm ent control o f the liberties and property rights o f the individual during the W ar inasm uch as and in so far as it serves the proper prosecution o f the W ar, we feel that in view o f possible errors and excesses in the exercise o f em ergency powers it is the duty o f the A ssociation to: (a) follow closely all legislation both by A ct o f Parliam ent and more particularly by Orders in Council and adm inistrative order so as to be in a position to assist the established authority by making recom m endations aim ed at preserving the liberties o f the indi­ vidual and (b) affirm its settled policy that encroachm ents upon the liberties

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and property rights o f the individual and the principles o f dem o­ cratic governm ent are justified only by the necessities o f the W ar and that responsible governm ent and the liberties and property rights o f the individual should be restored at the earliest possible m om ent after the term ination of the War. A long with the criticism o f the w ar-tim e regulations and Orders in C ouncil cam e criticism o f the growth o f adm inistrative tribunals, especially judicial or quasi-judicial ones. W ith the later acceptance of these boards and tribunals, som e o f the recom m endations passed at that tim e in protection o f civil liberties seem dated. The Civil Liberties Section in its 1944 report recom m ended, inter a lia , that legislative powers should not be delegated to boards: that there m ust be a right of appeal from judicial or quasi-judicial decisions o f the executive or of adm inistrative boards to independent courts or ju d ges;20 that judicial pow er should not be exercised by the Executive but should be left exclusively to independent courts.21 This interest in what are called legal liberties reached its culm ination in 1946 when the report o f the Civil Liberties Section dealt wholly with the espionage incident o f the year before.22 It was at this tim e that the Civil Liberties Section was made a perm anent section o f the Canadian Bar A ssociation.23 Despite som e strong words by the Chairm an o f the Section, R. M . W. C hitty, about continuing encroachm ents on civil liberties by adm inistrative agencies,24 the length o f the discussion by the C anadian Bar A ssociation o f these m atters lessened until 1949 the Section reported: “ The tide o f encroachm ents on civil liberties seems for the m om ent to have ceased to flow although it has not ebbed at a l l." 25 And for the first tim e there was discussion o f a Bill o f Rights as such.26 M eanwhile, a.section dealing with "L eg al Problem s on International O rganization for the M aintenance o f P eace" was set u p.27 and by 1948 w as given the responsibility o f studying and reporting on the Universal D eclaration o f H um an R ights. As a result o f its work the Canadian Bar A ssociation adopted a resolution on the Universal D eclaration:28 Be it resolved that the Canadian Bar A ssociation goes on record to the effect that the said draft declaration ought to be exam ined with the utm ost care in all its judicial aspects before further action is taken, so that there may be no m isunderstanding as to the meaning and effect thereof. Be it further resolved that this com m ittee be continued and that it make careful study o f all the im plications that m ight be involved in the adoption o f a draft international declara­ tion (and/or covenant) on hum an rights and that it work to that end

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in close collaboration with the corresponding com m ittee of the A m erican Bar A ssociation and the C anadian D epartm ent o f Ex­ ternal A ffairs. As a result o f having tw o com m ittees dealing with hum an rights and fundam ental freedom s, there was som e confusion as to which of them should be consulted on civil liberties in Canada itself.29 W hen the Canadian Senate appointed a Special C om m ittee to study human rights and fundam ental freedom s in 1950, no representation was made on behalf o f the Canadian Bar A ssociation.30 C onsequently in 1950 the Civil Liberties Section was given the responsibility of studying that part o f international organization dealing with the Universal D eclaration .31 This growth o f interest in civil liberties am ong lawyers reflected itself in increased attention given to this subject in legal journals. The fall, w inter, and spring issues o f (1947-48) O biter Dicta printed a series o f three articles by O ’H alloran J. A ., then a justice o f the British Colum bia Court o f A ppeal, on the subject o f “ Inherent R ights.’’ This was one o f the earliest published argum ents by a m em ber o f the legal profession to favour a constitutional charter m odelled on the Universal D eclaration o f Human R ights. In 1948, the Canadian Bar R eview contained a “ Case for a Canadian Bill o f R ights.” 32 The following year, Professor F. R. Scott wrote the first detailed argum ent to assert that the jurisdiction o f Parliam ent in relation to hum an rights and fundam ental freedom s was extensive and that a com prehensive Bill of Rights was needed.33 There was som e discussion o f these issues in Canadian new spapers, such as a series o f editorials in the W innipeg Free P ress, M ay 30 to June 3, 1947, by the well-know n new spaperm an and author, Bruce H utchison. G enerally, how ever, m ost press com m ent was confined to specific incidents such as the handling o f the Japanese-C anadians, the espionage episode, and later, the difficulties of trade unionists in N ew foundland and Q uebec, and the Jehovah’s W itnesses in Quebec. 3. Judicial Decisions on Civil Liberties in Canada and D iscussions on Bills o f Rights Quite obviously, in all this, there was never any controversy as to w hether civil liberties should be respected. R ather, the controversy was concerned with the best m ethod o f doing so. Should this be done in the traditional way o f relying on Parliam ent and the courts, o r should there be som e kind of Bill o f Rights? Furtherm ore, insofar as the controversy was C anadian, it was bound up with the question o f legislative jurisdic­

8

THE CANADIAN BILL OF RIGHTS

tion, w hether in declaring certain rights and freedom s, or setting their outside lim its. As the m ethod o f protection is partly dependent upon settlem ent o f the question o f jurisdiction, the argum ents over legisla­ tive jurisdiction will be dealt with first. Apart from suggestions to that effect by som e o f the Suprem e Court justices in the Alberta P ress B ill case, civil liberties w ere not, until recently, considered to be a separate head o f legislative power. There w as never any great controversy, until the last tw o or three decades, over the question o f legislative authority. “ Property and Civil R ights” in s. 92(13) o f the B .N .A . Act had been given such a wide interpreta­ tion that it was assum ed that the provinces had m ost, if not exclusive, jurisdiction in this field. B esides, in the U nited States, the rights enum erated in the B ill o f Rights were referred to as “ Civil R ights.” T hus, in 1944, the Canadian B ar A ssociation received a report from the Civil Liberties Section which stated the jurisdiction in relation to liberties and property rights as follow s:34 1. Civil and property rights proper, which are m ore in relation to civil law as distinct from the crim inal law , and cover: (a) liberty of religion and language; (b) liberty o f opinion including freedom of speech, of writing and o f the press; (c) liberty o f enterprise, including freedom o f private initia­ tive and industry; (d) freedom o f w ork; (e) freedom o f association: (f) the right to private property; 2. The protection of the person o f the subject, which is more or less in relation to crim inal law ; and 3. The preservation o f political institutions under which liber­ ties have been acquired and appear to be guaranteed. T he report went on to state that the first group is in provincial jurisdiction, the second in federal, and the third is divided, som e items falling within the jurisdiction o f the provinces and som e w ithin the jurisdiction o f the federal Parliam ent.35 T he extent o f the disagreem ent as to w hether the federal Parliam ent could pass a Bill o f Rights for Canada or w hether most o f the rights were within provincial jurisdiction and so requiring com plem entary Bills o f Rights in each o f the provinces was revealed in 1947 and 1948. On May 26, 1947, a Joint Com m ittee o f the Senate and House of Com m ons on Human Rights and Fundam ental Freedom s was set u p .36 A fter canvassing provincial Attorneys G eneral and deans o f law schools, the Com m ittee concluded:37

INTRODUCTION

9

Y our com m ittee is o f the opinion that to attem pt to enact a Bill of Rights for C anada as a federal statute would be unw ise. . . . The pow er o f the Dom inion Parliam ent to enact a com prehensive bill o f rights is disputed. The H onourable J. L. Ilsley, then M inister o f Justice, in sum m ariz­ ing the replies from the Attorneys G eneral, stated that no Attorney G eneral had said affirm atively that he was o f the opinion that Parlia­ m ent had pow er to pass a com prehensive Bill o f Rights applicable to all o f C anada. Som e expressed a negative opinion and denied that pow er; several show ed very little o r no interest in the m atter. Furtherm ore, the general tone o f the correspondence with the deans o f law schools, he said, m ade it clear that if the Dom inion governm ent did undertake to set lim its to the activities o f the provinces in dealing with civil rights o f this kind it w as altogether probable that a considerable provincial rights controversy would be precipitated.38 T he assertion o f extensive provincial pow ers in the Field o f civil liberties reached its apogee in the 1940’s, but by the end o f that decade the opposite view began to gain support. In 1948 and 1949 the Canadian Bar R eview printed the tw o articles referred to previously which set out the argum ent for extensive federal pow ers based on the federal general pow er in the opening paragraph o f s. 91 o f the B .N .A . A ct, on the crim inal law power (s. 91(27)), and on an am plification of the pream ble to the B .N .A . A ct.39 D uring the 1950’s the Suprem e Court of C anada cam e to deal with a series o f cases involving, directly o r indirectly, civil liberties and jurisdiction over them . Although the first o f these cases, Saum ur v. City o f Q uebec,40 was a decision o f a closely divided court,41 it was significant as the first post-w ar case in which a substantial m ajority of the Suprem e Court dealt with the problem o f jurisdiction in relation to freedom s o f speech, assem bly, and religion. This case was follow ed by the Padlock case42 and Birks v. City o f M ontreal,43 both extending Parliam ent’s jurisdiction through its pow er over crim inal law ; the first in relation to freedom o f speech and assem bly, and the second in relation to religious observance. These cases brought forth the first judicial pronouncem ents on the distinction betw een “ civil liberties’’ and “ property and civil rights.” 44 These view s were concurred in by tw o o f C anada’s leading Englishspeaking constitutional law experts— Professors Scott and L askin.45 Even Professor L. P. Pigeon, one o f the leading French-Canadian constitutional lawyers before his appointm ent to the Suprem e C ourt o f C anada, although still insisting that provincial jurisdiction was vast, had to adm it that freedom of religion was probably within federal jurisdiction.46

10

THE CANADIAN BILL OF RIGHTS

The controversy running parallel to the one over jurisdiction w as, as has been noted, the question w hether civil liberties could be better protected in C anada through a Bill o f Rights or under the law o f the land and protection from Parliam ent and the courts. The argum ents which were put forw ard at that tim e against a Bill of Rights can probably be sum m arized as follows:47 I) Fundam ental rights and freedom s which are universal and im m utable do not exist. H istory shows that they are subject to change. 2) Many o f the countries which signed the Universal D eclaration o f H um an Rights have not put them into effect and deny these very rights. 3) Experience shows that Bills o f Rights are not as effective for safe-guarding these freedom s as the traditional m ethods which have been used. 4) A general definition o f these values tends to limit them . They are better developed to m eet the changing needs through our traditional methods o f providing speedily available re­ m edies. 5) T he federal general pow er o f disallow ance provides all the protection we need against provincial encroachm ents, w hereas Parlia­ m ent will not infringe these rights except in tim es o f em ergency, and then even a Bill o f Rights will not help. 6) A Bill of Rights is a denial of the practical sovereignty o f Parliam ent. Such a fundam ental change is not justified. 7) It would place in the hands of the judiciary the pow er of deciding grave issues o f policy. This is not only harm ful to the judiciary, but it is the transference o f a pow er from the legislature which is better suited to use it. 8) A Bill o f Rights introduces rigidity into the constitution. The argum ents subm itted by those w ho were in favour o f a Bill of Rights were based on five fundam ental points:48 1) In the refined legal system s o f today there are certain fundam ental rights and freedom s which are im m utable. Individuals and m inorities need special protec­ tion and their rights are not to be overriden without earnest considera­ tion. 2) Protection o f these rights is now an international doctrine o f the United Nations and binding upon Canada as a signatory. 3) Experience has shown that Bills o f Rights are effective in protecting the rights of individuals. 4) Many new Com m onwealth countries, such as India, have seen fit to include provisions protecting certain fundam ental rights and freedom s in their constitutions. 5) A clear and authoritative decla­ ration o f the general principles would be of value in attaining their recognition. Finally, those who agreed about the need for a Bill o f Rights did not all agree about the best method o f providing this protection for Canada. There were those who stated that a Bill o f Rights should be enacted as an am endm ent to the B .N .A . A ct restricting the authority of Parliam ent and the legislatures o f the provinces.4" O thers said that there should be an overriding federal Bill o f Rights enacted by Parliam ent.50 And Finally, there were those who said that it should be done through

INTRODUCTION

11

com plem entary Bills o f Rights enacted by Parliam ent and the legislatures.51 W e will briefly survey each o f these possibilities. Preference for a Bill o f Rights am ending the B .N .A . Act to restrict both Parliam ent and the legislatures was based m ainly on the argum ent that this was the only way to put these freedom s beyond the reach of both. These rights and freedom s are so fundam ental that they should be m ade alm ost im m utable. Decisions as to w hether any enactm ent in­ fringes them would be in the hands o f an im partial judiciary, w here they should be, rather than in the hands of popular assem blies, subject to popular em otions and pressures. Preference for an overriding federal Bill o f Rights not part o f the B .N .A . A ct was based on the follow ing argum ents: 1) The am endm ent procedure o f the B .N .A . Act is not in C anada’s hands, and we would have to ask the United Kingdom Parliam ent to provide our Bill of Rights. 2) It is inconceivable that Parliam ent would itself change or override the Bill o f R ig hts, and an overriding federal Bill would prevent the provinces from abridging these rights. 3) A pow er o f disallow ance o f provincial Acts by the federal Parliam ent is not sufficient because it is subject to political pressures and can be used only within a year o f the passing o f the Act. M any infringem ents arc not clear until much later. 4) If Parliam ent has exclusive control over these rights, then this is the only kind o f Bill o f Rights which can be passed. The reasons given in favour o f com plem entary Bills o f Rights were sim ilar to the ones given as reasons against entrenchm ent of a Bill by an am endm ent to the B .N .A . Act. In addition, it was said that if legislative jurisdiction is divided in regard to these rights and freedom s, then this is the only way they can be recognized and protected. M oreover, this is a field w here local diversities should be preserved. Finally, the existing federal pow er o f disallow ance is sufficient to prevent abuse. These then are the issues that should be kept in mind when the legislative history of the present Canadian Bill o f Rights is considered. 4. The Legislative Background to T he Canadian Bill o f R ights The issue w hether or not C anada should have a Bill o f Rights, as far as Parliam ent and the federal politicians are concerned, dates at least from 1945 when the C o-operative Com m onw ealth Federation (C .C .F .) M em ber o f Parliam ent. A listair Stew art, introduced the following m otion:52 That, in the opinion o f this house, there should be incorporated in the constitution a bill o f rights protecting m inority rights, civil and religious liberties, freedom of speech and freedom of assem bly; establishing equal treatm ent before the law of all citizens, irre­

12

THE CANADIAN BILL OF RIGHTS

spective o f race, nationality o r religious or political beliefs; and providing the necessary dem ocratic pow ers to elim inate racial discrim ination in all its forms. This was the beginning o f a long cam paign by the C .C .F . party favouring a Bill o f R ights,s3 and it is safe to say that the federal m em bers o f the party at least, and certainly its leaders in the provincial branches o f the party, have always supported such a schem e. In fact, the only C .C .F . governm ent in C anada was the first provincial gov­ ernm ent to adopt a Bill o f Rights which rem ains unchallenged and is still on the statute books.54 T he Liberal Party, form ing the governm ent for som e twenty-tw o years until 1957, brought the issues before a Joint Parliam entary C om m ittee in 1947 and 1948, and perm itted a Senate C om m ittee to study it in 1950, but never cam e out in favour o f such a schem e. Apart from a few mem bers o f the Party, for exam ple. Senator Roebuck and David Croll (now Senator C roll), the position o f the Liberal Party on the passing o f a federal Bill o f Rights was negative. The Canadian Bill o f Rights has com e to be associated with the man w ho finally introduced it into the House o f C om m ons, the Right H onourable John G . D iefenbaker, form er Prim e M inister o f Canada. He raised the issue in the House o f Com m ons for the first tim e in 1945, and then at regular intervals thereafter.55 Thus it was, as leader o f the Progressive C onservative Party in the general elections o f 1957 and 1958, that one o f the main item s o f legislation he prom ised if successful in his bid for pow er, was a federal Bill of Rights. The introduction of Bill C-60 for “the Recognition and Protection o f H um an Rights and F undam ental F reedom s” 56 was preceded in Par­ liam ent by the debates referred to above, and by tw o com m ittees. The first was the joint com m ittee o f the House of Com m ons and o f the Senate referred to previously.57 This C om m ittee was set up m ainly to consider the U niversal D eclaration o f Human Rights and the United N ations C harter and to see what obligations Canada had undertaken under them . T he result was that no private representation was called for and the witnesses w ere all civil servants, except for one United Nations official. In the end the C om m ittee concluded that m ore tim e and thought would have to be devoted to the subject before a decision on a Canadian B ill o f Rights could be taken.S8 In 1950 the Senate o f C anada set up a Special C om m ittee on Human Rights and Fundam ental Freedom s. The C om m ittee held eight public sessions in the course o f which thirty-six witnesses were heard.59 It concluded that the preferable place for a law protecting these rights and freedom s would be in the constitution, i.e ., the B .N .A . Act. How ever, to entrench it there beyond the reach o f the provinces and the federal

INTRODUCTION

13

Parliam ent would require an am endm ent by the United Kingdom Par­ liam ent, and this would am ount to a surrender o f sovereignty at a time when Canadians were asserting it. Therefore, such am endm ent should aw ait a tim e when a Dom inion-Provincial Conference had agreed on a procedure for am ending the constitution.60 In view of this the C om m it­ tee recom m ended that,61 as an interim m easure, the C anadian Parliam ent adopt a D eclara­ tion o f Human Rights to be strictly limited to its own legislative jurisdiction. Such a D eclaration w ould not invade the Provincial legislative authority, but it w ould nevertheless cover a very wide field. W hile such a D eclaration would not bind the Canadian Parliam ent or future Canadian Parliam ents, it w ould serve to guide the Canadian Parliam ent and the Federal Civil Service. It would have application within all the im portant m atters reserved to the Canadian Parliam ent in Section 91 and in other sections of the British N orth Am erica A c t. It would apply without lim itation w ithin the North W est Territories. The D om inion-Provincial constitutional conference o f 1950 failed to agree on a procedure to am end the B .N .A . Act, and nothing further was done by the governm ent to introduce federal legislation to protect hum an rights and fundam ental freedom s until Septem ber, 1958, when M r. D iefenbaker introduced Bill C -60. It was proposed then, and agreed, that the Bill be given first reading and then be w ithdrawn and reintroduced early in the following session to give interested individu­ als and organizations an opportunity to study the proposed Bill and to subm it their observations and criticism s.62 The Bill was not reintroduced during the 1959 session o f Parliam ent, and not until late in the 1960 session was it presented for second reading as Bill C-79. In the interval, there were a few conferences o f private organizations such as the one called in D ecem ber, 1958, by the C ana­ dian Labour C ongress.63 There were a few representations m ade to the governm ent, including one on behalf o f som e thirty organizations in A pril, 1959.64 During this tim e one prem ier, the H onourable T. C. Douglas o f Saskatchew an, indicated interest in further negotiations between the provinces and the federal governm ent in devising an am endm ent to the B .N .A . Act with a Bill o f Rights binding upon all governm ents in C anada.65 H ow ever, nothing seem s to have been done about it, nor was any explanation given for the delay in presenting the Bill for second reading. The result w as strong and continuing criticism from the Liberal and C .C .F . opposition o f the late introduction o f the Bill and non-consultation with the provinces.66 At the end o f the debate in the I960 session the Prime M inister agreed to the setting up o f a

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T H E C A N A D IA N BILL O F RIGHTS

House o f Com m ons special com m ittee to study the Bill and to receive representations on it.67 The com m ittee sat for som e fourteen days, and heard representations from nine individuals, six organizations, and the H onourable E. D. Fulton, then M inister of Justice. The result of these deliberations was a num ber o f changes to the Bill from the form in which it was introduced in 1958 and in 1960 to its present form . Follow ing the report o f the Com m ittee to the House o f Com m ons, Bill C-79 was given unanim ous third reading on August 4, I9 6 0.68 The follow ing day it passed the Senate,69 and on August 10, 1960 it received Royal A ssent.70 5. Subsequent A m endm ents and a Canadian C harter o f H um an Rights In the decade follow ing the adoption of the Canadian B ill o f R ights, until the famous D rybones case.71 the Bill was given little effect. W ithin two or three years o f its enactm ent the low er courts seem ed reluctant to face its im plications, and the trend was to ignore or explain aw ay its existence. Sim ilarly, the Suprem e C ourt, while not openly dism issing or rejecting the applicability o f the Canadian Bill o f R ights, did not declare a single piece o f legislation to be inoperative nor any adm inistrative act to be invalid. N evertheless, at this stage the Suprem e C ourt was cautious enough, and perhaps even perspicacious enough, not to throw any doubt upon, or raise any question about, the effective­ ness o f the Bill o f Rights. In fact, in the Sunday Bowling Alley case72 the m ajority decision of M r. -Justice Ritchie reiterated expressions to the effect that the Canadian Bill o f Rights “ guarantees” freedom of religion, even though he went on to define freedom o f religion as not including the right o f a person to work on a Sunday when his Sabbath falls on a different day. T hus, by the tim e that C anada celebrated her centennial in 1967, som e seven years after the adoption o f the Canadian Bill o f R ights, there appeared to be som e w aning o f interest in the body politic in the B ill, and som e considerable cynicism am ongst the legal profession as to its effectiveness. With a new Liberal governm ent in O ttaw a, and considering its earlier lack o f enthusiasm for the adoption of a Bill of Rights while previously in pow er, it seem ed that som e o f the early pessim ism about the im potence o f the Canadian Bill o f Rights was justified. It was in April o f that year, how ever, that Pierre Elliot Trudeau was appointed M inister o f Justice and A ttorney-General of C anada.73 As early as 1955, he had made a proposal to the Quebec Royal C om m ission o f Inquiry on Constitutional Problem s (the Trem ­ blay C om m ission) that Q uebec should declare itself "read y to accept

INTRODUCTION

15

the incorporation o f hum an rights in the constitution [of C anada]” , and " a precise plan for repatriating the Canadian constitution.” 74 It was not surprising, then, that within a m onth of his taking office he an­ nounced the appointm ent of H. Carl G oldenberg, a well-known M ontreal labour and constitutional law yer, as Special Counsel to the M inister o f Justice on the Constitution o f C anada, and Professor Ivan Head o f the Faculty o f Law at the U niversity o f A lberta as Associate C ounsel.75 That fall, at the 49th Annual M eeting o f the Canadian Bar A ssociation,76 M r. Trudeau proposed that a constitutionally-en­ trenched Bill o f Rights be agreed upon with the provinces as a prelude to a renew ed federal-provincial debate on the Constitution. M ean­ w hile, a special sub-com m ittee, under the direction o f M r. G old­ enberg, prepared the background material for a W hite Paper on A Canadian Charter o f H um an Rights which was tabled in the House of Com m ons on February I, 1968,77 and presented to the provincial prem iers at the First Constitutional Conference on February 5, 1968. The proposed C harter had already been agreed upon as one of the item s on the agenda of the First Constitutional Conference along with official languages, regional disparities, and constitutional review .78 At the Constitutional Conference the federal governm ent declared that in its opinion “ the First goal o f the Canadian federation is the protection o f the rights o f the individual.” It was asserted that the preservation o f individual rights “ also m ust mean the guarantee o f the linguistic rights” o f the country’s ‘‘tw o founding linguistic g ro up s.” The governm ent stated that:79 Rights o f the individual— hum an and linguistic— are so funda­ m ental to the will o f the nation to survive, that the Governm ent of C anada suggests as the first step in review ing C anada’s C onstitu­ tion the guarantee o f these rights in the fundam ental law. For this purpose we propose the incorporation into C anada's Constitution o f a C harter o f Human Rights as quickly as the federal and provincial governm ents and legislative bodies can agree. In the policy paper on A Canadian Charter o f H um an R ights, the governm ent stated its reasons for advocating a constitutionallyentrenched charter binding both federal and provincial legislatures. The essence o f the argum ent was that such a C harter would constitute a desirable statem ent o f the goals o f the Canadian federation, and by its position in the C onstitution, would have a degree o f perm anence and superiority over federal and provincial statutes which existing civil liberties legislation did not enjoy. The policy paper did not contain a suggested text for the proposed

16

T H E C A N A D IA N B ILL O F RIGHTS

charter, but the C onstitutional C onference agreed that a discussion of fundam ental rights should form a part o f the constitutional debate. It was not until the Second C onstitutional Conference on February 10-12, 1969, that a detailed proposal on the possible text o f the C harter was included in a further policy paper entitled The Constitution and the People o f C anada.80 The policy paper entitled A Canadian C harter o f H um an Rights consisted o f four parts. The first part dealt with those civil liberties now included in Section 1 o f the Canadian Bill o f Rights. T he only m ajor change was with respect to the “ due process” clause. Reference was m ade8' to the history o f the ‘‘due process” clause in the U nited States, and particularly to the substantive due process interpretation which resulted in the invalidation o f social w elfare and econom ic reform legislation during the period from the last decade o f the nineteenth century to the third decade o f the tw entieth.82 It was suggested that the A m erican experience with respect to the guarantee as it applied to protection o f “ life” and personal ‘‘liberty” was generally satisfac­ tory, whereas the due process interpretation as applied to ‘‘liberty” of contract and ‘‘right to property” had created the greatest controversy. The policy paper proposed, therefore, to apply the due process guaran­ tee only to “ life ,” “ personal liberty,” and “ security o f the person.” T he specific guarantees of procedural fairness set out in the second part o f the proposed C harter, it was suggested, w ould continue to apply to any interference with contracts or property and, in this fashion, the possibility o f unw arranted, substantive due process problem s could be avoided. As an alternative, if the due process clause were to remain applicable to contract and property rights, it was argued that there should be som e specification as to what was intended. Pursuant to these suggestions the policy paper on The Constitution a nd the People o f Canada proposed phrasing a due process clause which would apply to the “ right o f the individual to life, and the liberty and security o f the person.” A separate provision dealing wth property was proposed in the follow ing form: “ the right o f the individual to the enjoym ent o f property, and the right not to be deprived thereof except according to law .” The second part o f the proposed C harter w ould have recognized and guaranteed the civil liberties now included in the detailed provisions of Section 2 o f the Canadian Bill o f R ights, and would have added two others. For som e reason th ^C anadian Bill o f Rights does not include an injunction against unreasonable searches and seizures, and retroactive penal legislation. Both o f these were proposed to be added to the second part o f the Canadian C harter o f Human Rights. Part Three w ould have been an addition to the present B ill o f Rights prohibiting discrim ination by reason o f sex, race, national or ethnic

INTRODUCTION

17

origin, colour or religion, and w ould have applied to em ploym ent or m em bership in occupational and professional associations, as well as the ow ning, renting, holding, and possessing o f property, and the obtaining o f public accom m odation, facilities, and services. It would have applied both to private conduct as well as that o f the federal and provincial governm ents. Part Four was designed to im plem ent som e o f the language recom ­ m endations o f the Royal Com m ission on Bilingualism and Biculturalism . In particular, it would have extended the effect of s. 133 o f the B .N .A . A ct to the legislatures o f New Brunsw ick and O ntario, as well as the legislatures o f any province w here the m other tongue o f at least 10% o f the population was French, o r a province where English and French had been declared as the official languages. It would also have extended the s. 133 protection to any judicial or quasi-judicial body established by Parliam ent, as well as the superior courts o f the prov­ inces described above. Included as well were to be guarantees o f the right o f an individual to com m unicate in either official language with the head offices o f all departm ents and agencies of the governm ents described above, and the right to have English and French language instruction in publicly-supported schools in places where there w ere “ a sufficient num ber o f persons to justify the provision o f the necessary facilities.” O nly the econom ic civil liberties w ere not proposed for inclusion in the C harter. The governm ent did state that “ the guarantee o f such econom ic rights is desirable and should be an ultim ate objective for C anada,” but in very brief terms it was asserted that there were “ good reasons for putting aside this issue at this stage” as “ it m ight take considerable tim e to reach agreem ent on the rights to be guaranteed and on the feasibility o f im plem entation.” 83 The intention to invalidate law s inconsistent with the C harter of Hum an Rights w as to be more explicitly declared, and thus it was proposed that the C harter provide that “ neither C anada nor any prov­ ince shall abrogate or abridge any . . . right or freedom [referred to in the Charter] and any law w hether enacted in the past or future should be invalid to the extent that it interferes with these rights and freedom s.” As an assurance to the provinces that the C harter was not intended to enhance the legislative power o f Parliam ent at the expense o f the provincial legislatures, it was also proposed that “ nothing in the C harter shall be deem ed to confer any legislative authority on the Parliam ent o f C anada or on the legislature o f a province which Parlia­ m ent o r the legislature did not respectively enjoy before the adoption of the C harter." Finally, the suspension o f the Bill o f Rights during the proclam ation o f the W ar M easures Act was to be continued, but with the addition of

18

T H E C A N A D IA N BILL O F RIGHTS

the requirem ent that Parliam ent would have to expressly provide in its declaration that the W ar M easures A ct w ould operate notwithstanding the Charter. In the event, the Constitutional C onference did not adopt the pro­ posal for the entrenched C harter o f Hum an Rights. Instead, it was agreed that the C ontinuing C om m ittee o f M inisters (AttorneysG eneral) study the proposed Charter with a view merely to the en­ trenchm ent o f the fundam ental rights (political civil liberties) referred to in the first part o f the proposed C harter. A sub-com m ittee o f federal and provincial representatives was charged with the task of preparing w orking papers and proposals on this portion o f the proposed C harter alone. A nother sub-com m ittee was charged with a sim ilar task with respect to language rights. The proposals agreed upon by these com m it­ tees were adopted at the Third C onstitutional C onference on February 8-9, 1971 as part o f the Statem ent o f C onclusions.84 In this Statem ent o f C onclusions the follow ing appeared under the title "Fundam ental R ig h ts":8s It was agreed to entrench in the C onstitution the follow ing basic political rights: (a) universal suffrage and free, dem ocratic elections at least every five years; (b) freedom o f thought, conscience and religion; (c) freedom o f peaceful assem bly and association. The exercise o f these freedom s m ay be subject only to such lim itations as are prescribed by law and as are reasonably justifi­ able in a dem ocratic society in the interests of national security, public safety, health or m orals or the fundam ental rights and freedom s o f others. It will be noted that reference was m ade to suffrage and elections. This was one o f the points insisted upon by O ntario as being a basic "political civil liberty.” It will also be noted that the freedom s were slightly more explicitly defined than the terser but vaguer expressions used in the Canadian Bill o f R ights. The final restrictive clause was clearly a copy of the form at adopted in the European C onvention of H um an Rights as well as the Bills o f Rights drafted by United Kingdom legislative draftsm en in many o f the new Com m onw ealth constitutions. It was included because it becam e clear in the sub-com m ittee that the provinces would not agree to entrenchm ent without such a limiting clause. On the other hand, none suggested that the political civil liberties were without som e lim itation, and it was generally recognized that the courts would in any case apply these lim itations in their interpretation o f the extent o f any particular civil liberty. A lso, one

INTRODUCTION

19

should not overlook the fact that the phrase “ reasonably justifiable in a dem ocratic society,” does give the courts the opportunity to exam ine legislation to the extent that they w ould have to be satisfied that the lim itations on the political civil liberties are “ reasonably justifiable.” In other w ords, legislatures would not be judges by them selves o f the reasonableness or justifiability o f restrictions on the political civil liberties. The language rights provision was more limited than that proposed by the federal governm ent in that Ontario and New Brunswick were not explicitly included, and the extension o f language rights to the superior courts o f certain provinces, as well as com m unication with the head offices o f the departm ents and agencies in these provinces, was excised from the proposed text. Part I o f the Constitutional C harter which was agreed upon at V ictoria. British C olum bia, in June, 1971. and which was the culm ina­ tion o f the constitutional debate, dealt with the political rights (includ­ ing language rights) in som e nineteen articles.86 T he first nine detailed the provisions agreed upon with respect to fundam ental rights at the February conference. A rticles 10 to 19 inclusive were concerned with language rights, extending the right to use the tw o official languages in the Parliam ent o f Canada and the legislatures o f O ntario, Q uebec, Nova Scotia, New Brunsw ick, M anitoba, Prince Edward Island and N ew foundland. Article 13 provided that the statutes o f each province be printed in both official languages, with the federal governm ent assum ing the responsibility for publishing the statutes in the other official language where the province does not do so. T he English and French versions were to be authoritative in Q uebec. New Brunswick and N ew foundland.87 By Article 14 the use o f the two official lan­ guages was to be guaranteed in the Courts o f Q uebec. New Brunswick and N ew foundland. W ith respect to com m unications with govern­ m ents, Prince Edward Island and O ntario joined the three provinces previously m entioned. Further provision was m ade for the extension of language rights by the Parliam ent of C anada and any provincial legisla­ ture which so chose. W hatever hopes there were at V ictoria for the adoption o f the proposed Constitutional C harter— which had been agreed upon by all the delegations, federal and provincial— were dashed before the end of the month when Prem ier Bourassa declared that he felt obliged not to get the consent of the Q uebec Legislature because the m atter o f jurisdic­ tion over social w elfare had not been agreed upon.88 Even before the conclusion o f the Constitutional Debate with the agreem ent in June, 1971, upon the Victoria C harter and its rejection by Prem ier Bourassa, a study o f constitutional revision was started by a Special Joint Com m ittee o f the Senate and o f the H ouse o f Com m ons.

20

T H E C A N A D IA N BILL O F RIGHTS

(H ereafter referred to as the M olgat-M acG uigan C om m ittee.)89 Al­ though the report90 o f the C om m ittee has not resulted in any constitu­ tional changes, it would seem clear that because it contains the recom ­ m endations o f an all-party joint com m ittee, any future constitutional debate would have to give early consideration to the conclusions. Chapters 9 and 10 o f the M olgat-M acG uigan Com m ittee Report deal with “ Fundam ental R ights” and “ Language R ights” respect­ ively.91 The C om m ittee held its organizational m eeting on M arch 30, 19 7 0 ,92 held hearings throughout the sum m er and fall o f 1970, and was reconstituted at the com m encem ent o f the next session o f Parliam ent.93 A fter holding som e 130-140 m eetings in all throughout the country, the Com m ittee held a num ber o f m eetings in cam era94 to discuss the draft final report, and then was reconstituted for the Fourth Session of the Tw enty-Eighth Parliam ent, and finally adopted its final report on M arch 7, 1972.95 D espite som e strong representations against an entrenched Bill o f R ights,96 the m ajority o f witnesses and briefs supported som e form o f a constitutionally-entrenched Bill o f Rights. In the end, with som e additions and am endm ents, the Com m ittee in effect endorsed the original federal governm ent proposal for an en­ trenched C harter o f Hum an Rights in the C onstitution. T hus, the Com m ittee w ent beyond the basic political rights agreed upon in A rticles 1 to 9 o f the V ictoria Charter. The Com m ittee rather strongly urged that there should be a provision requiring “ fair and equitable representation in the House o f Com m ons and in the Provincial L egislatures,” even though it felt that it would be difficult to be m ore specific than that.97 It also recom m ended including a guarantee that “ the right to citizenship, once legally acquired, should be m ade inalienable.” 98 T he Com m ittee reaffirm ed the inclusion o f Parts II and III of the originally proposed C harter o f Hum an Rights (dealing with s. 2 protections and the proscription against discrim ina­ tion) which were om itted from the Victoria C harter. As was the federal governm ent in its policy paper on A Canadian Charier o f H um an R ights, the C om m ittee was concerned with the ease with which judges could substitute their own socio-econom ic views for those o f legisla­ tures under a substantive due process interpretation, and so it too called for a separate provision on property, rather than com bining it with rights to life and liberty. T he C om m ittee also recom m ended substitut­ ing the term : “ principles o f fundam ental ju stice” for the “ due proc­ ess” clause.99 In addition, the Com m ittee expressly dissented from the Victoria C harter form ulation o f lim itations on the exercise o f the fundam ental freedom s. It suggested instead that the principle o f judi­ cial interpretation would be more clearly focussed if the qualification

IN T R O D U C T IO N

21

were stated m ore, rather than less, generally, and therefore recom ­ m ended that “ any lim itations on the exercise o f the fundam ental freedom s should be only such ‘as are reasonably justifiable in a dem o­ cratic society’ without any further specification.” 100 On language rights, as with fundam ental rights, the Com m ittee endorsed the original federal governm ent proposals rather than the more restricted agreem ents in the Victoria C harter. How ever, it went m uch further. In C hapter 6. the Com m ittee recom m ended that the new C onstitution should contain a pream ble which w ould include as an objective for the country not only the protection and enhancem ent of the m ore recognized hum an rights and fundam ental freedom s, but a recognition of Canada as a bilingual and m ulticultural country, “ a pluralistic m osaic.” 101 In C hapter 10, on “ Language R ights,” 102 the C om m ittee declared itself in support o f “ the general objective of m aking French the working language in Q uebec.” H ow ever, it recom m ended th at:10-1 The Constitution should explicitly recognize the right of Provin­ cial Legislatures to confer equivalent status with the English and French languages on other languages. Federal financial assistance to support the teaching or use o f other languages would be appro­ priate. Finally, although the original policy paper on A Canadian C harter o f H um an Rights declared that econom ic rights were probably incapa­ ble o f form ulation in and enforcem ent through such a charter, the Com m ittee recom m ended that the pream ble to the new Constitution should include as a basic objective the prom otion o f “ econom ic, social and cultural equality for all Canadians as individuals,” and the reduc­ tion o f “ regional econom ic disparities.” 104 From the very first Con­ stitutional Conference several of the provinces insisted that the con­ stitutional debate should concern itself with regional econom ic dis­ parities. This debate resulted in A rticle 46 o f the Victoria C harter by which the governm ents o f Canada declared them selves to be com m itted to: (1) the prom otion o f equality o f opportunity and well-being for all individuals in Canada; (2) the assurance, as nearly as possible, that essential public services o f reasonable quality are available to all individuals in C anada: and (3) the prom otion o f econom ic developm ent to reduce disparity in the social and econom ic opportunities for all individuals in C anada, w herever they may live.

22

T H E C A N A D IA N BILL O F RIGHTS

H ow ever, Article 47 im m ediately qualified the obligation assum ed in Article 46 by providing: T he provisions o f this part shall not have the effect o f altering the distribution o f powers and shall not com pel the Parliam ent of C anada or legislatures of the provinces to exercise their legislative powers. The Com m ittee reaffirm ed the argum ent that it would not be wise to try to specify the form s o r degrees o f program m es to be adopted, not only because of the difficulty o f enforcem ent, but also because o f the variability in requirem ents. N evertheless, the Com m ittee felt that the pream ble to the new C onstitution should recognize as an objective of the country the prom otion o f econom ic and social rights, and the reduction o f regional disparities. As indicated earlier, by the tim e the Report o f the M olgatM acG uigan C om m ittee was subm itted in M arch, 1972, the constitu­ tional debate, which had com m enced in the w inter o f 1967-68, had ended som e nine m onths earlier in June o f 1971. N evertheless, it is difficult to see any new constitutional debate resum ing which would not take into account the opinions o f the all-party House and Senate C om m ittee on the Constitution. That the suspension o f the Constitutional Debate did not end the discussion o f a constitutionally entrenched Bill o f Rights binding the provincial and federal governm ents was evident in two events in August and Septem ber, 1973. At its 55th Annual M eeting in Van­ couver the Canadian Bar A ssociation for the first tim e adopted two resolutions recom m ending that:105 in order to enhance the rights o f persons the legislative pow ers o f the State be lim ited and in particular that the legislatures o f Canada be encouraged to adopt Bills o f Rights protecting against abuse of legislative and adm inistrative power. Just over two weeks later, on Septem ber 17, 1973, the Liberal Policy Convention in O ttaw a adopted a resolution that a Bill o f Rights be entrenched in the B .N .A . A ct as “ the suprem e law o f C anada.” 106 W hile these discussions on constitutional change were proceeding, tw o changes were m ade to the text o f the Canadian B ill o f R ig hts. In the 1970 Revised Statutes o f C anada the Canadian Bill o f Rights was printed without Section 6, and th eB ill itself appears in A ppendix III. At the sam e tim e, the War M easures A ct was revised107 to include the new version o f Section 6 as it had been am ended by s. 6 o f the original version o f the Canadian Bill o f Rights.

IN T R O D U C T IO N

23

T he second change to the Bill o f Rights occurred in 1971 when the new Statutory Instrum ents Act was enacted.108 Section 3(2) o f the new Act requires every regulation to be subm itted to the Clerk o f the Privy Council w ho, in consultation with the Deputy M inister o f Justice, is em pow ered to exam ine the proposed regulations to ensure that (c) it does not trespass unduly on the existing rights and free­ dom s and is not, in any case, inconsistent with the purposes and provisions o f the Canadian Bill o f R ights. . . . C onsequently, Section 29 of the Statutory Instrum ents A ct am ended Section 3 o f the Canadian Bill o f Rights to accord with the new additional requirem ents.109 Notes 'W . R. Lederm an, ‘‘The Nature and Problems of a Bill of Rights,” (1959) 37

Can. Bar Rev. 4, 5-6.

2French-speaking Canadians translate the term as “ libertes civiles” or "libertes publiques.” The former is the m ore literal, but the latter the more precise. -’ Hereafter referred to as the B.N .A . Act. 4Professor F. R. Scott uses two: see ‘‘Dominion Jurisdiction O ver Human Rights and Fundamental Freedom s," (1949) 21 Can. Bar Rev. 497; Dean W. F. Bowker has six or seven: “ Protection of Basic Rights and Liberties,” (1956) 2 U.B.C. Legal Notes 281, and "B asic Rights and Freedoms: W hat are T hey?” , (1959) 37 Can. Bar Rev. 43; Dr. A. L. Goodhart speaks of three: “ Freedom Under the L aw ," (I960) 3 Tasmanian U.L. Rev. 375. 5Bora Laskin. “ An Inquiry into the Diefenbaker Bill of R ights," (1959) 37 Can. Bar Rev. 77; “ Note on Civil Liberties and Legislative Pow er,” Canadian Constitutional Law, 3rd ed.. Toronto: Carswell, 1966, 970 ff. In the 4th ed. revised by Professor Abel in 1973, the section on “ Civil Liberties” has unfortu­ nately been left out. Therefore it will be necessary to refer in this book to both editions. The references will be noted as “ 3rd. e d .” or as “ 4th revised e d .” as appropriate. 6See, e.g., a series of articles on Quebec and the Padlock Act (discussed infra), by E. Forsey in volume 17 (1937) at 298 and 382. and volume 18 (1938) at 41 and 298. and an editorial on "C ivil Liberties in Q uebec" in volume 17 at 42. A lso see an article by F. R. Scott as early as 1933 on “ Freedom of Speech in C anada." (1933) Proceedings o f the Canadian Political Science Association 169, and an even earlier one by A. Rivard "D e lalib erted e lap re sse," (1923) 17 Transactions o f the Royal Society o f Canada (3rd Ser.) 33. 7See the subm ission of the National Japanese-Canadian C itizens' Association before the Special Committee of the Senate on Human Rights and Fundamental Freedoms in: The Senate of Canada —Proceedings o f the Special Committee on

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T H E C A N A D IA N BILL O F RIGHTS

Human Rights and Fundamental Freedoms, 1950 (Hereafter 1950 Senate Committee Proceedings), 269-79.

8For a full account of the measures taken see the report of the Civil Liberties Section of the Canadian Bar Association in (1946) Minutes o f Proceedings o f the Canadian Bar Association (Hereafter C.B.A. Proceedings), 141-56. 9( 1941 ) 19 Can. Bar Rev. 49-50. H)ReRex v. Napier [ 1941] O .R . 3 0 (H .C .) where the by-law was upheld \Rex v. Muslin; Rex v. Millard [1940] O .R . 393 (H .C .) where the by-law was held invalid. "[1953] 2 S .C .R . 299. This case is discussed in Chapter II, infra. ,2( 1943 ) C.B.A. Proceedings 53, 55. It should be pointed out that in 1937, the Com m ittee on Noteworthy Changes in Statute Law , 1937, reported on the Quebec "A ct Respecting Com m unistic Propaganda” and stated: " It gives the Attorney General great powers which he can exercise in the first instance without the slightest judicial restraint, and takes away all of the safeguards which even an ordinary criminal enjoys before conviction.” (1937) C.B.A. Proceedings , 258. l3Ibid., 29.

l4Loc. cit. ,sIbid., 30-1. t6Ibid., 28-30, 34; see also "C om m ittee on Civil Liberties and Post-war W ork,” (1943) 21 Can. Bar Rev. 315. ,7( 1943) C.B.A. Proceedings, 29-40, 53-5; (1944) C.B.A. Proceedings, 40-60, 184-212; (1945) C.B.A. Proceedings , 153-71. 18( 1943) C.B.A. Proceedings, 31-2; (1946) C.B.A. Proceedings, 147-8. I9( 1943) C.B.A. Proceedings, 53. 20See Chapter V II, infra, for a discussion o f the Franks Com m ittee on

A dm inistrative Tribunals and Enquiries and the resultant legislation in the United Kingdom. 2‘(1944) C.B.A. Proceedings, 45. 22( 1946) C.B.A. Proceedings, 141-56. 2ilbid.. 156. 24( 1947 ) C.B.A. Proceedings, 143-4, 56-7. 25( 1949) C.B.A. Proceedings , 60. 26( 1948) C.B.A. Proceedings, 166. 27(1944) C.B.A. Proceedings, 85-88. 28( 1948) C.B.A. Proceedings, 142. 29(I949) C.B.A. Proceedings, 60-1; (1950) C.B.A. Proceedings, 163-5. 301950 Senate Committee Proceedings , 185. 3,( 1950) C.B.A. Proceedings, 163. 32( 1948) 26 Can. Bar Rev. 759 by W . G. How. 33‘‘Dominion Jurisdiction O ver Human Rights and Fundamental Freedom s,” (1949) 27 Can. Bar Rev. 497. 34( 1944) C.B.A. Proceedings, 191. A lso see "R eport of Com m ittee on Civil L iberties,” (1944) 22 Can. Bar Rev. 598. 3Slbid., 599. 36Special Joint Committee of the Senate and House of Com m ons of Canada on Human Rights and Fundamental Freedom s, (1947 Session) Minutes of

IN T R O D U C T IO N

25

Proceedings and Evidence (Hereafter 1947 Joint Committee Proceedings), iii-iv. This Committee was reconstituted at the next session. 37Special Joint Com m ittee of the Senate and House of Com mons of Canada on Human Rights and Fundamental Freedom s (1947-48 Session) Minutes o f Proceedings and Evidence (Hereafter 1947-48 Joint Committee Proceedings), 211.

38Canada— House of Com mons Debates (Hereafter Hansard), 1948, 2846. 39See supra, footnotes 32 and 33. 40f 1953] 2 S.C .R . 299. See Chapter II, infra, for a discussion of this case. •‘ 'Professor Laskin in “ An Inquiry into the D iefenbaker Bill of R ights," (1959) 37 Can. Bar Rev. 77, 116-17 sum m ed it up cogently: “ The awkward result of the case was that while six justices denied provincial com petence at least in some circum stances, five justices affirm ed provincial com petence, at least in som e circum stances; and while four justices affirm ed federal com pe­ tence in som e circum stances; five justices denied federal competence at least in some circum stances; and yet only three justices denied any federal power, while four justices denied any provincial pow er.” 42Switzman v. Elbling [1957] S .C .R . 285. See Chapter II, infra, for a discussion of this case. 43[1955] S.C .R . 799. See Chapter II, infra , for a discussion of this case. 44See the judgm ents of Rand and Kellock JJ. in the Saumur Case, supra, footnote 40. Some six decades earlier in the case of Re North Perth, Hessin v. Lloyd (1891) 21 O .R . 538, Boyd, C. asserted that electoral rights were not necessarily within 92(13) of the B .N .A . Act: “ The subjects of this class of legislation are of a political character, dealing with the citizen as related to the Com monwealth (or the province or Dom inion), and they are kept distinct in the Federal Constitutional Act from matters of civil rights in the Provinces which regard mainly th emeum and tuum as between citizens. It is in my view rather confusing to speak of the right of voting as comprehended under the ‘civil rights’ m entioned in sec. 92, sub-s. 13 of the B.N .A . Act. This franchise is not an ordinary civil right; it is historically and truly a statutory privilege of a political nature, being the chief means whereby the people, organized for political pur­ poses, have their share in the functions of governm ent. The question in hand, therefore, falls within the category not of 'civil rights in the Prov­ ince' but of electoral rights in C anada.” Quoted in Laskin, Canadian Constitutional Law, op. cit., 3rd ed. 917. 45See supra, footnotes 4 and 5, and see Scott. Civil Liberties and Canadian Federalism, University of Toronto Press, 1957. 46“ The Bill of Rights and the B .N .A . A ct,” (1959) 37 Can. Bar Rev. 66. 47D. W . M undell, m emorandum presented to the Council M eeting of the Canadian Bar Association in 1959 and printed in (1959) 37 Can. Bar Rev. 247, 251-2; A. N. Carter, letter to the editor, (1959) 37 Can. Bar Rev. 259; see 1960

Special Committee o f the House o f Commons on Human Rights and Fundamen­ tal Freedoms—Minutes o f Proceedings and Evidence (H ereafter 1960 Committee Proceedings) for the subm issions by the Canadian Bar Association,

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T H E C A N A D IA N BILL O F RIGHTS

107-8; Professor W . F. Bowker, 138, 157-61; Professor O. E. Lang, 343-49; and J. B. M cGeachy, “ Will R ights' Bill Keep Us Free?” , The Financial Post, Novem ber 8, 1958. For more recent arguments see Special Joint Committee of

the Senate and House o f Commons on the Constitution o f Canada—Minutes o f Proceedings and Evidence (H eareafter Proceedings o f the Molgat-MacGuigan Committee) 3rd Session, 28th Parliam ent, Schm eiser, 49; 4-57, and Sm iley, 25: 5-45. 48M undell, op. cit., 249-50; 1950 Senate Committee Proceedings, subm is­ sion of Professor F. R. Scott, 16-25; see the various subm issions by organiza­ tions in the 1950 Senate Committee Proceedings and the 1960 Committee Proceedings ; Professor A. R. M. Lower in 1960 Committee Proceedings, 316-19. For m ore recent arguments see Proceedings o f the Molgat-MacGuigan Committee, 2nd Session. 28th Parliam ent, Strayer, 3: 8-44 and 7:8-12; 3rd Session, 28th Parliam ent, Constitutional Sub-section Ontario Branch of the Canadian Bar Association, 94:22-34, Scott, 17:11-13, Tam opolsky, 8:7-35. 49See the subm issions of Professor Scott, supra, footnote 48; see also the submission of the Canadian Labour Congress in I960 Committee Proceedings, 191-4. 50See the debates in the House of Com mons by the Canadian Cooperative Com m onw ealth Federation, and Progressive Conservative mem bers referred to infra. 5lSee various comm ents by Liberal mem bers of the Special Committee in 1960 Committee Proceedings. s2Hansard, 1945. 900. He agreed to withdraw the motion when assured by the governm ent side that a Canadian Citizenship Bill would shortly be intro­ duced which would go at least part way in providing these rights and freedoms. 53See, for instance, Hansard, 1953-4, 656 ff. 54R .S.S . 1953, c. 345. The province of Alberta passed a Bill o f Rights, but it was held invalid as being directed at controlling banking: Attorney General for Alberta v. Attorney General fo r Canada, (Re Alberta Bill o f Rights Act) [ 1947] A .C . 503. In 1972 the Alberta Legislature enacted th e Alberta Bill o f Rights: S. A. 1972, c. 1. It is an adaptation of s. 1, the opening paragraph of s. 2. and s. 5 of the Canadian Bill o f Rights, 1960. S5Hansard, 1945. 2455-61; 1946. 513; 1947, 3149 ff.; 1948, 2846; 1952. 720; 1955. 8 9 4 ^ . 56The House of Commons of Canada. 1st Session, 24th Parliam ent, 7 Elizabeth II, 1958, 1st reading Septem ber 5, 1958. 57See pages 8 and 9. supra. S81947-48 Joint Committee Proceedings, 211. S91950 Senate Committee Proceedings, 301. 60Ibid., 305-6. “ Ibid., 306. b2Hansard, 1958, 4638-9; see also M r. D iefenbaker's brief address to the Canadian Bar Association in (1959) C.B.A. Proceedings, 94. 631960 Committee Proceedings . 191. “ Ibid., 169. b5Hansard, I960, 5671. 66See generally 1960 Committee Proceedings, and Hansard, 1960. 5650-5938.

IN T R O D U C T IO N

27

blHansard, 1960, 5950-1. 68Hansard , 1960, 7553. 69Canada — Parliam ent —Debates o f the Senate, I960, 1243. 10Hansard, 1960, 7948. 7iRegina v. Drybones [ 1970] S .C .R . 282. This case is discussed in detail later in this book in Chapter IV, Part 3; and in Chapter VIII. 12Robertson and Rosetanni v. The Queen [1963] S .C .R . 651. This case is more fully discussed later in this book in Chapter IV, Part 3, and in Chap­ ter V. 73April 4, 1967, see Hansard, 1967, 14481. 74P. E. T rudeau, Federalism and the French Canadians, Toronto: M acmil­ lan. 1968, 53. 75Globe and Mail, M ay 3 1, 1967. A month later he appointed five part-time advisers to M r. Goldenberg, who were Gerald Le Dain, M ark M acGuigan, Barry Strayer, Gerald La Forest, and Jean Beetz: Globe and Mail, June 23, 1967. 76( 1967) C.B.A. Proceedings. 236. 77Hansard 1968, 6233. 78For the details of the federal proposals for the agenda and format of constitutional review see Federalism for the Future: A Statement o f Policy by the Government of Canada issued under the name of Prime M inister L. B. Pearson at the First Constitutional Conference, February 5-7, 1968. 79Federalism for the Future, 18. 80The proposals are to be found on pp. 50-62 of the policy paper entitled The Constitution and the People o f Canada. For the full text see appendix III. 8l/4 Canadian Charter o f Human Rights, 20. 82For greater details see Chapter VIII, Part 1, infra. SiA Canadian Charter o f Human Rights, 27. For a discussion of som e of the reasons for the difficulties of inclusion see Chapter II, Part 4, and Chapter VI, infra. 84See Hansard, 1971, Appendix “ A ,” 3268. B5lbid., 3268-9. 86The text of the Charter was tabled in the House of Com m ons on June 18, 1971. See Hansard , 1971, 6857. For the text of the proposals in the Victoria Charter on "fundam ental rights” see Appendix IV. 87In a gesture of patriotic enthusiasm and as an inspiration for national unity. Prem ier Sm allwood of Newfoundland gratuitously offered to add his province to Quebec and New Brunswick. ssGlobe and Mail, June 23, 1971. 89The Special Joint Com m ittee was established by a resolution of the House of Commons on January 27, 1970 and of the Senate on February 17, 1970. The joint chairm en were Senator M aurice Lam ontagne o f the Senate and Mark M acGuigan of the House of Com mons. See The Special Joint Com m ittee of the Senate and the House of Com mons on the Constitution of Canada— Minutes of Proceedings and Evidence, 2nd Session, 28th Parliam ent, 1:5 and 1:3 respec­ tively. 90Report o f the Special Joint Committee on the Constitution o f Canada, Fourth Session, Twenty-eighth Parliam ent, 1972. 9'I bid.. 18-25.

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92Proceedings o f the Special Joint Committee on the Constitution, 2nd Session, 28th Parliam ent, 1:13. 93By resolution o f the Senate on October 8, 1970 and of the House of Com mons on O ctober 15, 1970 — Proceedings o f the Special Joint Committee on the Constitution, Third Session, Twenty-Eighth Parliam ent, 1:3, 1:5. 94At its last public meeting on June 29, 1971, Senator Lam ontagne felt compelled to withdraw from the Com m ittee and was replaced by Senator M olgat: Ibid., 94:4-5. 9Slbid., 4th Session, 28th Parliam ent, 1:5. 96See, e .g ., the presentation of Professor D. A. Schm eiser, Proceedings o f the Special Joint Committee on the Constitution, 3rd Session, 28th Parliament, 49:4-27, and his brief on: “ Entrenchment of Fundam ental Human Rights and Judicial R eview ," which is Appendix 111— ib id ., 49:28-57. Also see the tes­ tim ony of Professor D. V. Sm iley—Ibid., 25:5-36, and his brief on “ The Constitutional Entrenchment of Human R ights," which is Appendix W—Ibid., 25:37-45. 97Report o f the Special Joint Committee on the Constitution, 19.

9SLoc. cit. 99Ibid., 19-20. '00lbid., 18-19. 10'Ibid., 11-12. ' 02Ibid., 22-25. " )3Ibid., 22. '04lbid., 12, 26-8. ,0SCanadian Bar Bulletin, Septem ber, 1973. '06Globe and M ail, Septem ber 17, 1973. And see the lead editorial on Septem ber 19 urging Mr. Trudeau “ to resume the Fight and lay obstructionism where it belongs." ,07R .S.C . 1970, c. W -2. I08S.C. 1971, c. 38. ,09This raises the interesting point as to whether the change brought out in the revised statutes and the amendm ents in the Statutory Instruments Act detract from the Canadian Bill o f Rights because it is made subject to the War Measures Act by a provision which appears in the War Measures Act rather than in the Canadian Bill o f Rights, and because the am endm ent to Section 3 occurred in a separate statute.

C H A PTER II

The Distribution of Legislative Power with Respect to Civil Liberties

1. T he B .N .A . Act and C ivil Liberties In a federal stale such as C anada, concern with civil liberties is bound up with the question o f the distribution o f pow er between the federal Parliam ent and the provincial legislatures. W ho can confer the “ rights” or delim it the “ freedom s” ? W hen the B .N .A . Act was passed few restrictions were im posed on the various legislatures and on Parliam ent providing they acted within their respective jurisdictions as set out m ainly in ss. 91 and 92. No Bill of Rights was included, and there was no reference to civil liberties. The main restrictions were those thought necessary for the protection o f som e m inority and cultural rights. T hus, there are provisions guaran­ teeing the use of the English and French languages (s. 133), and others proclaim ing the right to separate schools (s. 93), but neither o f these sections applies to all parts o f C anada. There are other provisions ensuring an annual session o f Parliam ent (s. 20), and representation by population (ss. 51, 51 A , and 52). An independent judiciary seem s to be provided for (s. 99). In addition, there are certain econom ic restrictions necessary to preserve, on the one hand, national econom ic unity ,' and on the other, autonom y o f the various units.2 Apart from these restrictions, the provincial legislatures and the federal Parliam ent, within their jurisdiction as outlined in the B .N .A . A ct, were deem ed to have unlim ited power. One could alm ost agree with the court that declared:3 . . . [T]he legislature within its jurisdiction can do everything that is not naturally im possible, and it is restrained by no rule hum an or divine. . . . The prohibition, “ Thou shalt not stea l,” has no force upon the sovereign body. . . . W e have no such restriction upon the pow er o f the Legislature as is found in som e States. It is difficult to ascertain why there was no discussion o f civil liberties at the tim e o f Confederation. Possibly this was a result o f a 29

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reaction to the A m erican experience with the Civil W ar arising out of controversy over states’ rights and the rights o f certain inhabitants of the United States. It was m ore probably the result o f the belief o f the Fathers o f C onfederation that the new country they were creating was a successor to the heritage o f English constitutional law. T he M agna C arta , the Bills o f R ights, the A ct o f Settlem ent, am ong others, and the English com m on law , with its em phasis on the rights o f free men which could not be taken away except by the law o f the land as found by the courts, or as passed by a sovereign and popularly elected Parliam ent, and its protection for the individual through instrum ents such as the Habeas Corpus A cts, were all intended to be incorporated through the pream ble to the B .N .A . Act which stated that the C onstitution was to be “ sim ilar in principle to that o f the United K ingdom .’’ If asked how civil liberties were to be ensured, they would probably have answered as Dicey did som e twenty years later:4 Freedom from arbitrary arrest, the right to express o ne's opinion on all m atters subject to the liability to pay com pensation for libellous o r to suffer punishm ent for seditious or blasphem ous statem ents, and the right to enjoy one’s own property, seem to Englishm en all to rest upon the sam e basis, nam ely, on the law of the land. To say that the “ constitution guaranteed” one class of rights more than the other would be to an Englishm an an unnatural o r a senseless form o f speech. And they would probably have agreed with Dicey that the Habeas Corpus Acts “ are for practical*purposes worth a hundred constitutional articles guaranteeing individual lib e rty ."s The B .N .A . Act m ade no specific reference to civil liberties, and the Judicial C om m ittee o f the Privy C ouncil, which for more than eighty years rendered the ultim ate judicial interpretation o f its term s, did not feel called upon to refer to them as such. T here w ere cases early in Canadian constitutional history which are currently considered as deal­ ing with civil liberties.6 but they were always dealt with on other grounds. Perhaps the furthest the Privy Council went was to concede that in case o f dire peril the protection of the constitution itself, and presum ably its consequential guarantees, m ust be left to the Parliam ent of Canada:7 That the basic instrum ent on which the character o f the entire constitution depends should be construed as providing for such centralised pow er in an em ergency situation follows from the m anifestation in the language o f the Act o f the principle that the instrum ent has am ong its purposes to provide for the State re­

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garded as a w hole, and for the expression and influence o f its public opinion as such. The only m ajor case before W orld W ar II which m ade any reference to hum an rights and fundam ental freedom s as such is the famous Alberta Press Bill case.8 H ow ever, even in this case only three m em ­ bers o f the Suprem e C ourt dealt with this legislation as being an infringem ent of the liberties o f the citizen and thus ultra vires the provincial legislature, w hile the other three disposed o f it as part o f a w hole schem e of legislation which was ultra vires on other grounds. W hen the Privy Council rendered its decision in the case the issue had becom e m oot and no reference was m ade to the Press Bill or to the opinions that there were certain freedom s which were beyond the reach o f the provincial legislatures.9 2. Judicial Interpretation o f The B .N .A . Act T heBritisli North Am erica A ct o f 1867, as am ended, distributes legisla­ tive jurisdiction between the provincial legislatures and the federal Parliam ent. It is expedient to start with tw o principles arising out o f this constitutive docum ent. The first is found in the pream ble o f the Act which states that the intention was to create a constitution ‘‘sim ilar in principle to that o f the United K ingdom .” It has been argued that w hatever else this im plies, it m ust include popularly elected legisla­ tures and executives responsible to them , governm ent under the rule of law, and parliam entary sovereignty.10 T he second principle is that a federal state was set up under which specific, and largely exclusive, fields o f legislation were granted to the provinces on the one hand, and to Parliam ent on the other. The result o f these tw o principles is that, at least since the decision, in 1883, o f H odge v. The Q eeen, 11 the powers o f the provincial legislatures, no less than that o f Parliam ent, are as am ple and plenary, within the limits o f the B .N .A . Act, as the Imperial Parliam ent could bestow . The Judicial Com m ittee o f the Privy Council has stated that the provincial legislatures are sovereign bodies within their jurisdiction,12 just as, quite obviously, the federal Parliam ent is sovereign within its ju risd ictio n.13 As far as any judicial restraint on legislation is concerned, the Privy Council alw ays asserted that it was not concerned with the policy of the legislation, with its wisdom or justice, but m erely with its constitu­ tional validity on the basis o f ju risd ictio n.14 On this point Lord Herschell said:15 The suggestion that the pow er might be abused . . . does not warrant the im position by the Courts o f any limit upon the absolute

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pow er o f legislation conferred. The suprem e legislative pow er in relation to any subject-m atter is always capable o f abuse, but it is not to be assum ed that it will be im properly used; if it is, the only rem edy is an appeal to those by whom the Legislature is elected. Lord W atson was even more specific:16 In assigning legislative pow er to the one or the other o f these parliam ents, it is not m ade a statutory condition that the exercise o f such pow er shall be, in the opinion o f a court o f law , discreet. In so far as they possess legislative jurisdiction, the discretion com ­ mitted to the parliam ents, w hether of the Dom inion or o f the provinces, is unfettered. It is the proper function o f a court o f law to determ ine what are the lim its of the jurisdiction com m itted to them ; but, when that point has been settled, courts o f law have no right w hatever to inquire w hether their jurisdiction has been exer­ cised wisely o r not. T hus, according to Privy Council decisions, any restriction on either the provincial legislatures or the federal Parliam ent from interfering with civil liberties would have to be applied on the ground that the “ m atter” in question was beyond the jurisdiction o f the legislative body concerned. Conversely, any pow er that either might have to declare or interfere with civil liberties m ust be shown to be a “ m atter” in relation to “ Classes of Subjects” assigned to the legislative jurisdic­ tion o f the provincial legislatures or o f the Parliam ent o f Canada. Since civil liberties are not m entioned in the B .N .A . Act may one assum e that they are not separate constitutional values which have been distributed am ong the provinces and the central governm ent by that A ct?17 If so, one would have to agree that in som e respects, through valid legislation passed in relation to “ Classes o f Subjects” within their legislative jurisdiction, either the Canadian Parliam ent or the legislatures m ay deal with certain aspects of them . On the other hand, as Professor Laskin has pointed o u t,18 it is possible to agree that the rights and freedom s in question arc not a class o f subject, w hile yet m aintaining that they are "m atters” com ing within a class o f subject. So, for exam ple, freedom o f speech is not a class o f subject which is by the B .N .A . Act given either to the provincial legislatures or to the federal Parliam ent, but it can still be a "m a tte r" com ing within "P ro p ­ erty and Civil Rights in the P rovince.” which is a class o f subject within provincial jurisdiction: or. it can be a "m a tte r" com ing within a class of subject within federal jurisdiction such as "C rim inal L aw ." In considering the distribution o f powers in relation to civil liberties it is necessary to keep in m ind at least three o f the rules or doctrines

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which the Privy Council has enunciated for determ ining the validity of statutes passed in C an ad a.19 These are: 1) the “ pith and substance” rule; 2) the “ double aspect” doctrine; and. 3) the "param ountcy” doctrine. Space does not perm it m ore than a brief outline o f each .20 The first o f these, and probably the m ost im portant, is the so-called “ pith and substance” or “ true nature and purpose” rule. The validity o f a particular statute is determ ined by reference to its “ true nature and purpose” o r its “ pith and substance.” In this process the first question to consider is the legal effect o f the particular piece o f legislation. This may very well provide the answer. H ow ever, a further investigation may be necessary if there are any grounds for believing that the real purpose o f the law is not revealed by its legal effect. The m anner in which this rule or test is applied can be best illustrated by the tw o cases which established this rule before the turn of the century. The first o f these was Russell v. The Q ueen.2' It concerned the validity o f the Canada Tem perance Act passed by the C anadian Parlia­ ment in 1878. This statute provided for local adoption to bring it into force. W here brought into force it provided for prohibition o f the sale of intoxicating liquors, except in w holesale quantities or for certain specified purposes. Sales o f liquor in violation o f the prohibition and regulations o f the Act w ere deem ed to be criminal offences and were punishable by fine or im prisonm ent. It was contended by the defence that this legislation dealt with “ Property and Civil Rights in the Prov­ in ce,” or with “ M atters o f a m erely local or private Nature in the Province. ’' H ow ever, the Judicial C om m ittee of the Privy Council held that though the legal effect was to prohibit certain transactions o f sale, the intended effect o f the legislation was to prom ote public order, safety, or m orals, and as such it belonged to "th e subject o f public w rongs rather than to that o f civil rights.” 22 It was thus within the general pow er o f Parliam ent to legislate for the "P eace, O rder and good G overnm ent" o f the country as a whole. The second case, which was the first to use the words "p ith and substance,” was Union Colliery o f B ritish Colum bia Ltd. v. B ryden.23 This case concerned a section o f the British C olum bia C oal M ines Regulation A ct, 1890, which enacted that " n o C hinam an" should be em ployed in any mine working below ground. It was contended that this was legislation in relation to “ Property and Civil Rights in the Province” (s. 92( 13) ), or in relation to “ Local W orks and U ndertak­ ings” (s. 92( 10) ). Its legal effect was sim ply to prohibit Chinese from working underground in coal m ines. H ow ever, the Privy Council had no difficulty in deciding that the “ pith and substance' ’ o f the legislation consisted in the establishm ent o f a statutory prohibition affecting aliens or naturalized subjects, which is a m atter within the exclusive authority o f Parliam ent under s. 91(25) o f the B .N .A . A ct.24

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The second o f the interpretative rules referred to here is the "double asp ect" doctrine, first form ulated by Sir Barnes Peacock in H o d g e v. The Q uee;n.2s He said that "sub jects which in one aspect and for one purpose fall within section 92, m ay in another aspect and for another purpose fall within section 9 1 .” The practical application o f this doctrine can be shown by referring to H od ge v. The Q ueen. This case, like the R u ssell case, concerned a legislative attem pt to regulate liquor traffic. The Ontario Liquor L icense A ct, 1877, had authorized the appointm ent o f License C om ­ m issioners to act in each m unicipality and to regulate liquor sales by granting licences on conditions set by them , to regulate licensed taverns, and to im pose penalties for infraction o f their rules. The contention was that the regulation o f liquor traffic had, in R ussell v. The Q u e en , been held to be within exclusive federal jurisdiction, and thus was outside the jurisdiction o f the provinces. How ever, the Judi­ cial C om m ittee held that this was valid legislation under Heads 8, 15 and 16 of s. 92. A fter enunciating the "d o ub le aspect” doctrine, Sir Barnes Peacock stated that regulation of liquor traffic was for one purpose and in one aspect within "P eace, Order and good G overnm ent o f C anada,” and for another purpose and in another aspect within "M unicipal Institutions” and “ M atters o f a merely local or private N ature” in the province.26 The third o f the doctrines dealt with here is the "param ountcy” doctrine. "T h ere can be a dom ain in which provincial and Dominion legislation may overlap, in which case neither legislation will be ultra vires if the field is clear, but if the field is not clear and the two legislations meet the Dom inion legislation must prevail. . . . " 21 There are tw o related but som ewhat different effects which result from the "param ountcy” or "o v erlap ping " doctrine. The first o f these arises where the tw o legislative orders, federal and provincial, legislate with respect to what appears to be the sam e conduct, or the sam e failure to act. For our purposes the most im portant area is crim inal law .-8 Perhaps the best known exam ple o f the application o f the param ountcy doctrine in this field is the case of H om e Insu rance C o. v. L inda l and B ea ttie 29 wherein the Suprem e C ourt o f C anada held that when Parlia­ ment added a section to the Criminal Code to prohibit driving an autom obile while in a state o f intoxication this superseded provincial legislation in the sam e field. More recently, how ever, the Canadian Suprem e Court has applied the doctrine very restrictively by finding that provincial provisions which are very closely related to crim inal code provisions with respect to very sim ilar conduct can have valid concurrent operation. Thus, provincial highway traffic and m otor vehicles legislation regarding licence suspension has been upheld in the face o f som ewhat sim ilar

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federal provisions.30 Recently the Suprem e Court upheld such provin­ cial provisions for total suspension o f licences even in the face o f a Crim inal C ode provision for interm ittent suspension.31 Sim ilarly, pro­ vincial highw ays legislation prohibiting “ driving without due care and attention" was upheld despite the Criminal Code provisions o f the time (ss. 191 and 221) prohibiting conduct (which would include driving) with “ w anton or reckless disregard for the lives or safety o f o th e rs."32 Even when Parliam ent extended the scope o f its provision to include driving which is “ dangerous to the p u b lic." the provincial provisions were still held valid.33 The Suprem e Court has also upheld provincial traffic legislation which forbade leaving the scene o f an accident, although there was sim ilar federal legislation.34 Despite a specific provision then to be found in s. 224 (4) o f the Criminal Code to the effect that no person could be com pelled to take a breathalyzer test, the Suprem e Court upheld Saskatchew an vehicles legislation which pro­ vided that failure to subm it to such a test would result in suspension or revocation o f a driver’s licence.35 W hat, then, is the effect o f the “ param ountcy" doctrine today? If it is too narrowly applied, and if the prosecution attem pts to use both federal and provincial provisions which do not appear to be so con­ tradictor)' that one is inoperable, then the risk o f double jeopardy could becom e serious.36 On the other hand, many o f the cases discussed above concern conduct which seem s inherently bound up with regula­ tion o f highw ays and o f traffic on them , and would seem to be justifi­ ably w ithin provincial concerns. An argum ent for greater concurrency could be m ade.37 Perhaps the best approach is the sum m ary suggested by Professor Lederman in 1962:38 Provincial legislation may operate if there is no federal legislation in the field or if the provincial legislation is merely supplem ental to federal legislation that is in the field. D uplicative provincial legislation m ay operate concurrently only when inseverably con­ nected with supplem ental provincial legislation, otherw ise dup­ licative provincial legislation is suspended and inoperative. Re­ pugnant provincial legislation is always suspended and inopera­ tive. A lthough the cases since the tim e o f his article seem to go som ewhat outside his classification, it still seem s to be the m ost logical approach. T he second question which arises under the "p aram o u n tcy " or "o v erlap ping " doctrine is w hether a general provincial law would apply to a person w ho, or a thing w hich, occupies a special position as a result o f federal law. o r to a person engaged in an activity falling under the exclusive jurisdiction o f Parliam ent. This may involve such things

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as a post office, a ship, a uranium m ine, such persons as judges and Indians, and such activities as banking, air transport, and radio broad­ casting. In B ank o f Toronto v. Lam be ,39 this problem faced the Judicial Com m ittee when the point for consideration was w hether a provincial taxing law applied to a federal bank. It was contended that under s. 91(15) “ B anking,” the federal governm ent had exclusive pow er to regulate banks, and that provincial taxing statute was an attem pt to interfere with this pow er and was thus ultra vires. H ow ever, the Judicial Com m ittee held that, with som e exceptions necessary to pre­ vent suppression o f the bank's operations, provincial laws could affect banks within the province. Sim ilarly it has been held that a general provincial incom e tax law will apply to federal em ployees.40 and to ju d ges.41 O n the other hand provincial legislation has been held ultra vires as m eeting Parliam ent’s jurisdiction over federally incorporated com ­ panies, with the latter prevailing.42 And more recently the Suprem e C ourt held that the Q uebec M inim um W age Act does not apply to the Bell Telephone Com pany because it is an undertaking subject to federal jurisdiction within s. 92 (10) (a) and (c) o f thefi./V ./i. A c t.43 The three doctrines which have been dealt w ith, and especially the first one, will arise frequently in judicial consideration o f legislative jurisdiction in relation to civil liberties in C anada. In the next few pages it will be seen that the courts, when faced with a particular statute, federal or provincial, m ust ask them selves what its “ pith and sub­ stan ce" is: is it, for instance, legislation providing for regulation of streets and side-w alks, or is it legislation attem pting to interfere with freedom of speech?44 Is it possible that the distribution o f handbills in the streets m ay for one purpose and in one aspect be subject to m unici­ pal by-laws preventing obstruction o f public places, while for another purpose and in another aspect such distribution may be included under freedom o f religion as being the right to distribute and dissem inate inform ation on o ne’s religious beliefs?45 Does provincial legislation regulating labour relations, and thus freedom o f association in the econom ic sphere, apply to workers in the uranium mines in that province or does this field com e under federal jurisdiction?46 These are questions which the rem ainder o f this chapter will attem pt to answer. H ow ever, since different answ ers will be found depending upon which o f the categories o f civil liberties one considers, each will be discussed in turn, i.e .. political, econom ic, legal and egalitarian. Tw o further points m ust be kept in mind when considering legisla­ tive jurisdiction. Even where the provinces pass legislation clearly w ithin their jurisdiction, the federal governm ent through the G overnor G eneral in C ouncil, may disallow it under the powers o f reservation

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and disallow ance contained in ss. 55, 56, 57 and 90 of the B .N .A . Act. It appears that this right o f disallow ance com m ended itself as a means o f ensuring that no injustice could be done by the provincial legislatures without appeal.47 T here is no doubt that the pow er o f disallow ance is unrestricted even with respect to m atters over which the provincial legislatures have com plete legislative jurisdiction.48 It was used on m any occasions early in Canadian constitutional history, but in recent years its use has becom e so infrequent that doubt has been expressed about its practical significance. In recent years its use has been urged in disallow ing provincial legislation which allegedly infringed on civil liberties, but the urging has been in vain.49 Finally, and this point will be dealt with more fully in C hapter IX on the W ar M easures A ct. in tim es o f w ar or like em ergency, Parliam ent has pow er under the "P eace. O rder, and good G overnm ent” clause in s. 91 o f the B .N .A . Act to override the normal distribution o f legisla­ tive jurisdiction as set out in this chapter. 3. L egislative Ju risd ic tio n w ith R espect to Political Civil L ib erties In one sense, political liberties result from inaction by governm ents. In D icey’s term s, the extent o f these liberties is determ ined by what is not forbidden. Thus, one is free to say anything which the laws do not forbid, and one is free to associate with anyone with whom it is not forbidden to associate, and one is free to worship in any m anner which is not proscribed. The lim its o f free speech and press are set by laws o f sedition, blasphem y, obscenity, defam ation, and censorship. O f these, the first three have historically form ed part o f the crim inal law , and there has been no question that they fall within federal jurisdiction.50 Since defam ation can be tortious or crim inal, it would clearly be within either provincial or federal jurisdiction as being in respect o f "P roperty and Civil R ights" or "C rim inal L aw " respectively. C ensorship laws could present a problem but it seem s that with one possible exception, they do not lie within the com petence o f the provincial legislatures. In the first place, censorship laws have tradi­ tionally been part o f the crim inal law and so lie within federal jurisdiction.51 In the second place, federal censorship provisions such as those dealing with the use o f the mails for transm itting obscene m atter,52 and those prohibiting the im portation o f obscene o r immoral literature,53 have never been declared ultra vires. T he only form of censorship which has been carried out provincially is that concerning film s, and there seem s to be no justifiable reason why this should not be essentially within federal jurisdiction, just as are other forms of

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censorship.54 Finally, the only cases dealing with provincial censor­ ship laws seem to indicate that such laws are ultra vires the provinces. The earliest o f these was the Alberta Press B ill case.55 In 1937 the A lberta Social Credit governm ent passed a num ber of Bills to im plem ent the radical program m e which it had prom ised the electorate. One o f these was "A n Act to Ensure the Publication o f A ccurate N ew s and In fo rm a tion ." By it, new spapers could be com ­ pelled to disclose the source o f their news inform ation, and could be com pelled to print governm ent statem ents to correct previous articles. Any contravention o f the Act was punishable by prohibition from further publication. On a reference to the Suprem e Court o f C anada this Bill was held to be ultra vires as being part o f the general schem e of Social Credii legislation, all o f which was held to interfere with federal pow ers. O f the six justices who heard the case, three went further. D uff C .J.C . (with Davis J. concurring), and Cannon J .. were o f the opinion that the Bill was an invasion o f the liberty o f the press, and o f the right of public discussion, which only the federal Parliam ent had the author­ ity to limit. In ringing term s Cannon J. stated:56 D em ocracy cannot be m aintained without its foundation: free public opinion and free discussion throughout the nation o f all m atters affecting the State within the lim its set by the crim inal code and the com m on law. Every inhabitant in A lberta is also a citizen of the D om inion. The province may deal with his property and civil rights o f a local and private nature within the province; but the province cannot interfere with his status as a Canadian citizen and his fundam ental right to express freely his untram ­ m elled opinion about governm ent policies and discuss matters of public concern. The m andatory and prohibitory provisions o f the Press Bill are . . . ultra vires o f the provincial legislature. They interfere with the free working o f the political organization of the Dom inion . . . The federal parliam ent is the sole authority to curtail. if deem ed expedient and in the public interest, the freedom o f the press in discussing public affairs and the equal rights in that respect o f all citizens throughout the Dom inion. In sim ilar term s D uff C .J.C . stated that the Pream ble to the B .N .A . Act showed plainly enough that the C anadian C onstitution was to be sim ilar in principle to that o f the United K ingdom , and that this “ contem plates a parliam ent working under the influence o f public opinion and public d iscu ssion ." In addition to the power o f disallow ­ ance, the Parliam ent o f Canada possessed the authority to legislate for the protection o f this right o f free discussion. He conceded that the provinces could regulate new spapers to som e degree, but the limit o f

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this regulation is reached “ when the legislation effects such a curtail­ ment of the exercise o f the right of public discussion as substantially to interfere with the working of the parliamentary institutions of Canada as contemplated by the provisions of The British North Am erica Act and the statutes o f the Dominion of C anada.’’57 A more recent decision of the Supreme Court of Canada is now the leading authority on this point. The case of Switzm an v. E lb lin g ,58 which has become known as the Padlock case, dealt with legislation which tried to regulate the dissemination of certain ideas. The 1937 Quebec “ Act Respecting C om m unistic Propaganda"™ declared it illegal to use a house for the propagation of Communism or Bolshevism.60 or to use it to print, publish or distribute a document for the same purpose, and it provided for the placing of a padlock on such a house under the authority of the Attorney General. The Supreme Court declared (with only Taschereau J. dissenting) that this was legislation with respect to criminal law, and so under federal jurisdiction by s. 91(27), and not under provincial jurisdiction either under s. 92(8) “ Municipal Institutions,’’ s. 92(13) “ Property and Civil Rights,” or s. 92(16) “ Matters of a merely local or private Nature” in the prov­ ince. In rendering this decision the Supreme Court had to distinguish an earlier case, B edard v. D aw son ,61 which seemed to be nearly identical and which had upheld similar provincial legislation. In the B edard case the Court was faced with a Quebec statute which provided for the closing of premises known as “ disorderly houses” upon conviction of the owner or occupier under the C rim inal C ode for running a “ disor­ derly house.” This legislation was upheld under s. 92(13) of the B .N .A . Act as dealing with “ Property and Civil R ights," and being concerned with the suppression o f conditions favouring crime, rather than being criminal legislation p er s e . In the Padlock case, the dissenting judge felt bound by B edard v. D aw son , but the remainder had no difficulty in distinguishing it. As Fauteux J. pointed out. the earlier case dealt with an Act designed to regulate the control and enjoyment o f property, and the suppression of certain social conditions, whereas the Act being considered in the Padlock case was intended to make the propagation of Communism a crime and to prohibit it with penal sanctions. He stated that such an Act cannot come under s. 92( 16) as a local matter because the propagation of an idea can hardly be considered a local matter.62 He said:63 Seul le Parlement, legiferant en matiere criminelle, a competence pour decreter, definir. defendre et punir ces matieres d'un ecrit ou d'un discours qui. en raison de leur nature, lesent I’ordre social ou la securite de l’Etat.

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Two other judgm ents are of interest. Abbott J. went further than any other Supreme Court justice and declared that not even Parliament, much less a provincial legislature, could abrogate the right of free public debate.h4 Rand J., with whom Kellock J. concurred in a short judgment, gave another of his classic judgments in the civil liberties field. As he and Kellock J. had done four years earlier in the Saum ur case, he once again proceeded to show that “ civil liberties" could never have been intended to be included as such in "Property and Civil Rights” or “ Matters of a merely local or private Nature” in the province. The rights of free opinion, public debate, and discussion, he stated, are clearly necessary to Parliamentary government. He went on:65 This means ultimately government by the free public opinion o f an open society, the effectiveness of which, as events have not infrequently demonstrated, is undoubted. But public opinion, in order to meet such a responsibility, de­ mands the condition of a virtually unobstructed access to and diffusion of ideas. Parliamentary government postulates a capac­ ity in men. acting freely and under self-restraints, to govern themselves; and that advance is best served in the degree achieved of individual liberation from subjective as well as objective shack­ les. Under that government, the freedom o f discussion in Canada, as a subject matter of legislation, has a unity of interest and significance extending equally to every part of the Dominion. With such dimensions it is ipso fa cto excluded from head 16 as a local matter. Censorship, however, can take many forms other than direct super­ vision over what is said or written. To persons or groups who cannot afford to print newspapers or books, or to advertise, or who might not be given the opportunity to advertise even if they had the money to do so, supervision o f the distribution o f their handbills or tracts, or even posters, is a form of censorship. This form o f censorship has been effected in many parts of Canada through municipal by-laws regulating the use o f streets, side-walks and parks. These by-laws usually require the approval o f the Chief of Police or some civic official before pamphlets can be distributed. Such by-laws are enacted under provin­ cial enabling statutes passed under the power with respect to “ Munici­ pal Institutions in the Province,” s. 92(8) of the B .N .A . Act. The leading cases concerned with censorship through municipal regulation have occurred in the Province of Quebec. These were for the

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most part the result of a conflict between the former Union Nationale government o f the late Maurice Duplessis, and the religious sect, the Witnesses of Jehovah. The leading case is Saum ur v. City o f Q uebec.66 Unfortunately, its ratio decidendi is exceedingly obscure.67 This case dealt with a by-law of the City of Quebec which forbade the distribution in the streets of the city of any book, pamphlet, circular, tract, etc.. without prior permission of the Chief of Police. The appel­ lant was a missionary-evangelist of the Witnesses of Jehovah. He claimed that the by-law was ultra vires and void because it attempted to interfere with his rights as a Canadian citizen to express freely his opinions and to worship his God. rights which flow from the unwritten British constitution as incorporated in the B .N .A . Act, from the B .N .A . Act itself, and from the Freedom o f W orship A ct of Quebec.68 The respondent city pleaded that the by-law was a valid exercise of the regulatory powers of the city, and was concerned with cleanliness, good order, and the good local government of the city. The formal judgm ent of the Supreme Court of Canada was to the effect that the by-law did not extend so as to prohibit the appellant from distributing in the streets any of the Jehovah's Witnesses’ literature. This decision was by a majority of five to four. O f the majority, four would have declared the by-law ultra vires, as being beyond what the provincial legislature could authorize.69 The fifth70 thought that the by-law was within provincial power, but that the Quebec Freedom o f W orship A ct pro­ tected the appellant from its effects. O f the dissenting minority, two thought that freedom of religion was a civil right within provincial jurisdiction,71 while the other two did not feel called upon to decide that point.72 Perhaps the most important result of the case was that the Witness of Jehovah involved did not have to get prior police approval for the distribution of his pamphlets.73 It is significant that in a few cases members of religious minorities who have been charged under such by-laws have been acquitted on the ground that the by-law in question dealt with commercial leaflets and not with political or semi-political tracts.74 On the other hand, in Regina v. H arrold75 the British Columbia Court of Appeal held that an anti-noise by-law was a law o f general application, was not directed particularly at the religious freedom o f a member o f the H are Krishna group, and was valid. Another basis for acquittal in such cases has been that the legislative authority granted by the province did not clearly authorize this type of regulation.76 However, such by-laws have been upheld when the court has considered them as being properly enacted in pursuance of powers granted to the municipality by valid provincial legislation.77 The dis­ tinction could perhaps be illustrated by comparing the results in two

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cases concerning the same accused, well-known for his attempts during the mid- 1960’s to hold public meetings at which strongly anti-Semitic views were expressed. In the first case o f Regina v. B ea ttie,1* Mr. Justice Hartt held that a portion of a Toronto by-law which made it an offence to “ use language or engage in any form of conduct which is likely to stir up hatred against any section of the public distinguished by colour, race, religion, ethnic or national origin, in a City P ark." was too broad in scope. He said it went beyond regulation which protected parks and people using them from repugnant and injurious conduct, because it covered even the quiet exchange of views by two friends in circumstances where they could not possibly infringe on the enjoyment of the park-using com ­ munity. He acquitted the accused. In the second case o(R eg in a v. B eattie19 the Ontario Court of Appeal dealt with a different portion o f the same by-law. The accused had been charged that he had used abusive language contrary to a provision which provided that “ no person shall . . . indulge in boister­ ous, unseemly or unlawful conduct or use profane, indecent or abusive language in a City P ark.” The Court of Appeal held that this was a valid regulation of conduct in parks so as to protect them as places of serenity, and was not, in pith and substance, criminal legislation. The court also held that the by-law was not in conflict with s. 160 (a) of the C rim inal Code which prohibits causing a disturbance by “ fighting, screaming, shouting, swearing, singing or using insulting or obscene language," because the by-law dealt with conduct which might not amount to a disturbance. The Supreme Court has held, in the case o f M cK ay and M cK ay i\ The Q ueen,60 that municipal by-laws could be invalid, even when they regulate use of private property, if this amounts to interference with the federal electoral process. The appellants had been convicted on a charge that they had put up an election sign for a candidate for election to the House o f Commons at the general election of 1962, which sign was contrary to a by-law of the Township of Etobicoke in Toronto which prohibited the displaying of all signs except those defined in the by-law. The Ontario Court of Appeal had reversed81 an order of Hughes, J., affirming the conviction. Mr. Justice Cartwright (with Taschereau C .J.C ., and Abbott, Judson and Spence J.J. concurring), stated that if the by-law were upheld it would destroy the right o f the appellants to engage in a form of political activity in the federal field. He held that the prohibition in the by-law would amount to a law in relation to proceedings at a federal election, and was therefore not in relation to any subject matter within provincial power. He emphasized that his decision was restricted to a finding that the by-law could not be so construed as to apply to the election poster concerned, and that his

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judgment was not to be construed as impugning the constitutional validity of the provincial legislation pursuant to which the by-law was enacted. Mr. Justice Martland, (in whose dissenting judgment Fauteux, Ritchie and Hall J.J. concurred), disagreed that a by-law o f general application, which incidentally prevents a particular form of political propaganda, constitutes a substantial interference with the working of parliamentary institutions of Canada. He referred to the Padlock case and ihcSanm ur case only incidentally, and acknowledged that some of the reasons in these cases recognize the existence of federal legislative jurisdiction in relation to freedom of religion and freedom of speech. He referred also to the Alberta Press B ill case and pointed out that in his opinion, although Chief Justice Duff had said that provincial control could not go beyond a certain point, he had also recognized that there was a basic right of the province to regulate newspapers which could, to som e extent, be a curtailment of unlimited freedom of discussion. Perhaps the gist of Mr. Justice M artland's judgment could be summed up in the following two paragraphs:82 Assuming the correctness of the proposition stated by Chief Jus­ tice Duff and the existence of federal legislative powers in the field of freedom of religion and freedom of discussion, there is no case as yet which has ruled that provincial legislation not directed at those fields, but validly enacted in relation to property and civil rights, cannot, incidentally, effect any curtailment of the same. Freedom of discussion is not an unlimited right to urge views, political or otherwise, at any time, in any place, and in any manner. It is a freedom subject to law. and, depending on the nature of the legislation involved, may be subject to certain restrictions, whether federal or provincial. On the basis of the authorities it would seem that freedom of speech as a subject matter o f legislation lies essentially within federal jurisdic­ tion. However, provincial statutes and municipal by-laws which in ‘‘pith and substance” amount to regulation of the use o f streets, parks, municipal property, and even of private property through zoning and planning laws, may be valid. In this case the “ overlapping” doctrine would apply. Both Parliament and the provincial legislatures can pass, or authorize the passing, of valid legislation if the field is clear, but federal statutes would prevail where the two sets of legislation clash. TheSaum ur case, which made reference both to freedom of speech and freedom of religion, leads naturally to a consideration o f the latter. In that case Rinfret C .J.C ., and Taschereau and Kerwin JJ., stated that

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freedom of religion was a civil right within the province. Rand, Kel­ lock, Estey and Locke JJ. stated that “ Property and Civil Rights” within the province did not encompass the regulation of the exercise of one’s religion, and that freedom o f religion could not be within provin­ cial competence. The other two justices, Cartwright and Fauteux JJ., expressly withheld their opinion on this matter. In a subsequent and unanimous decision the Supreme Court appears to have decided the question of legislative competence with respect to this freedom. In the Birks case83 the court invalidated an amendment of the provincial legislature providing for the closing o f stores on certain enumerated “ holy” days. It held that this was “ in pith and substance" religious and Sunday observance legislation. In both England and Canada84 this is part of the criminal law. Therefore, the Supreme Court declared, such legislation is within the jurisdiction of Parliament and not the legislature of any province. In addition, the statute as a prohibi­ tory and not a regulatory one was in essence criminal legislation and thus was ultra vires the province. In this case, neither the absence of federal legislation on the point, nor the restriction of the territorial operation of the law, could validate it. In this decision, Rand, Kellock and Locke JJ. again repeated that a province could not legislate with respect to freedom o f religion. Fauteux J., who gave the judgment on behalf of the other members, did not make any statement on this point in those terms. Although six o f the nine members of the Supreme Court did not specifically declare that freedom of religion is exclusively within federal competence, many Canadian constitutional experts have argued that this is clearly the effect of this case.85 Even Professor Pigeon, (as he then was) who can hardly be called a “ centralist," agrees that this decision and the Saum ur case “ make it practically certain that it (freedom o f religion) is within federal jurisdiction."86 Any lingering doubt on the matter seems to have been cleared up in 1963. In Robertson andR osetanni v. The Queen ,87 the Supreme Court dealt with the effect of the Canadian Bill o f R ights, and the declaration therein of freedom of religion, on the Lord’s D ay A ct. Although Ritchie J., who gave the judgment of the majority, held that the B ill o f Rights did not repeal the L ord's D ay A ct. he did state that the position of religious freedom in the Canadian system was summarized by Rand J. in Saum ur v. C ity o f Quebec.™ This affirmation o f the Rand position, as well as the whole tenor of the judgment, and the judgment o f the sole dissenting judge, Cartwright J . , leave no doubt that freedom o f religion as a subject matter of legislation is within federal jurisdiction. Turning now to freedom o f assembly and association, it will be seen that the question of legislative jurisdiction in relation thereto is a rather complicated one. This is partly a result o f the fact that authority to

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regulate this freedom, to the extent that it exists, varies according to whether the assemblage is for political, religious, economic, or social purposes. The question of freedom of assembly and association for economic and social purposes will be dealt with later. Here it seems sufficient to start by saying that freedom of religious assembly seems bound up with freedom o f religion and so, on the basis of the authorities discussed earlier in this chapter, is primarily within federal jurisdiction. Freedom of assembly for political purposes would seem to be bound up with freedom o f speech, and so is also within federal jurisdiction. Forbidding an assembly per se sounds o f the criminal law, and the Canadian C rim inal C ode covers the point, thereby providing a defini­ tion o f “ unlawful asse m b ly ."89 However, it is clear that the provinces may pass valid enabling legislation permitting municipalities to pass by-laws which “ in pith and substance" amount to regulations concern­ ing the use of streets, parks, and other public meeting places, as well as the licensing of public halls.90 This would come under s. 92. Heads 8— "M unicipal Institutions," 13— "Property and Civil R ights." and 16— "M atters of a merely local or private N ature.” This appears to be another instance where the "param ountcy” doctrine applies so that the legislation both of Parliament and of any of the provincial legislatures would be valid if the field is clear, but the federal statutes would prevail where the tw o sets of legislation meet. Finally, it is necessary to consider whether there are any rights of citizenship, whether the status of citizen presupposes certain of the rights which could be included in political civil liberties, and. if so. what the division of legislative power is in relation to these rights. S.9!(25) gives Parliament the power to pass legislation regarding "Naturalization and A liens." Although under s. 95 the provinces have some powers with respect to immigration into their territories, by that same section federal immigration laws are given paramountcy. It has long been established that the provincial legislatures cannot interfere with federal jurisdiction with regard to aliens and naturalized citizens by “ colourable” legislation, e .g ., by ostensibly regulating employment in coal mines:91 However, in Cunningham v. Tom ey H om m a,92 the Judicial Committee stated that while Parliament has the exclusive power to legislate regarding naturalization, this did not include the power to declare all the rights and privileges which flow therefrom. Thus, it was within the powers of the province to restrict provincial voting rights according to race. Also, the courts have upheld provincial legislation forbidding white girls to work for Chinese!93 And the Province of British Columbia for many years had legislation dis­ criminating against various Asiatic races, both in property rights, and in municipal voting rights.94 In 1946 the Canadian Parliament passed the first Canadian C itizen­

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ship A c t.95 It provides, inter a lia , that one who acquires Canadian citizenship is “ entitled to all rights, powers and privileges and is subject to all obligations, duties and liabilities to which a natural-born Canadian citizen is entitled or subject. . . .” 96 However, the Act does not describe what those rights and privileges are. There is no doubt that at the time it was passed certain human rights and fundamental free­ doms were deemed to be included in rights of Canadian citizenship,97 but these were never listed or specified. In several of his judgments, Rand J. has attempted to show that possession of Canadian citizenship entails possession of certain fun­ damental rights and freedoms. In the Padlock case,98 he made refer­ ence to this as one of the sources o f the right to freely express one’s opinion. His great declaration of the rights of Canadian citizenship came in W inner v. S .M .T (Eastern) L td .:99 . . . [A] Province cannot, by depriving a Canadian of the means of working, force him to leave it: it cannot divest him of his right or capacity to remain and to engage in work there: that capacity inhering as a constituent element of his citizenship status is beyond nullification by provincial action . . . He may, of course, disable himself from exercising his capacity or he may be regu­ lated in it by valid provincial laws in other respects. But that attribute of citizenship lies outside of those civil rights committed to the Province, and is analogous to the capacity of a Dominion corporation which a Province cannot sterilize. In the same W inner case, Estey J. stated almost the same thing:100 . . . [T]here is but one Canadian citizenship and, throughout, the British N orth Am erica A ct contemplates that citizens, and all others who may be for the time being in Canada, shall enjoy freedom o f passage throughout the Dominion, subject to com­ pliance with competent provincial legislation. Perhaps they are pointing to what might become the greatest source of Dominion jurisdiction in regard to political civil liberties, but it is too soon to know whether this is so. 4. Legislative Jurisdiction with Respect to E conom ic C ivil Liberties The scope and nature of economic civil liberties have changed greatly from the nineteenth century to the twentieth. In recent years many restrictions on such economic freedoms as the right to own property,

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freedom of contract, and freedom of trade, have been defended as providing protection for the economically weak against oppression by the economically powerful. On the other hand, and for the same purposes, governments have taken it upon themselves to meet demands for social security by providing jobs, compensation for loss of job or for injury to body, minimum insurance for hospital care, old age assis­ tance, the relief of indigents, etc. Valid legislation by way of restriction or benefit has been passed by provincial legislatures and Parliament. The conflict o f jurisdiction has once again been largely between “ Property and Civil Rights" and “ Criminal L a w ." However, the federal government has received some aid in asserting its jurisdiction through its powers with respect to trade and commerce, banks and banking, interest, bankruptcy and insol­ vency, patents and copyrights, and works and undertakings other than those within provincial jurisdiction as set out in s. 92( 10) of the B.N.A. Act. The division of legislative jurisdiction with respect to restriction or declaration o f the extent of economic liberties can best be defined by reference to several leading cases. Criminal law in its widest sense is reserved for the exclusive legislative jurisdiction of Parliament.101 Any act which is prohibited with penal consequences is a criminal act and the law by which such act is prohibited and a penalty imposed is criminal law. This is so even when federal legislation affects property or contractual rights which are otherwise clearly within “ Property and Civil Rights.” 102 However, it has long been established that contrac­ tual and property rights are within provincial jurisdiction.103 and Parliament cannot invade provincial jurisdiction in this field by at­ tempting “ colourable” legislation under its criminal law pow er.104 Moreover, notwithstanding the effect of s. 91(27) “ Criminal L aw ,” under s. 92(15) “ The Imposition of Punishment by Fine. Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects” assigned to them by s. 92, the provinces have a limited jurisdiction to enact criminal la w .105 These somewhat contradictory tests for the criminal law power make it impossible to draw neat distinctions. Perhaps more recent statements help to clarify the issue somewhat. Thus, in the M argarine reference106 Rand J. described a “ crim e” in the following terms:107 A crime is an act which the law. with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legisla­

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ture has had in mind to suppress the evil or to safeguard the interest threatened. On the other hand, in O 'G rady v. S parling108 Mr. Justice Judson asserted that “ a provincial enactment does not become a matter of criminal law merely because it consists of a prohibition and makes it an offence for failure to observe the prohibition.” The greatest difficulty com es, of course, in the use o f the criminal law power to regulate economic activities. Rand J., in the M argarine reference suggested that the criminal law power could not be used for an economic object, such as trade protection for dairy farmers against production and sale of margarine, but rather one had to ask whether the prohibition was “ enacted with a view to a public purpose which can support it as being in relation to criminal law .” He suggested that “ public peace, order, security, health, morality” were “ the ordinary though not exclusive ends served by that law .” 109 This should not be taken too restrictively, however, for a decade after the M argarine reference, in L ord 's D ay A lliance v. A ttorney-G eneral fo r British C olum bia110 the Supreme Court rejected an argument that there was some static “ domain of criminal la w ," and reaffirmed Lord Atkin’s statement in the P .A .T .A . case111 that the criminal law power must extend to legislation to make new crimes. And in thtP .A .T .A . case that included what might be called “ econom ic” crimes, because the crimi­ nal law power was used to uphold federal anti-combines and unfair competition legislation. At the same time, extensive provincial competence with respect to economic regulation was asserted. As a result of the wide interpretation given to “ Property and Civil Rights” the Judicial Committee decided, in Toronto Electric C om m issioners v. S n id e r,112 that the primary responsibility for the supervision of industrial relations was provincial. Twelve years later the Judicial Committee held that provincial power in this field covered such matters as weekly rest, minimum wages, and limitation of hours of w ork.113 Thus, economic civil liberties such as freedom of association in trade unions, employer-employee bargaining rights, minimum hours and wages protection, right to workman's compensation, right to work, etc., are all primarily regulated by the provinces. The extent o f provincial jurisdiction in the field o f labour relations, and the extent to which this gives the provinces power to restrict political activities of economic associations was discussed by the Supreme Court o f Canada in O il, C hem ical and Atom ic Workers International Union, Local 16-601 v. Im perial Oil L td ." 4 The legisla­ tion in question was an amendment by the British Columbia legislature

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to that province’s Labour Relations A c t. 115 The key amendment, which was s. 9(6)(c)(i) of the Act, provided: No trade-union and no person acting on behalf o f a trade-union shall directly or indirectly contribute to or expend on behalf of any political party or to or on behalf of any candidate for political office any moneys deducted from an em ployee’s wages under subsection ( I ) ' 16 or a collective agreement, or paid as a condition of membership in the trade-union. Paragraph (d) of s. 9(6) provided that unless a trade union delivers a statutory declaration to the employer to the effcct that it is complying with, and will continue to comply with, paragraph (c), the employer is prohibited from making any deduction from the wages of an employee on behalf of the trade union. Paragraph (e) provided that any money deducted from an employee's wages and paid to a trade union without complying with this subsection are the property of the employee, and the trade union is liable to the employee for any money deducted. The appellant union was certified under the Labour Relations Act as the bargaining agent for the employees o f the company at a refinery in British Columbia. Under the collective bargaining agreement the com ­ pany had agreed to honour written assignments of wages given by those employees in favour of the appellant, and to remit these assignments monthly to the trade union. When the amendment to s. 9 was passed in 1961. the company asked for the statutory declaration required by paragraph (d). The appellant refused and sued the company to compel it to honour the assignment. The appellant contended that paragraphs (c), (d), and (e) of s. 9(6) were ultra vires the provincial legislature. Both the lower court and the British Columbia Court of Appeal dismissed the action. The Supreme Court of Canada divided four to three in favour of dismissing the appeal, holding that the legislation was intra vires. The argument of the appellant was that authority to enact the legisla­ tion in question was not to be found in any of the classes of subjects in s. 92, that the legislation related to the subject of federal elections, and that as it affected the political activity of trade unions, it was a curtail­ ment of the fundamental rights of Canadian citizens which are essential to the proper functioning of parliamentary institutions. The reply of the respondent was that this legislation was only a limitation of the power to use funds for particular purposes by trade unions, which limitation is valid legislation in respect of labour relations as being within property and civil rights within the province. On behalf of himself, Taschereau and Fauteux JJ., Martland J. gave

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the decision o f the majority. He laid great stress on the fact that under the Labour Relations Act a trade union could be certified as the bargaining agent for a group of employees irrespective of the wishes of a minority of employees within that group, and could then make a collective bargaining agreement which would bind each employee, and could even compel membership in the union as a condition of employ­ ment. Such legislation, which materially affects the civil rights of employees, is labour legislation, and at least since the Snider case117 is unquestionably within the jurisdiction of the provinces as dealing with property and civil rights. The legislature that can compel employees to belong to a trade union can at the same time protect their civil rights by providing that they cannot be compelled to assist in the financial promotion of political causes with which they may disagree. Legisla­ tion to this effect is, in pith and substance, legislation with respect to civil rights in the province. The appellant placed considerable emphasis on the Alberta Press Bill case118 as the basis for arguing that provincial legislatures cannot curtail the right of public discussion and o f association for political purposes so as substantially to interfere with the working of parliamen­ tary institutions in Canada. The answer given by Martland J. was that the legislation before the court did not affect the right of the individual or a trade union to engage in political activities. It merely prevented the use of funds, obtained in certain ways, from being used for political purposes. On the basis of Switzm an v. E lb lin g 119 the appellant contended that only the Canadian Parliament could legislate in relation to individual political freedom and that, inasmuch as a provincial legislature could not legislate to derogate from such rights, it could not legislate for their protection. To this submission Martland J. replied:120 I do not agree with this contention. It is the very fact that provin­ cial legislation, in some instances, has apparently sought to dero­ gate from fundamental political freedoms which has led to the expression of the view by some members of the Court, in cases such as the Alberta Press case and Switzm an v. Elbling and Attorney G eneral o f Q uebec. that it could not be regarded as falling within the sphere of property and civil rights in the prov­ ince, within s. 92 of the British N orth Am erica A ct. The same reasoning does not apply to legislation which seeks to protect certain civil rights o f individuals in a province from interference by other persons also in that province. Legislation of that kind appears to me to be legislation in respect of civil rights within the province.

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Finally, the appellant contended that because the Dom inion Elec­ tions A d at one time had a provision forbidding companies or associa­ tions from contributing money for political purposes, unless they were organized solely for such purposes, this indicated that contributions to federal political parties is a matter outside the sphere of provincial legislation. However, Martland J. replied that this did not mean that without such legislation every association and company had the right to make such contributions. Their legal right to do so depended upon the scope of their lawful authority, and this in certain cases would depend upon powers conferred upon them by provincial legislatures. In a brief judgm ent. Ritchie J. concurred with Martland J. He also emphasized that the legislation in question was designed as a protection for individual employees against an association which was given cer­ tain power over their bargaining rights and employment opportunities:121 The addition o f subs. (6) to s. 9 of the Act in 1961 was, in my opinion, directed towards ensuring that legislative machinery involving the adjustment of civil rights which was created for the regulation of relations between employers and employees should not be used for the collection of political party funds or in such manner as to curtail the fundamental political rights of any indi­ vidual employee. This legislation, he said, was clearly within provincial jurisdiction, and even if it had any effect on political elections, such an effect could only be characterized as incidental to legislation passed “ in relation to” labour relations. O f the dissenting minority, the longest judgment was that of Judson J. Both Cartwright J. and Abbott J. concurred in short separate judg­ ments. Judson J. stated that he would allow the appeal on two grounds:122 1) the control of political behaviour does not fall within the field of labour relations and is not within the provincial power; 2) this legisla­ tion is legislation in relation to federal elections, a field exclusively within the Dominion power. On the First point he stated:123 The subject-matter of the legislation concerns political and con­ stitutional rights, not property and civil rights. Section (c) has no relationship whatever to trade union action designed to promote collective bargaining, to change conditions o f employment or the contract of employment. Its sole object and purpose is to prevent

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trade unions from making these contributions out of their own moneys. It would be a grave and unwarranted extension of principle, he said, to hold that Toronto Electric Com m issioners v. Snider enables a province to control the political contributions o f a trade union. Such an extension o f principle would be in direct conflict with the fundamental basis of the decision in Sw itzm an v. E lbling, where five members of the court held that the legislation there was in relation to criminal law, and three held that it was not within any of the powers specifically assigned to the provinces, and that it constituted an unjustifiable interference with that freedom of speech and expression deemed requisite to the democratic form o f government established in Canada. Secondly, he went on. this legislation is not a general restriction on the disposition of union funds, but is directly related to elections, including federal elections. It. in effect, replaces the legislation for­ merly contained in the D om inion Elections A ct which forbade com ­ panies and associations from making political contributions. This, in itself, is sufficient to characterize the legislation and to put it beyond provincial competence. In his concurring judgment. Cartwright J. added that the effect of this legislation was a total and unconditional prohibition of contributions by trade unions to political purposes out o f their membership dues. This includes prohibition of a political activity in the federal field which had been lawful in Canada prior to this enactment. Such legislation cannot be ancillary or necessarily incidental to labour legislation. Abbott J. referred to the Alberta Press Bill case and Switzm an v. Elbling and emphasized again that the B.N .A. Act. in establishing parliamentary institutions, contemplated their working under the influ­ ence of public debate and public opinion, and that provincial legisla­ tures could not abrogate such freedom of expression. They were to be parliamentary institutions as they existed in the United Kingdom in 1867. He then summarized what he thought this included:124 Parliamentary institutions as they existed in the United Kingdom in 1867 included the right of political parties to function as a means, whereby persons who broadly speaking share similar views as to what public policy should be, can seek to make those views prevail. It is common knowledge that political activities in general, and the conduct o f elections in particular, involve legiti­ mate and necessary expenditures by political parties and candi­ dates, for the payment of which no provision is made out o f public funds. . . .

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The right to join and to support a political party and the right of public debate and discussion fall within that class of rights categorized by Mr. Justice Mignault in his D roit C ivil C anadien, vol. 1, p. 131, as droits publics, and in my opinion, under our constitution, any person or group of persons in Canada is entitled to promote the advancement o f views on public questions by financial as well as by vocal or written means. It follows that any individual, corporation, or voluntary association such as a trade union, is entitled to contribute financially to support any political activity not prohibited by law. The purpose of the legislation here, he went on, is clearly and unambiguously to prohibit political contributions made by a voluntary organization— a trade union— out of its membership dues. Legislation of this character cannot be identified as property and civil rights, nor can it be in relation to matters o f a merely local or private nature in the province. As in Switzm an v. E lbling, Abbott J. went further than anyone else in the Supreme Court to hold that even Parliament was limited in the legislation it could pass in relation to such matters. He stated that Parliament could not regulate or prohibit contributions for provincial political or electoral purposes unless such legislation was necessarily incidental to the exercise of its powers under s. 91 of the B .N .A . Act. The majority decision in this case, then, indicates that as long as a province enacts legislation which is, in pith and substance, in relation to a subject matter within its jurisdiction, it will be valid even though such legislation may incidentally affect those rights of citizens which are otherwise within federal jurisdiction, e .g ., freedom of speech and of the press. In the field of economic rights and liberties the provinces have a very wide jurisdiction. It should not be forgotten, however, that there is still great scope for federal legislation affecting such economic civil liberties as those connected with labour relations. In the first place, the federal criminal law power has been used to declare certain types of picketing to be “ watching and besetting" and so illegal. 125 At the same time, certain protection has been given in the C rim inal C ode to trade unions and the right to join such unions by making it an offence to refuse to employ an individual because of his trade union membership, or to intimidate an employee to prevent him from belonging to such an organization of em ployees.126 Furthermore, the provisions against combinations in restraint of trade contain saving clauses to exempt trade unions, and combinations of workers and employers whose purpose is the better­ ment o f working conditions.127 Secondly, the federal government does

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have some authority to supervise industrial relations when it confines such legislation to activities which are within its authority by enumera­ tion in the B .N .A . Act. as for example, interprovincial works and undertakings such as railways, telephones, telegraph, shipping, and works brought under federal authority by declaration under s. 92(10) (c) of the B.N.A . A ct.128 In addition, it would have jurisdiction over labour relations in such activities as come under its general power or its residuary power, including such fields as air transport, radio and television, and atomic energy.129 If one is to look now at the other side of the coin and consider legislative jurisdiction with respect to the provision of various services or benefits of an economic character, it will be seen that, in the past, such conflict as there has been has either been resolved or was never very serious. In times of serious unemployment and economic distress all governments have contributed to relief and employment projects. The difficulties over unemployment insurance were solved in 1940 by adding this subject to s. 91 as 9 1(2A).130 The federal Parliament passed laws in relation to old age pensions and made such payments for several years, despite objection from the Province of Quebec, until finally any doubt as to the competency of Parliament to do so was removed by an amendment to the B.N.A. A c t.131 and now both Parliament and the provincial legislatures contribute to old age pensions. Shortly after World War II the federal government began paying family allowances, popularly known as "b ab y bonuses." This is a form of support of the right to family security which would seem to come under "Property and Civil R ights," but which has never been successfully challenged.132 It would appear'that the jurisdiction o f Parliament in this field, which would otherwise be provincial, but is justified at least partly by s. 91 (1 A) ("th e public debt and property"), is as wide as the generosity o f the treasury. However, there have been protests over federal payment of old age pensions, over federal aid to universities, and over payment of family allowances, and over such conditional grants as those establishing Medicare, and no one would doubt that federal legislation would be invalid if federal payments were used to gain control of a class o f subject which has been assigned to the provinces. It is evident, then, that although the primary jurisdiction with respect to economic and related social liberties is provincial, this jurisdiction is limited by certain federal authority. The first limitation is made up of legislation which is in "pith and substance” criminal law. Another important limitation was illustrated by the invalidation of the Alberta Social Credit legislation of the 1930’s and especially the Act providing tor excessive taxation of banks.133 The provinces cannot use their jurisdiction over property and the law of contract to interfere with

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federal powers with respect to banks and banking. Nor may the prov­ inces interfere with federal jurisdiction over debt adjustment, interest rates, or bankruptcy and insolvency.134 Further limitations arise from federal competence with respect to works and undertakings other than such as may be described as " lo c a l'’ under s. 92( 10) of the B .N.A . Act. and with respect to enterprises which come under an enumerated Head o f s. 91 like "Postal Service" 91(5) ), ‘‘Navigation and Ship­ p ing" 91(10) ), or with respect to enterprises such as air transport, radio, or atomic energy, which have been brought under the federal general or residuary power. Finally, in respect of the vast northern areas of Canada not lying within the boundaries of any province, the jurisdiction of the federal Parliament is complete. Moreover, in time of war or like emergency it has long been established that federal power over the whole of the Canadian economy, and thus over any rights or freedoms that flow therefrom, is param ount.135 5. Legislative Jurisdiction with Respect to Legal Civil Liberties The traditional Diceyan thesis is that there is no need for a Bill of Rights, but that what is necessary instead are such practical statutes as the English Bill o f R ights, the H abeas C orpus A cts, and the whole concept of “ government under the rule of law " with its attendant safeguards in the common law for the liberty o f the subject. It has been suggested at various times that all the rights and freedoms discussed here can be subsumed under the establishment of “ the rule of la w ." or “ due process of la w ." These terms, which will be discussed more fully in Chapters IV and VII, may simply be defined as a duty of selfrestraint among administrators in dealing with the public, and an injunction against arbitrariness, intolerance, or oppressiveness on the part o f the state in dealing with its subjects.136 Because the state in Canada can be represented by provincial officials or federal ones, legislative jurisdiction with respect to legal civil liberties is divided. The primary responsibility in this field is federal because of the overriding federal responsibility for the criminal law, set out in s. 91(27) of the B.N .A. Act. The leading cases referred to in the previous section137 illustrate that it is criminal law in its widest sense that is reserved for the exclusive jurisdiction o f Parliament, and as long as Parliament does not invade provincial jurisdiction by attempting “ col­ ourable" legislation, it can provide that any act is criminal, and the law by which such act is prohibited and a penalty provided is criminal law. We have seen earlier that it is Parliament’s jurisdiction with respect to criminal law that has provided one of the main arguments in favour of federal responsibility with respect to the basic freedoms of speech.

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press, religion, assembly, and association. It is in the C rim inal Code that one finds some of the great traditional protections for the liberty of the subject. Thus, for instance, the powers of arrest and the limitations thereon, and warrants for arrest, search, and seizure, are covered by the C rim inal C ode , 138 The duties of a police officer making an arrest, which were authoritatively set out in the great English case of Christie v. Leach insky , 139 are al least partially embodied in the Crim inal C o d e .140 Furthermore, by s. 7(3) o f the Code all the common law principles relating to any justification, excuse or defence which were available to an accused when charged with a criminal offence are retained except as otherwise specifically altered. Here is the present basis for the various presumptions for the protection of the subject accused of crime, such as the basic presumption o f innocence until proved guilty, and others such as that against double jeopardy. Some of the safeguards in criminal procedure are set out in the Canada Evidence A c t , 141 All these aspects of legal civil liberties are within federal jurisdiction. On the other hand, some of the ancient safeguards of the liberties of the subject provided by the prerogative writs may be within federal or provincial jurisdiction. The Supreme Court of Canada, in applying the House o f Lords decision in A m and v. H om e S ecreta ry.'42 decided that habeas corpus is a step in the proceedings under which the applicant was detained, and so could be civil or crim inal.143 The legislative authority which enjoys jurisdiction with respect to the proceedings can exercise jurisdiction with respect to the prerogative writ involved. The same rule has been held to apply to prohibition.144 m an d am u s,'45, and certiorari. 14h The individual has another form of protection through civil actions for trespass, false arrest, and false imprisonment. These are obviously within “ Property and Civil R ights" and so within provincial jurisdiction.147 In addition to providing some of the safeguards for the liberty of the person of ihe subject, the provinces also have jurisdiction to interfere extensively with that liberty. It has been mentioned earlier that they have competence under s. 92( 15) of the B .N .A . Act to fine, penalize or imprison a person for infringement o f a law validly passed under any of the powers granted to them in s. 92. Furthermore, s. 91(27), the federal criminal law power, excludes the constitution of courts of criminal jurisdiction, which is given to the provinces. This is complemented by s.92( 14) which gives the provincial legislatures exclusive authority to make laws in relation to "T h e Administration of Justice in the Prov­ ince, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and Criminal Jurisdiction, and includ­ ing Procedure in Civil Matters in those C o u rts ." 148 Add to this

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the great areas of private civil law such as those of contract, tort and property, which are essentially within provincial jurisdiction, and it is obvious that provincial power to interfere with the liberties of the subject is vast. Just a few examples of the breadth of this power can be given here. One illustration of provincial competence to interfere with the person o f the subject was revealed by the Supreme Court of Canada in Re Section 92(4) o f the Vehicles A ct. 1957 S a s k .'49 This case concerned drunkometer tests. The Canadian C rim inal C ode provided that the results of such tests could be submitted in evidence in trials where the charge was that of driving while in a state o f alcoholic impairment or intoxication.150 However, it also provided that no one could be com ­ pelled to take such a test.151 In this case, provincial legislation was considered which provided that anyone refusing to take a drunkometer test would not be able to obtain a motor vehicle operator’s licence. The provincial legislation was upheld as being with respect to highways and vehicular traffic on them, and as not being in conflict with the Criminal Code provision.152 The administration of justice does not mean only the administration of civil or criminal justice in the regular courts. The characteristic feature o f public administration in recent years has been the assumption by governments of responsibility for providing social services and managing the economy. These responsibilities, which are both federal and provincial, as outlined in a previous section, are carried out by various administrative agencies, some o f which are subject to review or appeal, and some o f which are not. As these boards proliferate they face us with the necessity of “ keeping a balance between acting in accor­ dance with established legal principles and the undesirability of con­ stant obstruction and delay in the exercise of such functions.” 153 Few other areas in the administration of justice have caused as much controversy and study as that relating to the expansion of the intrusion of the state through administrative agencies in the daily life of the citizen. In the administrative law area, few have given rise to such passionate discussion as the various provisions for the conduct of inquiries. It should be emphasized that this is only one small part of the whole field, nevertheless, two o f the most important events since World W ar II, which helped to focus attention on the possible abuses of state power, have concerned inquiries. The first was the Royal Com ­ mission of Inquiry Into Espionage, which was referred to in Chapter 1, and the most recent concerned the rise and fall of the Ontario Police Bill otherwise known as Bill 99. This incident deserves detailed consideration because it illustrates both the extent to which Parliament and the provincial legislatures may restrict rights and freedoms deemed to be fundamental, and the power

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of an aroused public opinion to force even those legislatures which are dominated by a government party having an overwhelming majority to revoke provisions which are believed to be too drastic for the ends sought to be achieved. That the “ drastic and terrible” innovations were perhaps over-emphasized as such, and that similar provisions appear in many other provincial statutes, does not detract from the lessons to be gained from the events at and around Q ueen's Park in late March, 1964. Increasing police apprehension about organized crime and syndi­ cated crime moving into Canada from the United States, and a state­ ment about this threat made by Commissioner C. W. Harvison of the Royal Canadian Mounted Police to the Canadian Club in Toronto on November 6, 1961, aroused widespread criticism of the Ontario gov­ ernment. Charges were made in the legislature by John Wintermeyer, the Leader of the Opposition.154 The government reacted by amending the Police A c t155 to set up the Ontario Police Com m ission156 with a continuing responsibility to inquire into “ any matter relating to the maintenance of law and order in O n ta rio ,"157 and to exercise supervi­ sory powers with respect to provincial and municipal police forces.158 The Commission was to hold its meetings in public unless otherwise directed by the C om m ission;159 and was to have all the powers in investigations “ that may be conferred upon a person appointed under The Public Inquiries A c t 160 The other action taken by the government was to appoint, under the Public Inquiries A c t.xbx Mr. Justice Roach, of the Ontario Court of Appeal, as a Royal Commissioner to inquire into the charges made in the legislature. His report, made on March 15, 1963, concluded that there had been organized crime in Ontario, but not “ to any alarming extent except in the field o f organized gambling which, of course, included gaming and b o o k m a k in g ."162 Following the report there were further allegations either that the report was incomplete, or that there had been further developments since the inquiry, and the newly established Ontario Police C om m is­ sion advised the Attorney General that a further intensive inquiry be carried out, and that it be continuous. The Attorney General approved, and the Commission proceeded.163 The greatest stumbling block the Commission faced was that the type o f inquiry conducted required certain protection for witnesses, and this required hearings in cam era. The Attorney General advised the C om ­ mission that there was considerable doubt about the powers o f the Commission in such inquiries, and that legislation would be necessary to clarify this. The result was the presentation of a preliminary report, dated January 3 1, 1964, pending further investigation which could be carried out after any legislative clarification of the power to hold hearings in cam era. 164

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The Commission concluded that it was more important to point out weaknesses in law and police procedures and to recommend changes than to identify suspected criminals. Am ong the sixteen recom m enda­ tions was one that the Police Act be amended to clarify the powers of the Commission " s o as to permit hearings in cam era as well as in public, and to make it an offence without permission of the Com m is­ sion to communicate the name of a witness or information given to the Commission by any witness in private session; and to confer on the Commission whether in private or public session, the powers of a superior court to punish for contempt. . . .” |6s On March 19, 1964, the Attorney General, Frederick M. Cass, introduced Bill 99 into the legislature, and moved first reading. He described it as " a series o f amendments . . . to define more particularly the powers of the Ontario Police Commission, and to give it certain additional powers, particularly with respect to determining the ade­ q u a c y of policing and the designation of areas under the Police Act where municipalities are required to have their own police force.” 166 The same afternoon he held a press conference on the various Bills he had introduced and on the Police Commission Report which had been released that day. It would be difficult to review the questions posed to him and his replies, but newspaper accounts agree that the effect of what he had to say was that s. 14 of the Bill would interfere with civil liberties. He is reputed to have said, " I 'm not easy in my mind about this arrangement, but I feel that for the public good it’s necessary to curtail the established liberties of certain elements in our society. I hope there will be no interference with the rights o f law-abiding citizens. But the rights o f a few individuals will have to be overridden for the good of a l l . " 167 He also stated, and repeated on television again that evening: " I t's drastic and it’s dangerous and it’s new and it's terrible legislation in an English common law country.” 168 The notorious s. 14 of Bill 99, which caused all this apprehension, read as follows: 14. The Police A ct is amended by adding thereto the following sec­ tions: 39c.— (1) The Commission may inquire into and report to the Attorney General upon any matter relating to, (a) the extent, investigation or control of crime; (b) the enforcement of law: or (c) its functions under this Act. (2) For the purpose of an inquiry under subsection I, the Commission may summon any person and require him to give evidence on oath, in camera or otherwise, and to produce such documents and things as the Commission deems requisite.

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(3) Where evidence is taken in camera under subsection 2, no person, without the consent of the Commission, shall disclose any information or evidence obtained or the name of any witness examined or sought to be examined under subsection 2, and every person who contravenes this subjection is guilty of an offence and on summary conviction is liable to a fine o f not more than 52,000 or to imprisonment for a term of not more than one year, or to both. 39d.— (1) The Commission has all the powers to enforce the attendance of witnesses and to compel them to give evidence and produce documents and things as are vested in any court in civil cases. (2) Where a person, being present at an inquiry and being required by the Commission to give evidence, (a) refuses to be sworn; (b) having been sworn, refuses to answer the questions that are put to him; (c) fails to produce any writings that he is required to pro­ duce; or (d) refuses to sign his deposition, without offering a reasonable excuse for his failure or refusal, the Commission may, by warrant, commit the person to prison for a period not exceeding eight clear days. (3) Where a person to whom subsection 2 applies is again brought before the Commission and again refuses to do what is required of him, the Commission may again commit him to prison for a period not exceeding eight clear days and may commit the person to prison from time to time until the person consents to do what is required of him. 39e.— The chairman o f the Commission may authorize one or more members of the Commission to conduct any inquiry that the Commission may conduct, and each member so authorized may exercise the powers and perform the duties of the Commission under section 39b, subsections I and 2 of section 39c, section 39d and section 48. The reaction o f the press, and through the press, of the public, was instantaneous. There were charges of a “ police state,” of “ fascism ,” of the Star Chamber. First thing next morning the leader of the Liberal Opposition demanded that the government withdraw the Bill or call an immediate election, and the Premier, the Honourable J. P. Robarts, reiterated what he had told the press that morning, i.e ., that he would not tolerate any legislation which would infringe upon or jeopardize basic and fundamental rights and freedoms o f individuals in the

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province.169 He ended his statement by saying that the Bill would go to committee for revision.170 The debate went on for some time, both outside and inside the legislature. The end results were that the Attor­ ney General resigned, a new Bill 99 was introduced, and Chief Justice M cRuer o f the Ontario High Court was appointed to head a Royal Commission to inquire into "changes that may have taken place to increase the power of the state to the detriment of the individual and his basic liberties and freedom s," and whether “ we are extending the power of the state far beyond the point required to achieve the social purposes and requirements of our d ay .” 171 Section 17 of the new Bill 99 replaced the former s. 14 and added s. 48a to the Police A d . While many of the powers of the Commission were retained, it does show the extent to which the legislature had been affected by public opinion so as to provide a number of legal safeguards. Thus, the consent of a witness before an inquiry is required in order to hold a hearing in private (subs. (4) ). Subsection (5) lists a number of rights a witness has under the section, including: (a) the right to retain and instruct counsel: (b) the remedies by way of habeas corpus, certiorari, prohibi­ tion. m andam us and other extraordinary remedies: (c) every protection available under the Evidence A ct to a witness; and (d) all the rights of a witness in a civil court. Moreover, subss. (6), (7), (9), and (10) provide for references and appeals to the Court of Appeal from decisions or orders of the C om m is­ sion. and for judicial supervision over the Com m ission’s power to penalize anyone under this section. Section 14 o f the first Bill 99 had a brief, if spectacular, existence. But there are several lessons to be learned from it. In the first place, there seems to be no doubt that if it had been enacted it would have been intra vires the province, and this indicates the great extent to which a province can restrict legal civil liberties. In the second place, it shows that legislatures, when faced with a threat as great as organized crime was thought to pose in Ontario, could pass legislation restricting many freedoms which the public believes to be inalienable. It also illustrates that public opinion in our type of society is one of the most important protections of human rights and fundamental freedoms. Finally, s. 14 should be a reminder that closely similar, if not always identical, provisions have been included in other provincial statutes, and in most cases are still to be found there. Provisions similar to those in s. 14 can be found in the various provincial securities A cts,172 in the various inquiry or public inquiry A cts,'73 and in many others.174

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On the other hand, as is often the case when the most drastic invasions of human rights and fundamental freedoms bring about strong reactions in public opinion and in the legislatures, there were beneficial results of the debate over Bill 99. As mentioned earlier, a Royal Commission of Inquiry into Civil Rights (hereinafter referred to as the M cRuer Commission) was appointed on May 21, 1964. and charged with the following tasks:175 1. To examine, study and inquire into the laws of Ontario including the statutes and regulations passed thereunder affecting the personal freedoms, rights and liberties of Canadian citizens and others resident in Ontario for the purpose o f determining how far there may be unjustified encroachment on those freedoms, rights and liberties by the Legislature, the Gov­ ernment, its officers and servants, divisions of the Provincial Public Service, or its Commissions, Committees, other ema­ nations o f Government, or bodies exercising authority under or administering the laws in Ontario. 2. After due study and consideration to recommend such changes in the laws, procedures and processes as in the opinion of the Commission are necessary and desirable to safeguard the fundamental and basic rights, liberties and freedoms o f the individual from infringement by the State or any other body. This action resulted in the most complete study of administrative tribunals and the laws related to them that has ever been undertaken in Canada. On February 7, 1968, the Commission submitted its Report No. 1 comprised of three volumes. Just over a year later, on September 15, 1969, it submitted Report No. 2. as Volume IV, and finally on February 22, 1971, it submitted its final Report No. 3, as Volume V. The five volume study proposed some 976 recommendations. This monumental work will not only provide some of the basic teaching sources in Canadian law schools for many years to come, but it will also be a fundamental reference for any other government consid­ ering revision of the administrative process. Perhaps as important as its fund of information, and certainly of much greater immediate effect, was that it has provided, and will continue to provide, the basis for extensive changes in the administrative law of Ontario. O f particular importance was the legislation based on recommenda­ tions which were largely contained in Vol. I o f the series, and which was enacted in 1971 as an integrated package. The Statutory Powers Procedure A c t,'76 provides a minimum code of procedure. Its scope can be deduced from its full title: “ An Act to Provide Procedures governing the Exercise o f Statutory Power granted to Tribunals by the

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Legislature wherein the Rights, Duties or Privileges of Persons are to be decided at or following a Hearing.” This was supplemented by The C ivil R ights Statute L a w A m en dm en t A c t 177 which amends some 91 individual statutes of Ontario to bring them into phase with the new specified requirements of the Statuto ry P ow ers P rocedure A ct. The P ublic Inquiries A ct , 178 amplifies more specifically and in some detail the procedures for Royal Commissions and other inquiries. The J u d i­ cial R eview P rocedure A c t 179 was designed to make applications for judicial review of decisions of tribunals other than courts less technical. Judicial review through the prerogative remedies of prohibition, certiorari, m a n d a m u s , and the equitable remedies of a declaratory judgment and an injunction, are all replaced by one ‘‘Application for Judicial R eview ." In addition. The J u d icia l R eview P rocedure A ct is supplemented by T h e Ju d ica tu re A m en dm en t A c t , 1970 (No. 4 ) ,180 and The Ju d ica tu re A m endm ent A c t , 1971.181 which establish the Divi­ sional Court of the High Court o f Justice for Ontario to which applica­ tions for judicial review under the Ju d icia l R eview P rocedure A c t are to be made. It is beyond the scope of this book to discuss further the many issues and recommendations of the McRuer Report, or to make an extensive examination of the administrative reform statutes referred to. Suffice it to say that regardless of whether one approves or disapproves of the extension of judicial review through this 1971 legislation, at the very least the reforms have focussed attention on the possibilities of infringement of civil rights through the administrative process; they have provided a simplified procedure for application for judicial review of administrative agencies; and they have helped to clarify the rules of natural justice by codifying them. In addition, the allocation of the review power to the new Divisional Court should eventually permit, if the Chief Justice effectuates it. the development of a panel of adminis­ trative law experts in the High Court of Ontario. Despite all this legislative reform, however, there are still vast areas of government activity which do not come within the scope of these statutes, and wherein other procedures are required in order to enable an individual to raise his grievances when he feels he has been badly treated by those in authority. These grievances, which are left largely untouched by reforms such as those in the 1971 Ontario legislation, tend to fall into two groups— complaints against decisions taken where the authority had discretionary powers, and complaints against malad­ ministration or official misconduct. Until recently in Canada, the only channel of complaint was directly to the head of the government department o f the official concerned, or to a member of Parliament or the appropriate provincial legislature. Increasingly it has become ac­ cepted that neither channel is as effective as the institution known as the

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Parliamentary Commissioner or Ombudsman. There is a great deal of literature on this subject,182 and so discussion here will be brief. The first ombudsman was appointed in Sweden in 1809, and the institution was subsequently copied by Finland in 1919, Denmark in 1954, Norway in 1961, New Zealand in 1962,183 and the United Kingdom in 1967.184 ‘•Om budsm an’' is a Scandinavian term which means agent or attorney. In Anglo-Saxon common law terms he is a Parliamentary Commissioner, appointed by Parliament, whose ulti­ mate duty is to report to Parliament. His main function is to receive complaints of maladministration from individuals, to investigate these complaints and, if he thinks such complaints justified, to make rep­ resentations to the official or department of government concerned, and then to report to Parliament. He has full access to officials and their files. Although he is not given power to overrule decisions taken, and is generally prevented from inquiring into decisions involving official discretion, his effectiveness arises from his reports to Parliament, and in some cases, his publicity o f the issue to the public at large. The arguments in opposition to establishing the institution in Canada has generally centred around two points: that this is a foreign institution which does not fit our theory of responsible parliamentary government; and that our population and geographical spread are too great for one man, regardless of the staff he might have, to do an effective job. Taking the second argument first, one need only point out that no Canadian province has as large a population as Sweden, and all but Ontario and Quebec are less populous than any of the countries which now have an om budsm an, while Ontario and Quebec have populations far smaller than the United Kingdom. Moreover, the powers o f the provincial governments, on the one hand, and of the federal govern­ ment on the other, are nowhere nearly as extensive as those of the countries which now have an om budsman, all of which are unitary states. As far as a federal ombudsman is concerned, some problems will arise because o f the geographical spread. However, there is no reason why regional offices could not be used. Perhaps the ombudsman could have a deputy or deputies who could travel to the various regions. Geographic size has not prevented other administrative problems from being solved, and should not in this case. Opposition to the ombudsman as a foreign institution is based upon the argument that our system of responsible government provides for grievances to be aired in the legislative bodies, and it would be weakened if this were not continued. It is suggested that the administra­ tive officials would somehow not be responsible through their ministers to Parliament. These objections have effectively been answered by Professor Sawer, o f the Australian National University, in his little booklet on O m budsm en. 185 He points out that our present system of

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handling grievances relies upon the individual member of Parliament. It is surely no detraction from most of them to say that they are not equal in ability; that those members who are also ministers o f the Crown are absorbed in their own departments; that few. if any. have a continu­ ously staffed office in their constituency; that all are understaffed in their legislative offices; that there may be a desire on the part of opposition members to make partisan use of grievances; and that government members would be reluctant to embarrass their own minis­ ters by pushing a grievance to the limit. From the citizen’s point of view, there may be reluctance to approach the sitting member if he is not of the same party as the person aggrieved. One could also add that the very emphasis on the size of this country may be an argument against the use of members of Parliament for the raising of grievances, since the frequency with which members outside of Central Canada can visit their constituencies may be limited. Even those members who represent constituencies in metropolitan centres like Montreal, Toronto and Vancouver would have difficulties, because with periodic redis­ tribution many people do not even know which constituency they live in or who their member is. New Zealand and the United Kingdom have proved that the institu­ tion is not inconsistent with our theory of responsible government. And so have Denmark and Norway, whose theories of government closely approximate ours. Moreover, the ombudsman is "Parliam ent's m an ." He is appointed by Parliament, is responsible to Parliament, and reports to Parliament. W hether for these reasons or others, the majority of Canadian prov­ inces have now adopted the institution. The first Om budsm an Acts in Canada were enacted in Alberta186 and New Brusnwick in 1967.187 A year later Quebec followed with its Public Protector A ct , 188 Within the next two years further Ombudsman Acts were passed in the Provinces of M anitoba.189 New foundland.190 and Nova Scotia.191 Finally, in 1972 Saskatchewan joined the other six provinces with its Om budsm an A c t.'92 Thus far there is no evidence that these ombudsmen have interfered with responsible government, or that civil servants have felt unduly harassed. It is too soon to assess how effective the institution has proved in Canada. However, on the basis of the experience of Alberta and Manitoba, at least, it is evident that the number of complaints is not inconsiderable. In Alberta the current annual number is around 800. and in Manitoba about 400. which approximates the relative popula­ tions. O f these numbers, most complaints have either been referred to other agencies, or found to be beyond jurisdiction. Even in these instances, however, it does not mean that the grievance may not be justified. It may even be that referral is all that the complainant needs to

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get rectification o f his problem. O f those within jurisdiction and fully investigated, the Alberta rate of rectified as compared to those found unjustified is about 25 per cent over a four-year period from 1967-70 inclusive, whereas in Manitoba in the year 1971 it was about 60 per c e n t.193 In conclusion it should be emphasized again that without an institu­ tion like the ombudsman there is no formal procedure for dealing with many cases where the individual has a grievance because he thinks an official, who may legally have full discretion in the matter before him, has made a mistaken judgment or a biased one. Furthermore, the experience o f those countries and Canadian provinces which have an ombudsman is that after an initial suspicion of this officer by adminis­ trative officials, there is subsequently an appreciation that in the course of assessing complaints the ombudsman vindicates many civil servants wrongfully accused. 6. Legislative Jurisdiction with R espect to Egalitarian C ivil Liberties Egalitarian Civil Liberties or Human Rights are somewhat different from the other civil liberties, except some o f the economic ones, in that they require positive legislative support for their existence. The ab­ sence of discriminatory laws and administrative practices are not in themselves sufficient to ensure the protection and promotion of human rights, because discrimination may be practised in so many of the daily activities o f people. Without legislation forbidding it, the private indi­ vidual, group, or trade union or corporation, may discriminate in employment, in public service industries, in accommodation, even in the sale of property, on the ground of the applicant's or consum er’s race, colour, creed, religion, age, or sex. A constitutional safeguard against discriminatory legislation is not enough. As Dean W. F. Bowker stated in an address to the Canadian Bar Association in 1953: “ To borrow the metaphor that an American writer has used, constitu­ tional enactment is a shield but the victim of discrimination needs a sword as well. The sword is legislation that forbids discrimination.” 194 There are several older cases in Canada which deal with racial discrimination, but they do not directly discuss the question of legisla­ tive jurisdiction. They assume that problems arising in this field are within provincial legislative competence. In addition, these cases all support the proposition that at common law discrimination is not unlawful and does not give rise to a cause of action, except in the two cases of hoteliers and common carriers.195 Tw o more recent decisions196 of lower courts in Ontario and Quebec come to opposite conclusions as to the jurisdiction o f the provinces with respect to

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discrimination and laws forbidding it. An Ontario county court judge upheld the validity of Ontario fair accommodations legislation, while a Quebec Sessions of the Peace judge held Quebec fair employment legislation to be ultra vires as creating criminal law. The Ontario decision is clearly correct, while the Quebec decision must be wrong, because such legislation is evidently within s. 92(13) and possibly s. 92( 16) of the B.N .A . Act. This will be shown in the discussion which follows. It is possible to trace the first anti-discrimination legislation to pre-Confederation times. As early as 1793, the first legislative assem­ bly of the Province of Upper Canada enacted: ‘‘An Act to Prevent the further introduction of slaves and to limit the term o f Contracts for Servitude within this P ro vince.''197 Although this statute affirmed the ownership o f slaves then held, it did provide that the children of slaves, upon reaching the age o f 25 years, would be set free. In 1833 this legislation was superseded by the Imperial legislation known as the Emancipation A ct,198 which abolished slavery in all parts o f the British Empire. However, for almost a century after that the trend at the federal, provincial and municipal levels was to enact discriminatory legislation. As early as 1932 the legislature of Ontario added a provision to its Insurance A ct199 which provided that any insurer who discriminated unfairly between risks in Ontario “ because of the race or religion of the insured" was guilty o f an offence. However, this enactment seems to have been forgotten, and modern human rights legislation, prohibiting discriminatory acts, is generally accepted to have started in 1944 when the Province of Ontario enacted the R acial D iscrim ination A c t ,200 This statute prohibited the publication or displaying of signs, symbols, or other representations expressing racial or religious discrimination. The Ontario Act was brief and limited to one specific purpose, and it was not until 1947 that the first detailed statute was enacted by the Province of Saskatchewan as the Saskatchew an B ill o f R ights A c t . 201 The Saskatchew an B ill o f R ights did not deal only with human rights, but with the political civil liberties as well, i.e ., the fundamental freedoms o f speech, press, assembly, religion, and association. It did, however, also prohibit discrimination with respect to accommodation, employment, occupation, land transactions, education, businesses and enterprises. Moreover, it purported to bind the Crown and every servant and agent of the Crown. The enforcement of this legislation was through penal sanctions, i.e .. the imposition of fines, perhaps injunc­ tion proceedings, and imprisonment. No provision was made for a special government agency specifically charged with the administra­ tion and enforcement of the Act. It was left to the regular enforcement machinery o f police and courts as would apply with respect to any other

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provincial statute which includes prohibitory provisions, such as the liquor or vehicles Acts. Both the Sa skatch ew an B ill o f R igh ts and the Ontario R a cia l D is­ crim ination A ct were quasi-criminal statutes in that certain practices were declared illegal and sanctions were set out. The experience in the United States in the twentieth century and in Canada since World War II, has been that this form o f protection, although better than none, is subject to a number of weaknesses. There is reluctance on the part of the victim of discrimination to initiate the criminal action. There are all the difficulties of proving the offence beyond a reasonable doubt, and it is extremely difficult to prove that a person has not been denied access for some reason other than a discriminatory one.202 There is reluctance on the part o f the judiciary to convict, probably based upon a feeling that a discriminatory act is not really in the nature of a criminal act. Without extensive publicity and promotion, many people are unaware of the fact that such human rights legislation exists. Members of minority groups who have known discrimination in the past tend to be somewhat skeptical as to whether the legislation is anything more than a sop to the conscience of the majority. Finally, the sanction in the form of a fine does not really help the person discriminated against in obtaining a job or home or service in a restaurant.203 To overcome the weaknesses of quasi-criminal legislation. Fair Accommodation and Fair Employment Practices Acts were enacted. These new types of human rights provisions were-copied from the legislative scheme first introduced on this continent in the State of New York in 1945.204 The New York legislation was an adaptation of the methods and procedures that proved effective in labour relations. Fair Employment and Fair Accommodation Practices Acts provide for assessments of complaints, for investigation and conciliation, for the setting up of commissions or boards of inquiry if conciliation is unsuc­ cessful, and only as a last resort, for prosecution and the application of sanctions. The first F air E m ploym ent P ractices A ct was passed in Ontario in 1951.205 In the succeeding Five years M anitoba,206 Nova Scotia,207 New Bruswick,208 British C olum bia,209 and Saskatchewan,210 all adopted their own Acts similar in design to that of Ontario. In 1964 Quebec became the seventh province to place fair employment legislation, as such, in its statute books.211 The first F air A ccom m od ation P ractices A c t was enacted by the Province of Ontario in 1954.212 In 1956, Saskatchewan replaced the prohibitory section on accommodation in the B ill o f R ights with its own F a ir A ccom m odation P ractices A c t. 2,3 In 1959, New Brunswick214 and Nova Scotia215 enacted statutes similar in form to that of Ontario. A year later Manitoba followed suit.216 In 1961 the Province of British Columbia enacted a more restrictive statute confined only to public

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accom m odation.217 The Province of Quebec did not enact a fair ac­ commodation practices Act, but there is a section o f the H otels Act which forbids discrimination in hotels, restaurants and camping grounds.218 In the field of employment two other forms of discrimination have been prohibited in a number of provinces, and that is discrimination on the grounds o f sex and age. Equal Pay Acts or provisions were enacted in eight provinces— Ontario,219 Saskatchewan.220 British Colum bia.221 M anitoba,222 Nova Scotia,223 Alberta,224 Prince Ed­ ward Island.225 and New Brunswick.226 Quebec has no equal pay provisions, and only in 1964 was legislation enacted to give a “ married woman full equal capacity as to her legal rights, subject only to such restrictions as arise from a matrimonial regim e.” 227 Somewhat similar to equal pay legislation are the various Age Discrimination Acts which were enacted by British Columbia228 and Ontario.229 The fair employment and fair accommodation practices Acts were designed to improve the defects inherent in the quasi-criminal approach to human rights legislation. In the place of the laying o f an information leading to a prosecution, provision is made for the filing of complaints, followed by the administrative proceedings of investigation, concilia­ tion and settlement. However, this legislation continued to place the whole emphasis of promoting human rights upon the individual who has suffered most, and who is therefore in the least advantageous position to help himself. It places the administrative machinery o f the state at the disposal of the victim of discrimination, but it approaches the whole problem as if it was solely his problem and his responsibility. The result is that very few complaints were made, and very little enforcement was achieved.230 In 1962 Ontario took the next step in the strengthening of its human rights legislation by consolidating all the statutes into the Ontario H um an Rights C ode,231 to be administered by the Ontario Human Rights Commission, which had been established a year earlier.232 In 1963. Nova Scotia enacted its comprehensive H um an Rights Act ,233 but did not provide for a Commission until 1967.234 Alberta enacted its first human rights legislation in 1966,235 and at first provided for administration merely by an Administrator with no additional profes­ sional staff. However, in 1972 the Hum an Rights A ct was revised, and the Administrator was replaced by a Commission in the new Individuals' Rights Protection A ct r**' In 1967 New Brunswick adopted its H um an Rights A ct237 with a Commission to administer it. Subse­ quently. British Columbia in I969238 and Manitoba in 1970239 enacted Hum an Rights A cts consolidating previous legislation and providing for administration by a Commission. Prince Edward Island in 19 68 .240 and Newfoundland in 1969.241 preceded British Columbia and Man­

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itoba in enacting comprehensive Human Rights Codes, but neither province has a Commission for administration and enforcement, and in fact in Prince Edward Island the administration is directly that of the Minister of Labour, with no provision even for an Administrator or separate staff. Finally, in 1972, Saskatchewan established a Human Rights Commission to administer the various human rights statutes which, however, have not been consolidated.242 Thus, by 1970, the only province without a comprehensive H um an R ights C o d e , and even without a F air A ccom m odation P ractices A c t , or an E qual P ay A c t , or an A g e D iscrim ination A c t , was the Province o f Quebec. There are two important features which advance the effectiveness of Human Rights Codes over such statutes as the F a ir A ccom m odation and F a ir E m ploym ent P ractices A cts. In the first place, the latter are directed towards discrimination in one area, and do not approach the issues as being part of an overall problem. The Human Rights Codes, on the other hand, prohibit discriminatory practices in a number of fields— employment, public accommodation, housing and dwelling units, advertising, and so on. Second, under the earlier legislation there was no specific person or group o f persons, other than perhaps some officer in the department of the responsible minister, charged with education, administration, promotion and enforcement of the human rights legislation. The consolidation of human rights legislation into a Code to be enforced administratively by Commissions ensures community vindi­ cation of the person discriminated against. This is justified as being as important to the community itself because of the broad educational value of equal treatment, as' it is to the victim of discrimination. Without active community involvement, the person who suffers from discrimination may lack knowledge o f the purpose and scope of human rights legislation, or may fear that the costs o f vindication would be too great in terms o f money or embarrassment. Or he may fear that simple proclamation of human rights is merely a soothing of the conscience of the majority, without intending to produce tangible results. The objects and purposes o f a Human Rights Commission administering a Human Rights Code have been cogently summed up by Dr. Daniel Hill, formerly Director, and then Chairman, of the Ontario Human Rights Commission:243 Modern-day human rights legislation is predicated on the theory that the actions of prejudiced people and their attitudes can be changed and influenced by the process of verification, discussion, and the presentation o f socio-scientific materials that are used to challenge popular myths and stereotypes about people . . . Human

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Rights on this continent is a skilful blending of educational and legal techniques in the pursuit of social justice. Another field where discrimination has occurred, which is clearly within the jurisdiction of the provinces, is in the sale and leasing of land. The two main issues which have arisen in this field are those concerning the legislation restricting members of certain communal sects from purchasing large blocks of land freely, and the second concerns racially restrictive covenants, usually in the form of a re­ quirement imposed upon a purchaser of property not to resell to a person of a certain race, or one who is not of a certain race. In 1942, using patriotism as the reason, the Alberta legislature enacted the L a n d Sides P rohibition A c t, 244. preventing the further purchase of land by pacifist Hutterites. The 1942 legislation referred not only to Hutterites but enemy aliens as well, and was disallowed in 1944. It was then re-enacted with reference to Hutterites alone.245 In 1947, with continuing pressure from the Hutterites for more lands, the legislature enacted the C om m unal P roperty A c t ,246 which permitted new Hutterite colonies to be established if they were at least forty miles from an already existing colony. The 1947 C om m unal P roperty A ct was further amended in I960, whereby an existing colony was permit­ ted to increase its land holdings, but only with the approval of the Communal Property Control Board. New colonies could only be formed with Cabinet approval.247 The Act limited the territorial area of communal land currently held by existing “ colonies" and controlled the acquisition of land by new colonies. Although the Act defined a "c o lo n y " to cover religious and other groups, it did specifically provide that it "includes Hutterites or Hutterian brethren and D oukhobors." Nevertheless, it was never questioned that the legisla­ tion was prompted by large-scale land holdings by Hutterite colonies and that the purpose of the legislation was to control the expansion of these colonies in Alberta. The legislation was challenged in a case which reached the Supreme Court of Canada as W alter et a l i\ A ttorney-G eneral o f A lb e rta .249 The submission on behalf of the appellants was that the C om m unal P rop­ erty A ct was legislation in respect of religion, and therefore beyond the powers of the province. The Attorney-General responded that the Act was legislation in respect of property in Alberta, controlling the way in which land is to be held, and regulating the acquisition and disposition of land by colonies. The position of the province was upheld at both the trial level249 and by the Alberta Court of Appeal.250 Mr. Justice Martland delivered the relatively short, unanimous decision of the nine m em bers251 of the Supreme Court. Mr. Justice Martland avoided

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deciding the question of legislative jurisdiction with respect to freedom of religion by stating that freedom of religion involved matters of faith and worship, freedom in connection with the profession and dissemina­ tion of religious faith, and the exercise of religious worship, but did not mean freedom from compliance with provincial laws relative to the matter of property holding. He held that property holding was clearly within provincial legislative competence under Section 92(13) of the British North America Act. He found that the purpose of the legislation was to control the use of Alberta lands as communal property, but was not directed at Hutterite religious belief or worship or the profession of such belief. The legislation, he said, prohibited the holding of large areas of Alberta land as communal property, whether or not such practice stemmed from religious belief. Thus, despite clear evidence that the C om m unal P roperty A ct was prompted by large-scale landholding by Hutterite colonies, was ex­ plicitly designed to control the expansion o f Hutterite colonies, and referred to them by name, the Supreme Court ruled that the purpose was economic, relating to property and civil rights, and was not intended to interfere with freedom of religion. Although the case is not directly on point because of the finding that the purpose o f the legislation was economic, it would appear that in Canada freedom of religion might not include protection of communal landholding, even though it is a fun­ damental part of the Hutterite faith. It would also appear that the provinces have legislative jurisdiction to regulate landholding by groups even if distinguished by religion, and presumably any other distinguishing characteristic such as race, or national or ethnic origin. In any case, the new Conservative government o f Alberta repealed the C om m unal P roperty A ct in 1972,252 effective March 1, 1973. With respect to racially-restrictive covenants, there have been two Ontario cases, one reaching the Supreme Court of Canada, which seem to have settled the issue. The first case to deal with restrictive covenants was R e D rum m ond W re n .2Si A buyer of land had entered into a covenant not to re-sell the land to “ Jews, or to persons of objectionable nationality.” He asked for a declaration that it was not binding upon him on the ground that it was contrary to public policy. Mr. Justice Mackay, of the Ontario High Court, reviewed a number o f international charters such as the A tlantic C harter and the U nited N ations C h a rter , referred to the statements of a number of contemporary world leaders, to several Ontario Acts which indicated a policy of non-discrimination, and even to the constitution of the Soviet Union, and held that the covenant was contrary to public policy. He also held it void for uncertainty, and as being a restraint upon alienation. The issue cam e up again in the case of N o ble a n d W o lf v. A lle y .2*4 A

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purchaser of a beach-lot had covenanted that she would never sell the land to any person o f the “ Jewish, Hebrew, Semitic, Negro or coloured race or blood.” It was stated that the intention of the grantor was to restrict the area to persons of the “ white or Caucasian race.” As the covenantee wanted to sell to a Jew and did not know if she could pass good title to him, she referred the question to court. Both the lower court255 and the Ontario Court o f Appeal256 upheld the covenant as valid, and would not agree with the decision in R e D ru m m o n d W ren that there was a ground of public policy which would render such covenants void. In the Supreme Court o f Canada the covenant was held void, but not on the ground of public policy. Five of the seven justices held that a covenant of this type did not relate to user o f the land and so was not a covenant which could run with the land. Four of the justices also held that the covenant was void for uncertainty. Soon after the Ontario Court o f Appeal had held, in Re N o ble and W o lf, that the covenant concerned was valid, the Ontario legislature passed on amendment to the province's C o nveyancing a n d L aw o f P roperty A c t 257 declaring that such covenants, if entered into after March 24, 1950, are void. The following month the Manitoba legisla­ ture passed a similar amendment to its L a w o f P roperty A c t.25* It should be remembered that neither provision forbids discrimination in the sale or leasing of land, but merely declares that covenants which are discriminatory on grounds of race, religion, creed, etc., are void, and then only if entered into after a date in 1950. The only other province having a provision which can be taken to prohibit racially restrictive covenants is Saskatchewan. The Saskatch­ ewan provision goes further than those in Ontario and Manitoba in that it relates not only to restrictive covenants, but to purchase of property, the right to acquire and hold property, and the right to lease it. Section 10 of the Saskatchewan B ill o f R igh ts A ct declares that every person and every class of persons shall enjoy the right to “ acquire by purchase, to own in fee simple or otherwise, to lease, rent and occupy any lands, messuages, tenements or hereditaments, corporeal or incorporeal, of every nature and description, and every estate or interest therein, whether legal or equitable,” without discrimination because of the race, creed, etc. of such person or persons. The Saskatchewan provision does not declare racially restrictive covenants void, and the important question is whether anyone could do more than bring an action resulting in a fine, or an injunction preventing someone from requiring such a covenant. If. however, such a covenant has been entered into, one possible attack would be on the grounds stated in the Supreme Court of Canada decision in R e N oble a n d W olf, i.e ., that the covenant did not relate to user o f the land and so was not such as could run with the land or, that the covenant was void for

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uncertainty. However, surely in the context of the Saskatchewan Bill of Rights as a whole, another ground of attack would be the resurrection of the finding in Re D rum m o nd W ren that such covenants are now con­ trary to public policy. There are other human rights provisions which appear in provincial statutes other than the human rights acts. Thus, for example, it was mentioned earlier that the Insu rance A ct o f Ontario259 prohibits licensed insurers from discriminating “ unfairly between risks in On­ tario because of the race or religion of the insured." Also, s. 12 of the Ontario L ab our R elations A c t 26() prohibits certification o f a trade union if it “ discriminates against any person because of his race, creed, colour, nationality, ancestry or place of origin," and s. 40 of the same Act261 provides that a collective bargaining agreement shall be void if “ it discriminates against any person because of his race, colour, creed, nationality, ancestry or place of origin." Similarly, s. 4(a) of the P erson al Investigations A ct of Manitoba262 provides that no report for the purpose of entering into or amending an agreement for credit, insurance, employment, or tenancy, may contain any reference to race, religion, ethnic origin or political affiliation. It is clear, then, that provincial jurisdiction in the field of human rights, or egalitarian civil liberties, is vast. However. Parliament does have jurisdiction in this area, particularly in the field of employment. This jurisdiction is coincident with federal regulation of employeremployee and labour-management relations in respect of such activities as are within federal authority either by specific enumeration, e .g ., aeronautics, radio, and atomic energy, or because they are brought within federal authority by a declaration under s. 92(10)(c) o f the British North America Act, or because they are directly pan of federal government operations and Crown corporations.263 Pursuant to these powers, Parliament enacted the C anada F air E m ploym ent P ractices A ct in 1953,264 and the F em ale E m ployees' E qual P ay A ct in 1956.265 These statutes were supplemented in 1954 by a government declaration o f a Fair Wages Policy,266 and subsequently by regulations under the F a ir W ages an d H ours o f L ab our A c t.267 These regulations are an interesting and important extension of administrative supervision of fair employment practices. By s. 3 of the regulations they are extended to “ apply to every contract made with the Government of Canada through a contracting authority for the construction, remodelling, re­ pair or demolition of any w ork.” By s. 9 o f the regulations, it is provided that every such contract shall include a provision that there shall be no discrimination on the grounds of race, national origin, colour or religion, in the hiring and employment o f workers under a contract referred to in s. 3. Thereby the government, through its

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contractual rights with employers, is enabled to extend its regulation of fair employment practices to employers who would not otherwise come within federal jurisdiction but who choose to contract with the federal government. In 1967 the C anada F a ir E m ploym ent P ractices A c t, and the F em a le E m ployees' E qua l P ay A ct were incorporated into a new C anada L ab our C o d e .2f>8 Supplementing these provisions on fair em p­ loyment practices are s. 12(2) of the P ublic Services E m ploym ent A c t ,269 which forbids discrimination in the establishment of standards for merit hiring and promotion in the public service of Canada, and s. 140(2)(b) of the U nem ploym ent Insu rance A c t 270 which charges the Minister of M anpower and Immigration with ensuring that the national employment service does not discriminate in referring a w-orker seeking employment, unless the specification or preference is based upon a bona fid e occupational qualification. In the Housing field, the National Housing Loan Regulations were amended in I96 0 271 to make it a condition of every loan insured by the Central Mortgage and Housing Corporation that the borrower will not, in the sale or lease of any house or unit constructed with the aid of that loan “ discriminate against any person by reason of race, colour, religion or origin." Provision is made for adjudication, by an indepen­ dent arbitrator, of any complaint alleging contravention of this prohibi­ tion. Furthermore, the federal government does have jurisdiction with respect to prohibition of discrimination in employment and accommo­ dation in the Yukon and the Northwest Territories. In exercise of this jurisdiction Fair Practices Ordinances have been enacted for both territories.272 However, these Ordinances cover only employment and public accommodations and services, but not private housing. Some people have suggested that federal jurisdiction with respect to egalitarian civil liberties could be asserted through valid legislation making discrimination a criminal offence.273 There may even be some argument that Mr. Justice Rand's thesis of the rights of Canadian citizenship274 should be developed by the courts so that discrimination would be deemed an infringement of o ne’s rights as a Canadian citizen. However, neither of these proposals could be as effective as the adoption of comprehensive and parallel human rights codes adminis­ tered by human rights commissions, such as those enacted by all the legislatures in Canada except those in Quebec City and Ottawa. A proposal fo ra National Human Rights Commission was made by the Hon. O. E. Lang, Minister of Justice, during the 1972 federal election campaign, and discussions between officials of the Justice Department and others outside the federal public service were con­

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ducted throughout 1973. On December 10. 1973, on the occasion of the twenty-fifth anniversary of the signing of the Universal Declaration of Human Rights, Mr. Lang announced that the government would sub­ mit legislation in the new year to establish an Egalitarian Rights Com m ission.275 Notes 'Section 12 1 provides for free admission of dom estic products into each of the provinces. 2Section 125 prevents the taxation of land or property belonging to Canada or any province. 3Riddell J. in Florence Mining Co. v. Cobalt Lake Mining Co. (1909) 18 O .L .R . 275, 279 (C .A .). 4A. V. Dicey, Introduction to the Study o f the Law o f the Constitution , 10th ed.. edited by E. C. S. W ade. London: M acm illan, 1961, 201. Hbid., 199. ‘'Cunningham v. Tomey Homma [1903) A .C . 151, where it was decided that the British Colum bia legislature could validly enact an electoral law withholding the franchise from certain races; Union Colliery o f British Columbia Ltd. v. Bryden [1899] A .C . 580. where provincial legislation preventing Chinese from working in mines was held to be ultra vires as dealing with powers within federal com petence, i.e ., naturalization and immigration. ’Lord Haldane in Fort Frances Pulp and Paper Co. (reported as Fort Frances Pulp and Power Co.) v. Manitoba Free Press Co. [1923] A .C . 695, 704. 8Reference Re Alberta Statutes [1938] S .C .R . 100. 9Attorney General fo r Alberta v. Attorney General fo r Canada [1939] A.C. 117. I0A. R. M. Low er, Evolving Canadian Federalism, Duke University Press, 1958, 18; R. M acG. Dawson, The Government o f Canada, 4th ed. revised by N. M. W ard, University of Toronto Press, 1963, 61-79. "(1 8 8 3 ), 9 App. Cas. 117. 12Liquidators o f the Maritime Bank v. Receiver-General o f New Brunswick [1892] A .C. 437. 13Attorney General fo r Canada v. Cain; Attorney General fo r Canada v. Gilhula [1906] A .C . 542, 547; British Coal Corporation v. The King [1935] A .C . 500, 518. l4Laskin, Canadian Constitutional Law, op. cit., 3rd ed ., 187-9. ISAttorney General fo r Canada v. Attorneys General for Ontario, Quebec, and Nova Scotia (Fisheries case) [1898] A .C . 700, 713. ,bUnion Colliery o f British Columbia Ltd. v. Bryden [ 1899] A .C . 580, 585. l7See the dissenting judgm ent of Cartwright J., (Fauteux J., concurring), in the Saumur case [1953] 2 S .C .R . 299, 379 ff. 1RLaskin, Canadian Constitutional Law. op. cit., 3rd ed., 941. I9lt would be misleading to consider these "d o ctrin es" as being precise and mutually exclusive, and it would be a m istake to exaggerate their importance. It will be seen that some of the exam ples referred to as illustrating the "overlap­

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ping” doctrine may apply equally as illustrations of the “ aspect” doctrine, and vice versa. One should know about these m ore as an aid to understanding Privy Council decisions than as foolproof tests. In recent years the Suprem e Court of Canada has not felt itself bound to use these term s, or to pigeonhole legislation within one of the doctrines rather than another. 20For a fuller account see F. P. Varcoe, The Constitution o f Canada , Toronto: Carsw ell, 1965, 49 et seq .; Laskin, Canadian Constitutional Law, op. cit., 3rd ed ., 76-143. In the revised 4th ed ., 10-58. 2I( 1882), 7 App. Cas. 829. 22lbid., 838-9. 23[ 1899] A .C . 580. 24On the ‘ ‘pith and substance” rule also see: Attorney General fo r Ontario v. Reciprocal Insurers [1924] A .C. 328; Attorney General fo r Alberta v. Attorney General fo r Canada (Alberta Bank Taxation case) [ 1939] A .C . 117; Canadian Federation o f Agriculture v. Attorney General fo r Quebec ( Margarine case) [1951] A .C . 179. 25( 1883), 9 App. Cas. 117, 130. 26For m ore recent exam ples of this doctrine see: Board o f Trustees o f the Lethbridge Irrigation District v. Independent Order o f Foresters; The King v. Independent Order o f Foresters [1940] A .C . 513; Ladore v. Bennett [1939] A .C . 468. 27Lord Tom lin in Attorney General fo r Canada v. Attorney General for British Columbia (Fish Canneries case) [1930] A.C. I l l , 118, citing as author­ ity Grand Trunk Railway Co. v. Attorney-General fo r Canada [ 1907 ] A .C . 65. This doctrine is referred to by Varcoe as the “ overlapping” doctrine: Supra, footnote 20, 49ff. 28B. Laskin, “ Occupying the Field: Paramountcy in Penal Legislation,” (1963) 41 Can. Bar Rev. 234. 29[ 1934] S .C .R . 33. ^Provincial Secretary o f P.E.I. v. Egan and A.-G . P .E .l. [1941] S.C .R . 396. 1'Ross v. Registrar o f Motor Vehicles (1973) 42 D .L .R . (3d) 68 and Bell v. A.-G. P .E .I. et al. (1973) 42 D .L .R . (3d) 82. 320'G rady v. Sparling [1960] S .C .R . 804. i3Mann v. The Queen [1966] S .C .R . 238. ^Stephens v. The Queen [1960] S .C .R . 823. y-Reference Re Section 92 (4) o f the Vehicles Act. 1957 (Sask.) [1958] S.C .R . 608. Also see Regina v. Tenta (1968) 67 D .L .R . (2d) 536 and Regina v. Clements (1967) 63 D .L .R . (2d) 513. 36M . L. Friedland. “ Double Jeopardy and the Division of Legislative Author­ ity in C anada," (1967) 17 U. o f Tor. L .J. 66. 37R. M. Carr, “ Division of Legislative Powers Under the British North Am erica Act—The Case for Fully Concurrent P ow ers," (1971) A Man. L .J. 297. 38W . R. Lederm an, “ The Concurrent Operation of Federal and Provincial Laws in C anada,” (1962-63) 9 McGill L.J. 185, 199. 39( 1887), 12 App. Cas. 575. 40Forbes v. Attorney Genera! fo r Manitoba [ 1937] A .C . 260. A,The Judges v. Attorney Genera! fo r Saskatchewan [1937] 2 D .L .R . 209

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(P C .); for other exam ples see: on railways— Workmen's Compensation Board v. Canadian Pacific Railway [1920] A .C . 184. 42John Deere Plow Company Ltd. v. Wharton [1915] A .C . 330 and Great West Saddlery Company Ltd. v. The King [1921] 2 A .C . 91. 43Commission du Salaire Minimum v. The Bell Telephone Company o f Canada [1966] S.C .R . 767. 44See the Saumur case discussed infra.

4SIbid. 4bRe Validitv o f the Industrial Relations and Disputes Investigation Act. R.S.C . 1952. c. 152 [1955] S .C .R . 529. 47G. V. La Forest, Disallowance and Reservation o f Provincial Legislation, Ottawa: Department of Justice, 1955, 5-7. ^Reference Re Disallowance and Reservation [ 1938] S.C .R . 71. For further cases see La Forest, op. cit., 15, footnote (i). 49See the presentation on behalf of the Canadian Labour Congress (C .L .C .) in 1960 Committee Proceedings, 192; and E. A. Forsey, "T he Prince Edward Island Trade Union Act. 1948," (1948) 26 Can. Bar Rev. 1159. S0R exv. Trainor 11917] I W .W .R . 415 (Alta. C .A .):R ex v. RusselH 1920] 1 W .W .R . 624 (M an. C .A .); and the important case o f Boucher v. The King [1951] S.C .R . 265. 5lSee for example ss. 159, 160 and 281.3 of the Criminal Code. 52Section 164 of the Criminal Code. 53Customs Tariff Act. R .S.C . 1970, c. C-41, Sch. C , Item 99201-1 as am ended by S.C . 1970-71-72, c. 61, ss. 1, 2, and 3. 54Cf. Joseph Burstyn Inc. v. Wilson ( 1952) 343 U .S. 495 where the American Suprem e Court held that expression by means of motion pictures is included within the free speech and free press guarantees of the Federal Constitution. In Montreal Newsdealer Supply Co. Ltd. v. Board o f Cinema Censors o f Quebec et al [1969] C .S. 83 Mr. Justice Batshaw ruled that provincial film censorship was invalid. See the com m ent by S. Heller in (1969) 15 McGill L .J . 350. 5SRe Alberta Statutes 11938] S.C .R . 100. 5bIbid., 146. slIbid., 134-5. 58[ 1957] S .C .R . 285. 591937 (Q ue.), c. U ;R .S .Q . 1941, c. 52. 60The Act did not define "C om m unism " or "B olshevism ." 61 [ 1923] S .C .R . 681. 62See also Attorney General fo r Ontario v. Koynok et al. [1941] 1 D.L.R. 548, 554 (Ont. H .C .) where Kelly J. stated: "T he protection of public morals is not a matter of local or private nature.” b3Supra, footnote 58, 320. b4lbid., 328. bSIbid., 306. 66[1953] 2 S.C .R . 299. For a discussion of this case and a discussion of legislative jurisdiction sec D. A. Schm eiser, Civil Liberties in Canada, Oxford University Press, 1964. 71-87, 196-204. 67See Professor L askin's comment quoted in footnote 41 of Chapter I, supra. 68R .S.Q . 1941, c. 307. 69Rand, Kellock, Estey, and Locke JJ.

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70Kerwin J. He stated that freedom o f speech and of religion were civil rights within the province. 7,Rinfret C .J.C ., Taschereau J. concurring. 72Cartw right J., Fauteux J. concurring. 73Following this decision the Quebec Freedom o f Worship Act was amended by 1953-54 Quebec Statutes, c. 15, to provide in effect that it is not freedom of religious worship and profession to distribute pamphlets of the kind that the W itnesses were passing out, i.e., pamphlets attacking the religious beliefs of others. The day after the statute cam e into force, its constitutionality was challenged by Jehovah’s W itnesses who contended that they were threatened with prosecution under the statute. The case went to the Suprem e Court of Canada as Saumur el id. v. Procureur GeneraI de Quebec el al. [1964] S.C .R . 252, where the action for a declaration was dism issed unanim ously on the grounds that under Quebec law , in the circum stances, a private citizen has no right to sue fora declaratory judgm ent. In this case there was neither a wrong nor a dispute, and so there was no necessity for a consideration of the constitutional question. 1ARex v. Kile [1949] 2 W .W .R . 195 (B .C . Co. C t.);R ex v. Naish [1950] 1 W .W .R . 987 (Sask. Mag. Ct.) 7S( 19 7 1) 19 D .L .R . (3d) 471. Leave to appeal to the Suprem e Court of Canada was dismissed May 5, 1971: loc. lit. In another British Colum bia case. Hlookoffel al v. City o f Vancouver ( 1968) 67 D .L .R . (2d) 219, Verchere J. held that a city could validly enact a by-law , enabling the licence inspector to revoke licences for "gross m isconduct,” even of a newspaper, and that this was not a contravention of freedom of expression, but valid property and civil rights legislation. See L. A. Powe, "T he Georgia Straight and Freedom of Expression in C anada,” (1970) 48 Can. Bar Rev. 410. 1(,Rex v. M ustin;Rex v. Millard [1940] O .R . 393 (H .C .);/?e t v. Kite, supra, footnote 74. 11Rex v. Napier [1941] O .R . 30 (H .C .); Regina v. Campbell [1962] O.R. 1134 (H .C .) 78( 1967) 64 D .L .R . (2d) 207 (Ont. H .C .) 79( 1969) 7 C .R .N .S . 116. 80[ 1965] S .C .R . 798. 8'( 1964) 63 D .L .R . (2d) 401. S2Supra., footnote 80, 815, 816. ssBirks & Sons (Montreal) Ltd. v. City o f Montreal [1955] S.C .R . 799. MAttorney General fo r Ontario v. Hamilton Street Railway Co. [1903] A.C. 524. 85See the sym posium in (1959) 37 Can. Bar R ev., especially Laskin, at 121-2, and Scott at 141. g6lb id ., 76. 87[ 1963] S.C .R . 651. This case is m ore fully discussed in Chapter V , infra. It was applied by the Alberta Court o f Appeal in Re Boardwalk Enterprises Mart Ltd. et al and the Queen (1972) 31 D .L .R . (3d) 452. 88[ 1953] 2 S .C .R . 299. 89S. 64— unlawful assem blies; s. 65— riots. See Rex v. Patterson [1931] 3 D .L .R . 267 (Ont. C .A .). 'l0lnRegina v. Campbell | 1962] O .R . 1134 (H .C .), M cR uerC .J.H .C . upheld

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such a by-law on the grounds that it did not forbid or prevent public meetings in parks, but merely provided for an orderly allocation of time and place. He said: (at 1136) “ In no sense can it be said a denial of the right of free speech to pass legislation regulating the parks in which, and the areas in which public meetings may be held.” This judgment was affirmed: [1963] 2 O.R. 149. "'Union Colliery v. Bryden [1899] A.C. 580. 9-[ 1903] A.C. 151. 93Qnonf’ Wing v. The King (1914) 49 S.C.R. 440. It is very unlikely that this fantastic result would be repeated today. 94See the presentation of the National Japanese-Canadian Citizens’ Associa­ tion in 1950 Senate Committee Proceedings, 278-9. 95An Act Respecting Citizenship, Nationality, Naturalization and Status of Aliens, R.S.C. 1952, c. 33, now R.S.C. 1970, c. C-19. 96S. 22. 97Hansard, April 2, 1946. 98Switzman v. Elbling [1957] S.C.R. 285, 306-7. "[1951] S.C.R. 887, 919-20. See R. R. Price, "Mr. Justice Rand and the Privileges and Immunities of Canadian Citizens,” (1958) 16 U. ofToronto Fac. o f L. Rev. 16; See also Bora Laskin, “ Our Civil Liberties: The Role of the Supreme Court,” (1954) 16 Queen's Quarterly 455, 469. i00lbid., 935. 101Attorney-General for Ontario v. Hamilton Street Railway [1903] A.C. 524. 102Proprietary Articles Trade Association v. Attorney General fo r Canada [1931] A.C. 310. l03CitizensInsurance Company v. Parsons (1881), 7 App. Cas. 96; In re the Board o f Commerce Act. 1919 and the Combines and Fair Prices Act. 1919 [1922] 1 A.C. 191. u>ABoard o f Commerce case, supra, footnote 103; Attorney General for Ontario v. Reciprocal Insurers [1924] A.C. 328; Canadian Federation of Agriculture v. Attorney-Generalfor Quebec (Margarine Case) [ 1949] S.C.R. 1. ,05Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128. 10bSupra. footnote 104. ,01lbid.. 49. ,08[ 1960] S.C.R. 804, 810. 10,,Supra. footnote 104, 50. 110[ 1959] S.C.R. 497. 11'Supra, footnote 102. 112[ 1925] A.C. 396. 113Attorney-General for Canada v. Attorney General for Ontario (Labour Conventions Case) [1937] A.C. 326. 114[ 1963] S.C.R. 584. 1l5R.S.B.C. I960, c. 205. amended S.B.C. 1961, c. 31, s. 5. 1lhS. 9(1) provided: “ Every employer shall honour a written assignment of wages to a trade-union certified under this Act, except where the assignment is declared null and void by a Judge or is revoked by the assignor." Il7[ 1925] A.C. 396. 1,8| 1938] S.C.R. 100. 1,9[ 1957] S.C.R. 285.

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l20Supra, footnote 114, 596. l2'Ibid., 607-8. l22Ibid., 606. l23lbid., 604. l24Ibid., 599. 125Section 381. The excepting clause gives a definition of what has come to be accepted as •'peaceful" picketing. See Annotation "Intimidation, Peaceful Picketing, and Illegal Strikes" in (1946-47) 2 C.R. 302. 126Section 382. ,27Sections 424 and 425. l2SRe Validity o f the Industrial Relations and Disputes Investigation Act [1955] S.C.R. 529. ,29Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board [1956] O.R. 862 (H.C.). ,30British North America Act. 1940, 3 & 4 Geo. VI, c. 36 (U.K.). 13'Section 94A added by British North America Act, 1951, 14 & 15 Geo. VI, c. 32 (U.K.). ,32An attack on the constitutionality of the Family Allowances Act was rejected in Angers v. Minister of National Revenue [1957] Ex. C.R. 83. 133Reference Re Alberta Statutes [ 1938] S.C.R. 100, affirmed [1939] A.C. 117. 1i4Re Alberta Debt Adjustment Act; Attorney Generalfor A'berta v. Attorney General for Canada \ 1943] A.C. 356; Re Saskatchewan Farm Security Act; Attorney General for Saskatchewan v. Attorney General for Canada [1949] A.C. 110; Canadian Bankers' Association and Dominion Mortgage and In­ vestments Association v. Attorney Generalfo r Saskatchewan [ 1956] S.C.R. 31. lisFort Frances Pulp & Paper Co. Ltd. (reported as Fort Frances Pulp & Power Co. Ltd.) i\ Manitoba Free Press Co. Ltd. [1923] A.C. 695; Co-operative Committee on Japanese-Candians v. Attorney General for Canada [1947] A.C. 87; Reference Re Validity o f Wartime Leasehold Regulations [1950] S.C.R. 124. Discussed further in Chapter IX, infra. ,36E. McWhinney, "The Supreme Court and the Bill of Rights—The Les­ sons of Comparative Jurisprudence," (1959) 37 Can. Bar Rev. 16, at 26. For instances where the Supreme Court of Canada has had an opportunity to put some of these principles into practice see: Chaput v. Romain [1955] S.C.R. 834. discussed in Chapter V, infra; Roncarelli v. Duplessis [1959] S.C.R. 121, discussed in Chapter IV, infra ; and Lamb v. Benoit [ 1959] S.C.R. 321, discus­ sed in Chapter VII, infra. l37See pp. 47-8. l38Sections 448-462. These sections are referred to as the Bail Reform Act, R.S.C. 1970, c. 2 (2nd Supp.), s. 5. ,39[1947] A.C. 573. For the details see, infra, Chapter VII. >40Regina v. Benoit (1952) 105 C.C.C. 185 (Que. Ct. of Sess.); Vosding v. Butcher (1952) 105 C.C.C. 368 (Mag. Ct.). I4IR.S.C. 1970. c. E-10. The Supreme Court has recently held, in Re Batary's Prohibition Application (1965) 51 W.W.R. 449, that jurisdiction with respect to the practice and procedure before coroners’ courts belongs to Parlia­ ment. For a further discussion of this case and the Canada Evidence Act see Chapter VII, infra.

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l42[ 1943] A.C. 147. '4iRe Storgoff [1945] S.C.R. 526. l44Rex v. Thompson (No. 2) [1946] O.R. 560 (C.A.). ,45Marathon Paper Mills v. The King [1947] O.R. 532 (C.A.). '4bBurrows v. Gilding (1954) 11 W.W.R. 89 (Sask. C.A.). l47Chaputv. Romain [ 1955] S.C.R. 834;Lambv. Benoit [ 1959] S.C.R. 321. ]48Re Adoption Act [1938] S.C.R. 398, 403. ,49[ 1958] S.C.R. 608. ,50Section 224(3). Now s. 237(1 )(b) and (c). 15'Section 224(4). Now s. 235 makes a breathalyzer test compulsory and evidence of a refusal to take such a test is admissible under s. 237(3) for the offence of intoxicated or impaired driving under s. 234. 152Also see Provincial Secretary o f Prince Edward Island v. Egan [1941] S.C.R. 396, where it was held that both the provinces and the Dominion could validly legislate to provide for orders prohibiting the driving of a motor vehicle after conviction for an offence in respect of the operation of such vehicles. See the discussion on "paramountcy,” supra, Part 2. 153Mr. Justice Gale, Chief Justice of Ontario, "Law a Hundred Years Hence,” (1965) 8 Can. Bar Jo. Il l , 117. '*4Report of the Ontario Police Commission to the Attorney General for Ontario on Organized Crime (hereinafter referred to as Ontario Police Com­ mission Report), January 31, 1964, 1-7. l55R.S.O. 1960, c. 298. l56S.O. 1961-62, c. 105. s. 6. l5Vbid., s. 9(2). '*8lbid., ss. 2, 7, and 9(1). 'sVbid., s. 6. 'b0lbid., s. 9(3). 161R.S.O. 1960. c. 323. 162Ontario Police Commission Report, 7. '“ Ibid., 8. 'b4Ibid., 11. 'bSIbid., 124. 'bbLegislature o f Ontario Debates (Hereafter Ontario Legislature Debates), March 19, 1964, 1797. l67See the March 20, 1964 editions of ihcGlobe and Mail, the TorontoStar, and the Toronto Telegram. Also, for a later and more detached review of the events seethe articles in Maclean's, July 4, 1964. by Ken Lefolii on "The Holy War to Destroy Bill 99” 11, and another by Mark R. MacGuigan. ib8Ibid. '^Ontario Legislature Debates, March 20, 1964. 1837-38. '™Ibid., 1838. 17'Ontario Legislature Debates, May 1, 1964, 2694-5. 172See for example: Alberta— R.S.A. 1970. c. 333, ss. 5, 21 to 27; Manitoba—R.S.M. 1970, c. S-50, s. 21; Ontario—R.S.O. 1970, c. 426, ss. 21 to 26; Saskatchewan—R.S.S. 1965, c. 396, ss. 27 to 33. 173For example: British Columbia— R.S.B.C. 1960, c. 315,ss. 9, 10 and 11; New Brunswick—R.S.N.B. 1952, c. 112, ss. 4, 5, 6 and 7; Nova

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Scotia—R.S.N.S. 1967, c. 250, ss. 3 and4; Quebec— R.S.Q. 1964,c. ll.ss. 6, 7, 9. 10, 11, 12 and 14. l74Among others see: Alberta Workmen's Compensation Act, R.S. A. 1970, c. 397, ss. 10 and 74; Newfoundland Industrial Accidents Inquiries Act, R.S. Nfld. 1952, c. 257, s. 4; Ontario Mining Act, R.S.O. 1970, c. 274, ss. 137, 149, 618; Prince Edward Island Public Health A ct, R.S.P.E.I. 1951, c. 129, s. 9. l75Report of the Royal Commission Inquiry into Civil Rights (hereafter McRuer Report). 1968, Vol. I, viii. 1765.0 . 1971, c. 47. ,77S.O. 1971, c. 50. 1785.0. 1971, c. 49. ,79S.O. 1971, c. 48. ,80S.O. 1970, c. 97. 18.5.0 . 1971, c. 57. 182See, e.g., The Citizen and the Administration, a report by "Justice," the United Kingdom branch of the International Commission of Jurists, 1961 ;C. C. Aikman, "The New New Zealand Ombudsman." (1964) 42 Can. Bar Rev. 399; G. Sawer. Ombudsmen, Melbourne University Press, 2nd ed., 1968; W. Gellhom, Ombudsmen and Others: Citizens' Protectors in Nine Countries, Harvard University Press, 1966. For Canadian references see E. B. Appleby, "The Ombudsman: A Neglected Lawyer's Tool." (1973) 22U.N.B.L.J. 99; G. Dancosse, "Le systeme de controle administratif par voie de commissaire parliamentaire." (1967) 27 R. du B. 577; L. Marceau. “ Le protecteur du citoyen; les institutions publiques traditionelles et les tribunaux administratifs,” ( 1970) 30 R .d uB . 67; D. C. Rowat. ed., The Ombudsman: Citizen's Defender. 2nd ed.. University of Toronto Press, 1968; D. C. Rowat, The Ombudsman Plan, McClelland and Stewart (Carleton Library, No. 67), 1973. 183Parliamentary Commissioner (Ombudsman) Act. 1962, S .N.Z. 1962, No. 10. '84The Parliamentary Commissioner Act, 1967, 15 & 16 Eliz. 2, c. 13. l8sSawer, supra, footnote 182. I86S.A. 1967, c. 59, now R.S.A. 1970, c. 268. I87N.B.S. 1967, c. 18. I88S.Q. 1968, c. 11. I89S.M. 1969, 2nd Sess., c. 26, now R.S.M. 1970, c. 0-45. I9US. Nfld. 1970, No. 30. ,9IS.N.S. 1970-71, c. 3. ,92S.S. 1972, c. 87. l93See the annual reports of the Alberta and Manitoba Ombudsmen. For a review of the history and purpose of the institution see Re Ombudsman Act (1970) 72 W.W.R. 176 (Alta. S.C.) I94“ Anti-discrimination Legislation," Papers Presented at the Annual Meeting—Banff, 1963, The Canadian Bar Association. 28. 46. Also see D. G. Hill. "The Role of a Human Rights Commission: The Ontario Experience,” (1969) 19 U. o f Tor. L.J. 390: W. S. Tarnopolsky, "The Iron Hand in the Velvet Glove: Administration and Enforcement of Human Rights Legislation in Canada," (1968) 46 Can. Bar Rev. 565; and R. W. Kerr, Legislation Against Discrimination in Canada, New Brunswick Human Rights Commission, 1969.

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l95Chrislie v. York Corporation [1940] S.C.R. 139; Rogers v. Clarence Hotel [ 1940] 2 W.W.R. 545 (B.C.C.A.);Franklin v. Evans (1924) 55 O.L.R. 349 (Ont. H.C.); King v. Barclay and Barclay's Motel (1961) 35 W.W.R. 240 (Alta. C.A.). l96Regina ex rel. Nutlaiulv. McKay (1956) 5 D.L.R. (2d) 403 (Ont. Co. Ct.); Regina v. Laffertx (1969) 8 C.R.N.S. 70 (Que. S.P.). 1971793 S.U.C., (2nd session), c. 7. I983 & 4 Wm. IV, c. 73. ,99S.O. 1932, c. 24. s. 4; now R.S.O. 1970, c. 224, s. 114. 2005 .0 . 1944, c. 51. 20'Now R.S.S. 1965. c. 378. 202For example, in Regina v. Pfenning, 1963, unrep., a provincial magistrate in Saskatchewan dismissed a prosecution against a hotel proprietor on the charge that he refused service to an Indian in a beer parlour. The court held that the motive was not discrimination. The court believed the evidence on behalf of the accused that Indians were kept on a separate side of the beverage room only in order to prevent disorder on a busy night. Moreover, the court found that the accused had discriminated indirectly through his bartender, and although the Act prohibits discrimination whether directly or indirectly practised, the magis­ trate found that since the information charged the proprietor with the act of discrimination, this was a fatal defect. (It should be noted that this action was under the Fair Accommodation Practices Act, S.S. 1956, c. 68 and not the Bill o f Rights, but the sanction under the two is the same.) 203For a fuller discussion of these arguments see the reference to footnote 194, supra, and I. A. Hunter, “ The Development of the Ontario Human Rights Code; A Decade in Retrospect,” (1972) 22 U. o f Tor. L.J. 237. 204N.Y. Public Laws of 1945, c. 118, being Executive Law, Article 12, ss. 125-36. 2055.0 . 1951, c. 24. 206S.M. 1953, (2nd Session), c. 18. 207S.N.S. 1955, c. 5. 208S.N.B. 1956, c. 9. 209S.B.C. 1956, c. 16. 2105.5. 1956, c. 69. 2"S.Q. 1964, c. 46. 2.25.0 . 1954, c. 28. 2135.5. 1956, c. 69. 2,4S.N.B. 1959, c. 6. 215S.N.S. 1959, c. 4. 216S.M. I960, c. 14. 211Public Accommodation Practices Act, S.B.C. 1961, c. 50. 2I8S.Q. 1963, c. 40, s. 8. 2.95.0 . 1951, c. 26. 2205.5. 1952, c. 104. 22IS.B.C. 1953 (2nd Session), c. 6. 222S.M. 1956, c. 18. 223S.N.S. 1956, c. 5. 224S.A. 1957, c. 38, s. 41, being an amendment to the Alberta Labour Act, R.S.A. 1955, c. 167, Part VI. Part VI was subsequently repealed and incorpo­

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rated into The Individual's Rights Protection Act, S.A. 1972, c. 2, s. 30. 22SS.P.E.I. 1959, c. 11. 226S.N.B. 1960-61, c. 7. 227S.Q. 1964, c. 66, s. 1, re-enacting Article 177 of the C.C. 228S.B.C. 1964, c. 19, being an amendment to the Fair Employment Prac­ tices Act, R.S.B.C. 1960, c. 137. 2295.0 . 1966, c. 3. 230The comparison of numbers of complaints is interesting. A letter survey of Attomeys-General undertaken by the author in October, 1968, showed the following: in Ontario, in the six years since the inception of the Ontario Human Rights Code in June, 1962, there were about 6,000 complaints and inquiries, of which about 1267 came within the terms of the Code. From the provinces responding to the survey, and having only fair employment and fair accommo­ dation practices Acts, the following returns were received: Saskatchewan — about 30 from the time of the enactment of the statute in 1956; Quebec—24 from 1964 when the Employment Discrimination Act was enacted; Manitoba—2 in 1954 when the Fair Employment Practices Act was passed, but “ a very few complaints since then"; British Columbia—37 under the Equal Pay Act in the period 1954-57. No Figures were given for complaints under the fair employ­ ment and public accommodation practices Acts, except that only two complaints were received under the latter in 1967. Even discounting the greater population of Ontario, the disparity is marked. Are people in Ontario more prejudiced than people in other provinces? Such an argument must be discounted in the light of a comparison of New Brunswick statistics on complaints received under the Human Rights Act, and those under the antecedent statutes: 52 formal complaints in the first year of the operation of the Human Rights Act, as against 15 during the earlier 10-year period of the existence of the fair employment and fair accommodation practices Acts. In Ontario, whereas there were only 502 complaints during the 10-year period preceding the Ontario Human Rights Code, there were more than double that number in the six-year period after the enactment of the Code. 2315 .0.. 1961-62, c. 93. The Human Rights Code was amended on a number of occasions and then in 1972, S.O. 1972, c. 119, it was revised and re-enacted incorporating the50Re Rombourgh’s Detention, supra, footnote 149; Ex parte Kleinys (1965) 49 D.L.R. (2d) (B.S.S.C.); Ex Parte Paterson, supra, footnote 149. 151[ 1972] S.C.R. 889. ,s2lbid„ 895. lsiLoc. cit. 154Ibid., 905. lS5Regina v. McKay (1971) 20 D.L.R. (3d) 336 (Man. C.A.); Regina v. Urchyshyn [ 1971 ] 5 C.C.C. (2d) 481 (Alta. C. A.); and Regina v. Lavoie (1971) 23 D.L.R. (3d) 364 (B.C.C.A.) ,S6Vapor Canada Ltd. v. Macdonald et al (1971) 22 D.L.R. (2d) 607 (Fed. Trial Ct.) I57See, e.g., Regina v. Talbot [1966] 3 C.C.C. 28 (Que. C.A.); Regina v. Johnson (1973) 11 C.C.C. (2d) 101 (CB.C.C.A.);Regina v. Butler (1973) 11 C.C.C. (2d) 381 (Ont. C.A.) where the Canadian Bill o f Rights was not raised but the question of counsel was dealt with as part of a fair hearing. I58( 1962) 31 D.L.R. (2d) 88. ,59S.C. 1959, c. 54, now R.S.C. 1970, c. R-9. This case is probably wrong in view of the Curr decision, discussed earlier herein. ,60( 1962) 132 C.C.C. 337. 16,( 1962) 133 C.C.C. 323. I62[ 1964] 1 C.C.C. 266. I63( 1965) 51 D.L.R. (2d) 534. I64( 1968) 66 D.L.R. (2d) 736. '"Ib id ., 739-40. I66ln a subsequent case, without referring to either its own decision in Re Vinarao or to the Bill o f Rights, the British Columbia Court of Appeal held that even if a Special Inquiry Officer is wrong in explaining that counsel does not have to be qualified, he does not thereby lose his jurisdiction: Re Kokorinis (1967)62 D.L.R. (2d) 438. Also seeExparte Paterson (1971) 18 D.L.R. (3d) 84 where a British Columbia Supreme Court judge would not uphold a claim for a right to counsel in deportation proceedings in a case where the special inquiry officer refused to adjourn a hearing to wait for counsel delayed by bad weather. ,67( 1969) I D.L.R. (3d) 74. Also see Regina v. Martel (1968) 64 W.W.R. 152 (Alta. D.C.) and a comment on this case by G. MacKinnon in (1968-69) 3 Ottawa L. Rev. 700. '6*lbid., 76. ,69i 1966) S.C.R. 619. See a comment on this case by B. Donnelly in ( 1967)5 O.H.L.J. 54.

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,70( 1965) 48 D.L.R. (2d) 110. l7l( 1965) 52 D.L.R. (2d) 106. ll2Supra, footnote 169, 826. m Ibid.f 829. ,74[ 1972] S.C.R. 926. See a comment on this case by S.L. Enticknap in (1973) 37 Sask. L. Rev. 300. ,75[ 1972] 1 O.R. 105. ll6Supra, footnote 174, 932. 177Regina v. Clarke (1969] .2 All E.R. 1008; Law v. Stephens [1971 )Crim. L.R. 369. n *Supra, footnote 174, 935. l1Vbid., 937. l80Loc. cit. i8'Loc. cit. ,82Ibid., 951. 'u lbid., 952-3. '*Albid., 954. l**Ibid., 955. x8hLoc. cit. l81Supra, footnote 162. ,88Supra, footnote 169. l8Vbid., 945. l90Regina v. Morgan (1972) 9 C.C.C. (2d) 502 (N.S. Co. Ct.). 19'Regina v. Deleo and Commisso (1972) 8 C.C.C. (2d) 197. (Ont. Co. Ct.)—this case dealt with a statement made to police questioning him in the absence of counsel, but knowing he did have a lawyer. l92Regina v. Drouin (1972) 10 C.C.C. (2d) 18 (P.E.I.S.C.). l93Regina i\ Penner (1973) 22 C.R.N.S. 35 (Man. C.A .)\Regina v. Levy (1973) 11 C.C.C. (2d) 521 (N.S. Mag. Ct.). 19*Regina v. Sexton (1972) 10 C.C.C. (2d) 131 (P.E.I.S.C.). 195Regina v. Bond (1973) 22 C.R.N.S. 172 (N.S. Prov. Mag. Ct.). For some of the many articles on “ right to counsel” see B. Donnelly, ‘‘Right to Coun­ sel” , (1968) 11 Crim. L.Q. 18; B.A. Grosman, ‘‘The Right to Counsel in Canada", (1967) 10 Can. Bar J. 189; G.E. Parker, “ Further Extensions of the Right to Counsel” , (1968) 10 Crim. L.Q. 267; W.S. Tarnopolsky, “The Lacuna in North American Civil Liberties—The Right to Counsel in Canada” , (1967) 17 Buffalo L. Rev. 145. l96See Escobedo v. Illinois, supra, footnote 43; Miranda v. Arizona, supra. footnote 44. l97See, e.g., Regina v. Jones (1972) 9 C.C.C. (2d) 5 (N.S. Co. Ct.). Since this book went to print, the Supreme Court rendered its decision in Hogan v. The Queen (1974) unreported, where the majority held that evidence of a breathalyzer was admissible even though the accused took the test when he was told he could not speak to his lawyer who was in the police station at the time of the request! 198[ 1971 ] S.C.R. 272. See the following articles on confessions and on illegally obtained evidence: R.C. Gibson, “ Illegally Obtained Evidence” , (1973) 31 U. o fT . Fac. of L.R. 23; R.N. Gooderson, “ The Interrogation of

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Suspects” , (1970) 48 Can. Bar Rev. 270; E.J. Ratushny, “ Statements of an Accused: Some Loose Strands (I) and (II)” ,(1971 -72)Crim. L.Q. 306 and 425. ‘"S ee, e.g., Rex v. Singer [1941] S.C.R. Il l ; Regina v. Fawcett [1954] O.W.N. 757 (C.A.). See Tremeear, op. cit., 162. 200Supra, footnote 162, 279-80. 20113th ed. by R. F. V. Heuston, London: Sweet and Maxwell, 1973. For a fuller and Canadian account see A.M. Linden, Canadian Negligence Law, Toronto: Butterworths, 1972, chapter 4. 202[ 1959] S.C.R. 321. 203Kerwin C.J.C., and Rand, Locke, Cartwright, Martland and Judson JJ. constituted the majority, while Taschereau, Fauteux and Abbott JJ. dissented. 204For a very thorough and excellent discussion of the topics of “ self crimina­ tion” both before and after the Bill o f Rights see E.J. Ratushny, “ Is There a Right Against Self Crimination in Canada?” , (1973) 19 McGill L.J. 1. 205R.S.C. 1970, c. E -10. 206[ 1965] S.C.R. 465. 207( 1946) 87 C.C.C. 97. 208R.S.C. 1970, c. 1-13. 209S.O. 1971, c. 49. 2l0Supra, footnote 151, 910. 21 'Ibid., 912. 2l2lbid., 912-13. 2l3Regina v. Martin (1961) 35 C.R. 276. See G.A. Martin, “ The Privilege Against Self Crimination Endangered” , (1962) 5 Can. Bar J. 6. 2l4See, for example, O’Co/i/ior v. The Queen, supra, footnote 169 \ Regina v. McKay (1970) 12 C.R.N.S. 122 (B.C.S.C.); Regina v. Ness [1971] 4 C.C.C. (2d) 42 (Sask. C.A.); Regina v. Urchyshyn [ 1971] 4 C.C.C. 481 (Alta. C.A.). See H.B.J. McIntosh, “ Self -Incrimination and the Breathalyzer” , (1971-72) 36 Sask. L. Rev. 22. 2lsRegina v. Judge o f the General Sessions o f the Peace for the County of York, ex parte Corning Classworks o f Canada Ltd. [1971] 2 O.R. 3. Applica­ tion for leave to appeal to the Supreme Court of Canada was refused. 2l6Regina v. Marcoux and Solomon (1973) 23 C.R.N.S. (Ont. C.A.). 2xlRegina v. Steinberg [1967] I O.R. 733. 2lHRegina v. Pearson et al (1969) 66 W.W.R. 380. 2l9Bill C -176 which was passed by the House of Commons on December 4, 1973, but had not yet become law by the end of 1973. Bill C-176 was finally enacted after the date of this book, January, 1974. 220R.S.C., c. C-38. 22IR.S.C., c. 0-3. 222By s. 482 this includes judges of the County and District Courts in the common law provinces, as well as a judge of the Sessions of the Peace or of a provincial court in the province of Quebec, or a judge of the Supreme Court in the Yukon Territory and the Northwest Territories. 2231960 Committee Proceedings, 460-1. 2240n searches and search warrants see: In re Rex and Solloway Mills & Company, Limited [1930] 1 W.W.R. 779 (Alta. C.A.); Re Bell Telephone Company o f Canada [1947] O.W.N. 651 (H.C.); Regency Realties Inc. v. Loranger (1926) 36 C.R. 291 (Que. S.C.), and see the “ Practice Note" on this

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case; Regina v. Chew (1964) 44 C.R. 145 (Ont. H.C.), and see the “ Practice Note’’ on this case; Re Worrall (1964) 44 C.R. 151 (Ont. C.A.), and see the “ Practice Note” on this case; Re Royal Canadian Legion Branch No. 177, etal. (1964) 48 W.W.R. 481 (B.C.S.C.’ in chambers). 225[ 1971] 4 C.C.C. (2d) 494. 226( 1971) 22 D.L.R. (3d) 249. 221Ibid., 264. 228Ibid., 265. 229(1972) 26 D.L.R. (3d) 224. 230Ibid., 228. 23'Duke v. The Queen [1972] S.C.R. 917. 232Supra, footnote 229. 233Supra, footnote 151. 234Supra, footnote 231. 235Supra, footnote 226. 236t 1970] S.C.R. 111. 231Supra, footnote 231, 923. 238Ibid., 924. 239Loc. cit. 240lbid., 925. 24,Regina v. Jordan [1971] 1 C.C.C. 385 (N.S. Co. Ct.) 242Regina v. Judges o f the Provincial Court (Crim. Div.) o f the County of York, ex parte Nevin [1971] 2 O.R. 25. 243Piche v. The Queen (1970) 12 C.R.N.S. 102 (Alta. S.C.) 244Regina v. McClevis, ex parte Robbins [1971] I O.R. 42 (Ont. S.C.) 24sRegina v. Bonnycastle, ex parte Welch [1970] 4 C.C.C. 382 (Sask. Q.B.). 246[ 1966] 3 C.C.C. 28. 247Regina v. Johnson (1973) 11 C.C.C. (2d) 101. 24SRegina v. Butler (1973) 11 Q.C.C. (2d) 381. 249Regina v. Thorpe (1973) 11 C.C.C. (2d) 502 (Ont. Co. Ct.). 2S0Regina v. Acme Produce (1969) Co. Ltd. (1972) 28 D.L.R. (3d) 470. 2S'Regina v. ittoshat (1970) 12 D.L.R. (3d) 266 (Que. Co. of S. of P.) 252Regina v. Pudlock (1972) 9 C.C.C. (2d) 256. 2 53Re McAuslane and Five Others v. The Queen (1972) 7 C.C.C. (2d) 66 (Ont. H.C.) \Regina v. Higden and Kent (1973) 11 C.C.C. (2d) 325 (Ont. C.A.) 254Regina v. Harbison, Harbison and Cerz (1972) 9 C.C.C. (2d) 259 (B.C. Prov. Ct.). 2ssRegina v. Littlejohn [1972] 3 W.W.R. 475 (Man. Mag. Ct.). The leading case which he referred to was Patterson v. The Queen (1970) 9 D.L.R. (3d) 398 (S.C.C.) 2S6Re Hogarth (1972) 27 D.L.R. (3d) 332, (B.C.S.C.). 2S1Rex v. Josephson (1949) 7 C.R. 273 (Man. C.A .);Snell v. Hayward et al (1947) 1 W.W.R. 790 (Alta. C.A.). 258I960 Committee Proceedings, Mr. Fulton, 446-7. 2S9Benning v. Attorney-General for Saskatchewan et al. (No. 2) (1963) 41 W.W.R. 497 (Sask. Q.B.). 260Morganthaler v. Fauteux and Attorney-General for Quebec and Attorney-General fo r Canada (1970) 13 C.R.N.S. 50 (Que. Q.B.) 2b'l960 Committee Proceedings Mundell, 490-3.

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2b2lbid.. Mundell. 490-3; Deschatelets, 685. 263Ibid. , 685-6. 2MIbid., Scolt, 40. 265S.A. de Smith, Judicial Review o f Administrative Action, 2nd ed., Lon­ don: Stevens, 1961, 134-5; R.F. Reid, Administrative Law and Practice, Toronto: Buttersworths, 1971, 58 ff. 2bblbid., 101. 267See generally de Smith, op. cit., supra, footnote 265, c. 5; Reid, op. cit., supra, footnote 265, c. 7. 268de Smith, op. cit., supra, footnote 265, 218. 269See, e.g. , de Smith op. cit., supra footnote 265, c. 4. Reid op. cit.. supra, footnote 265, c. 6. 2',0Royal Commission Inquiry into Civil Rights, Report No. 1, Vol. No. 1, 1968, 137. And see theOntarioJm/H/orvPoviw^ Procedure Act, S.O. 1971, c. 47, which is the most comprehensive codification in Canada of the rules of natural justice. 27,[ 1911] A.C. 179. 212lbid., 182. 273[ 1915] A.C. 120. 214Ibid., 132, 133, 134. 275B. Schwartz, “ Memorandum to the Committee on Administrative Tribun­ als and Enquiries", (1957) 35 Can. Bar Rev. 743, 762-4; Donoughmore Committee on Ministers' Powers, Cmd. 4060 (1932). 276For a full discussion see de Smith, op. cit., supra footnote 265, 64ff. 11 ‘Labour Relations Board of Saskatchewan v. John East Iron Works. Ltd. 11949] A.C. 134, 149. 278(1951] A.C. 66. 279lbid., 78. 2*°Ibid., 77, 78. 28IH.W.R. Wade, “ The Twilight of Natural Justice?” , (1951) 67 L.Q.R. 103; Schwartz, op. cit., supra, footnote 275, 770-3. 2S2lbid., 108. 283[ 1964] A.C. 40. 2*Vbid., 75. 2SSIbid„ 79. 2*blbid„ 121. 2*Vbid., 124. 288/W',Btickv. Bell (1927) 274 U.S. 200. But cf. Skinner v. Oklahoma (1942)316 U.S. 535 where a similar Act applicable to third offenders was held invalid. 20Corwin, op. cit., 268. 2'(1956) 351 U.S. 12. Fora discussion of this case, see: B. F. Willcox and E. J. Bloustein, “The Griffin Case—Poverty and the Fourteenth Amendment” , (1957) 43 Cornell Law Q. 1; W. V. Schaefer, “ Federalism and State Criminal Procedure", (1956) 70 H .L.R. 1: R. C. Casad, “ Comment” , (1957) 55 Mich. Law Rev. 413. 22The more recent case of Gideon v. Wainwright (1963) 372 U.S. 335 held that an indigent defendant had to be provided with counsel in a state criminal prosecution just as had been held with respect to federal cases in Johnson v. Zerbst (1938) 304 U.S. 458. The basis of this decision was the due process clause, however, rather than the equal protection clause, of the Fourteenth Amendment. 23S.C. 1960, c. 7, which repealed s. I4(2)(e) and (4) of the Canada Elections Act, R.S.C. 1952, c. 23. The new Canada Elections A ct , R.S.C. 1970, c. 14 (1st Supp.), s. 14(2) no longer lists Indians as one of the groups of persons disqualified from voting in a federal election. u Hansard , 1962, 9. 2SR.S.C. 1970, c. 1-2. 26[ 1970] S.C.R. 282. The articles on the Drybones case are legion. Of the longer ones dealing with the topic considered in this chapter see: W.F. Bowker, “ Comment—Regina v. D rybones" , (1970) 8 Alta L. Rev. 409; P. Cavalluzzo, “ Judicial Review and the Bill of Rights: Drybones and its Aftermath", (1971) 9 O .H .L.J. 511;L.H. Leigh, “ The Indian Act, the Supremacy of Parliament and The Equal Protection of the Laws", (1970) 16 McGill L.J. 389; K. Lysyk, "Equality Before the Law” , (1968) 46 Can. Bar Rev. 141; H. Marx, “ La declaration Canadienne des droits et l’affaire Drybones: perspectives nouvelles?” , (1970) 5 Themis 305; D.E. Sanders, “ The Bill of Rights and Indian Status” , (1972) 7 U.B.C. L. Rev. 8 1; J.C. Smith, "Regina v. Drybones and Equality Before the Law", (1971) 49 Can. Bar Rev. 163; W.S. Tarnopolsky, “ The Canadian Bill of Rights from Diefenbaker to Drybones", (1971) 17 McGill L.J. 437; E.E. Dais, “ Judicial Supremacy in Canada in Comparative Perspective: A Critical Analysis of Drybones” , paper presented at the Canadian Political Science Association Annual Meeting, 8 June, 1971.

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27( 1973) 38 D.L.R. (3d) 481. See the comment on the lower court decision by J.E. Cote. “ Comment on re Lavell and Attorney-General of Canada". (1972) 50 Can. Bar Rev. 519. For a brief recent comment on the Supreme Court decision see V.S. MacKinnon, “ Booze, Religion. Indians and the Canadian Bill of Rights", (1973) Public Law 295. 28( 1962 ) 32 D.L.R. (2d) 290. 29Ibid., 296. 30lbid., 297. 3'Supra, footnote 26, 297. 32Ibid., 300. 33Supra, footnote 10. 34Supra, footnote 15. 3SSupra, footnote 26, 297. 36Ibid.. 298. 31lbid., 285. 3SRobertson and Rosetunni v. The Queen [ 1963] S.C.R. 651. See the discus­ sion of this in Chapter IV. Part 3. 39Supra, footnote 26, 303. 40Supru. footnote 27, 495. 4'Ibid., 499. 42Ibid., 508. The arguments apply with equal validity to the case of Re Fromun (1973) 33 D. L.R. (3d) 676 (Ont. Co. Ct.). 43[I972] S.C.R. 889. 44Ibid.. 896-7. 4SSupru, footnote 27, 492-3. 4bIbid., 493. 41Loc. cit. See, e.g.. Region v. Chapman and Currie 11971 ] 1 O.R. 601 where Vannini D.C.J. held that an accused committed for trial to the Court of General Sessions could obtain bail under the Habeas Corpus Act, 1679, even though the Act spoke only of the Courts of Assize. To do otherwise, said the judge, would be to deny him equality before the law and the protection of the law where his trial was unduly delayed by the failure or neglect of the AttorneyGeneral to prosecute with all due haste. 48lbid., 510-511. 48aSee, e.g. Regina v. Chapman and Currie [1971] 1 O.R. 601. 49L. Katz, "The Indian Act and Equality Before the Law", (1973) 6 Ottawa L. Rev. 277. 50Supra, footnote 27, 510. s,Supra, footnote 28. 52(1961) 131 C.C.C. 126 (B.C. Co. Ct.) S3(1963) 39 C.R. 204 (Sask. Dist. Ct.) 54[ 19711 2 W.W.R. 316. 55( 1970) 13 C.R.N.S. 356. 56[1966] S.C.R. 238 and [1960] S.C.R. 804 respectively, discussed in Chapter II. Part 2. 57( 1972) 30 D.L.R. (3d) 9. 58lbid., 20. $9Supra, footnote 26, 300. b0Supra, footnote 57, 20.

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319

"Ib id ., 21. 62Ibid„ 23. 63( 1971) 22 D.L.R. (3d) 188. 64Sce, e.g.. Re C.F. R.B. and Attorney-General o f Canada (2) (1972) 38 D.L.R. (3d) 335 (Ont. C.A.) where it was alleged that s. 28( 1) of the Broadcast­ ing Act, R.S.C. 1970, c. B-l 1 infringed s. 1(b) because it forbade broadcasting partisan-political comment on the day before and the day of an election, but placed no such restriction on newspapers. The argument was rejected and an application for leave to appeal was dismissed by the Supreme Court of Canada. 65[1971] S.C.R. 680. 66R.S.C. 1952, c. 148, now R.S.C. 1970, c. 1-5. 67(1971) 17 D.L.R. (3d) 389. 68[ 1967] 3 C.C.C. 244. 69S///?r«, footnote 65, 685-6. B.M. Barton, “ The Power of the Crown to Proceed by Indictment or Summary Conviction", (1971) 14Crim. L .Q ., 86; G. McGregor, “ S.C.C.: ‘Equality Before the Law’ in re The Queen v. Sm ythe", (1971) 19Can. Ta.xJ. 35; R.N. McLaughlin, “R. v. Smythe—the Canadian Bill of Rights ‘Equality Before the Law'—the Meaning of Discrimination” , (1973) 51 Can. Bar Rev. 517. 10Ibid., 687. 7'Re McClary's Application [1971] I W.W.R. 741 (Alta. S.C.) 72Now R.S.C. 1970, c. F-27. 13Regina v. Natrall (1972) 32 D.L.R. (3d) 241. 14lbid., 250-1. Bull J.A. concurred, while Branca J.A. expressed no opinion on this point. 75AlsoseeRegina v. Ganapathi (1973) 11 C.C.C. (2d) 173 (B.C.S.C.) where it was held that a ten dollar hearing fee to dispute a traffic violation was not a denial of equality before the law, even for indigent persons. lbRegina v. Pudlock( 1972) 9 C.C.C. 256. Compare this result with Regina v. Bradley and Martin (1973) 23 C.R.N.S. 39 (Ont. S.C.) where it was held that the accused were not denied equality before the law even though no members of their race were on the jury. And see Regina v. Reale [1973] 3 O.R. 905 (Ont. C.A.) where a conviction was quashed because the accused had been denied an interpreter during the judge’s charge to the jury. 77( 1970) 10 C.R.N.S. 363. n lbid., 372. 79[ 1971] 2 C.C.C. (2d) 196. 80(1970) 16 D.L.R. (3d) 647. 81[ 1971] 5 C.C.C. (2d) 368. 82Regina v. Ferguson (1972) 7 C.C.C. (2d) 240 (Sask. Q.B.). 8JS.C. 1972, c. 13, s. 12(1). 84( 1972) 31 D.L.R. (3d) 117. 8SR.S.C. 1970, c. C-19. 86( 1972) 31 D.L.R. (3d) 465. 87R.S.C. 1970, c. 1-3. **Dowhopoluk v. Martin (1971) 23 D.L.R. (3d) 42 (Ont. H.C.). 89[ 1970] 5 C.C.C. 107. 90( 1973 ) 22 C.R.N.S. 271. 9,R.S.C. 1970, c. P-21.

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92Supra, footnote 43. n Supra, footnote 90, 287. 94R.S.C. 1970, c. J-3. **Ibid., 296. 96In reference to the words “ protection of the law” in s. 1(b), Mr. Justice Laskin inCurrv. The Queen (1972] S.C.R. 889. 903, rejected a contention that an earlier state of the law. more favourable to an accused person, could not be changed to his disadvantage without offending s. I (b). Laskin J. found no merit in this position based as it was on the “ frozen statute book” theory. For the purposes of the case, he did not feel it necessary to consider whether s. 1(b) “ must be read as wholly conjunctive so as to make the declaration of protection of the law a reinforcement of the requirement of equality before the law” . 97Supra, footnote 90. 301. 9*Loc. cit. "Ib id ., 275. 100( 1972) 31 D.L.R. (3d) 465, 473. ,0,( 1958) 256 F. (2nd) 465,473. l02Since the date this manuscript went to press, the Supreme Court of Canada rendered its decision in which the majority, without using these words, in effect applied a test of “ reasonable justifiability” : (1974)44 D.L.R. (3d) 584. Fora fuller discussion of this, see my article, “ The Canadian Bill of Rights and the Supreme Court Decisions in Lavell and Burnshine: The Retreat from Drybones to Dicey,” published in the autumn 1974 issue of the Ottawa Law Review. I03R.S.C. 1970, c. J-3. ,04( 1972) 6 C.C.C. (2d) 385. (B.C.S.C.). I0S( 1973) 13 C.C.C. (2d) 359. ,06( 1973 ) 22 C.R.N.S. 263.

CH A PTER IX

The War Measures Act and the Canadian Bill of Rights 1. Section 6 o f The W ar M easures Act Section 6 o f the B ill o f Rights repealed s. 6 o f the W ar M easures A c t,' and provided the follow ing substitution: (1) Sections 3 ,4 and 5 shall com e into force only upon the issue of a proclam ation o f the G overnor in Council declaring that war, invasion or insurrection, real or apprehended, exists. (2) A proclam ation declaring that war, invasion or insurrection, real or apprehended, exists shall be laid before Parliam ent forth­ with after its issue, or. if Parliam ent is then not sitting, within the first fifteen days next thereafter that Parliam ent is sitting. (3) W here a proclam ation has been laid before Parliam ent pur­ suant to subsection (2), a notice o f motion in either House signed by ten m em bers thereof and m ade in accordance with the rules of that House w ithin ten days o f the day the proclam ation was laid before Parliam ent, praying that the proclam ation be revoked, shall be debated in that House at the first convenient opportunity within the four sitting days next after the day the motion in that House was made. (4) If both Houses o f Parliam ent resolve that the proclam ation be revoked, it shall cease to have effect, and sections 3, 4 and 5 shall cease to be in force until these sections are again brought into force by a further proclam ation but without prejudice to the previous operation o f those sections o r anything duly done or suffered thereunder o r any offence com m itted or any penalty or forfeiture or punishm ent incurred. (5) Any act or thing done o r authorized or any order or regulation m ade under the authority o f this A ct, shall be deem ed not to be an abrogation, abridgem ent or infringem ent o f any right or freedom recognized by the Canadian Bill o f Rights. As pointed out in the last part o f C hapter 1, when the Statutes o f Canada were revised in 1970. the Canadian B ill o f Rights was printed without 321

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s. 6, as Appendix III to the Statutes, and the W ar M easures A ct was revised with the new s. 6 as quoted above. Before dealing with the adoption o f S. 6 and its possible effect and interpretation, it is necessary to survey the constitutional and historical background o f the W ar M easures A c t. 2. T he O v errid in g P ow er o f P arliam en t in “ E m erg en cy ” S ituations T he source o f the federal Parliam ent’s jurisdiction to pass the War M easures Act is to be found in the opening words of s. 9 1 of the B .N .A . Act: It shall be law ful for the Q ueen, by and with the Advice and C onsent o f the Senate and House o f C om m ons, to m ake Laws for the Peace, O rder and good G overnm ent o f C anada. . . . This is supported by tw o other provisions in the B .N .A . Act which give the federal exective and legislature what m ight be called the “ w ar" or "m ilitary " pow er.2 Section 15 provides: The C om m and-in-C hief o f the Land and Naval M ilitia, and o f all Naval and M ilitary Forces in C anada, is hereby declared to con­ tinue and be vested in the Queen. By s. 91(7) Parliam ent is given legislative pow er with respect to: “ M ilitia, M ilitary and Naval Service and D efence." H ow ever, the latter clause seem s to have been m entioned in only two m ajor constitu­ tional cases, and in both cases it was deem ed to be a supplem entary pow er in aid o f som e other head of pow er giving legislative authority to Parliam ent.3 T here has been considerable controversy over the interpretation given by the Privy Council to the peace, order and good governm ent clause.4 As all the im plications o f the interpretation o f this clause do not bear on the topic here, only a brief outline will be given. In th e B oard o f Com m erce case,5 in 1922, V iscount H aldane declared that the clause w ould operate only “ [in] special circum stances, such as those o f a great w ar;” that the power could be exercised "o n ly under necessity in highly exceptional circum stances.” He stated that in norm al tim es the distribution o f pow ers under the heads o f ss. 91 and 92 would operate but that "circum stances are conceivable, such as those o f war or fam ine, when the peace, order and good governm ent o f the Dominion might be im perilled under conditions so exceptional that they require

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legislation of a character in reality beyond anything provided for by the enum erated heads in either s. 92 or s. 91 itself.” A few years later, in Toronto Electric C om m issioners v. Snider6 V iscount H aldane em ­ phasized that the pow er under the peace, order and good governm ent clause was to be used only in highly exceptional circum stances: No doubt there may be cases arising out o f som e extraordinary peril to the national life o f C anada, as a whole, such as the cases arising out o f a w ar, where legislation is required o f an order that passes beyond the heads o f exclusive Provincial com petency. Such cases may be dealt with under the words at the com m ence­ ment o f s. 91 . . . sim ply because such cases are not otherw ise provided for. But instances o f this . . . are highly exceptional. This view was affirm ed by D uff C .J.C . in Reference Re N atural Products M arketing A c t,7 and by Lord Atkin in A ttorney G eneral fo r Canada v. A ttorney G eneral fo r O ntario (Labour Conventions case).8 The Privy Council went som e way towards redressing V iscount H aldane’s “ em ergency” interpretation o f the peace, order and good governm ent clause in A ttorney G eneral fo r O ntario v. Canada Tem ­ perance Federation in 1946.9 In the cases discussed in the previous paragraph, the early Privy Council decision in R ussell v. The Q ueen10 (which upheld the Canada Tem perance A c t, 1878) was interpreted as dealing with an em ergency situation. Indeed, in the Snider case Vis­ count H aldane suggested11 that the evil o f intem perance at that tim e am ounted in C anada to one so great and so general that at least for the period it was a m enace to the national life o f C anada so serious and pressing that the National Parliam ent was called on to intervene to protect the nation from disaster. An epidem ic o f pestilence might conceiva­ bly have been regarded as analagous. H ow ever, in the 1946 Tem perance Federation case V iscount Sim on declared that their Lordships found nothing in th e/?/m e// case “ which suggests that it proceeded on the ground o f em ergency; there was certainly no evidence before that Board that one ex isted.” 12 This was not the last word on the subject, how ever, as in two later cases decided by the Privy C ouncil1-1 the view was expressed that V iscount S im on's statem ent in 1946 should be read in conjunction with the Labour Conventions case. W hether this leaves the whole issue open once again, or w hether the “ em ergency” doctrine o f Viscount H aldane is revived, is im possible to say. The one thing that all these cases agree on is that in tim e o f em ergency, such as that o f war or national disaster, the

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federal Parliam ent has full pow er to legislate under the peace, order and good governm ent clause, and in that case the pow er overrides all other pow ers in the B .N .A . Act. From these cases, and those that follow , it is clear that the W ar M easures A cts passed by Parliam ent are valid legislation. The first W ar M easures A c t, which was passed by Parliam ent in 1914.14 was sim ilar to the English D efence o f the Realm A c /.15 There was an im portant difference in that whereas D .O .R . A. was intended to operate only for the duration o f the war, the C anadian A ct was so drafted so as to rem ain on the statute books to be invoked w hen deemed necessary by the executive. As is too often the case when a Parliam ent devises em ergency legislation during an em ergency, the Act was de­ bated for only about two hours, and passed unanim ously.16 This Act cam e before the Privy Council for decision in Fort Frances Pulp & Paper C o. Ltd. (reported as Fort Frances Pulp & P ow er Co. L td .)v . M anitoba Free Press Co. L td . 17 Acting under provisions o f the W ar M easures A ct the federal governm ent had issued a num ber of O rders in Council authorizing the M inister o f C ustom s to fix the quantity and price o f newsprint paper. Subsequently, by a later A ct of Parliam ent which referred to the O rders in Council and the W ar M eas­ ures A ct under which they were issued, control o f paper was continued after W orld W ar I, and was to be continued until a Final proclam ation by the G overnor in Council declaring that the war no longer existed. This action by the respondents against the appellants was for the recovery of sum s they had paid for paper in excess o f the prices regulated under these orders. T he only defence was that these orders were ultra vires as dealing with "P roperty and Civil R ig hts" within provincial jurisdic­ tion. This contention was rejected by the Privy C ouncil, after an exam ination o f the constitutional validity o f the Orders and the Acts under which they were m ade. V iscount H aldane spoke at length of Parliam ent’s jurisdiction under the peace, order and good governm ent clause. As his statem ent is relevant, and has subsequently been relied on, it is set out at som e length:18 It is clear that in normal circum stances the Dom inion Parliam ent could not have so legislated as to set up the m achinery o f control over the paper m anufacturers which is now is question . . . In the event o f war. when the national life may require for its preservation the em ploym ent o f very exceptional m eans, the pro­ vision o f peace, order and good governm ent for the country as a whole may involve effort on behalf of the w hole nation, in which the interests o f individuals may have to be subordinated to that of the com m unity in a fashion which requires s. 91 to be interpreted as providing for such an em ergency. T he general control of

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property and civil rights for normal purposes rem ains with the Provincial Legislatures. But questions may arise by reason o f the special circum stances o f the National em ergency which concern nothing short of the peace, order and good governm ent o f Canada as a whole. . . . It is proprietory and civil rights in new relations, which they do not present in normal tim es, that have to be dealt w ith; and these relations, which affect Canada as an entirety, fall within s. 91, because in their fullness they extend beyond what s. 92 can really cover. The kind o f pow er adequate for dealing with them is only to be found in that part o f the Constitution which establishes pow er in the State as a whole . . . This judgm ent was referred to in tw o cases after W orld W ar II when the W ar M easures A ct had once again been proclaim ed. The first of these was C o-operative Com m ittee on Japanese C anadians v. Attorney G eneral fo r C a n a d a .'9 The Judicial Com m ittee o f the Privy Council upheld the validity o f deportation O rders in Council passed under the W ar M easures A ct, and the N ational Em ergency Transitional Pow ers A c t, 1945.20 Lord W right, who delivered the judgm ent, referred to the Fort Frances case as having established the validity o f such legislation and such Orders in C ouncil, and went on:21 U nder the British North Am erica Act property and civil rights in the several Provinces are com m itted to the Provincial Legisla­ tures, but the Parliam ent o f the Dom inion in a sufficiently great em ergency, such as that arising out of w ar, has pow er to deal adequately with that em ergency for the safety of the Dominion as a whole. The interests o f the D om inion are to be protected and it rests with the Parliam ent o f the Dom inion to protect them . W hat those interests are the Parliam ent o f the Dom inion must be left with considerable freedom to judge. In Reference Re Validity o f the W artime Leasehold R egulations,22 the Suprem e Court o f Canada dealt with W artime Leasehold Regulations m ade under authority o f the War M easures A c t, and continued in force after the war by the N ational Em ergency Transitional Pow ers A c t, 1945, and the C ontinuation o f Transitional M easures A ct, 1945, and the Continuation o f Transitional M easures A ct, 1947, and am endm ents to the latter. The Suprem e Court held unanim ously that the Leasehold Regulations were not ultra vires in w hole or in part. Under powers im plied in the constitution Parliam ent could, for the peace, order and good governm ent o f C anada as a w hole, in tim e of national em ergency, assum e jurisdiction over property and civil rights which would in

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norm al times com e within the exclusive jurisdiction o f the provincial legislatures. The Court said that where Parliam ent enacts legislation declaring that a national em ergency continues to exist, and that for the sake o f an orderly transition from war to peace, it is necessary that certain regulations be continued in force, the Court will not find to the contrary unless the contrary is very clearly show n. The War M easures Acts referred to in these cases are successors to the one m entioned as first adopted in 1915. T he 1914 Act was consoli­ dated with little change in the Revised Statutes o f 1927,23 and was again consolidated in the Revised Statues o f 1952. T his statute provides in s. 2 that: The issue of a proclam ation by H er M ajesty, or under the authority o f the G overnor in Council shall be conclusive evidence that war, invasion, or insurrection, real or apprehended, exists and has existed for any period o f time therein stated, and of its con­ tinuance, until by the issue o f a further proclam ation it is declared that the w ar, invasion or insurrection no longer exists. Section 3 gives the G overnor in Council authority to do what he may deem necessary for “ the security, defence, peace, order and w elfare of C an ad a," including: censorship; arrest; detention; exclusion; and de­ portation; control o f harbours and vessels; control of transportation; control of trading, production and m anufacturing; and, appropriation, control, forfeiture, and disposition of property and the use thereof. Section 4 authorizes the provision o f penalties for violation o f orders and regulations made under the Act. Section 5 states that no one detained may be released on bail, or discharged, without the consent of the M inister o f Justice. Section 6 states that the previous three sections o f the Act will be in force only “ during w ar, invasion, or insurrection, real o r apprehended.” Section 7 authorizes the provision of com pensa­ tion for any loss resulting from the operation o f the Act. Section 8 provides for the seizure and forfeiture o f any vessels or goods used or m oved contrary to rules and regulations under the Act. Section 9 states that the court concerned with the last two sections may m ake such rules or prescribe such procedure as it deem s necessary. This is the A ct, o r transitional variations o f it, which Professor Marx estim ates C anadians have lived under for about 40 per cent of the time since the outbreak of the First W orld W ar.24 In addition to the extension of the jurisdiction of Parliam ent into subject m atters which during peacetim e are within the jurisdiction o f the provinces, this legislation not only enables the Cabinet to control the daily and econom ic lives of the people through Orders in C ouncil, but even permits the Cabinet to, in effect, am end legislation.25

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Pursuant to this legislation not only can the Cabinet assum e com plete direction o f the econom y, but the right as well to interfere extensively with the personal liberties o f the people in the country. During World W ar I, although there was never a m assive round-up o f enem y aliens, thousands were interned. In 1917. follow ing the Bolshevik Revolution, thousands more were interned, even though they could not be classified as enem y aliens because the Soviet Union was not at war with Canada. In preparation for the 1917 wartim e election, the franchise was denied to those w ho had em igrated from the Central Pow ers, i.e ., the Prussian and the A ustro-H ungarian em pires, despite the fact that many o f these were serving in the C anadian arm ed forces.26 Early in W orld W ar II. in addition to strict censorship o f the press, and regulations prohibiting speech which could "prejudice recruiting" or " b e prejudicial to the safety o f the State or prosecution o f the W ar," a great many organiza­ tions were declared illegal, and m em bership o f them was m ade an offence.27 As well as som e fascist organizations, the C om m unist Party and the W itnesses o f Jehovah were included. As Professor M arx points o u t,28 the Jehovah’s W itnesses fared much w orse in Canada than in the United States or A ustralia. Perhaps the greatest impact o f the drastic pow ers available to the governm ent was on the Japanese-C anadians. A lthough Prime M inister M ackenzie King adm itted in 1944 that no Japanese-C anadian was ever charged with espionage o r disloyalty,29 more than 20.000 persons of Japanese origin on the Canadian west coast, over three-quarters of whom had been born in C anada, had their property sequestered and sold (m any, it is alleged, at "fire sale” prices), and the people dis­ persed throughout the prairie provinces and O ntario.30 As if the forci­ ble evacuation and dispersal was not enough, on D ecem ber 15, 1945, som e four m onths after Japan had surrendered. Orders in Council pursuant to the N ational Em ergency Transitional Pow ers Act provided for orders o f deportation not only for Japanese nationals, but even for naturalized and natural-born persons o f the Japanese race who were over the age o f sixteen, o r even those under the age o f sixteen, if their father was deported. It is true that the Orders in Council applied the deportation orders only to those who had "m ade a request for repatria­ tio n ," but considering the circum stances o f the evacuation, internment and dispersal, the "voluntariness” may be subject to som e question.31 Apparently only 3.964 o f the 10.000 persons who were to be repa­ triated actually left, and apparently none against their own w ill.32 In 1945 as w ell, when the Russian cipher clerk. Igor G ouzenko, defected from the Soviet Em bassy in O ttaw a and revealed a spy network in C anada, the governm ent proceeded under the National E m ergency Transitional Pow ers A ct which continued regulations in force under the War M easures A c t. U nder Order in Council P.C . 6444,

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passed on O ctober 6, 1945, the M inister o f Justice was em pow ered to detain “ in such place and under such conditions as he may from tim e to tim e determ ine” anyone whom he suspected o f being likely to com ­ m unicate secret inform ation to a foreign agent. A lthough eventually tw o judges o f the Suprem e Court o f Canada were appointed to the Royal C om m ission to enquire into the detainees, many individuals were detained or interrogated without being advised as to any protec­ tion under the C anada Evidence Act against self-incrim ination, without being perm itted access to counsel, and even without being able to com m unicate with anyone.33 In the end only about half o f the detainees were convicted at the trials that follow ed.34 It is true that m any o f the actions described above have been strongly criticized since W orld W ar 11, and even in som e cases during the war. It is true, also, that the realization o f what had happened was probably a very strong factor in influencing M r. D iefenbaker to introduce legisla­ tion to enact the Canadian Bill o f R ights, and the parliam entarians to support its passage. N evertheless it should be rem em bered that the existence o f the Canadian B ill o f Rights in no w ay. of itself, prevents such action in the future. Even if s. 6(5) of the W ar M easures Act were not to provide, as it does, that any action taken pursuant to it is not in contravention o f the Canadian Bill o f R ights, any legislation could override the C anadian Bill o f Rights by providing that it shall operate “ notw ithstanding the Canadian Bill o f R ig h ts." 3. The C anadian Bill o f Rights in “ Em ergency” Situations A lm ost every w itness before the Special Com m ittee on the B ill o f Rights was critical o f s. 6 o f the W ar M easures A ct as am ended by s. 6 o f the Bill o f R ights. T w o o f the witnesses conceded that the am ended version could b ea n im provem ent over the form ers. 6 ,35 but m ost either called for further study and changes,36 or for the com plete rem oval o f s. 6 from the B ill o f R ig hts.37 Som e called for a separate am endm ent to the War M easures A c t.38 M ost w itnesses felt that the greatest threats to civil liberties cam e during w ar or like em ergency, and that under s. 6 Parliam ent's pow ers would be as wide as ever in this tim e o f greatest threat. M ost o f the witnesses felt that a W ar M easures A ct was neces­ sary in time o f em ergency but that further study was necessary to see how it could be im proved. T here was a suggestion that the W ar M easures Act be am ended to prevent deportation and exile, and that there be no detention for m ore than a specified period without review of the case by a superior court ju d g e .39 There was even a suggestion that an Em ergency Appeal Court be set up, staffed with superior court

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judges from across C anada to hear appeals on detention, property seizures, and so o n .40 In Parliam ent the Opposition criticized the inclusion o f s. 6 in the Bill o f R ights.*' In the Special C om m ittee the Opposition mem bers moved an am endm ent to s. 6 which would have prevented the deportation o f a Canadian citizen, the revocation o f citizenship from a naturalized citizen, and detention for more than sixty days without determ ination of the cause.42 H ow ever, the Chairm an o f the Com m ittee ruled this proposed am endm ent out o f order as being an am endm ent to the War M easures A ct and not to the Bill o f R ights, and he was sustained on appeal.43 W hen the Bill was returned to the House for third reading the O pposition tried to m ove that the Bill be not read; but be sent back to com m ittee for consideration o f an am endm ent to s. 6. The intention was to delete s. 6(5) and add s. 6A with a list of rights which were not to be abrogated, even under the War M easures A ct, viz:— 1) no depriva­ tion o f citizenship; 2) no deportation o f citizens; 3) no detention for more than sixty days without bringing the prisoner before a superior court judge; 4) all orders for detention to com e before Parliam ent within fifteen days; 5) provision for revoking certain orders in council.44 The motion w as defeated.45 The most that the Prim e M inis­ ter would agree to was to set up a com m ittee at the next session to consider the War M easures A ct46 No such com m ittee was in fact set up. The governm ent position on s. 6, as put forth by the M inister o f Justice, was that the section was designed to provide protection against a governm ent relying on an em ergency or a fake em ergency to proclaim the W ar M easures A ct in order to abrogate the freedom s listed in the Bill o f R ights. This was why subs. (2) provided that a proclam ation that w ar, invasion or insurrection, real or apprehended, exists, be laid before Parliam ent forthwith after its issue, or within fifteen days o f the beginning o f the next sitting of Parliam ent, if Parliam ent were not sitting at the tim e.47 M r. Fulton stated that he did not think that a m em ber should be able to raise the issue o f the proclam ation at any tim e or repeatedly— it w as sufficient for Parliam ent to raise the issue quickly at the tim e o f the proclam ation and this, he said, w ould prevent a governm ent from m erely pretending that an em ergency existed, in order to by-pass the Bill o f R ights.4* He added that he could not accept the suggestion that provision be m ade for Parliam ent to sit in continu­ ous session as this might not be possible if facilities were wiped out. The most that could be provided, he said, would be that Parliam ent be kept in nearly continuous session.49 M r. Fulton explained that subs. (4) was designed so that Parliam ent could revoke a proclam ation. But at the sam e tim e, any official acting in good faith under the proclam ation would be protected. Furtherm ore,

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the subsection perm its the governm ent subsequently to re-proclaim the War M easures Act if the need should arise.50 He added that it was obvious that if a governm ent were defeated on the issue o f the procla­ m ation. and the em ergency were not genuine, the governm ent would have to resign.51 The provisions o f s. 6 seem quite straightforw ard, and should pose no problem s in interpretation. T he one difficulty that might arise, and the one that is likely to bring about the m ost serious controversy, is w hether in fact a proclam ation o f the War M easures A c t, and the continuation o f its existence is justified by the events. If Parliam ent does not revoke the proclam ation can the courts, if circum stances require it, declare that the continuation is invalid? The cases seem to indicate that they could, but that this would only be done on the basis of very clear evidence that an em ergency did not exist, or had passed. In the F ort Frances case Viscount Haldane stated:52 It may be that it has becom e clear that the crisis which arose is wholly at an end and that there is no justification for the continued exercise o f an exceptional interference which becom es ultra vires when it is no longer called for. In such a case the law as laid down for distribution o f powers in the ruling instrum ent would have to be invoked. But very clear evidence that the crisis had wholly passed away would be required to justify the judiciary, even when the question raised was one o f ultra vires which it had to decide, in overruling the decision o f the G overnm ent that exceptional m eas­ ures were still requisite. In the Japanese-C anadians case Lord W right agreed with this and added two im portant points:53 . . . [I ]t is not pertinent to the judiciary to consider the widsdom or the propriety o f the particular policy which is em bodied in the em ergency legislation. Determ ination o f the policy to be followed is exclusively a m atter for the Parliam ent o f the Dominion and those to whom it has delegated its pow ers. Lastly it should be observed that the judiciary are not concerned when considering a question o f ultra vires with the question w hether the executive will in fact be able to carry into effective operation the em ergency provisions which the Parliam ent o f the Dom inion either directly or indirectly has made. The Suprem e Court o f C anada, for its part, has approved these state­ ments in the Wartime Leasehold Regulations case and has given some indication o f the type o f evidence that w ould be required for the courts

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to hold that em ergency legislation is ultra vires. In that case Rand J. stated:54 A conclusion o f this sort is to be gathered from an appraisal of conditions throughout the country. Evidence o f that is furnished to Parliam ent by the representatives in both the Houses: it is gathered by the agencies o f the Dominion governm ent charged with country-w ide enquiry, which are at the sam e tim e receiving centres o f com plaints and com m unications from all districts. There is also the com m on know ledge o f which the Court can take judicial notice. In sim ilar term s Kellock J. said:55 If clear evidence had been adduced o f the disappearance o f any conditions justifying the continued operation of the federal legisla­ tion. it w ould, o f course, be not only within the power but the duty of the court to declare the legislation invalid. . . . A pparently to date no such “ clear evidence" has been adduced, even when the W ar M easures Act was invoked on O ctober 16, 1970, because the governm ent believed there was an apprehended insurrection.56 4. The A pprehended Insurrection o f O ctober, 1970 The most recent resort to the em ergency powers described above, and the only one since the enactm ent o f the Canadian Bill o f R ights, cam e on O ctober 16, 1970, when the federal governm ent invoked the War M easures Act on the ground that as o f the day before an apprehended insurrection existed. The events57 leading up to O ctober 16, 1970, are very im portant if one is to be able to assess the validity of the governm ent’s invocation o f the War M easures A ct and its actions pursuant to regulations issued under this authority and under the Public O rder (Tem porary M easures) A ct58 which replaced these regulations. There is a great deal o f literature on the subject, ranging from those who are strongly critical, w hether in Q uebec or outside,59 to those who favoured the governm ent action, like the Hon. Gerard Pelletier, one of the leading Quebec M inisters in the federal C abinet,60 to som e which are m ore m easured, with more detailed sum m aries o f the events.61 There are even books dealing with psychological studies o f the ter­ rorists in Q uebec.62 Therefore, som e m inim um details have to be given here, although the full narrative should be sought elsewhere.

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It is difficult to know where to com m ence referring to the events leading up to O ctober, 1970. Since the reasons given for the invocation concerned Le Front de Liberation du Quebec (the F .L .Q .), and a rising tide o f violence for which the F .L .Q . claim ed a great deal o f the credit, then perhaps the starting point could be February 23, 1963, when a bom b was placed near the C .B .C . TV Antenna on M ount R oyal, and another one near the private English language radio station CK G M . The real violence began on the night of M arch 8, 1963, when M olotov cocktails were throw n through the windows o f three arm ouries in M ontreal. On M arch 29, 1963, the W olfe M onum ent in Q uebec City was toppled by unknown people. By the spring o f 1963 a num ber of bom bs had been discovered unexploded, several had gone off, and at least tw o people were killed. By June the wave o f terrorism seem ed to have ended and som e fifteen people had been arrested. On O ctober 7, 1963, nine o f these were sentenced to prison term s ranging from three years to twelve years, while the other six were either given suspended sentences, or put on probation, and in one case released for lack of proof.63 Following the arrests and trials o f 1963, a new phase o f terrorist activity occurred during the next five years which involved m ostly arm ed robberies o f banks and theft o f m ilitary equipm ent, dynam ite, and am m unition. During 1965 and 1966 bom bs were again being placed, and tw o more victims were claim ed. T hen, after an interval during the centennial year, a new wave of bom bing began. T he objects changed from sym bols o f the federal governm ent, like arm ouries, to sym bols o f English-C anadian dom inance like E aton’s, D om tar, the Bank o f Nova Scotia, M urray Hill Lim ousines, the Reform C lub, the M ontreal Stock Exchange, the Chateau Frontenac, and by 1969 even Loyola C ollege, and M cGill U niversity.64 Early in 1970 there was a general election in the Province o f Quebec which resulted in the defeat o f the Union Nationale party by the Liberals under their newly-elected leader, Robert Bourassa. Although the B ourassa victory seemed to reassure Q uebec, and even evoke from the G lobe and M ail the enthusiastic announcem ent that: ‘ T h e Province o f Q uebec is alive and well in C anada,” it was follow ed by a new wave o f bom bings, am ounting to som e thirteen from May 24 to June 24, the last resulting in another death at the M inistry o f D cfence in Ottawa. M eanwhile a com m ittee to coordinate strategy against the terrorists had been form ed by the R .C .M .P ., the Quebec Provincial Police, and the M ontreal Police. In June, 1970, som e success was achieved in that the Quebec Provincial Police raided a sum m er house at Prevost, som e thirty-five miles north o f M ontreal, where they discovered arm s, dynam ite and am m unition, as well as circulars calling for “ a revolution for Quebec w orkers,” and a plan to kidnap the Consul G eneral o f the

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United States in M ontreal.65 Six persons found on the prem ises were captured. In the sam e m onth police arrested tw o m ore w ell-arm ed men w ho were proceeding towards the kidnapping o f the Israeli Consul. Then, on O ctober 5, 1970, C anada was startled by the news that the British Trade C om m issioner in M ontreal, Mr. Jam es C ross, had been abducted at 8:20 a.m . by four arm ed individuals. By noon a radio station was inform ed by an anonym ous caller as to the location o f the first com m unique to be issued by M r. C ross’ abductors. It claim ed that he was in the hands o f the “ L iberation” cell o f the F .L .Q . and it outlined certain conditions for his release. These included: (1) publishing the F .L .Q . m anifesto in all newspapers and on French T V ; (2) liberating certain nam ed “ political prisoners,” and transport­ ing them by plane to Cuba or A lgeria; (3) paying a ransom o f half a m illion dollars in gold ingots; (4) revealing the nam e o f the inform er responsible for recent arrests; and (5) ceasing all police activities in connection with the kidnapping. The next day tw o m ore com m uniques were received threatening to “ liquidate” the British diplomat unless the dem ands were com plied with. A fourth com m unique on O ctober 7 dem anded that the m anifesto be read on TV the sam e day. This was done on O ctober 8. This was follow ed on O ctober 9 by com m uniques 5, 6 and 7, giving the authorities until 6 p.m . on O ctober 10 to com ply with the dem ands or C ross would be “ executed.” H alf an hour before the deadline the Q uebec M inister o f Justice. Jerom e C hoquette, read a prepared statem ent on television in which he urged the abductors to release M r. Cross in return for a concession offered by the federal governm ent o f safe conduct to a foreign country or "a ll possible clem ency before our courts,” but all other dem ands were rejected. W ithin half an hour after the statem ent was read another group o f armed men kidnapped the Q uebec M inister o f Labour and Im m igration, Pierre Laporte. The claim o f success was m ade by a group purporting to call itself the “ C henier” cell o f the F .L .Q . (The C henier group im ­ m ediately let it be known through a private radio station that they supported the dem ands of the "L ib eration ” cell.) It seem ed to a startled country that the F .L .Q . could kidnap at will, even cabinet ministers! From the beginning it was the clear intention o f the federal govern­ ment to give the lead in directing official responses to the F .L .Q . to the Quebec governm ent. W hen the M inister for External A ffairs, M itchell Sharp, announced the news of the Cross kidnapping to the House of C om m ons, he assured the m em bers that the federal governm ent was in close contact with the appropriate provincial and m unicipal authorities, and referred to the cooperation o f the three police forces in investigat­ ing the case.66 The federal governm ent was involved because Cross was a diplom at, and m ost o f the F .L .Q . dem ands could only be met by it because it had jurisdiction over prisoners, postal service, and the

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broadcasting m edia. How ever, the federal governm ent was very care­ ful to em phasize that because of the provincial jurisdiction over “ the adm inistration o f justice in the province” it was the Quebec govern­ m ent which carried prim ary responsibility for dealing with the crisis. Thus, the police investigations, and the negotiations with the F .L .Q . through the governm ent’s special negotiator. M r. Robert D em ers (a M ontreal law yer), were under the direct charge o f the AttorneyGeneral for Q uebec, Jerom e C hoquette. It was he, also, w ho gave the reply to the F .L .Q . on O ctober 10. T he Toronto Star on O ctober 12, 1970. indicated the reasons:67 W hy was a Q uebec cabinet m inister charged with the duty o f giving C anada’s answ er to the diplom at’s kidnappers? O fficials said federal and provincial governm ent strategists bargaining to save the diplom et's life had to consider, am ong other things, the political clim ate o f Q uebec and the apparent attitude of the province’s people to the kidnapping. They concluded that the overw helm ing m ajority o f Q uebecers were horrified. They believed, also, the sources said, that the people o f Quebec at large w ould be sym pathetic to any stated declaration that the province’s governm ent would seek to reform its institutions by dem ocratic processes, and not under the threat o f violence. But that m essage, because o f C anada’s delicate federal nature, could be delivered only by a Q uebecer— and a m em ber o f the Q uebec governm ent. The F .L .Q . m anifesto, which was read over the airw aves, referred to the Liberal election victory o f the previous April as indicating that “ the British parliam entary system was finished,” attacked by nam e som e of the leading “ capitalists" in Q uebec, as well as the M ayor o f M ontreal, the Prem ier of the Province, and the Prime M inister o f C anada. It urged the workers o f Q uebec:68 M ake your own revolution in your area, in your places o f work. And if you do not make it yourselves, other usurpers, technocrats and others will replace the iron fist o f the cigar sm okers which we know now, and all will be the same again. Only you are able to build a free society. We m ust fight, not one by one, but together. We m ust fight until victory is ours with all the means at our disposal as did the patriots o f 1837-38 (those whom your sacred Church ex-com m unicated to sell out to the British interests).

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There was a positive response to the m anifesto am ongst som e stu­ dents, union officials, and intellectuals. There were organizational drives to stage dem onstrations in favour o f releasing the prisoners referred to in the m anifesto. On O ctober 14 the M ontreal Executive C om m ittee o f the Quebec-based Confederation o f National Trade U nions, chaired by the fiery labour leader Michel C hartrand. endorsed ‘‘without equivocation all the objectives o f the F .L .Q . m anifesto.” It accused the provincial governm ent o f encouraging public panic and using the police to construct a police state. It stated that the action of the F .L .Q . was not a threat to Quebec w orkers, but was directed only at the exploiting classes. In term s o f num bers, perhaps the strongest support for the F .L .Q . cam e from students. On O ctober 14, a mass m eeting o f a thousand at the University o f M ontreal was addressed by Chartrand and Robert Lem ieux, a young M ontreal law yer who had defended many F .L .Q . accused in the past, and w ho was now acting as a negotiator on behalf of the tw o cells who had kidnapped C ross and Laporte. Lem ieux urged the students to turn out o f their classroom s and dem onstrate on behalf o f the F .L .Q ., w hile Chartrand argued that the guns o f the police would not be able to stop them because they and those who shared their views outnum bered the police. T he following night som e 1.000 students from the Faculty o f Arts and Sciences at the U niversity o f M ontreal, some 800 students at the University o f Quebec at M ontreal, and students at M ontreal's largest C EG EP. voted to strike. That evening about 1.500 students, at a rally at the Paul Sauve A rena, were addressed by C har­ trand. Lem ieux, and tw o o f the self-styled “ philosophers of the revolu­ tion” who had previously been convicted for F .L .Q . activities, Charles G agnon and Pierre V allieres. These urged the students to com e out in favour o f the proposed strike. There were reports that Pierre Vallieres called upon all Q uebecers "to organize the fight for liberation in each district, in each plant, in each office, everyw here.” 69 In addition, the M ontreal M unicipal Reform Party known as FR AP, which was running its candidates in opposition to those o f M ayor Jean Drapeau in the forthcom ing M ontreal M unicipal election, stated that it could not condem n those who resorted to violence against the established ord er.70 During this period, while thousands o f students were rallying in support o f the "political prisoners,” while som e radical union leaders were calling for support to the F .L .Q ., while M ayor D rapeau’s oppo­ nents in the municipal election condoned the violence, and while radicals like Lem ieux, Gagnon and V allieres were urging w orkers and students to rise up and take pow er. Prem ier Bourassa was canvassing influential Q uebecers outside his governm ent about their views as to

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the alternatives open to the governm ent. T here is som e considerable dispute as to w hat it was he asked for, and what it was that he received. T here is som e indication that the leader of the Parti Q uebecois, Rene Levesque, persuaded Claude Ryan, the influential editor o f Le D evoir, that the governm ent might be stiffening in its attitude in negotiating with the kidnappers and that it might “ be useful . . . to put some pressure on B o u rassa."71 That the contact was m ade, and that there was som e response was acknow ledged by Mr. Ryan in Le D evoir of O ctober 30 in which he said, inter alia: On W ednesday, O ctober 14. M r. Bourassa phoned and told me there might be “ a small step " in the direction of taking a firm stand. His rem arks caused me som e concern. On the sam e day at about 5 pm . I received a telephone call from M r. Rene Levesque. The latter . . . told me that he feared a shift in M r. B ourassa’s attitude and asked me w hether I would be prepared to join several other individuals in publishing a joint statem ent aim ed at support­ ing the intention announced three days earlier by Mr. Bourassa, that is. to try to find a solution by negotiation . . . Because I wished to do everything possible to save Laporte’s and C ross’ lives. 1 accepted this invitation. 1 helped in preparing the final text o f the “ joint statem ent" and 1 was at the press conference (O ctober 14,9 p.m .) when this statem ent was made public. . . . The "jo in t statem en t." signed by Rene Levesque, Claude R yan, the presidents o f the Q uebec labour federations, the farm ers’ union, the Teachers' federation, the Professors’ Alliance o f M ontreal, several Parti Q uebecois m em bers o f the National A ssem bly, and several uni­ versity professors, included the follow ing statem ents:72 The destiny o f two hum an lives, the reputation and collective honour o f our society, the obvious danger of a political and social degradation that this society is presently facing, all this makes it clear to us that the responsibility for finding a solution and apply­ ing it quite rightly lies prim arily with Quebec. We feel that certain attitudes outside Quebec . . . plus the rigid— alm ost m ilitary— atm osphere we see in O ttaw a, runs the risk o f reducing Q uebec and its governm ent to tragic ineffectual­ ness. Superhum an effort [is needed! to agree to bargain and com prom ise. In this respect, we believe that Quebec and its governm ent really hold the responsibility and the moral mandate, and are the real custodians o f the facts and the clim ate o f opinion which allow them to m ake know ledgeable decisions . . . This is w hy, forgetting the difference o f opinion we have on a

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num ber o f subjects . . . we wish to give our com plete support to the intention announced Sunday evening by the Bourassa govern­ m ent, which means basically our strongest support for negotiating and exchange o f the tw o hostages for the political prisoners. This must be accom plished despite and against all obstruction from outside Q uebec, which necessarily im plies the positive coopera­ tion o f the federal governm ent. A nd we urgently invite all the citizens who share our point of view to make it known publicly as quickly as possible. The sam e afternoon that Rene Levesque telephoned C laude Ryan to arrange for the m eeting which led to the joint statem ent, and as the students were preparing for the m ass rally at the Paul Sauve A rena, the governm ent o f Q uebec decided to call in the arm y. On the afternoon of O ctober 14 Prem ier Bourassa inform ed the National Assem bly that the governm ent had issued a statem ent that afternoon asking for military support. He said that: “ W e could not carry on indefinitely asking [our police force] to ensure the protection o f everyone involved under the present lim itations, for this w ould be beyond their capabilities.” He went on to state: “ W e have, therefore, asked for m iiitary support so that the police force may be able to continue protecting public buildings and the population.” He asked for the cooperation o f all m em bers in all parties and continued:73 Dem ocratic rule in Q uebec is being threatened at this tim e. This dem ocratic rule for which tens o f thousands of individuals have given their lives over a period of tim e within our province is now in danger, and our prim e responsibility is to save it. It is with this in m ind, in order to save these hum an lives and to save the regim e for which m illions o f people have died that, in cooperation with all the m em bers, we mean to assum e our responsibilities. . . . The sam e afternoon, and on the day follow ing more than a thousand troops took up positions in protecting public figures and public property in Quebec City and M ontreal, and others m oved to do the sam e in O ttaw a. By Order in Council o f the Bourassa governm ent all police and arm y personnel were placed under the com m and o f the D irector o f the Quebec Provincial Police. On the night o f O ctober 15, Prem ier Bourassa gave his governm ent’s “ final view point in its negotiations with the Front de Liberation du Q uebec.” He rejected the freeing o f the twenty-three prisoners, al­ though he agreed to recom m end parole for five who had asked for parole. He assured the kidnappers o f safe passage by airplane to “ the chosen country” and rejected all other dem ands. Robert Lem ieux, the

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negotiator on behalf of the F .L .Q . kidnappers, declared that the sixteen who had signed the “ joint declaration’’ represented the “ true’’ public in Q uebec, accused the governm ent o f m ocking the people o f Q uebec, and concluded: “ The m andate has ended. I have nothing m ore to say .” 74 He then joined C hartrand, G agnon and V allieres at the rally at the Paul Sauve Arena. It would appear that the federal cabinet had m et in the afternoon of O ctober 15 and m ust have contem plated the use o f the War M easures A ct if there was no response by the F .L .Q . to M r. B ourassa’s appeal. At 3 a.m . on the m orning o f O ctober 16 Prime M inister Trudeau received three letters from Quebec and M ontreal, all urging the invocation of em ergency m easures.75 O ne, dated O ctober 16, cam e from Prem ier Bourassa. He stated that after consulting with authorities responsible for the adm inistration of justice his governm ent was convinced “ that the law, as it stands now , is inadequate to meet this situation satisfactorily. ’ ’ He m ade his request in the follow ing terms: U nder the circum stances, on behalf of the G overnm ent of Quebec, I request that em ergency pow ers be provided as soon as possible so that more effective steps may be taken. 1 request particularly that such pow ers encom pass the authority to apprehend and keep in custody individuals w ho, the Attorney G eneral o f Q uebec has valid reasons to believe, are determ ined to overthrow the govern­ m ent through violence and illegal m eans. A ccording to the infor­ m ation we have and which is available to you, we are facing a concerted effort to intim idate and overthrow the governm ent and the dem ocratic institutions of this province through planned and system atic illegal action, including insurrection. It is obvious that those participating in this concerted effort com pletely reject the principle o f freedom under the rule o f law. He concluded that the Quebec governm ent “ is convinced that such powers are necessary to meet the present em ergency.” T he second letter cam e from M ayor Jean Drapeau and the Chairm an o f the Executive Com m ittee, Lucien Saulnier. It was dated O ctober 15 and included the following: The chief o f the M ontreal Police Service has inform ed us that the m eans available to him are proving inadequate and that the assis­ tance o f higher levels o f governm ent has becom e essential for the protection o f society against the seditious plot and the ap­ prehended insurrection in which the recent kidnappings were the First step.

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The letter went on to "ask for every m easure o f assistance the federal governm ent may deem useful and desirable in order to carry out the task o f protecting society and the lives of citizens in this difficult period.” The D rapeau-Saulnier letter included a third letter, which cam e from the D irector o f M ontreal Police, M . Saint-Pierre. His letter spoke of "a n extrem ely dangerous subversive m ovem ent,” with objectives of "overthrow ing the legitim ate state by m eans o f sedition and eventually arm ed insurrection.” He spoke o f the kidnappings as leading "directly to the insurrection and the overthrow o f the state.” He urged that under the circum stances the police "should not be restricted to sim ply search­ ing for the individuals who perpetrated the odious kidnapping.” He spoke o f the need for the help o f higher governm ent because o f "a ll the ram ifications o f this m ovem ent and its seditious activities.” He stated that "th e slowness o f procedures and restraints im posed by the legal m ethods and m echanism s now at our disposal will not allow us at this tim e to cope with the situation.” W ithin an hour, at 4 a.m . O ctober 16. 1970, the War M easures A ct, and regulations under it were approved, and a form al statem ent was m ade at 5:17 in the morning. It declared that "apprehended insurrec­ tion exists and has existed as and from the fifteenth day of O ctober, one thousand nine hundred and sev en ty ." It was based upon the following assertion: . . . there is in contem porary Canadian society an elem ent or group known as Le Front de Liberation du Q uebec who advocate and resort to the use o f force and com m ission o f crim inal offences, including m urder, threats o f m urder and kidnapping, as a m eans of or as an aid in accom plishing a governm ental change within Canada and whose activities have given rise to a state of ap­ prehended insurrection within the Province o f Quebec. Regulations pursuant to the War M easures A ct were annexed and rem ained in force until replaced on Decem ber 2. 1970, by the Public O rder (Tem porary M easures) A c t,lb which in turn rem ained in force until its expiry date on April 30, 1971. In invoking the War M easures A c t, and proclaim ing the Public O rder Regulations under them , the federal governm ent scrupulously avoided taking direction o f the adm inistration of the new pow ers. Subsequent dem ands from the opposition for som e form o f supervisory m echanism or review board was specifically rejected.77 The adm inistration o f the new pow er rem ained in the hands of the Quebec M inister of Justice and was used by the police in Quebec under the control o f the D irector o f the Q uebec Provincial Police. Although the W ar M easures A ct does not require the governm ent to

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subm it its incovation or regulations under it for debate by Parliam ent, the governm ent chose to do so rather than aw ait the opposition calling for the debate under s. 6 o f the W ar M easures A ct. On O ctober 18 the country was shocked to hear o f the death o f Pierre Laporte the evening before. On O ctober 19 the House o f Com m ons voted 190 to 16 in favour o f the G overnm ent's decision to invoke the W ar M easures A ct ,78 Even if the news o f Pierre Laporte’s death increased the m ajor­ ity, it is clear that m ost M em bers o f Parliam ent were willing to approve em ergency m easures to m eet what the governm ent considered to be a state of apprehended insurrection. In retrospect it is clear that the letters referred to above were im por­ tant to the G overnm ent o f Canada in invoking the W ar M easures A ct. Both the Prim e M inister and the M inister of Justice referred to them subsequently in justifying their action. On O ctober 23, the Prime M inister said that:79 The G overnm ent o f the Province o f Q uebec and the authorities in the City of M ontreal trusted the federal governm ent to perm it the use o f exceptional m easures because in their own words a state of apprehended insurrection existed . . . On N ovem ber 4 the federal M inister o f Justice, John Turner, stated that:80 Increased pow ers o f apprehension and investigation are operating in Q uebec because Q uebec called on the federal governm ent to equip it with these extra pow ers to deal with the F .L .Q . It would seem also that the activities o f the students, of the radicals w ho addressed them , and the joint statem ent o f the “ sixteen” on O ctober 14, were used as reasons both by the Prem ier of Quebec and his M inister o f Justice for the invocation o f the em ergency m easures. On O ctober 17, Prem ier Bourassa is reported to have told the press the follow ing:81 I decided to ask for that type o f intervention because the risk o f anarchy was assum ing a new dim ension. There were all sorts of dem onstrations which seem ed to be under way and I didn't want to take the risk o f endangering the safety o f all the population at a tim e when police forces were already tied down by the need to keep watch over people and buildings. A m onth later the Q uebec M inister o f Justice, Jerom e C hoquette, was quoted as referring to the action o f the “ six teen ":82

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All these actions detracted from a com m on front against the terrorists. It weakened the resolve of society to stand firm . It might have encouraged the F .L .Q . by suggesting that society was not united against them . If there had been unity o f purpose in opposing their violent actions, perhaps society w ould have com e through this crisis in a m ore victorious fashion. The new spaper of which M r. Ryan was editor, Le D evoir, accused the Prim e M inister o f fabricating the story o f a “ conspiracy” in order to justify his invocation o f the W ar M easures A ct.*3 H ow ever, in the H ouse o f Com m ons the Prim e M inister specifically denied this allegation.84 as he had on the day before8s and as he did again on at least one subsequent occasion.86 Perhaps the m ost com plete sum m ary o f the reasons presented by the federal governm ent were those given on O ctober 16 to the Parliam ent o f C anada by the M inister o f Justice, John Turner. He referred to the letters from B ourassa, Drapeau, Saulnier and Saint-Pierre. He referred to the “ series o f bom bings and the violence” which had plagued the province in the previous six or seven years, to the “ increase in the thefts o f dynam ite” in the province, the kidnappings, and threatening com ­ m uniques and ultim atum s, and in support o f these “ concrete facts” he referred as well to other elem ents o f the situation:87 (1) a type of erosion o f the public will in the feeling am ongst some sincere people that an exchange o f prisoners for the victim s o f the kidnappings w ould som ehow ease the situation. (2) the recent call for a public m anifestation by people like G ag­ non, V allieres and Chartrand established and escalated the whole com ing together o f an infiltration o f F .L .Q . doctrine in certain areas o f society in Q uebec— in the unions, among university students, and in the m edia, and the growing feeling am ong the people o f Q uebec, particularly citizens o f M ontreal, that they are living under a reign o f terror. (3) the Attorney-General o f the province o f Quebec and the Prem ier o f the province o f Q uebec advised us that the law as presently constituted . . . was not equipped at the moment to meet the serious situation they were facing, and that they needed addi­ tional pow ers o f arrest, o f search and o f detention. It w ould seem then that the governm ent argued, and the M em bers of Parliam ent accepted, that a state o f apprehended insurrection existed because over a period o f som e seven years there had been a series of bom bings resulting in several deaths and injuries, thefts o f dynam ite and am m unition, the kidnapping o f tw o people, threatening com m uni­

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cations, a public declaration by sixteen leading citizens out o f a prov­ ince o f seven m illion urging the governm ent to negotiate, a call for dem onstrations by five radicals, a rally of several thousand people, most o f whom were students, with probably som e m ixture of young radical w orkers, and a sense o f fear that seem ed to be growing in the populace. These are the reasons; let us look at the laws. The Public O rder R egulations, 1970. issued under the W ar M easures A ct on O ctober 16, can be discussed best by grouping them in three categories: (1) new offences; (2) new powers of arrest, search and seizure, and (3) detention and bail. The new offences were set out in ss. 3, 4 , 5, 6 and 8. Section 3 provided: The group o f persons or association known as Le Front de Libera­ tion du Quebec and any successor group or successor association o f the said Le Front de Liberation du Q uebec, or any group of persons or association that advocates the use of force o r the com m ission o f crim e as a means o f or an aid in accom plishing governm ental change within Canada is declared to be an unlawful association. By s. 4 any person who was or professed to be a m em ber or officer of the unlawful association, or who com m unicated statem ents on behalf o f the assocation, or advocated or prom oted “ the unlawful acts, aim s, principles or policies of the unlawful association,” or contributed dues, solicited subscriptions o r contributions for such association, or advo­ cated, prom oted or engaged in "th e use of force or the com m ission of crim inal offences as a means o f accom plishing a governm ental change within C anada” was guilty o f an indictable offence and liable to im prisonm ent for a term not exceeding five years. Section 5 provided: A person who. knowing o r having reasonable cause to believe that another person is guilty o f an offence under these regulations, gives that other person any assistance with intent thereby to prevent, hinder or interfere with the apprehension, trial or punishm ent of that person for that offence is guilty of an indictable offence and liable to im prisonm ent for a term not exceeding Five years. By s. 6, the ow ner, lessee, agent or superintendent o f any building, room , prem ises o r other place who knowingly perm itted m eetings of the unlawful association or com m ittees or m em bers thereof, or any

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assem blage o f persons who prom oted “ the acts, aim s, principles or policies o f the unlaw ful association" was guilty o f an indictable of­ fence and Iiable to a fine o f not m ore than $5,000 or to im prisonm ent for a term not exceeding five years, or to both. It will be noted that although s. 3 specifically declared the F .L .Q . to be an unlawful association, it was also wide enough to include any other group of persons or any other association which advocated the use o f force or the com m ission o f crim e as a m eans o f or an aid to accom plishing governm ental change within C anada. Thus, although the W ar M easures A ct was proclaim ed to deal with the crisis in Quebec caused by the F .L .Q ., the Public O rder Regulations could have applied to any other group w hether in Q uebec or in other parts of Canada. In addition, the term s were wide enough to include advocacy and not just action. It is quite possible that s. 3 could have applied to a group of persons or an association in O ntario,88 the m aritim e provinces, or the west coast o f C anada, who would have advocated non-violent civil disobedience (which could be the com m ission o f a crim e), in order to prom ote governm ental change. It should be noted that the type of governm ental change referred to did not necessarily have to be violent. Presum ably groups or associations which at that tim e might have been advocating non-paym ent o f incom e taxes in order to apply pressure on the governm ent o f Canada to adopt a m ore strongly independent policy with respect to the war in Vietnam (which was proceeding at the time) could have been covered by ss. 3 and 4 o f the Public Order Regulations. In fact, this never happened, but the potentiality was there. Section 5 was sufficiently broad that it m ust have raised some questions in the m inds o f lawyers as to w hether they could represent persons arrested under the Public O rder R egulations. Presum ably a lawyer has som e “ reasonable cause to believe that another person is guilty o f an offence" under the R egulations, if such a person has been arrested and detained. Does not a lawyer give another person “ assis­ tance with intent thereby to prevent, hinder or interfere with the . . . punishm ent o f that person” ? W hether it was because of s. 5 o f the Public O rder R egulations, or out o f fear, o r out o f indifference, there was som e evidence in the first few days that in som e cities in Quebec som e lawyers hesitated to represent detainees under the Public Order Regulations. By Section 8, in any prosecution for an offence under the Regula­ tions, in the absence o f proof to the contrary, evidence that any person attended any m eeting o f the unlawful association, or spoke publicly in advocacy for it, or com m unicated statem ents as a representative or professed representative o f it, was to be deem ed proof that he was a m em ber o f the unlawful association. There was som e discussion at the tim e as to w hether s. 8 had retrospective effect. Although it was in

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effect m erely a reverse onus clause, nevertheless it was clear that the actions which could indicate m em bership in the unlawful association could have occurred before the W ar M easures A ct was proclaim ed. In addition, under s. 8(a), attendance by any person at “ any m eeting of the unlawful association," could have included a news reporter or sim ply a curious person. And it must be rem em bered, as discussed above, that by ss. 3 and 4 the unlawful association label was not confined to the F .L .Q . The second group o f provisions expanded police powers o f arrest, search and seizure. By s. 9 a police officer was enabled to arrest without w arrant any person who professed to be a m em ber o f the unlawful association, or even a person whom the police officer had "reaso n to suspect” o f being a m em ber, or any person whom he had "reaso n to suspect has com m itted, is com m itting or is about to com m it an act described in paragraphs (b) to (g) o f Section 4 .” By s. 10 a peace officer could enter and search without warrant any "p rem ises, place, vehicle, vessel or aircraft" in which the officer had reason to suspect (a) anything is kept or used for the purpose o f prom oting the unlawful acts, aim s, principles or policies o f the unlawful associa­ tion; (b) there is anything that may be evidence o f an offence under these regulations; (c) any m em ber o f the unlawful association is present; or (d) any person is being detained by the unlawful association. Section 11 provided that any property which a police officer had reason to suspect could be evidence o f an offence under the Regulations could be seized without warrant and held for ninety days from the date of seizure or until final disposition o f any proceedings in relation to the offence. It will be noted that the pow ers o f arrest were broader than those under the C rim inal C ode. U nder C rim inal C ode s. 450 a peace officer m ay arrest without warrant on “ reasonable and probable gro un ds,” rather than just where he “ has reason to suspect” an offence is being com m itted. Sim ilarly, unlike the entry, search and seizure powers under s. 10 o f the P ublic Order R egulations. under C rim inal C ode s. 443 a search warrant must be obtained from a Justice “ who is satisfied by inform ation upon oath . . . that there is reasonable ground to believe” that the search will reveal evidence that an offence is about to be or has been com m itted. T he third group o f provisions in the Public O rder Regulations concerned detention and bail. By s. 9(2) a person arrested had to be charged within a period o f seven days after his arrest, unless the

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A ttorney-G eneral, before the expiry o f those seven days, issued an order that the accused be detained for a further tw enty-one day period. It will be noted that the norm al practice under C rim inal C ode s. 454 is that a person arrested is to be brought before a justice within twentyfour hours. Pursuant to s. 7(1) a person arrested was to be detained in custody w ithout bail pending trial unless the Attorney-General con­ sented to his release on bail. Subs. (2) of s. 7 provided that w here a person was detained for the purpose o f ensuring his attendance at the trial, and the trial had not com m enced within ninety days from the time when he was first detained, the person having custody o f the accused was required upon the expiration o f such ninety days to apply to a judge o f the superior court o f crim inal jurisdiction to fix a date for trial. Quite clearly these provisions were designed to give the police pow er to detain suspects for a considerable period o f time partly to perm it the police to keep in custody persons they suspected o f engaging in terrorist activities, and partly, as had been requested by Police C hief St. Pierre, to perm it police to carry out investigations in a more expeditious m anner. Professor Schm eiser sum m ed up the “ significant effect o f the em ergency legislation” as being “ to take away the requirem ent that police officers act reasonably.” 89 During the debate on the invocation o f the War M easures A ct the governm ent prom ised to consider replacing the Act with m ore limited em ergency legislation. On N ovem ber 2, 1970, the federal M inister of Justice, John Turner, introduced Bill C -181, know n as the Public O rder ( Tem porary M easures) A ct, 1970.90 T he Bill was debated in­ term ittently until D ecem ber 1, 1970, when it was passed on third reading.91 Royal assent was given on D ecem ber 3 and the proclam ation o f the War M easures Act was thereby revoked by s. 13 o f the P ublic O rder (Tem porary M eauures) A ct. This A ct was som ewhat more restrictive than the Public O rder Regulations. T hus, s. 3 defined the unlaw ful association as the F .L .Q . and any successor group or association, or any group or association which advocated the use of force or the com m ission o f crim e as a means o f or an aid in accom plishing “ the same o r substantially the same governm ental change within C anada with respect to the Province of Q uebec o r its relationship to C anada as that advocated by the said Le Front de Liberation du Q uebec.” This definition o f the type o f govern­ m ental change by force, the advocacy or prom otion o f which was prohibited, was included in s. 4 of the Public O rder A ct. Sections 5 and 6 were left unchanged, except that with the more restrictive definition o f the unlawful association, the operation o f these sections was neces­ sarily m ore lim ited. Section 8 was slightly m odified in that it required attendance at a num ber o f meetings o f the unlawful association, rather

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than ju st one m eeting, as being proof, in the absence o f evidence to the contrary, that a person was a m em ber of the unlawful association. Sections 9 and 10, dealing with arrest, entry, search and seizure, were left essentially the sam e. T he main changes in the P ublic Order A ct from the P ublic O rder R egulations were in the powers o f detention. T hus, under the Public O rder A ct a person arrested had to be brought before a justice within three days, rather than seven, and the Attorney-General could extend the period o f detention to a m axim um o f seven days, rather than tw enty-one. A new subs 3 was added to s. 9 to provide that anyone who had been detained in custody under the Public O rder Regulations was now to be dealt with under the new s. 9 o f the P ublic O rder A c t. Section 7 o f the P ublic O rder A ct retained the provisions in the Regulations regarding detention in custody without bail, but the tim e for such detention was to be limited to seven days, unless before the expiry of those seven days the Attorney-General filed a certificate stating that ju st cause existed for the detention o f that person pending his trial. Because the provisions under the Public O rder A ct were no longer exem pted by s. 6 o f the War M easures A ct the new statute had to include the non obstante clause required by s. 2 o f the C anadian Bill o f R ights. This was accom plished by s. 12 ( I) o f the Public O rder A c t. H ow ever, subs (2) restricted the non obstante clause by providing that it did not override s. 2, paragraphs (a) to (g) o f the Canadian Bill o f Rights except those provisions dealing with arbitrary detention or im prisonm ent and denial o f bail w ithout just cause. This w as necessary if the detention provisions in s. 7 o f th e Public O rder A ct, and the denial o f bail provisions in s. 9, were to be operative. Finally, s. 14 provided that any offence com m itted under ss. 4 , 5 o r 6 o f the Public O rder Regulations w ould be deem ed an offence under the Public O rder A ct. A nd s. 15 provided that the Act would expire on April 30. 1971, unless continued by an earlier resolution o f both Houses o f Parliam ent. In the end it was not extended. The proclam ation o f the War M easures Act on O ctober 16, enabled the police to arrest about 350 people in som e 1624 raids during the next four d ay s.92 In the end som e 497 persons in all were arrested o f whom , by Febniary, 1971, 465 were released and 32 were still in detention.93 O f all those arrested, only 62 were charged. O f these, less than one-third were convicted, and m ost of these were for C rim inal Code offences connected with the kidnappings and the m urder o f Pierre Laporte. Only two convictions were obtained for offences under the Public O rder Regulations and the Public O rder A c t.94 By A ugust, 1971, the Quebec Attorney-G eneral stayed proceedings by nolle prosec/ui against 32 persons w ho still faced charges under the Public O rder Act 95

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The results o f the police action were tw ofold. On the one hand. Cross w as released on D ecem ber 4 in exchange for safe conduct to C uba for his four captors and two o f their w ives.96 T hen, on Decem ber 27, Paul and Jacques Rose, and Francis Sim ard were arrested and charged with the kidnapping and m urder o f L aporte.97 On M arch 14, 1971, Paul Rose was convicted for the m urder and was sentenced to life im prison­ m ent, and on N ovem ber 30. 1971, he received a concurrent sentence of life im prisonm ent on the kidnapping charge. Francis Sim ard was con­ victed on the m urder charge on M ay 20, 1971, and also received a life sentence. Bernard L ortie, who was a m em ber o f the "C h en ier” cell along with the Rose brothers and Sim ard, had been captured on N ovem ber 6, 1970, and had im plicated him self and the others al the inquest into Laporte’s death. He received a sentence of tw enty years im prisonm ent on the kidnapping charge on N ovem ber 22, 1971. Jacques Rose was acquitted by a jury on the m urder charge, on Feb­ ruary 22, 1973, after a previous trial on the kidnapping charge had resulted in one deadlocked ju ry and an acquittal on a retrial.98 Subse­ quently, in July, 1973. Paul Rose was convicted o f being an accessory after the fact o f the kidnapping in assisting his brother to avoid capture, and received an eight year prison sentence.99 As stated earlier, besides those directly im plicated in the kidnap­ pings, very few other convictions were achieved. C om plaints were m ade about police brutality and m istreatm ent o f prisoners, and on N ovem ber 27, 1970, the Q uebec A ttorney-General announced that there w ould be an inquiry by a three-m an com m ittee.100 Subsequently the Q uebec Public Protector (O m budsm an), Louis M arceau, an­ nounced that he had investigated com plaints about dam age to property, unjust conditions o f detention, personal injury, and dam age to reputa­ tion. On July 6, 1971, he announced that 104 com plaints were justified and com pensation was p aid .101 In retrospect, those who criticize the governm ent's action will recall the shock to the country o f the proclam ation o f the W ar M easures A ct, plus the disruption o f the lives, jobs and fam ilies o f over 450 people who were either never charged or were acquitted. They will recall that an insurrection was apprehended, a W ar M easures A d was invoked, civil liberties were suspended, and a whole country was agitated, and in the end, two m urderers and tw o accom plices were convicted, and four other kidnappers were perm itted to go into exile. T hose who support the governm ent action will claim it was justified in that only two lives were lo st,102 in one case a m urder for which the perpetrators were caught and sentenced. A lso, they may point to the fact that for at least a few years the terrorism o f the F .L .Q . was brought to an end. But one fact rem ains to haunt anyone concerned with the operation of the Canadian Bill o f Rights: it is the cabinet and not a court o f law.

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which decides what constitutes “ war, invasion, or insurrection, real or apprehended” sufficient to invoke the War Measures Act, which over­ rides the Bill of Rights.103 N o te s

'R.S.C. 1952, c. 288, now R.S.C. 1970, c. W-2. 2H. Marx. “ The Emergency Power and Civil Liberties in Canada,” (1970) 16 McGill L.J. 39, 60. 3L'Union St. Jacques de Montreal v. Belisle (1874), L.R. 6 P.C. 31 ;Re the Regulation and Control o f Aeronautics in Canada [1932] A.C. 54. 4For a defence of this interpretation see F. E. Labrie, “ Canadian Constitu­ tional Interpretation and Legislative Review,” (1950) 8 U. o f Tor. L.J. 298, 304-16; for a suggestion that the Privy Council should reconsider its decisions see E. R. Richard, “ Peace, Order and Good Government,” (1940) 18 Can. Bar Rev. 243; for a critical discussion see Raphael Tuck, “ Canada and the Judicial Committee of the Privy Council,” (1941) 4 U. o f Tor. L.J. 33; for the most thorough and serious condemnation see Bora Laskin, “ ‘Peace, Order and Good Government’ Re-examined,” (1947) 25 Can. Bar Rev. 1054. sIn re the Board o f Commerce Act, 1919, and the Combines and Fair Prices Act, 1919 [1922] 1 A.C. 191, 197#. *[1925] A.C. 396, 412. 7[ 1936] S.C.R. 398, 422-6. *[1937] A.C. 326, 353. 9[ 1946] A.C. 193. ,0( 1882), 7 App. Cas. 829. u Supra, footnote 6, 412. i2Supra, footnote 9, 205. l3Canadian Federation o f Agriculture v. Attorney General for Quebec, Reference re Validity o f s. 5(a) o f the Dairy Industry Act (Margarine case) [1950] 4 D.L.R. 689; Canadian Pacific Railway Company v. Attorney General for British Columbia [1950] A.C. 122. i4"An Act to Confer Certain Powers upon the Governor in Council and to Amend the Immigration Act,” S.C. 1914, Second Session, c. 2. ,s( 1914)4-5 Geo. V, c. 29 (U.K.) ,6D.E. Smith, “ Emergency Government in Canada," Canadian Historical Review, Vol. 4, Univ. of Toronto Press, 1969,430 ff.; Ron Haggart and Aubrey Golden, Rumours o f War, Toronto: New Press, 1971, 88 ff. ,7[ 1923] A.C. 695. >sIbid., 703-5. 19[ 1947] A.C. 87. 20S.C. 1945, c. 25. 2x!bid., 101. Cf. the Australian defence power under section 51 (vi) of the Australian Constitution. SecDawson v. Commonwealth (1946) 73 C.L.R. 157, 116,per Latham C. J.: ‘ ‘The defence power does not cease instantaneously to be available as a source of legislative authority with the termination of actual hostilities . . . or even with the end of the war. . . . ”

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22[ 1950] S.C.R. 124. “ R.S.C. 1927, c. 206. 2ASupra., footnote 2, 40. 2SRe Gray (1918) 57 S.C.R. 150. 26For some of the details see Smith, supra, footnote 16, and Haggart and Golden, supra, footnote 16. 27Marx, supra, footnote 2, 72-7. 2*Ibid., 75-6. 29Hansard, 1944, 5915. 30Marx, supra, footnote 2, 83-88. 3'Ibid., 86. 32F.E. La Violette, The Canadian Japanese in World War Two, Toronto: Canadian Institute of International Affairs, 1948, 272. 33Rex v. Smith [1947] O.R. 378 (Ont. C.A.); Rex v. Mazerall [1946] O.R. 762 (Ont. C.A.). 34For some details and some criticisms see (1946) C.B.A. Proceedings 141-56 and M.H. Fyfe, “ Some Legal Aspects of the Report of the Royal Commission on Espionage,’’ (1946) 24 Can. Bar Rev. 111. 351960 Committee Proceedings, the Canadian Labour Congress, 194-5; Cohen, 372. 36lbid., Scott, 38; Seventh Day Adventists, 72-3. 31lbid., Wright, 51; The National Jewish Congress, 92; Bowker, 144; The Association for Civil Liberties, 172-3; The Canadian Labour Congress, 194-5; Mundell, 484-5. 3Blbid., Wright, 51; Mundell, 484-5; Cohen, 395; Lower, 320. 39lbid, The Canadian Labour Congress, 194-5; Cohen, 395. 40Ibid., Cohen, 395. AlHansard, 1960, Pearson, 5650-1; McCIeave, 5753-5. ' 421960 Committee Proceedings, 710-11. A3Ibid., 713. AAHansard, 1960, 7543. Aslbid., 7547-8. A6lbid., 7545, 7550. 471960 Committee Proceedings, 331. ASIbid., 583-5. A9Ibid., 585-6. solbid., 587-8. SiLoc. cit. s2[ 1923] A.C. 695, 706. s3[ 1947] A.C. 87, 101. s4[ 1950] S.C.R. 124, 145-6. 55Ibid., 154. S6Gagnon and Vallieres v. The Queen (1971) 14 C.R.N.S. 321. S7For a guide through the literature and some of the events I am indebted to one of my students, Mr. Harold Rolph, who has done two papers on the subject, one of them in my seminar. s8See infra, footnote 76. S9See, e.g ., Marcel Rioux, La question du Quebec, Paris: Editions Seghers, 1971; Claude Ryan, ed.. La Quebec qui se fait, Montreal: Editions Hurtubise

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1971; Denis E. Smith, Bleeding Hearts—Bleeding Country, Canada and the Quebec Crisis, Edmonton: Hurtig, 1971; Abraham Rotstein, ed., Power Corrupted: The October Crisis and The Repression o f Quebec, Toronto: New Press, 1971; J.M. Peotte, Quebec occupe, Montreal: Editions Partipris, 1971. 60Gerard Pelletier, La crise d'octobre, Montreal: Editions du Jour, 1971. 61Ronald Haggart and Aubrey Golden, Rumours o f War, Toronto: New Press, 1971; John T. Say well, Quebec Seventy—A Documentary Narrative, Toronto: Univ. of Toronto Press, 1971. 62Gustav Morf, Terror in Quebec, Toronto: Clarke, Irwin. 1970. 63For a summary of these early events see Morf, supra, footnote 62, 1-13; Pelletier, supra., footnote 60, 25-26. 64For a brief summary of these events see Pelletier, supra, footnote 60, 225-33. For greater details, including studies of the arrested terrorists, see Morf, supra, footnote 62. 65A communique was found on the premises which was to have been released upon his capture: Like the later demands following the Cross kidnapping, the communique asked for the release of “ political” prisoners, broadcasting of FLQ communiques, safe conduct for the kidnappers to Cuba, $500,000 in gold ingots, etc. 66Hansard, October 5, 1970, 8709. 67Quoted in Say well, supra, footnote 61, 53. 68Haggart and Golden, supra, footnote 61, 281. 69Le Devoir, October 16, 1970; Montreal Star, October 16, 1970. 70Montreal Star, October 14, 1970. 7lHaggart and Golden, supra, footnote 61, 28-9. 72SaywelI, supra, footnote 61, 77. Among those listed were: Claude Ryan, publisher, Le Devoir -. Rene Levesque, leader, Parti Quebecois; Louis Laberge, president, Quebec Federation of Labour; Fernand Daoust, secretary-general, Quebec Federation of Labour; Marcel Pepin, president, Confederation of Na­ tional Trade Unions; Jean-Marc Kerouck, secretary-general, Union of Catholic Farmers; Yvon Charbonneau, president, Quebec Teacher’s Federation; Mathias Rioux, president, Montreal Teachers Alliance; Camille Laurin, parliamentary leader. Parti Quebecois; Jacques Parizeau, economist, president of executive council of Parti Quebecois; Alfred Rouleau, president of an insurance company. 73Ibid„ 81. 7AIbid., 82. 75A11 these letters appear in Hansard, October 16, 1970, Appendix to de­ bates, 245-6. 76Bi!I C-181— introduced Hansard, November 2, 1970, 771, adopted on division Hansard, December 2, 1970, 1635-6. 77Hansard, October 26, 1970, 546 ff. 78Hansard, October 19, 1970, 335-6. 79Hansard, October 23, 1970, 510. g0Hansard, November 4, 1970, 880. ^'Montreal Star, October 17, 1970. *2Le Devoir, November 19, 1970. ilLe Devoir, October 28. 1970.

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^Hansard, October 28, 1970, 657. « Hansard, October 27, 1970, 591. 86Hansard, November 2, 1970, 775. 81Hansard, October 16, 1970, 212-13. 88In fact at least two people were arrested in Ontario under the Public Order Regulations, but subsequently were released. One was a United States army deserter, released after his lawyer sought habeas corpus, and the other was a freelance photographer from Montreal. Globe and Mail, October 20, 1970. 89D.A. Schmeiser, “ Control of Apprehended Insurrection—Emergency Measures versus the Criminal Code,” (1971) 4 Man. L.J. 359, 365. 90Hansard, November 2, 1970, 771. 91Hansard, December 1, 1970, 1635-6. 92Globe and Mail, October 21, 1970; Hansard, October 21, 1970, 421. 93Hansard, February 3, 1971, 3034. 94MontreaI Gazette, August 21, 1971. 9SLoc. cit. 9bGlobe and M ail, December 6, 1970. 91Globe and Mail, December 28, 1970. 98For a summation of these trials and convictions see Montreal Gazette, August 21, 1971; Globe and Mail, February 24, 1973. "Montreal Gazette, July 25, 1973. ,00Toronto Star, November 28, 1970. '°'Globe and Mail, July 7, 1971. 102That of Pierre Laporte, and one young soldier who was shot accidentally while on guard duty: See Hansard, October 17, 1970, 248. ,oiGagnon and Vallieres v. The Queen (1971) 14 C.R.N.S. 321. H. Marx, "The Apprehended Insurrection of October 1970 and the Judicial Function” (1972) 7 U.B.C.L.R. 55. Also see the cases under Parts 2 and 3 and, for some arguments favouring judicial supervision, see N. Lyon, "Constitutional Valid­ ity of Sections 3 and 4 of the Public Order Regulations, 1970," (1972) 18 McGill L.J. 136.

APPENDIX I

The Canadian Bill of Rights 8-9 Elizabeth II CH A PTER 44 An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms. [Assented to 10th August, I960.] The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy o f God, the dignity and worth of the human person and the position o f the family in a society o f free men and free institutions; Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law; And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada: TH ER EFO R E Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: PA RT I BILL O F RIGHTS I . It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right o f the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; 353

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(b) the right o f the individual to equality before the law and the protection o f the law; (c) freedom o f religion; (d) freedom o f speech; (e) freedom o f assembly and association; and (0 freedom of the press. 2. Every law o f Canada shall, unless it is expressly declared by an Act of the Parliament o f Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridge­ ment or infringement o f any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to (a) authorize or effect the arbitrary detention, imprisonment or exile of any person; (b) impose or authorize the imposition of cruel and unusual treatment or punishment; (c) deprive a person who has been arrested or detained (i) of the right to be informed promptly of the reason for his arrest or detention, (ii) o f the right to retain and instruct counsel without delay, or (iii) of the remedy by way o f habeas corpus for the determi­ nation of the validity of his detention and for his release if the detention is not lawful; (d) authorize a court, tribunal, commission, board or other au­ thority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards; (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; (f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or (g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.

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3. The Minister of Justice shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every proposed regulation submitted in draft form to the Clerk o f the Privy Council pursuant to thc Regulations A ct and every Bill introduced in or presented to the House of Commons, in order to ascertain whether any o f the provisions thereof are inconsistent with the purposes and provi­ sions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity. 4. The provisions o f this Part shall be known as the Canadian Bill o f R ig hts. PART II 5. (1) Nothing in Part I shall be construed to abrogate or abridge any human right or fundamental freedom not enumerated therein that may have existed in Canada at the commencement of this Act. (2) The expression “ law o f Canada” in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada. (3) The provisions of Part I shall be construed as extending only to matters coming within the legislative authority o f the Parliament of Canada. 6. Section 6 o f the W ar M easures A ct is repealed and the following substituted therefor: “ 6. (1) Sections 3 ,4 , and 5 shall come into force only upon the issue of a proclamation of the Governor in Council declaring that war. invasion or insurrection, real or apprehended, exists. (2) A proclamation declaring that war. invasion or insurrection, real or apprehended, exists shall be laid before Parliament forthwith after its issue, or, if Parliament is then not sitting, within the first fifteen days next thereafter that Parliament is sitting. (3) Where a proclamation has been laid before Parliament pur­ suant to subsection (2), a notice of motion in either House signed by ten members thereof and made in accordance with the rules of that House within ten days of the day the proclamation was laid before Parliament, praying that the proclamation be revoked, shall be debated in that House at the first convenient opportunity within the four sitting days next after the day the motion in that House was made.

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(4) If both Houses of Parliament resolve that the proclamation be revoked, it shall cease to have effect, and sections 3 ,4 and 5 shall cease to be in force until those sections are again brought into force by a further proclamation but without prejudice to the previous operation of those sections or anything duly done or suffered thereunder or any offence committed or any penalty or forfeiture or punishment incurred. (5) Any act or thing done or authorized or any order or regulation made under the authority of this Act, shall be deemed not to be an abrogation, abridgement or infringement of any right or freedom rec­ ognized by the Canadian Bill o f R ig h ts."

APPENDIX II

THE AMERICAN BILL OF RIGHTS AMENDMENT I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. A M EN D M EN T II A well regulated Militia, being necessary to the security of a free State, the right o f the people to keep and bear Arms, shall not be infringed. A M E N D M E N T III No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time o f war, but in a manner to be prescribed by law. A M E N D M E N T IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, sup­ ported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. AMENDMENT V No person shall be held to answer for a capital, or otherwise infam­ ous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time o f W ar or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without 357

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due process of law; nor shall private property be taken for public use, without just compensation. A M END M EN T VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury o f the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed o f the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance o f Counsel for his defense. A M END M EN T VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. A M EN D M EN T VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments indicted. A M E N D M E N T IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. AMENDMENT X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.* A M E N D M E N T XIII (1865)

Section I. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly con­ *The first ten amendments went into effect November 3. 1791

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victed. shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. A M E N D M E N T XIV (1868) Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection o f the laws. . . . Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. A M E N D M E N T XV (1870) Section 1. The right of citizens o f the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previouscondition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. A M E N D M E N T XIX (1920) Section I . The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Section 2. Congress shall have power to enforce this article by appropriate legislation.

APPENDIX III

The Proposed Canadian Charter of Human Rights A Charter of Fundamental Rights should be entrenched in the Constitu­ tion and should include the following provisions. 1. The Charter should recognize and guarantee in Canada the fol­ lowing human rights and fundamental freedoms: (a) freedom of conscience and religion; (b) freedom o f speech; (c) freedom o f assembly and association; (d) freedom of the press; (e) the right of the individual to life, and the liberty and security of the person, and the right not to be deprived thereof except by due process o f law; (f) the right of the individual to the enjoyment of property, and the right not to be deprived thereof except according to law; (g) the right o f the individual to the equal protection of the law. 2. The Charter should also recognize and guarantee in Canada the following rights: (a) the right of the individual to be secure against unreasonable searches and seizures; (b) the right of a person who has been arrested or detained (i) to be informed promptly o f the reason for this arrest or detention, (ii) to retain and instruct counsel without delay, and (iii) to the remedy by way of habeas corpus for the determi­ nation of the validity of his detention and for his release if the detention is not lawful; (c) the right of a person not to give evidence before any court, tribunal, commission, board or other authority if he is denied counsel, protection against self-crimination, or other constitu­ tional safeguards; 360

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(d) the right of a person to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; (e) the right of a person charged with an offence to be presumed innocent until proved guilty according to law in a fair hearing by an independent and impartial tribunal, and the right not to be denied reasonable bail without just cause; ( 0 the right of a person to the assistance of an interpreter in any proceedings in which he is involved as a party or witness, before a court, commission, board or other tribunal, if he does not under­ stand or speak the language in which such proceedings are con­ ducted; (g) the right o f a person not to be held guilty of an offence on account of any act or omission which at the time of its commission or omission did not constitute an offence, and the right of a person on being found guilty of an offence not to be subjected to a penalty heavier than the one applicable at the time the offence was com ­ mitted ; (h) the right of a person not to be subjected to cruel and unusual treatment or punishment. 3. The Charter sould also provide that every individual in Canada is entitled not to be discriminated against by reason of race, colour, national or ethnic origin, religion, or sex (a) in employment or in membership in any professional, trade or other occupational association; (b) in owning, renting, holding or otherwise possessing property; (c) in obtaining public accommodation, facilities and services. 4. The Charter should also recognize and guarantee with respect to the English and the French language (a) the right of the individual to the use of either language in the House of Parliament of Canada and in the legislatures of all the provinces; (b) the right of the individual to have access, in both languages, to records, journals and enactments of (i) the Parliament of Canada, (ii) the legislatures of New Brunswick, Ontario and Quebec, (iii) the legislature of any province in which each language is the mother tongue of at least ten per cent o f the population, and

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(iv) the legislature of any province where that legislature has declared that English and French are the official languages of the province; (c) the right of the individual to use either language, without prejudice by reason of the language he employs, when appearing in or giving evidence in, or in any pleading or process in or issuing from (i) any judicial or quasi-judicial body established by the Constitution or Parliament of Canada, (ii) the superior courts of New Brunswick, Ontario and Quebec, (iii) the superior courts of any province in which each lan­ guage is the mother tongue of at least ten per cent of the population, and (iv) the superior courts o f any province in which the legisla­ ture has declared that English and French are the official languages of the province. (d) the right of the individual to communicate in either language (i) with the head office of every department and agency of the Government of Canada, (ii) with the head office o f every department and agency of the governments of New Brunswick, Ontario and Quebec, (iii) with the head office o f every department and agency of the government of any province in which each language is the mother tongue o f at least ten per cent of the population, (iv) with the head office of every department and agency of the government o f any province in which the legislature has declared that English and French are the official languages of the province, and (v) with the principal offices of every department and agency of the Government of Canada, or the principal offices o f every department and agency of the government of a province, in any area where a substantial proportion of the population has the language of his choice as its mother tongue. 5. It should be provided that, without restricting the generality of any right or freedom referred to in the Charter, neither Canada nor any province shall abrogate or abridge any such right or freedom, and any law whether enacted in the past or future should be invalid to the extent that it interferes with these rights and freedoms. 6. It should be provided that nothing in the Charter shall be deemed to confer any legislative authority on the Parliament of Canada or on the

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legislature of a province which Parliament or the legislature did not respectively enjoy before the adoption of the Charter. 7. It should be provided that where Parliament has declared a state o f war, invasion or insurrection, real or apprehended, to exist, legisla­ tion enacted by Parliament which expressly provides therein that it shall operate notwithstanding this Charter, and any acts authorized by that legislation, shall not be invalid by reason only of conflict with the guarantees of rights and freedoms expressed Charter.

APPENDIX IV

Excerpts from the Canadian Constitutional Charter Constitutional Conference, Victoria. June 14-16, 1971 PART I— POLITICAL RIGHTS Art. 1. It is hereby recognized and declared that in Canada every person has the following fundamental freedoms: freedom of thought, conscience and religion, freedom o f opinion and expression, and freedom of peaceful assembly and of association; and all laws shall be construed and applied so as not to abrogate or abridge any such freedom. Art. 2. No law of the Parliament of Canada or the Legislatures of the Provinces shall abrogate or abridge any o f the fundamental freedoms herein recognized and declared. Art. 3. Nothing in this Part shall be construed as preventing such limitations on the exercise of the fundamental freedoms as are reasona­ bly justifiable in a democratic society in the interests of public safety, order, health or morals, o f national security, or of the rights and freedoms of others, whether imposed by the Parliament o f Canada or the Legislature of a Province, within the limits of their respective legislative powers, or by the construction or application of any law. Art. 4. The principles of universal suffrage and free democratic elec­ tions to the House of C om m ons and to the Legislative Assembly of each Province are hereby proclaimed to be fundamental principles of the Constitution. Art. 5. No citizen shall, by reason of race, ethnic or national origin, colour, religion or sex, be denied the right to vote in an election of members to the House of Commons or the Legislative Assembly of a Province, or be disqualified from membership therein. Art. 6. Every House of Com m ons shall continue for five years from the day of the return of the writs for choosing the House and no longer, subject to being sooner dissolved by the Governor General, except that in time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by the Parliament of Canada if the con­ tinuation is not opposed by the votes of more than one-third o f the members of the House. 364

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Art. 7. Every Provincial Legislative Assembly shall continue for five years from the day of the return of the writs for the choosing of the Legislative Assembly, and no longer, subject to being sooner dissolved by the Lieutenant-Governor, except that when the Government of Canada declares that a state of real or apprehended war, invasion or insurrection exists, a Provincial Legislative Assembly may be con­ tinued if the continuation is not opposed by the votes of more than one-third of the members of the Legislative Assembly. Art. 8. There shall be a session of the Parliament of Canada and of the Legislature of each Province at least once in every year, so that twelve months shall not intervene between the last sitting of the Parliament or Legislature in one session and its first sitting in the next session. Art. 9. Nothing in this Part shall be deemed to confer any legisla­ tive power on the Parliament o f Canada or the Legislature o f any Prov­ ince. PART II— LA N G U A G E RIGHTS Art. 10. English and French are the official languages of Canada having the status and protection set forth in this Part. Art. 1 1. A person has the right to use English and French in the debates of the Parliament of Canada and of the Legislatures of Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, Prince Edward Island and Newfoundland. Art. 12. The statutes and the records and journals o f the Parliament of Canada shall be printed and published in English and French, and both versions o f such statutes shall be authoritative. Art. 13. The statutes of each province shall be printed and published in English and French, and where the Government of a Province, prints and publishes its statutes in one only of the official languages, the Government of Canada shall print and publish them in the other official language; the English and French versions of the statutes of the Prov­ inces of Quebec, New Brunswick and Newfoundland shall be au­ thoritative. Art. 14. A person has the right to use English and French in giving evidence before, or in any pleading or process in the Supreme Court of Canada, any courts established by the Parliament o f Canada or any court o f the Provinces o f Quebec, New Brunswick and Newfoundland, and to require that all documents and judgments issuing from such courts be in English or French, and when necessary a person is entitled to the services of an interpreter before the courts of other provinces. Art. 15. An individual has the right to the use of the official language o f his choice in communications between him and the head or central office of every department and agency of the Government of Canada

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and of the governments of the Provinces of Ontario, Quebec. New Brunswick. Prince Edward Island and Newfoundland. Art. 16. A Provincial Legislative Assembly may, by resolution, de­ clare that any part o f Articles 13. 14. and 15 that do not expressly apply to that Province shall apply to the Legislative Assembly, and to any of the provincial courts and offices of the provincial departments and agencies according to the terms of the resolution, and thereafter such parts shall apply to the Legislative Assembly, courts and offices specified according to the terms of the resolution; and any right con­ ferred under this Article may be abrogated or diminished only in accordance with the procedure prescribed in Article 50. Art. 17. A person has the right to the use of the official language of his choice in communications between him and every principal office of the departments and agencies of the Government of Canada that are located in an area where a substantial proportion of the population has the official language of his choice as its mother tongue, but the Parlia­ ment o f Canada may define the limits of such areas and what constitutes a substantial proportion of the population for the purposes o f this Article. Art. 18. In addition to the rights provided by this Part, the Parliament of Canada and the Legislatures of the Provinces may, within their respective legislative jurisdictions, provide for more extensive use of English and French. Art. 19. Nothing in this Part shall be construed as derogating from or diminishing any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Part with respect to any language that is not English or French. PART VII— REGIO NA L DISPARITIES Art. 46. The Parliament and Government of Canada and the Legisla­ tures and Governments of the Provinces are committed to: (1) the promotion of equality of opportunity and well being for all individuals in Canada: (2) the assurance, as nearly as possible, that essential public services of reasonable quality are available to all individuals in Canada; and (3) the promotion of economic development to reduce disparities in the social and economic opportunities for all individuals in Canada wherever they may live. Art. 47. The provisions of this Part shall not have the effect of altering the distribution of powers and shall not compel the Parliament of Canada or Legislatures of the Provinces to exercise their legislative powers.

APPENDI X

IV

367

PART IX— AM END M EN TS TO TH E CONSTITUTION Art. 49. Amendments to the Constitution of Canada may from time to time be made by proclamation issued by the Governor General under the Great Seal of Canada when so authorized by resolutions of the Senate and House of Commons and of the Legislative Assemblies of at least a majority of the Provinces that includes (1) every Province that at any time before the issue of such proclamation had, according to any previous general census, a population of at least twenty-five percent of the population of Canada; (2) at least two of the Atlantic Provinces; (3) at least two of the Western Provinces that have, according to the then latest general census, combined populations of at least fifty per cent of the population of all the Western Provinces. Art. 50. Amendments to the Constitution of Canada in relation to any provision that applies to one or more, but not all, of the Provinces may from time to time be made by proclamation issued by the Governor General under the Great Seal of Canada when so authorized by resolu­ tions of the Senate and House of Commons and of the Legislative Assembly of each Province to which an amendment applies. Art. 51. An amendment may be made by proclamation under Article 49 or 50 without a resolution of the Senate authorizing the issue of the proclamation if within ninety days of the passage of a resolution by the House of Commons authorizing its issue the Senate has not passed such a resolution and at any time after the expiration of the ninety days the House of Commons again passes the resolution, but any period when Parliament is prorogued or dissolved shall not be counted in computing the ninety days. Art. 52. The following rules apply to the procedures for amendment described in Articles 49 and 50: ( 1) either of these procedures may be initiated by the Senate or the House of Com m ons or the Legislative Assembly o f a Province; (2) a resolution made for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it. Art. 53. The Parliament of Canada may exclusively make laws from time to time amending the Constitution o f Canada, in relation to the executive Government of Canada and the Senate and House o f C om ­ mons. Art. 54. In each Province the Legislature may exclusively make laws in relation to the amendment from time to time o f the Constitution of the Province. Art. 55. Notwithstanding Articles 53 and 54, the following matters

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may be amendment only in accordance with the procedure in Article 49: (1) the office o f the Queen, of the Governor General and of the Lieutenant-Governor; (2) the requirements of the Constitution of Canada respecting yearly sessions of the Parliament of Canada and the Legislatures; (3) the maximum period fixed by the Constitution of Canada for the duration of the House of C om m ons and the Legislative As­ semblies; (4) the powers of the Senate; (5) the number of members by which a Province is entitled to be represented in the Senate and the residence qualifications of Senators; (6) the right of a Province to a number of members in the House of Commons not less than the number of Senators representing the Province; (7) the principles of proportionate representation of the Provinces in the House of C om m ons prescribed by the Constitution of Canada; and (8) except as provided in Article 16, the requirements of this Charter respecting the use o f the English or French language. Art. 56. The procedure prescribed in Article 49 may not be used to make an amendment when there is another provision for making such amendment in the Constitution of Canada, but that procedure may nonetheless be used to amend any provision for amending the Constitu­ tion, including this Article, or in making a general consolidation and revision o f the Constitution. Art. 57. In this Part, “ Atlantic Provinces” means the Provinces of Nova Scotia, New Brunswick, Prince Edward Island and Newfound­ land, and “ Western Provinces” means the Provinces of Manitoba, British Columbia, Saskatchewan and Alberta.

THIS SCHEDULE IS NOT FINAL, SUBJECT TO CONFIRMATION Enactments British North America Act. 1867. 30-31 Viet., c. 3 (U.K.).

Extent of Repeal Long title; preamble; the heading immediately preceding section I; sections 1. 5, the words between brackets in section 12; sections 19. 20. 37. 40. 41. 47. 50, the words “ and to Her Majesty's Instruc­ tions" and the words “ or that he re­ serves the Bill for the Signification of the Q ueen's Pleasure" in section 55; sections 56, 57, 63; the words between brackets in section 65; sec­ tions 69, 70, 71. 72, 73, 74, 75, 76, 77, 78, 79, 80. 83, 84, 85, 86; the words "the Disallowance of Acts, and the Signification of Pleasure on Bills reserved" and the words " o f the Governor General for the Queen and for a Secretary of State, of One Year for Two Years, and of the Pro­ vince for Canada" in section 90; head (I) of section 91; Lead (1) of section 92; 94A; sections 101, 103, 104, 105. 106. 107, 119, 120. 122, 123; the words between brackets in section 129; sections 130, 134, 141, 142; the heading immediately pre­ ceding section 146; sections 146, 147; the First Schedule; the Second Schedule.

New Name ConstitutionN Act. 1867.

Enactments

Extent of Repeal

New Name

An Act to amend and continue the Act 32 and 33 Victoria chap­ ter 3; and to establish and provide for the G overnm ent of the Province of Manitoba. 1870, 33 Viet., c. 3 (Can.).

Long title: Enacting clause; sections Manitoba Act. 1970. 3 .9 , 10. II, 12. 13. 14, 15. 16. 18. 19, 20, 25.

Order of Her Majesty in Council admitting British Columbia into the Union, dated the 16th day of May 1871.

The whole except terms 4 .9 , 10, 13, B ritish C olum bia 14 in the Schedule. Terms of Union.

British North America Act, 1871,34-35 Viet., c. 28 (U .K .), and all acts en acted under section 3 thereof.

Long title; Pream ble, enacting C o n stitu tio n clause; sections 1,6. 1871.

O rder of Her Majesty in Council admitting Prince Edward Island into the Union, dated the 26th day of June, 1873.

The whole, except the conditions in Prince Edward Island the schedule relating to the provi- Terms of Union, sion of steam service and tele­ graphic communication between the Island and the mainland, the condi­ tion respecting the constitution o f the executive authority and the Legislature of the province, and the condition applying the British North America Act. 1867 to the province.

A ct,

Constitution of Canada THIS SCHEDULE IS NOT FINAL. SUBJECT TO CONFIRMATION Concluded Enactments Parliament of Canada Act. 1875. 38-39 Viet.. c. 38 (U.K.). Order of Her Majesty in Council admitting all British possessions and T errito ries in North America and is­ lands adjacent thereto into the Union, dated the 31st day of July. 1880. British North America Act. 1886.49-50 Viet., c. 35 (U.K.).

Extent of Repeal Long title: clause.

Pream ble,

New Name enacting

Parliament of Canada Act. 1875.

The whole, except the last para­ Adjacent graph. Order.

Long title: section 3.

Constitution Act. 1886.

Enactments Statute of Westminster. 1931. 22 (Geo. V. c. 4 (U.K.), insofar as it applies to Canada.

New Name

Extent of Repeal

Long title: the words "and New- Statute of Westmin­ foundland" in sections 1 and 10(3): ster. 1931. section 4 insofar as it applies to Canada: section 7(1).

British North America Act. 1940. 3-4 Geo. VI. c. 36 (U.K.).

Long title: pream ble, clause, section 2.

British North America Act. 1943. 7 Geo. VI. c. 30 (U.K.).

The whole.

British North America Act. 1946. 10 Geo. VI. c. 63 (U.K.).

Long title: pream ble, clause, section 2.

enacting

Constitution Act. 1940.

enacting

Constitution Act. 1946.

C anada (O ntario Boundary) Act. I88*J. 52-53 V iet., e. 28 (U.K.). C anadian S peaker (Appointment of Dep­ uty) Act. 1895. Ses­ sion 2. 59 Viet., c. 3 (U.K.).

Long title: clause.

pream ble,

Long title: preamble, clause. Section 2.

enacting

enacting

C anada (O ntario Boundary) Act. 1889.

C anadian S peaker (Appointment of Dep­ uty) Act. 1895.

Alberta Act. 1905. 4-5 Long title: enacting clause, seotions Edw. VII. c. 3 (Can.). 4. 5. 6. 7. 12. 13. 15. 16(2). 18. 19. 20. Schedule.

Alberta Act.

S ask atch ew an Act. 1905. 4-5 Edw. VII. c. 42 (Can.). British North America Act. 1907. 7 Edw. VII. c. II (U.K.). British North America Act. 1915. 5-6 Geo. V. c. 45 (U .K.).

British North America Long title: third paragraph in Act. 1949. 12 and 13 preamble: enacting clause: sections Geo. VI. c. 22 (U.K.). 2. 3: terms 6(2). (3). 15(2). 16. 22(2). (4). 24. 27. 28. 29 in the Schedule. British North America (N o. 2) Act. 1949 (U.K.). 13 Cieo. VI. c. 81 (U.K.).

The whole.

Section 2.

Constitution Act. 1949.

I.ong title: enacting clause: sections 4. 5. 6. 7. 12. 13. 14. 15. 16(2). 18. 19. 20. Schedule. Long title: preamble, enacting clause, section 2. Schedule.

Saskatchewan Act.

British North America Act. R.S.C.. 1952. c. 304 (Can.).

British North America Long title: pream ble: Act. I960. 9 Eliz. II. c. clause: sections 2. 3. 2 (U.K.).

enacting

Constitution Act. 1907.

Constitution Act. I960.

Long title: enacting clause, section 3.

Constitution Act. 1915.

British North America I.ong title: enacting clause: section Act. 1964. 12 and 13. 2. Eliz. II. c. 73 (U.K.).

Constitution Act. 1964.

British North America Long title: fourth paragraph of Act. 1930. 20-21 Geo. preamble, enacting clause, section V. c. 26 (U.K.).

Constitution Act. 1930.

British North America Act. 1965. 14 Eliz. II. c. 4. Part I. (Can.).

Constitution Act. 1965.

Section 2.

Constitution Act. 1952.

LIST OF ABBREVIATIONS USED A. 2d— Atlantic Reporter Second Series (U.S.) A .C .— Appeal Cases (Law Reports) Ad. & E.— Adolphus and Ellis A .E .R .— All England Reports A .L .J .— Australian Law Journal Alta. L .R .— Alberta Law Review A m . J . Int. L .— Am erican Journal o f International Law App. Cas— Appeal Cases AustI. L .J .— Australian L aw Journal B aylor L. R ev.— B aylor Law Review B. & C .— Barnewall and Cresswell B .N .A. Act— British North America Act C olliers— Les cahiers de droit Calif. L. R ev.— California L aw Review C .B .A . Papers— Papers P resented to the Canadian B ar Association Can. B ar J .— Canadian Bar Journal Can. B ar J. (N .S .)— Canadian B ar Journal (new series) Can. B ar R ev.— Canadian B ar R eview Can. J. Pol. S c .— Canadian Journal o f P olitical Science Can. Pub. A dm in .— Canadian Public Adm inistration C .C .C .— Canadian Criminal Cases C h .— Chancery (Law Reports) C hitty’s L .J .— C hitty's Law Journal C .J .E .P .S .— Canadian Journal o f Econom ics and Political Science Cl. & Fin.— Clark and Finnelly C .L .J .— Cambridge Law Journal C .L .R .— Commonwealth Law Reports C m d.— Command Papers (U.K .) C ol. I. D r. C om p .— C ol toque international de droit compare Col. Law R ev .— Colum bia L aw Review Co. Rep.— Coke Reports Cornel! Law Q .— Cornell Law Q uarterly Cox C .C .— C ox’s Criminal Cases C .P .— Common Pleas Cases C .R .— Criminal Reports (Canadian) C .R .N .S .— Criminal Reports New Series Annotated (Canadian) Cr. App. R .— Criminal Appeal Reports (U.K .) Crim. L .Q .— C rim inal L aw Q uarterly C .S .— Les recueils de jurisprudence du Quebec cour superieure D .L .R .— Dominion Law Reports 373

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D alhousie L .J .— D alhousie Law Journal D rake L . R ev.— D rake L aw Review E .R .— English Reports Ex.— Exchequer (Law Reports) F.C .— Canada Federal Court Reports F .L . R ev.— F ordham Law R eview Ga. L. R ev.— G eorgia Law Review Ga. S .B .J .— G eorgia State B ar Journal H .L .R .— H arvard Law Review H .L .C .— House of Lords Cases I.C .L .Q .— International and C om parative L aw Q uarterly Idaho L. R ev.— Idaho Law Review Indian L. R e v .— Indian Law Review Ir. C .L .R .— Irish Common Law Reports K .B .— King’s Bench (Law Reports) L .J.K .B .— Law Journal King’s Bench L .Q .R .— L aw Q uarterly Review Lectures L .S .U .C .— Special Lectures o f the Law Society o f Upper Canada M an. B. N ew s— M anitoba B ar News M an. L .J .— M anitoba Law Journal M cG ill L .J .— M cG ill Law Journal M ich. L aw R e v .— M ichigan L aw R eview M inn. L. R e v .— M innesota Law Review M .L .R .— M odern Law Review Mod. Rep.— Modern Reports M .P .R .— Maritime Provinces Reports N.E. 2d.— North Eastern Reporter Second Series (U.S.) N otre D am e L aw — N otre Dam e Law yer N .Z .L .R .— New Zealand Law Reports O .H .L .J .— O sgoode H all Law Journal O .L .R .— Ontario Law Reports O .R .— Ontario Reports Ottawa L. R ev.— O ttawa Law R eview O .W .N .— Ontario Weekly Notes P. 2d.— Pacific Reporter Second Series (U.S.) P.C .— Privy Council Appeal Cases Pet.— Peters (U.S.) Plowd. C om .— Plowden Q .B .— Queen’s Bench (Law Reports) Q .B .D .— Q ueen’s Bench Division (Law Reports) Queen s Intr. L .J .— Q ueen’s Intram ural Law Journal Q ueen's L .J .— Q ueen's Law Journal Que. P .R .— Quebec Practice Reports

LIST O F ABBREVIATIONS U SED

375

Que. S .C .— Quebec Supreme Court Reports R. du B .— La revue du barreau de Quebec R. du N .— La revue du notariat R .S .A .— Revised Statutes of Alberta R .S .B .C .— Revised Statutes of British Columbia R .S .C .— Revised Statutes of Canada R .S .M .— Revised Statutes of Manitoba R .S .N .B .— Revised Statutes o f New Brunswick R.S.N fld.— Revised Statutes of Newfoundland R .S .N .S .— Revised Statutes of Nova Scotia R .S .O .— Revised Statutes of Ontario R .S .P .E .I.— Revised Statutes of Prince Edward Island R .S .Q .— Revised Statutes of Quebec R .S .S .— Revised Statutes o f Saskatchewan Sask. L. R ev.— Saskatchewan Law Review (Bar R eview prior to 1967) S .A .— Statutes of Alberta S .B .C .— Statutes of British Columbia (S.A .) A .D .— South African Law Reports (Appeal Division) S .A .L .R . (A .D .)— South African Law Reports (Appeal Division) S .C .— Statutes of Canada S .C .R .— Supreme Court Reports S. C t.— Supreme Court Reporter (U.S.) S .M .— Statutes of Manitoba S .N .B .— Statutes of New Brunswick S. Nfld.— Statutes of Newfoundland S .N .S .— Statutes of Nova Scotia S .N .Z .— Statutes of New Zealand S .O .— Statutes of Ontario S .P .E .I.— Statutes of Prince Edward Island S .Q .— Statutes of Quebec S .S .— Statutes of Saskatchewan Str.— Strange Suffolk U .L. R ev .— Suffolk University Law Review Sup. Ct. J.— Supreme Court Journal (India) T .L .R .— Times Law Reports Tasmanian U .L. R ev .— Tasmanian University Law Review Them is— La revue juridique themis U .B .C .L . R ev .— U niversity o f British Colum bia Law Review U .B .C . Legal N otes— University o f British Colum bia Legal N otes U. o f Chi. Law R ev .— University o f Chicago Law Review U. Cin. L. R ev.— University o f Cincinnati Law Review U .N .B .L .J .— U niversity o f N ew Brunsw ick Law Journal U. Pa. L. R ev.— University o f Pennsylvania Law Review U. Pitt. L. R ev.— University o f Pittsburgh Law Review

376

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U. o f Tor. F ar. o f Law R .— University o f Toronto Faculty o f Law Review U. o f Tor. L .J .— U niversity o f Toronto L aw Journal U .S .— United States Supreme Court Reports Vand. L. R ev.— Vanderbilt Law Review V .L .R .— Victoria Law Reports W ash. & Lee L. R ev.— W ashington and Lee Law Review W estern Ont. L. R ev .— W estern O ntario Law R eview W isconsin L. R ev.— W isconsin L aw Review W .L .R .— Weekly Law Reports W .W .R .— Western Weekly Reports W .W .R . (N .S.)— Western Weekly Reports (New Series)

TABLE OF STATUTES CANADIAN A n A ct to A m end the Fisheries A c t, S.C. 1960-61, c. 23. A n A ct to Confer Certain Pow ers Upon the G overnor in C ouncil and to A m end the Im m igration A ct, S.C. 1914, 2d. Sess., c. 2. B oard o f Com m erce A ct, S.C. 1919, c. 45. Broadcasting A c t, R .S.C . 1970, c. B - ll. Canadian Bill o f R ig h ts, S.C. 1960, c. 44, R .S.C . 1970, Appendix III. Canada Elections A ct, R.S.C. 1970, c. 14 (1st Supp.) Canada Evidence A ct, R .S.C . 1970, c. E-10. Canada Labour C ode, R .S.C . 1970, c. L -l. Part I: formerly Canada F air Em ployment Practices A ct, S.C. 1952-53, c. 19. Part II: formerly F em ale E m ployees Equal P ay A ct, S.C. 1956, c. 38. Part V: formerly Industrial Relations and D isputes Investigation A ct, R.S.C. 1952, c. 152. Canada Tem perance A ct, 1878, R .S.C . 1970, c. T-5. Canadian C itizenship A ct, R .S.C . 1970, c. C-19. Com bines Investigation A c t, R .S.C . 1970, c. C-23, as amended by Bill C-227. C rim inal C ode, R .S.C . 1970, c. C-34. Crown Liability A ct, R .S.C . 1970, c. C-38. Custom s A ct, R .S.C . 1970, c. C-40. Custom s T ariff A c t, R .S.C . 1970, c. C-41. Electoral Boundaries Readjustm ent A ct, S.C. 1964-65, c. 3 1, R.S.C. 1970 c. N -l. Replaced: Representation Act, R .S.C . 1952, c. 334. Excise A ct, R.S.C. 1970, c. E-12. Expropriation A c t, R.S.C. 1970, c. 16 (1st Supp.) Extradition A c t, R .S.C . 1970, c. E-21. Federal C ourt A c t,S .C . 1970-71, c. 1, R.S.C. 1970, c. 10(2ndSupp.) Replaced: Exchequer Court A c t, R.S.C. 1970, c. E-l 1 except for ss. 26 to 28 under R.S.C. 1970, c. 10 (2nd Supp.), s. 64 F ood and D rugs A ct, R.S.C. 1970, c. F-27. G overnor-G eneral's A ct, R.S.C. 1970, c. G-14. H ouse o f C omm ons A ct, R .S.C . 1970, c. H-9. Im m igration A ct, R .S.C . 1970, c. 1-2. Im m igration A ppeal B oard A c t, R .S.C . 1970, c. 1-3. Incom e Tax A ct, R .S.C . 1970, c. 1-5. 377

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Indian A ct, R .S.C . 1970, c. 1-6. Inquiries A ct, R .S.C . 1970, c. 1-13. Interpretation A ct, R .S.C . 1970, c. 1-23. Judges A ct, R.S.C. 1970, c. J-l. Juvenile D elinquents A c t, R.S.C. 1970, c. J-3. L ord's D ay A ct, R .S.C . 1970, c. L-13. N arcotic C ontrol A ct, S.C. 1960-61, c. 35, R .S.C . 1970, c. N -l. Replaced: O pium and N arcotic D rug A ct, R.S.C. 1952, c. 201. N ational Em ergency Transitional Pow ers A ct, S.C. 1945, c. 25. N atural Products M arketing A ct, S.C. 1934, c. 57; S.C. 1935, c. 64. N orthw est Territories A c t, R .S.C . 1970, c. N-22. O fficial Secrets A ct, R .S.C . 1970, c. 0 -3 . Parole A ct, S.C. 1958, c. 38, R.S.C. 1970, c. P-2. Prisons and Reform atories A ct, R .S.C . 1970, c. P-21. P ost Office A ct, R.S.C. 1970, c. P-14. Protection o f P rivacy A c t, Bill C - 176, to amend the Criminal Code, 1st Sess. 29th Pari. 1974. P ublic O rder (Tem porary M easures) A ct. S.C. 1970-71-72, c. 2, expiry date: April 30, 1971. Public Services Em ployment A ct, S.C. 1966-67, c. 71, now R.S.C. 1970, c. P-32. R oyal Canadian M ounted Police A ct, R .S.C . 1970, c. R-9. Senate and H ouse o f C om m ons A ct, R.S.C. 1970, c. S-8. Speaker o f the H ouse o f Com m ons A ct, R.S.C. 1970, c. S-13. Speaker o f the Senate A ct, R .S.C . 1970, c. S-14. Statutory Instrum ents A ct. S.C. 1970-71-72, c. 38. Suprem e Court A c t, R .S.C . 1970, c. S-19. U nem ployment Insurance A ct, S.C. 1970-71, c. 48. W ar M easures A c t, R.S.C. 1970, c. VV-2. Yukon A ct. R.S.C. 1970, c. Y-2. CA N AD IA N — PROVINCIAL Alberta An Act to A m end the School A ct, S.A. 1944, c. 46. Alberta Bill o f R ights, S. A. 1972, c. 1. H um an Rights A ct, S. A. 1966, c. 39, R.S.A. 1970, c. 178; amended S.A . 1971. c. 48. Alberta Labour A ct, S.A . 1973, c. 33. Alberta Social Credit A ct, S.A. 1937, c. 10. C om m unal Property A ct, R .S.A . 1970, c. 59; repealed S.A. 1972, c. 103. D ebt Adjustm ent A ct, S.A. 1937, c. 9, S.A . 1941, c. 42.

TA BL E O F ST A TU T E S

379

Individual’s Rights Protection A c t, S.A. 1972, c. 2. Equal Pay (Part VI) of Labour A ct, S.A . 1970, c. 196; repealed S.A. 1972, c. 2, s. 29. Om budsm an A ct, S.A. 1967, c. 59, R .S.A . 1970, c. 268; amended S.A. 1972, c. 75. Securities A ct, S.A. 1955, c. 64, R .S.A . 1970, c. 333. Sex D isqualification Rem oval A c t, S.A. 1930, c. 62, R.S.A . 1970, c. 340. W orkm en’s Com pensation A ct, R .S.A . 1970, c. 397. British Columbia Hum an Rights C ode o f British Colum bia A ct, S. B.C. 1973 (2nd Sess.) c. 119. Human R ights A ct, S .B .C . 1969, c. 10: repealed S.B.C. 1973 (2nd Sess.), c. 119, s. 27 Equal Pay A ct, S.B .C . 1953 (2nd Sess.), c. 6, R .S.B .C . 1960, c. 131; repealed S.B .C . 1969, c. 10, s. 24. F air Em ployment Practices A ct, S.B .C . 1956, c. 16. R .S.B .C . 1960, c. 137; amended S.B .C . 1964, c. 19; re­ pealed S.B .C . 1969, c. 10, s. 24. Public Accom m odation Practices A c t, S.B .C . 1961, c. 50; repealed S.B .C . 1969, c. 10, s. 24. Inquiries A ct, R .S.B .C . 1960, c. 315. Labour C ode o f British C olum bia A ct, S. B.C. 1973 (2nd Sess.), c. 122. Labour Relation A ct, R .S.B .C . 1960, c. 205; amended S.B.C. 1961, c. 31, s. 5; repealed S .B .C . 1973 (2nd Sess.), c. 122, s. 151. Privacy A ct, S.B .C . 1968, c. 39. S ex D isqualification Rem oval A ct, S.B .C . 1931, c. 55, R .S.B .C . 1960, c. 352. Trade U nions A ct, R .S.B .C . 1960, c. 384. M anitoba Equal Pay A ct, S.M . 1956, c. 18, R .S.M . 1970, c. E-130, amended, S .M . 1971, c. 62, S .M . 1972, c. 47. H um an Rights A ct, S.M . 1970, c. 104; amended S.M . 1972, c. 81, s. 12. F air Accom m odation Practices A c t, S .M . 1960, c. 14; re­ pealed S .M . 1970, c. 104, s. 22(a). F air Em ploym ent Practices A ct, S .M . 1953 (2nd Sess.) c. 18; repealed S.M . 1970, c. 104, s. 22(b). Law o f P roperty A c t, S .M . 1950 (1st Sess.), c. 33, R .S.M . 1970, c. L-90, s. 7.

380

T H E C A N A D IA N BILL O F RIGHTS

O m budsman A ct, S .M . 1969 (2nd. Sess.) c. 26, R .S.M . 1970, c. 0-45. P ersonal Investigations A c t, S .M . 1971, c. 23. Privacy A ct, S .M . 1970, c. 74. Securities A c t, R .S.M . 1970, c. S-50. N ew Brunsw ick Fem ale E m ployees Fair Rem uneration A c t, S.N .B . 1960-61, c . 7. H uman Rights A c t, S.N .B . 1971, c. 8. Human Rights A ct, S.N .B . 1967, c. 13; repealed S.N .B. 1971, c. 8, s. 28. Fair Accom m odation Practices A ct, S.N .B . 1959, c. 6; repealed S.N .B . 1967, c. 13, s. 21. Fair Em ployment Practices A c t, S .N .B . 1956, c . 9; repealed S.N .B . 1967, c. 13, s. 21. Om budsm an A c t, S.N .B . 1967, c. 18; amended S.N.B. 1968, c. 44, s. 1, S .N .B . 1969, c. 62, s. 1. Inquiries A c t, R .S.N .B . 1952, c. 112. New foundland Industrial A ccidents Enquiries A ct, R.S.Nfld. 1970, c. 171. N ew foundland H uman Rights C ode, S. Nfld. 1969, c. 75. Parliam entary Com m issioner (O m budsm an) A c t, S.Nfld. 1970, c. 30. Nova Scotia H um an Rights A c t, S .N .S . 1969, c. 11; amended S.N .S. 1970, c. 85, S.N .S . 1970-71, c. 69, S.N .S . 1972, c. 65. Human Rights Com m ission A ct, S.N .S . 1967, c. 12, R .S.N .S. 1967, c. 121; repealed S.N .S. 1969, c. 11, s. 34. H um an Rights Act S.N .S. 1963, c. 5; amended S.N .S. 1967, c. 91, R .S.N .S. 1967, c. 130; repealed S.N .S. 1969, c. II , s. 34. Equal P ay A ct, S.N.S. 1956, c. 5; repealed S.N .S. 1963, c. 5, s. 21. F air A ccom m odation Practices A ct, S .N .S . 1959, c. 4; repealed S.N .S . 1963, c. 5, s. 21. F air Em ploym ent Practices A ct, S.N .S. 1955, c. 5; amended S.N .S. 1959, c. 47; repealed S.N.S. 1963, c. 5, s. 21. Labour Standards C ode, S.N .S. 1972, c. 10. Em ployment o f Children A c t, R.S. N.S. 1967, c. 88; repealed S.N .S . 1972, c. 10, s. 96.

TABLE OF STATUTES

381

Equal P ay A ct, S.N .S. 1969, c. 8; repealed S.N .S. 1972, c. 10, s. 96. O m budsm an A ct, S.N .S. 1970-71, c. 3. P ublic Inquiries A ct, R .S.N .S. 1967, c. 250. Ontario An A ct fo r the Better E stablishm ent and M aintenance o f Public Schools in U pper C anada, S.C. 1848, 12 Viet., c. 83, ss. 69-71; re-enacted S.C. 1850, 13 & 14 Viet., c. 48, s. 19; became ss. 1 & 2.

Separate School A c t, R .S.O . 1960, c. 362; repealed S.O . 1964,c. 108. An A ct to Prevent the Further Introduction o f Slaves, 1793, 33 Geo. Ill, c. 7 (2nd Sess., Legislative Assembly of Upper Canada). An A ct Respecting R ectories, R .S.O . 1897, c. 306, s. 1. C onveyancing and Law o f P roperty A c t, S .0 . 1950, c. 11, R.S.O. 1970, c. 85, s. 22. Freedom o f W orship A ct, S.C. 1852, 14 & 15 Viet., c. 175. Insurance A ct, R .S.O . 1950,c. 183,s. 101, R.S.O. 1970,c. 224, s. 114. Judicial Review P rocedure A ct, S.O. 1971, c. 48. Labour Relations A c t, R .S.O . 1950, c. 194, ss. 9, 34, R.S.O . 1970, c. 232, ss. 12, 40. M ining A c t, R .S.O . 1970, c. 274. Ontario H um an Rights C ode, S.O . 1961-62, c. 92; R .S.O . 1970, c. 318; amended S.O. 1971, c. 50, s. 63, S.O. 1972, c. 119. Age D iscrim ination A c t, S.O . 1966, c. 3, R .S.O . 1970, c. 7; amended S.O . 1971, c. 50, s. 2; repealed S.O . 1972, c. 119, s. 15. W om en's Equal Em ploym ent O pportunity A c t, S.O. 1970, c. 33, R .S.O . 1970, c. 501; amended S .o'. 1971, c. 50, s. 90; repealed S.O. 1972, c. 119, s. 15. Fair A ccom m odation Practices A ct, S.O. 1954, c. 28, R .S.O . I960, c. 131; amended S.O . 1960-61, c. 28; re­ pealed S.O. 1961-62, c. 93, s. 19. F air Em ploym ent Practices A ct, S.O. 1951, c. 24, R.S.O. I960, c. 132; repealed S.O . 1961-62, c. 93, s. 19. Fem ale Em ployees Fair Rem uneration A ct, S.O. 1951, c. 85. R .S.O . I960, c. 139; repealed S.O. 1961-62, c. 93, s. 19. O ntario A nti-D iscrim ination A ct, S.O. 1958, c. 70; amended into The O ntario H um an Rights Commission A ct, S.O. 1960-61, c. 63; repealed S.O . 1961-62, c. 93, s. 19.

382

T H E C A N A D IA N BILL O F R IGHTS

Police A c t, R.S.O . 1970, c. 351. Public Inquiries A c t, 1971, S.O. 1971, c. 49. The Public Inquiries A ct, R .S.O . 1970, c. 379; repealed S.O. 1971, c. 49, s. 19. R acial Discrim ination A c t, S.O . 1944, c. 51: repealed S.O . 1954, c. 28, s. 9. Securities A c t. R.S.O. 1970, c. 426; amended S.O. 1971, c. 31, S.O . 1972, c. 1, s. 55. Statutory Powers P rocedures A c t, S.O. 1971, c. 47. Prince E dw ard Island H um an Rights C ode, S .P .E .I., 1968, c. 24. Equal Pay A ct, S .P .E .l. 1959, c. 11; amended S.P.E.I. 1967, c. 15; repealed S .P .E .l. 1968, c. 24, s. 20. Public H ealth A ct, R .S .P .E .l. 1951, c. 129. P ublic Inquiries A ct. R .S .P .E .l. 1951, c. 130. Trade Union A ct, 1948. R .S .P .E .l. 1951, c. 164. Q uebec An A ct Respecting C om m unistic P ropaganda, R .S.Q . 1941. c. 52. An Act Respecting the Legal C apacity o f M arried W om en, S.Q. 1964. c. 66, s. I, and article 177 of the C ivil Code. Em ployment Discrim ination A ct. R.S.Q . 1964, c. 46. Freedom o f W orship A ct. R .S .Q .. 1941. c. 307; amended S.Q. 1953-54, c. 15. R.S.Q . 1964. c. 301. H otels A ct, S .Q . 1963. c.'40. R.S.Q . 1964, c. 205, ss. 8, 14. 15; amended S.Q. 1969. c. 26. Inquiries A c t, R .S .Q .. 1964. c. II. Public Protector A c t, S.Q. 1968. c. I I . Saskatchewan Fair Accom m odation Practices A d . S.S. 1956, c. 68, R.S.S. 1965. c. 379; amended S.S. 1972. c. 42. F air Em ployment Practices A c t. S. S. 1956,c. 59. R.S.S. 1965.c. 293; amended S.S. 1972, c. 43. Farm Security A c t, R.S.S. 1965, c. 105. Labour Standards A c t. S. S. 1969. c. 294; amended S. S. 1971, c. 19. S.S. 1971. (2nd Sess.) c. 4. S.S. 1972, c. 59. E qual Pay A ct. S.S. 1952, c. 104, R .S.S. 1965, c. 294; repealed S.S. 1969, c. 24, s. 73(k). Fem ale Em ployment A ct. first enacted as M inim um W ages A ct. S.S. 1918-19. c. 84, R .S.S. 1965. c. 298; repealed S.S. 1969, c. 24, s. 73(L).

TABLE OF STATUTES 3 8 3

M arried W om an's Property A c t, R.S.S. 1965, c. 340. O m budsm an A c t, S.S. 1972, c. 87. Saskatchew an Bill o f R ights A c t, 1947, S. S. 1947, c. 35, R.S.S. 1965, c. 378; amended. S.S. 1970, c. 56, S.S. 1972, c. 104. Saskatchew an Human Rights Com m ission A ct 1972, S .S . 1972, c. 108; amended S.S. 1973, c. 94. Securities A c t, R.S.S. 1965, c. 396. Vehicles A ct. R.S.S. 1965, c. 377. UNITED KINGDOM 1215 1354 1640 1688 1700 1706 1715 1800 1816 1853 1860 1865 1867 1869 1873 1893 1900 1909 1911 1914 1919 1922 1925 1925 1931 1940 1949

Magna Carta Liberty of Subject Act, 28 Edw. Ill, c. 3. Habeas Corpus (Star Chamber Abolition Act) 16 Cha. I .e . 10 Bill of Rights Act. I Will. & Mar.. Sess. 2. c. 2 Act o f Settlement, 12 & 13 Will. 3, c. 2 Union of England and Scotland Act, 6 Anne, c. I I Septennial Act. 1 Geo. I, Sess. 2. c. 38 Union of England and Ireland Act, 39 & 40 Geo. 3, c. 67 Habeas Corpus Act, 56 Geo. 3, c. 100 Universities (Scotland) Act, 16 & 17 Viet., c. 89 Petitions of Rights Act. 23 & 24 Viet., c. 34 Colonial Laws Validity Act, 28 & 29 Viet., c. 63 British North America Act, 30 & 31 Viet., c. 3 Irish Church Act, 32 & 33 Viet., c. 42 Supreme Court of Judicature (Consolidation) Act, 36 & 37 Viet., c. 66 Statute Law Revision Act, 56 & 57 Viet., c. 14 Commonwealth of Australia (Constitution) Act. 63 & 64 Viet., c. 12 South Africa Act, 9 Edw. 7, c. 9 Parliament Act, 1 & 2 Geo. 5, c. 13 Defence o f the Realm Act, 4 & 5 Geo. 5, c. 29 Acquisition of Land (Assessment of Compensation) Act. 9 & 10 Geo. 5. c. 57 Irish Free State Constitution Act, 13 Geo. 5, Sess. 2, c. 1 Housing Act, 15 & 16 Geo. 5, c. 14 Supreme Court of Judicature (Consolidation) Act, 15 & 16 Geo. 5, c. 49 Statute of Westminster, 22 Geo. 5, c. 4 B.N .A . Act. 3 & 4 Geo. VI, c. 36 House o f Commons (Redistribution of Seats) Act, 12 & 13 Geo. 6, c. 66

384

1949 1951 1958 1959 1967

T H E C A N A D IA N BILL O F RIGHTS

Parliament Act, 12, 13 & 14 Geo. 6, c. 103 B .N .A . Act, 14-15 Geo. VI, c. 32 Tribunals and Enquiries Act, 6 & 7 Eliz. 2, c. 66 Obscene Publications Act, 7 & 8 Eliz. 2, c. 66 Parliamentary Commissioner Act, 15 & 16 Eliz. 2, c. 13 OTHER C O M M O N W EA LTH

Australia

National Security Act, No. 15 of 1939; No. 44 of 1940 Ceylon Bribery Act, 1954, Bribery Amendment Act, 1958 Ceylon Independence (Commencement) Order in Council, 1947, No. 2782 (U.K.) India Constitution Act o f India, 1950 N ew Zealand Parliamentary Commissioner (Ombudsman) Act, S.N .Z. 1962, c. 10 Nigeria Nigeria (Constitution) Order in Council, 1960, No. 1652 (U.K.) Union o f South Africa Status of the Union Act, Union Statutes, No. 69 o f 1934 Separate Representation of Voters Act, Statutes of the Union of South Africa, No. 46 of 1951

TABLE OF CASES A. A Book etc. v. Atty. Gen. for Mass. (1966) 86 S.Ct. 975, 199n 134 Abington School District v. Schempp (1963) 374 U.S. 203, 178n45 Adair v. United States (1908) 208 U.S. 161, 224 Adamson v. California (1947) 332 U.S. 46, 226 Adelaide Company of Jehovah's Witnesses v. The Commonwealth (1943) 67 C .L .R . 116, 175-7 Adkins v. Children’s Hospital (1923) 261 U.S. 525, 224 Adoption Act. Re [1938] S.C .R . 398. 56nl48 Alberta Press Bill Case (Re Alberta Statutes) [ 1938] S.C .R . 100, 8,3 1, 38-9, 50, 52, 54n 133, 119, 168, 182 Amand v. Home Secretary [1943] A.C. 147, 56 Ambard v. Attorney General for Trinidad and Tobago [1936] A.C. 322, 183-4 Angers v. Minister of National Revenue [1957] Ex. C.R. 83, 54nl32 Attorney General v. Prince Ernest Augustus o f Hanover [ 1957] A.C. 436, 118n 19 Attorney General for Alberta v. Attorney General for Canada [1939] A.C. 117, 31n9 Attorney General for Alberta v. Attorney General for Canada (Alberta Debt Adjustment Act case) [1943] A.C. 356, 55nl34 Attorney General for Alberta v. Attorney General for Canada (Alberta Bank Taxation case) [1939] A.C. 117, 33n24 Attorney General for Alberta v. Attorney General for Canada, (Alberta Bill of Rights Act) [1947] A.C. 503, 12n54 Attorney General o f British Columbia v. McDonald (1961) 131 C .C .C . 126, 132n84, 304 Attorney General for Canada v. Attorney General for British Columbia (Fish Canneries case) [1930] A.C. I l l , 34n27 Attorney General for Canada v. Lavell, Isaac et al. v. Bedard (1973) 38 D .L .R . (3d) 4 8 1, 120, 124, 148-63, 1 73 -4 ,2 95,297-304,308,315 Attorney General for Canada v. Attorney General for Ontario (Labour Conventions case) [1937] A.C. 326, 48n 113, 323 Attorney General for Canada v. Cain; Attorney General for Canada v. Gilhula [1906] A.C. 542, 31nl3 Attorney General for Canada v. Attorneys General for Ontario, Quebec, and Nova Scotia (Fisheries case) [1898] A.C. 700, 3 In 15 Attorney General for New South W ales v. Trethowan [1932] A.C. 526. 99-101, 109, 142 385

386

T H E C A N A D IA N BILL O F RIGHTS

Attorney General for Canada v. Cain [1906] A.C. 542, 237 Attorney General for Ontario v. Canada Temperance Federation [1946] A.C. 193, 133n91, 323 Attorney General for Ontario v. Hamilton Street Railway Co. [1903] A.C. 524, 44n84, 47n 101, 133n91 Attorney General for Ontario v. Koynok et al. [1941] 1 D .L.R . 548, 39n62, 182n68 Attorney General for Ontario v. Reciprocal Insurers [ 1924] A.C. 328, 33n24, 47n 104 Attorney General for Saskatchewan v. Attorney General for Canada, Re [1949] A.C. 110, 55nl34 B. Baldwin v. Missouri (1929) 281 U.S. 586, 224 Bank of Toronto v. Lam be (1887), 12 App. Cas. 575, 36 Barron v. Baltimore (1833) 7 Pet. 243, 225 Batary v . Attorney General for Saskatchewan et al. [ 1965] S . C . R . 465, 56n 4 1 ,2 55 Beauchamp, Ex parte [1970] 3 O.R. 607, 236 Beatty v. Gillbanks (1882) 9 Q .B .D . 308, 204-5 Beatty v. Gillbanks (1889) 9 Q .B .D . 308, 204-5 Bedard v. Dawson [1923] S.C.R. 681. 39 Bell v. Attorney-General for Prince Edward Island (1973) 42 D.L.R. (3d) 82, 35n3l Bell Telephone Company o f Canada, Re [ 1947] O .W .N . 651, 259n224 Benning v. Attorney General for Saskatchewan et al. (1963) 41 W .W .R . 497, I32n85, 264 Benton v. Maryland (1969) 395 U.S. 784, 227 Betts v. Brady (1942) 316 U.S. 455, 226 Bilston Corporation v. Wolverhampton Corporation [1942] Ch. 391, 97 Birks & Sons (Montreal) Ltd. v. City of Montreal [1955] S.C .R . 799, 9, 44, 133n91, 168 Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919, In re |I9 2 2] 1 A.C. 191, 47n 103, 322-3 Board of Education v. Barnette (1943) 319 U.S. 624. I75n25 Board of Education v. Rice [1911] A.C. 179, 265-6 Board of Health for Saltfleet Township v. Knapman [1957] S.C.R. 877, 297n295 Board of Trustees o f the Lethbridge Irrigation District v. Independent Order of Foresters; The King v. Independent Order of Foresters [1940] A.C. 513, 34n26

T A B L E OF CASES

387

Boardwalk Enterprises Mart Ltd. et al and the Queen, re (1972) 31 D.L.R. (3d) 452, 44n87, 170n8 Boucher v. The Kina [1951] S.C.R. 2 65 ,37n50, 121n39, 181-2, 185, 193 Bowman v. Secular Society Ltd. [1917] A.C. 406, 184 Bradlaugh v. Gossett (1884), 12 Q .B .D . 271, 97 Bribery Commissioner v. Ranasinuhe [ 1965] A.C. 172. 107-10, 112, 142 British Coal Corporation v. The Kinu [ 1935] A.C. 500. 31 n 13, 93n27, 98-9, 106 Brodie v. The King [1936] S.C .R . 188, 207nl63 Brodie. Dansky and Rubin v. The Queen [ 1962] S.C .R . 681. 196-200 Brooks' Detention. Re (1961) 38 W .W .R . 51. 244nl49 Brown v. Board o f Education (1954) 347 U.S. 483, 292-3, 296 Brownridge v. The Queen [ 1972] S.C .R . 926. 144, 147, 249-52 Buck v. Bell (1927) 274 U.S. 200. 293 Burrows v. Gilding (1954) 11 W .W .R . 89, 5 6n l4 6 Burstyn (Joseph) Inc. v. Wilson (1952) 343 U.S. 495, 38n54 Bute v. Illinois (1948) 333 U.S. 640. 226 C. C .F .R .B . and Attorney General for Canada (2). Re (1972) 38 D.L.R. (3d) 335, 308n64 Calgary Power Ltd. and Halmrast v. Copithorne [1959] S.C .R . 24. 270n299 Canadair Limited v. The King (1948) 5 C.R. 67, 208n 17 1 Canadian Bankers' Association and Dominion Mortgage and Invest­ ments Association v. Attorney General for Saskatchewan [1956] S.C .R . 31, 5 5 n 134 Canadian Federation of Agriculture v. Attorney General for Quebec (Margarine case) [1951] A.C. 179, [1950] 4 D .L.R . 689, 33n24, 47-8, 323 Canadian Pacific Railway Company v. Attorney General for British Columbia [1950] A.C. 122, 323 Canadian Pacific Railway Co. v. Zambri [1962] S.C .R . 609, 209 Canard v. Attorney General for Canada et al. (1972) 30 D.L.R. (3d) 9, 141n 105, 307-8, 315 Cantwell v. Connecticut (1940) 310 U.S. 296, 179 Case o f Proclamations (1611) 12 Co. Rep. 74; 77 E.R. 1352, 105 Chabot v. School Commissioners o f Lamorandiere and Attorney Gen­ eral for Quebec (1958) 12 D .L.R . (2d) 796, 178n45 Chaput v. Romain [1955] S.C .R . 834, 5 5n l3 6, 56nl47, 12ln39, 174-5, 179-80, 253

388

T H E C A N A D IA N HILL O F RIGHTS

Chicago, Burlington and Quincy Rail Road Company v. Chicago (1897) 166 U.S. 226, 224 Christie v. Leachinsky [1947] A.C. 573. 56, 240 Christie v. York Corporation [1940] S.C .R . 139, 66nl95 Citizens Insurance Company v. Parsons (1881), 7 App. Cas. 96, 47nl03 Civil Rights Cases (1883) 109 U .S. 3, 291 Clearwater Election, Re (1913) 4 W .W .R . 1025, 118n 15 Commission du Salaire Minimum v. The Bell Telephone Co. of Canada [1966] S.C .R . 767, 36n43 Commonwealth v. Bey (1950) 70 A. 2d 693, 177n40 Commonwealth o f Virginia and Cohen (2), Re [1974] 1 O.R. 262, 2 73n319 Co-operative Committee on Japanese-Canadians v. Attorney General for Canada [1947] A.C. 87, 5 5n l3 5, 237, 325, 330 Copeland and Adamson et al., Re (1972) 28 D .L.R . (3d) 26, 234 Coppage v. Kansas (1915) 236 U.S. 1, 224 Cummings v. Richmond County Board of Education (1899) 175 U.S. 528, 292 Cunningham v. Tomey Homma [1903] A.C. 151, 30n6, 45 Cunningham v. United States o f America (1958) 256 F. (2d) 465, 314 Curr v. The Queen [1972] S.C .R . 889, 131, 144-7, 172-3, 230-4, 244-5, 256-7, 298-9, 300, 313, 314n96 D. Dawson v. Commonwealth (1946) 73 C .L .R . 157, 325n21 DeJonge v. Oregon (1937) 299 U.S. 353, 226n35 De Marigny v. Langlais [1948] S .C .R . 115, 237nl08 De Vorc, Ex parte (1913) 136 P. 47, 131 n74 Disallowance and Reservation, Reference Re [1938] S.C.R. 71, 3?n48 Dominion News & Gifts v. The Queen [1964] S.C .R . 251, 197-200 Dowhopoluk v. Martin (1971) 23 D .L.R . (3d) 42, 239, 312n88 Donald v. Hamilton Board of Education [1945] O .R . 518. 178 Drummond Wren, Re [1945] O.R. 778, 72, 73, 74 Duke v. The Queen [1972] S.C .R . 917, 144, 260-2 Duncan v. Louisiana (1968) 391 U.S. 145. 227 E. Edinburgh and Dalkeith Railway Company v. Wauchope (1843) 8 Cl. & Fin. 710; 8 E.R. 279, 96, 106, 108 Edwards v. Attorney General of Canada [1930] A.C. 124, 159

T A B L E OF CASES

389

Ellen Street Estates Ltd. v. Minister of Health [ 1934] I K.B. 590, 98, 106 Engel v. Vitale (1962) 370 U.S. 421, I78n45 Escobedo v. Illinois (1964) 378 U.S. 478, 226, 252nl96 F. Farmers' Creditors Arrangement Act, 1934, In re 11941] 2 W .W .R . 137. 118n 19 Fay v. New York (1947) 332 U.S. 261, 227 Field ct al. v. Receiver for the Metropolitan Police District (1907) 76 L.J.K .B . 1015, 206nl55 Fletcher v. Birkenhead Corporation [1907] I K.B. 205, 1 I9n23 Florence Mining Co. v. Cobalt Lake Mining Co. (1909) 18 O .L.R . 275, 30n3 Forbes v. Attorney General for Manitoba [1937] A.C. 260. 36n40 Fort Frances Pulp & Paper Co. Ltd. (reported as Fort Frances Pulp & Power Co. Ltd.) v. Manitoba Free Press Co. [ 1923] A.C. 695, 30n7, 5 5n l3 5, 324-5, 330 Fouche v. Landry [1960] Que. P.R. 33, 244nl48 Fournier v. Attorney General (1910) 17 C .C .C . 108, 183 Franklin v. Evans (1924) 55 O .L .R . 349, 66nl95 Fraser. Re (1962) 47 M .P.R. 81, 244nl48 Froman, Re (1973) 33 D .L.R . (3d) 676, 298n42 Furman v. Georgia (1972) 408 U.S. 238, 238 G. Gagnon and Vallieres v. The Queen (1971) 14 C .R .N .S . 321, 3 3 ln56. 348nl03 Gibbs v. Burke (1949) 337 U.S. 773, 226 Gideon v. Wainwright (1963) 372 U.S. 335, 226, 293n22 Gitlow v. New York (1925) 268 U.S. 652, 226n35 Gopalan v. State of Madras (1950) Sup. Ct. 5. 174. 228 Grand Trunk Railway Co. v. Attorney-General for Canada [1907] A.C. 65, 34n27 Grey. Re (1918) 57 S.C.R. 150. 326n25 Great W est Saddlery Company Ltd. v. The Kina [1921] 2 A.C. 91. 36n42 Griffin v. Illinois (1956) 351 U.S. 12, 226. 293 G uay v. Lafleur [1965] S.C.R. 12, 270-2

390

THR CANADI AN BILL O F RIGHTS

H. Hammer v. Dagenhart (1918) 247 U.S. 251. 224 Harper v. Home Secretary 11955] Ch. 238. 97 Harris v. Minister of the Interior (Voters case) [1952] (2) S.A .L .R . (A .D .) 428. 102-4. 109 Hatfield v. Healy (1911) 3 Alta. L.R. 327. 182n70 Hebert v. La Cite de Thetford Mines [1932] S.C .R . 424. 2 05nl54 Hecht v. McFaul [1961] Que. S.C. 392. 244nl48 Hecht v. Monoghan (1954) 121 N.E. 2d 421. 269 Hilson. Ex parte (1973) 12 C .C .C . (2d) 343, 239, 273 Hirsch v. Protestant Board o f School Commissioners of Montreal [1926] S.C .R . 246. 118n 17 Hirshman v. Beal (1916) 38 O .L .R . 40. 118n 17 Hlookoff et al. v. City o f Vancouver (1968) 67 D.L.R. (2d) 219. 4ln75 Hodge v. The Queen (1883), 9 App. Cas. 117, 31. 34 Hogan v. The Queen, unreported (S .C .C .), 252nl97 Hogarth. Re (1972) 27 D.L.R. (3d) 332, 263 Home Insurance Co. v. Lindal and Beattie [1934] S.C .R . 33, 34 Humphries v. Connor (1864) 17 Ir. C .L .R . I. 204-5 Hurtado v. California (1884) I 10 U.S. 516, 225-6 Hunsdon v. The Countess of Arundel. Hob. 109; 80 E.R. 258. 106 I. Imperial Elevator & Libr. Co. Ltd. v. Kuss et al. (1915) 9 W .W .R . 606. 119n23 Industrial Acceptance Corporation Limited v. The Queen [ 1953] 2 S.C .R . 273, 235 Industrial Relations and Disputes Investigation Act. Reference re [1955] S.C .R . 529, 36n46. 5 4n l2 8, 74n263 Ireland v. Jacques et Bellemare Inc. [1959] Que. S.C. 164. 118n 17 J. Jackson v. Denno (1964) 378 U.S. 368. 226 James v. Commonwealth of Australia [1936] A.C. 578, 94n32 John Deere Plow Co. Ltd. v. Wharton [1915] A.C. 330. 36n42 Johnson v. Zerbst (1938) 304 U.S. 458. 293n22 Johnston v. Mackey [1937] 1 D.L.R. 443, 2 08nl70 Judges v. Attorney General for Saskatchewan [ 1937] 2 D.L.R. 209,

36n41

T A B L E O F CASES

391

K. King v. Barclay and Barclay’s Motel (1961) 35 W .W .R . 240, 66n 195 Kleinys, Ex parte (1965) 49 D .L .R . (2d) 225, 239, 244 Klopfer v. North Carolina (1967) 386 U.S. 213, 227 Kokorinis, Re (1967) 62 D.L.R. (2d) 438, 247nl66 Koss v. Konn et al. (1961) 36 W .W .R . 100, 202 Kovacs v. Cooper (1949) 336 U.S. 77, I79n60 LLabour Relations Board of Saskatchewan v. John East Iron Works, Ltd. [1949] A.C. 134, 266n277 Ladore v. Bennett [1939] A.C. 468, 34n26 L ’Alliance des Professeurs Catholiques de Montreal v. The Labour Relations Board of Quebec [1953] 2 S.C.R. 140, 269-70 Lamb v. Benoit [1959] S.C .R . 321, 5 5n l3 6, 5 6n l4 7, 253-4 Lasier v. Wright (1922) 136 N.E. 545, 131 n75 Law v. Stephens [1971] Crim. L.R. 369, 250 Lee v. Bude and Torrington Junction Railway C om pany (1871), L.R. 6 C.P. 576, 96 Leland v. Oregon (1952) 343 U.S. 790, 146 Levitz v. Ryan (1972) 29 D .L.R . (3d) 519, 234. 236, 239 Lieba v. Minister of Manpower and Immigration (1972) 23 D.L.R. (3d) 476, 277 Lieberman v. The Queen [1963] S.C .R . 643, 170n7 Lindsley v. National Carbonic Gas Company (1911) 220 U.S. 61, 293n18 Liquidators of the Maritime Bank v. Receiver-General of New Brunswick [1892] A.C. 437, 3 In 12 Lisenba v. California (1941) 314 U.S. 219, 226n33 Liyanage et al. v. The Queen 11966] 1 A .E.R . 650, 109n 109 Local Government Board v. Arlidge [1915] A.C. 120. 265 Lochner v. New York (1905) 198 U.S. 45, 224 London County Council v. Bermondsey Bioscope Company Limited [191 1] I K.B. 445, I I7n8 Lord's Day Alliance v. Attorney General for British Columbia [1959] S .C .R . 497, 48 Louie Yuet Sun v. The Queen [1961] S.C .R . 70. 229 Louisiana v. Resweber (1947) 329 U.S. 459, 238 Lovell v. City o f Griffin (1938) 303 U.S. 444, 179n55 Lowry and Lepper v. The Queen (1972) 26 D.L.R. (3d) 224, 144, 147, 236, 260-1, 273 L'Union St. Jacques de Montreal v. Belisle (1874) L.R. 6 P.C. 31, 322

392

T H E C A N A D IA N BILL OF R IGHTS

M. Magda v. The Queen [1964] S.C .R . 72, 238 Malinski v. New York (1945) 324 U.S. 401, 226n33 Malloy v. Hogan (1964) 378 U.S. 1, 226 Mann v. The Queen [1966] S.C .R . 238, 35n33, 306 Mapp v. Ohio (1961) 367 U.S. 643, 226 Marathon Paper Mills v. The King [1947] O.R. 532, 56nl45 Marbury v. Madison (1803) 1 Cranch 137, 94, 150 Marsh v. Alabama (1946) 326 U.S. 501, 179n57 McAuslane and Five Others v. The Queen, Re (1972) 7 C .C .C . (2d) 66, 263 McCaud, In Re (1964) 43 C.R . 252, 256, 272-3 McClary’s Application. Re [1971] 1 W .W .R . 741, 310 McKay v. The Queen [1965] S.C .R . 798, 42-3 McLeod v. Maksymowich, Re (1973) 12 C .C .C . (2d) 352, 273 Merchant and Benchers of the Law Society o f Saskatchewan et al. (1972) 25 D .L.R . (3d) 708. 203-4 Midland Railway v. Young (1893) 22 S.C .R . 190, 118n 18 Mierans v. Mierans (1972) 31 D .L.R . (3d) 284, 234 Mills v. Cannon Brewery Company Ltd. [1920] 2 Ch. 38, 235 Mills v. Wilkins (1703) 6 Mod. Rep. 62; 87 E.R. 822, 118n 13 Minister of the Interior v. Harris (High Court case) [1952] (4) S .A .L .R . (A .D .) 769, 94 Miranda v. Arizona (1967) 384 U.S. 436, 226, 252nl96 Missouri, Kansas and Texas Railway Company v. May (1904) 194 U.S. 267, 2 9 3 n 1 8 Montreal Newsdealer Supply Co. Ltd. v. Board of Cinema Censors o f Quebec et al. [1969] C.S. 83, 38n54 Moore v. Attorney General for The Irish Free State [1935] A.C. 484, 101-2, 103 Moore v. New York (1948) 333 U.S. 565, 227 Morganthaler v. Fauteux and Attorney General for Quebec and Attorney General for Canada (1970) 13 C .R .N .S . 50, 264 Mulcahy v. The Queen (1869), L.R. 3 H.L. 306, 207 Murphy v. Waterfront Commissioners (1964) 78 U.S. 52, 226

T A B L E O F CASES

393

N. Nakkuda Ali v. Jayaratne [1951] A.C. 66, 266-7 National Capital Commission v. Lapointe et al. (1972) 29 D .L.R . (3d) 376, 235 Natural Products Marketing Act, Reference Re [ 1936] S.C .R . 398,323 Ndlwana v. Hofmeyr [ 1937] (S.A .) A .D. 289, 104 Nebbia v. New York (1934) 291 U.S. 502, 224 Nelson v. Sandkamp (1948) 34 N .W . 2d 640, 131n77 New Zealand Dairy Board v. Okitu Co-operative Dairy Company [1953] N .Z .L .R . 366. 269 New Zealand United Licenced Victuallers Association of Employers v. Price Tribunal [1957] N .Z .L .R . 167, 269 Nicol et al., Re [1954] 3 D .L.R . 690, I83n76 Noah Estate, Re (1961) 36 W .W .R . 577, 132n86 Noble and W olf v. Alley [1951] S.C .R . 64, 72-3 North Perth, Hessin v. Lloyd, Re (1891) 21 O.R. 538, 9n44 O.

O 'C onnor v. The Queen [1966] S .C .R . 619, 248-9, 251, 257 O 'G rady v. Sparling [1960] S.C .R . 804, 35n32, 48, 306 Oil, Chemical and Atomic Workers International Union, Local 16-601 v. Imperial Oil Ltd. [1963] S .C .R . 584, 48-53, 202nI39 Olsen v. Nebraska (1941) 313 U.S. 236, 224 Ontario Crime Commission, Re (1962) 133 C .C .C . 116, 272 P. Palko v. Connecticut (1937) 302 U.S. 319, 180n64, 226, 227 Paterson, Ex parte (1971) 18 D .L .R . (3d) 84, 244, 247nl66 Patterson v. The Queen (1970) 9 D .L.R . (3d) 398, 263 Perepolkin et al. v. Superintendent of Child Welfare (1958) 11 D.L.R. (2d) 417, 178, 43 Piche v. The Queen (1970) 12 C .R .N .S . 102, 262 Plessy v. Ferguson (1896) 163 U.S. 537, 291-2, 296 Pointer v. Texas (1965) 380 U.S. 400, 226 Powell v. Alabama (1932) 287 U.S. 45, 225-6 Powell v. Kempton Park Racecourse Co. Ltd. [ 1899] A.C. 143, 118 Prata and Minister of Manpower and Immigration, Re (1972) 31 D .L.R . (3d) 465, 312. 314 Price v. U.S. (1951) 100 F. Supp. 310, 13 1n74

394

T H E C A N A D IA N BILL O F R IGHTS

Prince v. Massachusetts (1944) 321 U.S. 158. 179 Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board [1956] O.R. 862, 54nl29 Proprietary Articles Trade Association v. Attorney General for Canada [ 19 3 11 A.C. 310, 4 7 n l0 2 , 48 Provincial Secretary o f Prince Edward Island v. Egan 11941] S.C .R . 396. 35n30. 57nl52 Pylkington's case, 1454-55 Year Book, 106

Q. Quinion v. Hom e [1906] I Ch. 596, 235 Quong Wing v. The King (1914) 49 S.C .R . 440, 45n93 R.

Rebrin v. Minister o f Citizenship and Immigration et al. [1961] S.C .R . 376, 229, 244nl49 Regency Realties Inc. v. Loranger (1962) 36 C.R. 291, 259n224 Regina v. Acme Produce (1969) Co. Ltd., (1972) 28 D.L.R. (3d) 470, 263 Regina v. American News Co. Ltd. [1957] O.R. 145, I94n 104 Regina v. Appleby [1972] S.C.R. 303. 144, 146, 275-6 Regina v. Ballegeer (1969) I D .L.R . (3d) 74, 247-8 Regina v. ‘‘Bear’s Shin Bone” (1899) 3 C .C .C . 329, 177n39 Regina v. Beattie (1) (1967) 64 D .L.R . (2d) 207, 42 Regina v. Beattie (2) (1969) 7 C .R .N .S . I 16, 42 Regina v. Beaulne, Ex parte Latreille (1971) 2 C .C .C . (2d) 196, 311 Regina v. Benoit (1952) 105 C .C .C . 185, 56nl40 Regina v. Berg [1956] O .W .N . 653, 1 18n 18 Regina v. Bond (1973) 22 C .R .N .S . 172, 252 Regina v. Bonnycastle, Ex parte Welch [1970] 4 C .C .C . 382, 262 Regina v. Bradley and Martin (1973) 23 C .R .N .S . 39. 31 In76 Regina v. Buckler [ 1970] 2 O .R . 614. 239 Regina v. Burnshine (1973) 22 C .R .N .S . 2 7 1 ;S .C .C . in (1974) 44 D .L.R . (3d) 584, 312-15 Regina v. Butler (1973) 11 C .C .C . (2d) 381, 246, 263 Regina v. Cameron (1967) 62 D .L.R . (2d) 328, 197, 198 Regina v. Campbell [1962] O .R . 1134, 41n77. 45n90, 2 0 In 137 Regina v. Chapman and Currie [ 1971 ] I O.R. 601, 299n47, 302n48a

T A B L E O F CASES

395

Regina v. Chew (1964) 44 C.R. 145, 259n224 Regina v. Chomokowski (1973) 11 C .C .C . (2d) 562, I77n38 Regina v. Clarke [1969] 1 All E.R. 1008, 250 Regina v. Clements (1967) 63 D .L .R . (2d) 513, 35n35 Regina v. Coles Co. Ltd. (1964) 49 D.L.R. (2d) 34, 197-8, 200 Regina v. Colgate-Palmolive Ltd. (1972) 8 C .C .C . (2d) 40, 174 Regina v. Collins (1962) 39 W .W .R . 32, 244nl49 Regina v. Court of Sessions for the Peace, Ex parte Lafleur [1967] 3 C .C .C . 244, 309 Regina v. Deal (1956) 18 W .W .R . 119, 207n 161 Regina v. Deleo and Commisso (1972) 8 C .C .C . (2d) 197, 252 Regina v. Dick, Penner and Finnegan [1965] 1 C .C .C . 171, 239 Regina v. Drouin (1972) 10 C .C .C . (2d) 18, 252 Regina v. Drybones [1970] S.C .R . 282, 14, 131, 132, 13 3 n 9 1, 135-42, 145, 151, 152, 153, 156, 160, 162, 1 71 -3,252,295-7,303, 305, 306, 307, 313 Regina v. Dubrule (1973) 13 C .C .C . (2d) 359, 315 Regina v. Evening Standard Co. Ltd. [1954] 1 Q .B . 578, 182-3 Regina v. Fawcett [1954] O .W .N . 757, 253nl99 Regina v. Ferguson (1972) 7 C .C .C . (2d) 240, 311 Regina v. Fulmer (1960) 129 C .C .C . 142, 132n82 Regina v. Ganapathi (1973) I 1 C .C .C . (2d) 173, 310n75 Regina v. Goldstein (1961) 34 C .R . 314, 132n83, 275n323 Regina v. Gonzales (1962) 37 C.R . 56, 132-3, 139, 295-6, 304 Regina v. Gray [1900] 2 Q.B. 36, 183 Regina v. Gray (1962) 132 C .C .C . 337. I32n86, 247 Regina v. Great West News Ltd. et al. (1970) 72 W .W .R . 354, 197, 200 Regina v. Guertin (1961) 34 C.R . 345, 274, 275n323 Regina v. Harbison, Harbison and Gerz (1972) 9 C .C .C . (2d) 259, 263 Regina v. Harrold (1971) 19 D.L.R. (3d) 471, 41, 179 Regina v. Hicklin (1868) L.R. 3 Q .B . 360, 194 Regina v. Higdon and Kent (1973) 1 I C .C .C . (2d) 325, 263 Regina v. Ittoshat (1970) 12 D .L.R . (3d) 266. 263 Regina v. Jensen et al.. Re (1962) 38 C.R. 234. I32n84, 230n65 Regina v. Johnson (1973) 11 C .C .C . (2d) 101. 246. 262-3 Regina v. Jones (1972) 9 C .C .C . (2d) 5, 252 Regina v. Jordan [1971] 1 C .C .C . 385, 262 Regina v. Judge o f the General Sessions o f the

396

THE CANADIAN BILL OF RIGHTS

Peace for the County of York, Ex parte Corning Glassworks of Canada Ltd. [1971] 2 O .R . 3, 257 Regina v. Lafferty (1969) 8 C .R .N .S . 70, 66nl96 Regina v. Lavoie (1971) 23 D .L .R ..(3d) 364, 245, 311 Regina v. Leach. Ex parte Bergsman (1965) 52 D.L.R. (2d) 594, 119n30 Regina v. Levy (1973) 1 1 C .C .C . (2d) 521, 252 Regina v. Littlejohn [1972) 3 W .W .R . 475, 263 Regina v. M. (1973) 22 C .R .N .S . 263, 315-16 Regina v. Marcoux and Solomon (1973) 23 C .R .N .S . 51, 257 Regina v. Martel (1968) 64 W .W .R . 152. 247nl67 Regina v. Martin (1961) 35 C.R. 276, 229-30, 257 Regina v. McClevis, Ex parte Robbins [19711 1 O.R. 42, 262 Regina v. McKay (1971) 20 D .L .R . (3d) 336, 201nl37, 245 Regina v. McLeod et al. (1971) 1 C .C .C . (2d) 5, 170 Regina v. Morgan (1972) 9 C .C .C . (2d) 502, 251-2 Resina v. National News Co. Ltd. [1953] O.R. 533, 195n 107 Regina v. Natrall (1972) 32 D .L.R . (3d) 241, 236, 239, 310 Regina v. Ness (1971) 4 C .C .C . (2d) 42, 257 Regina v. Ngwevela [1954] (I) (S .A .) A.D. 123, 269 Regina v. O? (1972) 6 C .C .C . (2d) 385, 230n65. 315 Regina v. Parnell (1881) 14 Cox C .C . 505, 207 Regina v. Pearson et al. (1969) 66 W .W .R . 380, 230n65, 257 Regina v. Penner (1973) 22 C .R .N .S . 35, 252 Regina v. Pfenning, 1963, (unreported), 68n202 Regina v. Piper (1965) 51 D .L.R . (2d) 534, 247 Regina v. Prairie Schooner News Ltd. et al. (1970) 1 C .C .C . (2d) 251, 169, 197, 200 Regina v. Price (1961) 35 C.R. 179, 274n322 Regina v. Provincial Court Judges, Ex parte Nevin, Ex parte Defoe [1971] 2 O.R. 25, 230n65, 262 Regina v. Pudlock (1972) 9 C .C .C . (2d) 256. 263, 311 Regina v. Reale [ 1973] 3 O.R. 905. 277, 31 ln76 Regina v. Rival [1971] 1 W .W .R . 223, 230n65 Regina v. Roestad [1972] 1 O.R. 814. 236, 239 Regina v. Russell (1971) 4 C .C .C . (2d) 494, 259 Regina v. Sexton (1972) 10 C .C .C . (2d) 131, 252 Regina v. Sharpe (1961) 35 C.R. 375, 132n8l, 275n323 Regina v. Silk [1970] 3 C .C .C . I. 275 Regina v. Skoretz (1955) I 14 C .C .C . 255, 179n53 Regina v. Sleeves [1964] I C .C .C . 266, 247, 251, 253 Regina v. Steinberg [1967] 1 O .R . 733, 230n65, 257 Regina v. Talbot [1966] 3 C .C .C . 28, 246, 262 Regina v. Tenta (1968) 67 D.L.R. (2d) 536, 35n35

TABLE O F CASES

397

Regina v. Thorpe (1973) 11 C .C .C . (2d) 502, 263 Regina v. Times Square Cinema Ltd. (1971) 4 C .C .C . (2d) 229, 200 Regina v. Urchyshyn (1971) 4 C .C .C . (2d) 481, 245, 257 Regina v. Viens (1970) 10 C .R .N .S . 363, 311 Regina v. Whiteman (1) [1971] 2 W .W .R . 316, 304-6 Regina v. Whiteman (2) (1970) 13 C .R .N .S . 356, 141nl05, 304-6 Regina v. Wray [1971] S.C.R. 272, 252 Regina ex rel. Nutland v. McKay (1956) 5 D.L.R. (2d) 403, 66nl96 Regulation and Control of Aeronautics in Canada, Re [1932] A.C. 54, 322 Rex v. Aldred (1909) 22 Cox C.C . 1, 180-1 Rex v. Beattie [1931] 1 W .W .R . 764, 205nl53 Rex v. Brooks (1902) 5 C .C .C . 372, I78n42 Rex ex rel Brooks v. Ulmer [1923] 1 D .L.R . 304, 178n44 Rex v. Close [1948] V .L .R . 445. 199n 129 Rex v. Harder [1943] 1 W .W .R . 526. 178n50 Rex v. Hildebrand (1919) 31 C .C .C . 419, 178n44 Rex v. Jones and Sheinin (1931) 57 C .C .C . 81, 205nl53 Rex v. Josephson (1949) 7 C.R. 273, 263 Rex v. Kite [1949] 2 W .W .R . 195, 41n74, 179n53 Rex v. Lewis (1903) 7 C .C .C . 261, 178n42 Rex v. Mustin; Rex v. Millard [1940] O.R. 393, 4 n l0 , 41n76 Rex v. Naish [1950] 1 W .W .R . 987, 41n74 Rex v. Napier [1941] O .R . 30, 4 n l0 , 41n77 Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128, 47nl05 Rex v. Ndobe [1930] (S.A .) A .D . 484, 104 Rex v. Palmer [1937] 3 D .L.R . 493, I95nl09 Rex v. Patterson [1931] 3 D.L.R. 267, 45n89, 205 Rex v. Reners [1926] 2 D .L.R . 236, 206nl59 Rex v. Russell [1920] I W .W .R . 624, 37n50 Rex v. St. Clair (1913) 12 D .L.R . 710, 195n 108 Rex v. Singer [1941] S.C .R . I l l , 253nl99 Rex v. Thompson (No. 2) [1946] O .R . 560. 56nl44 Rex v. Trainor [1917] 1 W .W .R . 415, 37n50, 184n81 Rex v. Ulmer [1923] I D .L.R . 304, 178n44 Rex and Solloway Mills & Company Limited, In Re [ 1930] I W .W .R . 779, 259n224 Richards v. Cote (1962) 40 W .W .R . 340. 132n86, 304 Ridge v. Baldwin [1964] A.C. 40, 267-9 Robertson and Rosetanni v. The Queen [1963] S.C .R . 651, 14, 44, 133-5, 137, 138, 139, 143, 146, 170-2, 174-7, 297 Robinson v. California (1962) 370 U.S. 660, 226 Rochin v. California (1952) 342 U.S. 165, 226, 232

398

THE CANADIAN BILL OF RIGHTS

Rogers v. Clarence Hotel et al. [1940] 2 W .W .R . 545, 66nl95 Rom bough's Detention. Re (1964) 47 W .W .R . 385, 244 Roncarelli v. Duplessis [1959] S.C.R. 121, 55nl36, 121-3 Ross v. Registrar of Motor Vehicles (1973) 42 D .L.R . (3d) 68, 35n31 Roth v. U.S. (1957) 354 U.S. 476, I99nl34 Royal Canadian Legion Branch No. 177, Re (1964) 48 W .W .R . 481, 259n Ruman v. Lethbridge School District [1943] 3 W .W .R . 340, 178 Runyowa v. The Queen [1966] 1 A .E.R . 633, 238n 116 Russell v. The Queen (1882), 7 App. Cas. 829, 33, 34, 133n99, 224, 323 S. Saia v. New York (1948) 334 U.S. 558, 179n57 St. John et al. v. Fraser [1935] S.C.R. 441, 272 Salkeld v. Johnson (1848) 2 Ex. 256; 154 E.R. 487, 118n 14 Saskatchewan Farm Security Act, Re [1949] A.C. 110. 55nl34 Saumur v. City of Quebec [1953] 2 S.C .R . 299, 4, 9, 32n 17, 41, 43, 44. 119, 121n39, 168, 175 Saumur et al. v. Procureur General de Quebec et al. [ 1964] S.C .R . 252, 41 n73 Schmitz, Re (1972) 31 D .L.R . (3d) 117,312 Schneider v. Rusk (1964) 377 U.S. 163, 237nl I 1 Secretary o f State of Home Affairs v. O'Brien [1923] A.C. 603, 243-4 Section 92(4) of the Vehicles'Act, 1957 (Sask.), Reference Re [1958] S.C .R . 608, 35n35, 57 Shea, Re [1970] 5 C .C .C . 107, 312 Shin Shim v. The King [1938] S.C.R. 378, 243 Shumiatcher v. Attorney General for Saskatchewan et al. (1962) 133 C .C .C . 69. 132n82 Smythe v. The Queen [1971] S.C .R . 680, 143-4. 309-10 Snell v. Hayward et al. [1947] 1 W .W .R . 790, 263 Sommervill, Re (1962) 133 C .C .C . 323, 132n86, 247 Spence, Re (1961) 37 W .W .R . 481. 230n65 State of Wisconsin and Armstrong, Re (1973) 32 D.L.R. (3d) 265, 234, 273 State v. Armstrong (1952) 239 P. 2d. 545, 178n41 Stein v. New York (1953) 346 U.S. 156, 226 Steiner v. Toronto Daily Star (1956) 1 D .L.R . (2d) 297, 182 Stephens v. The Queen [I960] S.C.R. 823, 35n34 Stephenson v. Parkdale Motors (1924) 55 O .L .R . 680, I 18n18

TABLE OF CASES

399

Stockdale v. Hansard (1839), 9 Ad. & E. I; I 12 E.R. 1112,98, 106 Storgoff, Re [1945] S.C.R. 526, 56nl43, 243 Stowel v. Lord Zouch (1569) 1 Plowd. Com. 353; 75 E.R. 536, 118n 15 Sussex Peerage Case (1844) 11 Cl. & Fin. 85; 8 E.R. 1034, 118n 19 Swait v. Board of Trustees of Maritime Transportation Unions (1966) 61 D.L.R. (2d) 317, 203 Switzman v. Elbling (Padlock Case) [1957] S.C .R . 285, 9, 39-40, 43, 46, 50, 52, 53, 119, 121n39, 168 T. Tass v. The Queen (1946) 87 C .C .C . 97, 255-6 Thomas v. Thomas, In re (1961) 35 W .W .R . 481, 119n29 Tirey, Ex parte (1971) 21 D.L.R. (3d) 475, 244nl49 Torcaso v. Watkins (1961) 367 U.S. 488, 226n35 Toronto Electric Commissioners v. Snider [1925] A.C. 396, 48, 50, 52, 323 Tucker v. Texas (1946) 326 U.S. 517, 179n58 Twining v. New Jersey (1908) 21 I U.S. 78, 225, 226 Tyson v. Banton (1927) 273 U.S. 418, 224 U. U ngaro's Will, In re (1917) 102 A. 244, 131 n77 Union Colliery of British Columbia Ltd. v. Bryden [1899] A.C. 580, 30n6, 3 2n l6 , 33, 45n91 United States v. Darby (1941) 312 U.S. 100, 224 V. Vaaro v. The King [1933] S.C .R . 36, 237 Vapor Canada Ltd. v. Macdonald et al. (1971) 22 D .L.R . (3d) 607, 246 Vauxhaull Estates Ltd. v. Liverpool Corporation |I932] 1 K.B. 733, 98. 106 Vinarao, Re (1968) 66 D .L.R . (2d) 736, 247 Violi v. Superintendant of Immigration et al. [1964] S.C .R . 232, 235-6 Vosding v. Butcher (1952) 105 C .C .C . 368, 56nl40 W. Walsh and Jordan, Re [1962] O .R . 88, 246-7

400

T HE CANADIAN BILL OF RIGHTS

Walter et al. v. Attorney General of Alberta [1969] S.C .R . 383, 71-2, 169 Wartime Leasehold Regulations, Reference re [1950] S.C .R . 124, 5 5n l3 5, 325-6, 330-1 Washington v. Texas (1967) 384 U.S. 14. 227 West Coast Hotel Company v. Parrish (1937) 300 U.S. 379, 224, 231 n73 West Virginia Board o f Education v. Barnette (1943) 319 U.S. 624, 178n49 Whitfield v. Canadian Marconi Co. (1968) 68 D .L.R . (2d) 251, 766, 203, 230n65 Whitney v. California (1927) 274 U.S. 357, 202 Wilkerson v. Utah (1879) 99 U.S. 130, 238 Williamson v. Lee Optical Company (1955) 348 U.S. 483, 225 W inner v. S.M .T. (Eastern) Ltd. [1951] S.C.R. 887, 46 Wiswell et al. v. Metropolitan Corporation of Winnipeg [1965] S.C .R . 512, 269n295 W olf v. Colorado (1949) 338 U.S. 25, 225, 226 Woolmington v. D .P.P. [1935] A.C. 462. 275-6 W orkm en's Compensation Board v. Canadian Pacific Railway [ 1920] A.C. 184, 36n41 Worrall, Rc (1964) 44 C.R . 151, 259n224 Wright, McDermott and Feeley v. The Queen [1964] S.C .R . 192. 2 07 n 162 Y .. Z. Yick W o v. Hopkins (1886) I 18 U.S. 356, 291 Zoning By-laws, Kamloops. In re [1935] 3 W .W .R . 206, I I9n23

BIBLIOGRAPHY What follows is by no means a total bibliography of articles and books on civil liberties. It is a fairly comprehensive list o f legal articles and books on the Canadian constitution, civil liberties in Canada, and the Canadian Bill o f R ights. There is only a small sampling of American and foreign material thought to be most pertinent to a comparative study of the Canadian law on the sbject. Since the articles were fairly numerous it seemed preferable to attempt to list them under categories corresponding to the main divisions of the book. However some arti­ cles could have appeared in more than one category, e .g ., some of those listed under “ Egalitarian Civil Liberties” could have been placed under “ The Canadian Bill of Rights,” and vice versa. Books Abraham, H. J . , Freedom and the Court: C ivil Rights and Liberties in the U nited States, 2nd ed., Oxford University Press, 1972. Allen, C. K., L aw in the M aking, 7th ed., Oxford: Clarendon Press, 1964. Angus, W. H ., Judicial Review : D o We N eed It? , Toronto: Osgoode Hall Law School, Annual Lecture Series, 1973. Basu, D. D., Com m entary on the C onstitution o f India, 5th ed. rev., Calcutta: Sarkar, 1965 (9 volumes) Bennett, J. T ., Freedom o f Expression in A ustralia, South Yarra: the author, 1968. Bolton, P. M ., C ivil Rights in C anada, Vancouver: Self-Counsel Press, 1972. Borovoy, A. A ., H um an R ights and R acial Equality— The Tactics o f C om bat, Ontario Woodsworth Memorial Foundation, 1964. Borovoy, A. A ., Indian Life a n d Canadian Law , Toronto: Canadian Civil Liberties Assoc., 1973. The Citizen and the Adm inistration, a report by “ Justice,” the United Kingdom branch of the International Commission of Jurists, 1961. Corwin, E. S.. The Constitution and What It M eans T oday, 12th ed., New York: Athenium, 1965. Coutts, J. A ., ed.. The Accused: A C om parative S tudy, London: Stevens. 1966. Cowen, D. V . ,Tlie Foundations o f F reedom , Oxford University Press, 1961. Cowen, D. V ., P arliam entary Sovereignty and the E ntrenched Sec­ tions o f the South A frica A ct, Cape Town: Juta, 1951. 401

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Cushman, R. E., C ivil Liberties in the United States, Cornell Univer­ sity Press, 1956. Dawson, R. M acG ., and Dawson, W. F ., D em ocratic G overnm ent in C anada, 4th ed., rev. by N. M. Ward, University o f Toronto Press, 1971. Dawson, R. M acG ., The G overnm ent o f C anada, 5th ed. revised by N. M. W ard, University o f Toronto Press, 1970. Denning, Lord, A. T ., The Changing Law , London: Stevens, 1953. Denning, Lord, A. T ., Freedom U nder the L aw , London: Stevens, 1949. Denning, Lord. A. T . , The R ule o f L aw in the W elfare State, Haldane Memorial Lecture, 1953. de Smith, S. A ., C onstitutional and A dm inistrative L aw , Harmondsworth: Penguin, 1971. de Smith, S. A ., The N ew C om m onw ealth and Its C onstitutions, London: Stevens, 1964. de Smith, S. A ., Judicial Review o f Adm inistrative A ction, 3rd ed., London: Stevens, 1973. Dicey, A. V ., Introduction to the Study o f the C onstitution, 10th ed. by E. C. S. W ade, London: Macmillan, 1961. D ue Process Safeguards and Canadian C rim inal Justice: A One M onth Inquiry, Toronto: Canadian Civil Liberties Education Trust, 1971. Ezejiofor, G ., P rotection o f H um an Rights under the Law , London: Butterworths, 1964. Fellman, D., The C onstitutional Right o f A ssociation, University of Chicago Press, 1963. Fellman, D., The Lim its o f F reedom , Rutgers University Press, 1959. Ferguson, G. V ., and Underhill, F. H .. Press and Party in Canada: Issues o f Freedom , Toronto: Ryerson Press, 1955. Ferrari, L ., H um an Rights and the Canadian Indian, Fredericton: New Brunswick Human Rights Commission. Dept, of Labour. 1972. Friedland, M. L ., D etention Before Trial, University of Toronto Press. 1965. Friedmann, W. G ., L aw in a Changing Society, 2nd ed., Columbia University Press, 1972. Friedmann. W. G . , Legal Theory, 5th ed., Columbia University Press, 1967. Gellhorn, W ., A m erican R ights, New York: Macmillan, I960. Gellhorn, W ., Individual Freedom and G overnm ental Restraints, New York: Greenwood. 1968. Gellhorn. W .. O mbudsmen and O thers: C itizens’ Protectors in Nine C ountries, Harvard University Press, 1966. Goldberg, A. Equal Justice: the W arren Era o fth e Suprem e C ou rt, Northwestern University Press, 1971.

BIBLIOGRAPHY

403

Gosse, R.. The Law o f C om petition in C anada, Toronto: Carswell, 1962. Gotlieb, A. E ., ed., H um an Rights, Federalism and M inorities, To­ ronto: Canadian Institute of International Affairs, 1970. Griswold, E. N ., The Fifth A m endm ent T oday, Harvard University Press, 1955. Haggart, R. and Golden, A. E ., R um ours o f W ar, Toronto: New Press, 1971. Halsbury, Lord, Law s o f E ngland, Lord Hailsham ed. (4th ed.) Lon­ don: Butterworth’s, 1973. Hampshire, S ., Freedom o f the Individual, London: Chatto and Windus, 1965. Heuston, R. F. V ., Essays in C onstitutional L aw , 2nd ed ., London: Stevens, 1964. Hogg, P. W ., Judicial Review : H ow M uch Do We N eed It? , Toronto: Osgoode Hall Law School, Annual Lecture Series, 1972. Holdsworth, Sir W m ., A H istory o f English L aw , 7th ed. by A. L. Goodhart and H. G. Hanbury, v. 1 & 2, London: Methuen, 1956. Jennings, Sir W. Ivor, The Law and the C onstitution, 5th e d ., Univer­ sity of London Press, 1959. Kelsen, H ., G eneral Theory o f L aw and the State, Harvard University Press, 1949. Kerr, R. W ., Legislation A gainst D iscrim ination in C anada, New Brunswick Human Rights Commission, 1969. Konvitz, M. R., Religious Liberty and Conscience: A Constitutional Inquiry, New York: Viking Press, 1968. La Forest, G. V ., D issallow ance and Reservation o f Provincial Legislation, Ottawa: Department of Justice, 1955. Laskin, B., Canadian C onstitutional Law: Cases. Text and N otes on Distribution o f Legislative P ow er, 4th ed. by A. S. Able, Toronto: Carswell, 1973. La Violette, F. E., The Canadian Japanese in W orld War T w o, T o ­ ronto: Canadian Institute of International Affairs, 1948. Lester, A ., and Bindman, G ., R ace and the Law , London: Lonsimans, 1972. Linden, A. M ., Canadian N egligence Law . Toronto: Butterworths, 1972. Lower, A. R. M ., et al., Evolving Canadian F ederalism . Duke Uni­ versity Press, 1958. Lyon. J. N. and Atkey, R. G ., Canadian C onstitutional Law in a M odern P erspective, University of Toronto Press, 1970. Marshall, G ., C onstitutional Theory, Oxford: Clarendon. 1971. Marshall, G ., P arliam entary Sovereignty and the C om m onw ealth, Oxford: Clarendon, 1957.

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Marshall, G ., and Moodie, G. C .,S o m e Problem s o f the C onstitution, 4th rev. ed., London: Hutchinson, 1967. M axw ell on the Interpretation o f Statutes, 12th ed., by P. St. J. Langan, London: Street and Maxwell, 1969. M artin's A nnual C rim inal C ode, ed. by R. 1. Cartwright, J. C. Martin, and A. W. Mewett, Agincourt: Canada Law Book, 1972. M cW hinney, E., Judicial R eview , 4th ed ., University of Toronto Press, 1969. Miller. A. R., The A ssault on Privacy: Com puters, Data Banks and D ossiers, University o f Michigan Press, 1971. Milne, A. J. M ., ed., Freedom and R ig hts, London: Allen and Unwin, 1968. Mitchell, J. D. N ., C onstitutional L a w , 2nd ed., Edinburgh: W. Green, 1968. Morf, G ., Terror in Q uebec, Toronto: Clarke, Irwin, 1970. Myrdal, G ., Beyond the W elfare State, Yale University Press, 1963. Newman, P. C ., Renegade in P ow er, Toronto: McClelland and Stewart, CLS. Oppenheim, L. F. L., International L aw , 8th ed., by H. Lauterpacht, London: Longmans, 1955. O wen, G. R. W ., La Liberte d'opinion: une etude des libertes publiques en France et au Canada, Montreal: McGill University (M.A. Thesis), 1934. Pelletier, G La crise d 'O cto b re, Montreal: Edition du Jour, 1971. Peotte, J. M ., and others, Q uebec occupe, Montreal: Editions Partipris. 1971. Powell, C. M ., A rrest and B ail in C anada, Toronto: Butterworths, 1972. Powell, C. M ., Studies in C rim inal Law and Procedure, Toronto: Canada Law Book, 1973. Proceedings o f the Programm e on the Bail Reform A c t, Toronto: Law Society of Upper Canada, Department of Continuing Education, 1972. Radwanski, G ., and Windeyer, K .,No M andate but Terror, Richmond Hill: Simon and Schuster, 1970. Reid, R. F., Adm inistrative Law and P ractice, Toronto: Butterworths, 1971. Report o f the N ational Advisory C om m ission on Civil D isorders, New York: Bantam, 1968. Ringel, W. E ., A rrests, Searches, C onfessions, Jamaica, N.Y.: Gould, 1966. Rioux, M arcel, La question du Q uebec, Paris: Editions Seghers, 1971. Roberts, O .J., The Court and the C onstitution, Harvard University Press, 1951.

B IBLIOGRAPHY

405

Rotstein, A ., ed .. Power C orrupted: the O ctober Crisis and th e R e­ pression o f Q uebec, Toronto: New Press, 1971. Rowat, D.C., ed., O mbudsmen and Others: C itizen’s D efender, 2nd ed.. University o f Toronto Press, 1968. Rowat, D. C ., The O mbudsman P lan, Toronto: McClelland & Stewart, (Carleton Library Series), 1973. The Rule o f L aw and H um an R ights: Principles and D efinitions, Geneva: International Commission of Jurists, 1966. Russell, P. H ., Leading C onstitutional D ecisions, 2nd ed., Toronto: McClelland and Stewart, 1973. Ryan, Claude, ed., La Q uebec qui se fa it, Montreal: Editions Hurtubise, 1971. Salhany, R. E., Canadian C rim inal P rocedure, 2nd ed., Toronto: Canada Law Book, 1972. Salhany, R. E., and Carter, R. J., Studies in Canadian C rim inal E vidence, Toronto: Butterworths, 1972. Salm ond on Torts, 15th ed., by R. F. V. Heuston, London: Sweet & M axwell, 1969. Sawer, G ., 2nd ed.. Om budsm en. Melbourne University Press, 1968. Saywell, J. T ., Q uebec Seventy—A D ocum entary N arrative, Univer­ sity of Toronto Press, 1971. Schmeiser, D. A ., C ivil Liberties in C anada, Oxford University Press, 1964. Schmeiser, D. A ., C rim inal Law : Cases and C om m ents, 2nd ed., Toronto: Butterworths, 1973. Schwartz, B ., A m erican C onstitutional Law , Cambridge University Press, 1955. Schwartz, B., The Bill o f Rights: a D ocum entary H istory, New York: Chelsea, 1971. Schwartz, B ., and W ade, H. W. R ., Legal C ontrol o f Government: Adm inistrative Law in Britain and in the United States, Oxford: Clarendon, 1972. Scollin, J. A ., The B ail Reform A c t, Toronto: Carswell, 1972. Scott, F. R., The Canadian Constitution and H um an R ights, Toronto: Canadian Broadcasting Corporation, 1959. Scott, F. R ., Civil Liberties and Canadian F ederalism , University of Toronto Press, 1959. Sheridan. L. A ., C onstitutional P rotection, Singapore: Malayan Law Journal Ltd., 1963. Siegfried, A ., The R ace Q uestion in C anada, ed., by F. H. Underhill, Toronto: McClelland and Stewart, 1966. Smith, D. E., Bleeding H earts—Bleeding Country. Canada and the Q uebec C risis, Edmonton: Hurtig, 1971.

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Smith, T. B., Studies C ritical and C om parative, Edinburgh: Green, 1962. Stevens, F.S., ed., Racism : the Australian E xperience, New York: Taplinger, 1972. Stewart, W., Shrug: Trudeau in P ow er, Toronto: New Press, 1971. Strayer. B . L .. Judicial Review o f Legislation in C anada, University of Toronto Press, 1968. Street, H ., F reedom , the Individual and the L aw , 3rd ed., Harmondsworth: Penguin, 1972. Trem eear's C rim inal C ode, 6th ed., by L. J. Ryan, Toronto: Carswell, 1964. Varcoe, F. P., The Constitution o f C anada, Toronto: Carswell, 1965. W ade, H. W. R ., Towards Adm inistrative Ju stice, University of Michigan Press, 1963. Wade. H. W. R ., Adm inistrative L aw , 3rd ed., Oxford: Clarendon, 1971. Woodworth, K. C ., ed., B ail Reform A ct, Centre for Continuing Education at the University of British Columbia, 1972. There are three Canadian periodical publications devoted exclusively to civil liberties: H um an R elations, published by the Ontario Human Rights Commis­ sion. H um an Rights R eview , published in co-operation with the National Committee on Human Rights o f the Canadian Labour Congress. Inform ation and C om m ent, “ Annual Progress Report on Human Rights and Fundamental Freedoms in C an ad a," published by Cana­ dian Jewish Congress. M inutes o f Proceedings, R eports, and Debates Canada— House o f Commons Debates {Hansard). Canada— House of Commons— Special Committee on Human Rights and Fundamental Freedoms. M inutes o f Proceedings and Evidence, I960. Canada— House o f Commons and Senate— Joint Committee on Human Rights and Fundamental Freedoms, M inutes o f Proceedings and E vidence, 1947, 1947-48. Canada— Senate— Special Committee on Human Rights and Funda­ mental Freedoms, M inutes o f Proceedings and E vidence, 1950. Canada— Senate— Special Committee on Sale and Distribution of Salacious and Indecent Literature, M inutes o f P roceedings and Evidence, 1953-54.

BIBLIOGRAPHY

407

Canada— House of Commons and Senate— Special Joint Committee on the Constitution of Canada (Molgat-MacGuigan Committee), M inutes o f Proceedings and E vidence, 1970-72. Canadian Bar Association, The A nnual Yearbook and M inutes o f Proceedings 1943-73. Government of Canada— Proposals to the Constitutional Conferences—A Canadian Charter o f Hum an R ights, 1968. Government of Canada— Proposals to the Constitutional Conferences, Federalism fo r the F uture, 1968. Government o f Canada— Proposals to the Constitutional Conferences, The Constitution and the People o f C anada, 1969. Ontario Advisory Committee on Confederation—B ackground Papers a nd R eports, volumes 1 and 2, 1967 and 1970. Province of Ontario— Report of the Joint Committee on Legal Aid, March, 1965 Province of Ontario— Report o f the Royal Commission of Inquiry into Civil Rights (McRuer Report), Reports 1, 2 and 4, being volumes I to V, 1968-1971. Report of the Committee on Ministers’ Powers (Donoughmore C om ­ mittee), Cmd. 4060 (1932). Report of the Committee on Administrative Tribunals and Enquiries (Franks Committee), Cmd. 218 (1957). Report of the Ontario Police Commission to the Attorney General for Ontario on Organized Crime, January 31, 1964. Report of the Special Committee on Hate Propaganda in Canada (Cohen Committee), 1966. Report of the Special Joint Committee o f the Senate and House of Commons on the Constitution of Canada (Molgat-MacGuigan Committee Report), 1972. A rtic le s

CIVIL LIBERTIES— GENERAL Barron, J.A ., “ Sunday in North A m erica,” (1965) 79 H .L .R ., 42. Borovoy, A. A ., “ Civil Liberties in the Imminent Hereafter,” (1973) 51 Can. Bar R ev. 93. Bowker, W. F., “ Basic Rights and Freedoms: What are T hey?" (1959) 37 Can. B ar R ev. 43. Bowker, W. F., “ Protection and Basic Rights and Liberties,” (1956) 2 U .B .C . Legal N otes 281. Chevrctte, F., “ Libertes publiques; chroniques regulieres,” (1972) 32 R .d u B . 64.

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Glendenning, J. L., "P olice Power and Civil Liberties,” (1966) 4 O .H .L .J . 174. Clokie, H. M cD ., "D em ocratic Possibilities in a Totalitarian W orld,” (1941) 7 C .J .E .P .S . 154. Cohen, M ., “ Human Rights: Programme or Catchall? A Canadian Rationale,” (1968) 46 C an. B ar R ev. 554. “ C om m ent,” (1941) 19 Can. B ar R ev. 49. “ Committee on Civil Liberties and Postwar W o rk ,” (1943) 21 Can. B ar Rev .3 1 5 . Dorion, N., “ Les droits de l'hom m e au sein de la confederation,” (1961) 11 Tliemis 26. Dussault, R., “ Suprematie de la loi ou “ Rule of L aw ,” (1967) 27 R. du B . 302. Fyfe, M. H ., “ Some Legal Aspects of the Royal Commission on Espionage,” (1946) 24 Can. B ar R ev. I l l . Humphrey, J., "H u m an Rights and Authority,” (1970) 20 J . o f Tor. L .J . 412. Hutchinson, B., W innipeg Free P ress, 30 May to 3 June, 1947. Judson, J. W. T ., "Civil Disobedience and the L aw ’s Response: a Proposal,” (1970) I Q. Intr. L .J. 4:75. Lang, O .E ., “ The Saskatchewan Bill of Rights,” (1959) 37 C an. Bar R ev. 233. Laskin, B., “ O ur Civil Liberties: The Role of the Supreme Court,” (1954) 61 Q ueen's Quarterly 455. Lefolii, K., “ The Holy W ar to Destroy Bill 9 9 ,” M acL ean's, July 4, 1964. Lyon, N., “ Constitutional Validity of Sections 3 and 4 of the Public Order Regulations, 1970,” (1972) 18 M cG ill L .J . 136. Lysyk, K. M ., “ Human Rights and the Native Peoples of C anada,” (1968) 46 Can. B ar R ev. 695. MacGuigan, M. R ., “ Civil Liberties in the Canadian Federation,” (1966) 16 U .N .B . L .J. I. MacGuigan, M. R ., “ The Development o f Civil Liberties in C anada," (1965) 71 Q ueen's Q uarterly 270. Marx, H., " T h e ‘Apprehended Insurrection' of October 1970 and the Judicial Function,” (1972) 7 U .B .C . L. R ev. 55. Marx, H ., "T h e Emergency Power and Civil Liberties in C anada,” (1970) 16 M cG ill L .J ., 39. Morton, J. D ., “ Evidence and Civil Liberties,” (1961) 13 U .N .B . L .J . 7. O'Halloran, Mr. Justice, “ Inherent Rights,” (1947-48) O biter D icta. “ Report of Committee on Civil Liberties," (1 9 44 )0 ///. B ar R ev. 598. Rivard, A .. “ De la libertede la presse," (1923) 17Transactions o f the Royal Society o f Canada (3rd ser.) 33.

BIBLIOGRAPHY

409

Russell. P. H ., “ A Democratic Approach to Civil Liberties,” (1966) 19 U. Tor. L .J. 109. Sanders, D. E., “ The Hutterites: A Case Study in Minority Rights,” (1964) 42 Can. Bar R ev. 225. Schmeiser, D. A ., “ Control of Apprehended Insurrection: Emergency Measures v. the Criminal C ode,” (1971) 4 M an. L .J . 359. Schmeiser. D. A ., “ The Effective Realization of Civil and Political Rights in C anada,” (1968) 33 Sask. L. R ev. 179. Scott, F. R., “ Dominion Jurisdiction Over Human Rights and Funda­ mental Freedom s,” (1949) 27 Can. Bar R ev. 497. Scott, F. R ., “ Freedom of Speech in Canada,” (1933) P roceedings o f the Canadian Political Science A ssociation, 169. “ Selected Readings on Civil Liberties in C anada,” (1962) 8 M cG ill L .J. 141. Smith, D. E ., “ Emergency Government in C anada,” Canadian H is­ torical R eview , Vol. 4, University of Toronto Press, 1969, 430. Tarnopolsky, W. S ., “ Emergency Powers and Civil Liberties,” (1972) 15 Can. Pub. A dm in. 194. Tarnopolsky, W. S., “ The Effectiveness of Constitutional Guarantees and Other Governmental Declarations on Human Rights and Fun­ damental Freedom s,” (1967) 5 C ol. I. Dr. C om p. 117. Tremblay, G ., “ Les libertes publiques en temps de crise,” (1972) 13 C ahiers 401. Trudeau, P. E., “ Constitutional Reform and Individual Freedoms,” (1969) 8 W estern Ont. L. R ev. I. Wexler, S ., “ Special Preferences for Oppressed Minorities,” (1972) 7 U .B .C . L. R ev. 71. Yachetti, R. D ., "N atural Justice and the A lien,” (1965) 4 Western O nt. L. R ev. 68. TH E CA NADIAN C ONSTITUTION— G ENERA L Abel, A. S ., “ The Neglected Logic of 91 and 9 2 ,” (1969) 19 U. o f Tor. L .J . 487. Beaudoin, G. A ., “ La concurrence et la constitution,” (1972) 3 Can. B a r J . (N .S.) 4:3. Brun, H ., “ Les droits des Indians sur le territoire de Q uebec,” (1969) 10 C ahiers 415. Carr, R. M ., “ Division of Legislative Powers under the British North America Act— The Case for Fully Concurrent Pow ers,” (1971) 4 M an. L .J. 297. Forsey, E. A ., “ The Prince Edward Island Trade Union Act, 1948,” (1948) 26 Can. B ar R ev. 1 159.

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Gibson, D., “ Constitutional Amendment and the Implied Bill of Rights,” (1966-67) 12 M cG ill L .J . 497. Gibson, D., “ Constitutional L aw ,” (1967) 2 M an. L .J. 283. Green, L. C ., “ Canada’s Indians: Federal Policy, International and Constitutional L aw ,” (1970-71) 4 Ottawa L. R ev. 101. Hogg, P. W ., “ The Supreme Court of Canada and Administrative Law, 1949-1971,” (1973) 11 O .H .L .J . 178. Kerr, R. W ., “ Regina v. M urphy and Language Rights,” (1970) 20 U .N .B . L .J . 35. Labrie, F. E., “ Canadian Constitutional Interpretation and Legislative Review,” (1950) 8 U. o f Tor. L .J . 298. Laskin, B., “ Occupying the Field: Paramountcy in Penal Legisla­ tion,” (1963) 41 Can. Bar Rev. 234. Laskin, B., “ ‘Peace, Order and Good Government' Re-examined,” (1947) 25 C an. Bar R ev. 1054. Lederman, W . R ., “ The Concurrent Operation of Federal and Provin­ cial Laws in C anada,” (1962-63) 9 M cG ill L .J . 185. Lederman, W. R.. “ The Balanced Interpretation of the Federal Dis­ tribution of Legislative Powers in C anada,” in Crepeau and Macpherson, The Future o f Canadian F ederalism , University of Toronto Press, 1965, 91. Lysyk, K. M ., “ Constitutional Aspects of Sunday Observance Legis­ lation: Lieberman v. The Q ueen,” (1964) 2 U .B .C . L. R ev. 59. Lysyk, K. M ., “ Constitutional L aw ,” (1969) 3 O ttawa L. Rev. 520. Lysyk, K. M ., “ Constitutional Law, Annual Survey of Canadian Law, Part I,” (1971) 5 Ottawa L. R ev. 124. Lysyk, K. M ., “ The Indian Title Question in Canada: an Appraisal in the Light of C alder,” (1973) 51 Can. B ar R ev. 450. Lysyk, K. M ., “ The Unique Constitutional Position of the Canadian Indian,” (1967) 45 Can. Bar Rev. 513. Marx, H ., “ Language Rights in the Canadian Constitution,” (1967) 2 Themis 239. Mcllwain. C. H ., “ Constitutional History and the Present Crisis of Constitutionalism,” (1941) 7 C .J .E .P .S . 147. McWhinney, E., “ Federal Supreme Courts and Constitutional Re­ view ,” (1967) 45 Can. B ar R ev. 578. M cWhinney, E ., “ Techniques of Constitutional Interpretation,” (1967) 5 C ol. I. Dr. C om p. 67. Price, R .R ., “ Mr. Justice Rand and the Privileges and Immunities of Canadian Citizens,” (1958) 16 U. o f Tor. Fac. o f Law R . 16. Richard, E. R ., “ Peace, Order and Good G overnm ent,” (1940) 18 Can. B ar R ev. 243. Schmeiser. D. A ., “ Indians, Eskimos and the Law ,” (1968) 33 Sask. L. Rev. 19.

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IN D E X

Abbott. J. 40. 42. 51, 52-3. 1 19. 122. 134. 138. 144. 148. 150. 180. 196. 198. 230. 251. 261. 271. Abuse of process (criminal) 263. Accommodation, right to. without discrimination- (see Human rights legislation: also see Civil liberties egalitarian: Bills of Rights Canadian Bill of Rights -s.1(b) Administrative tribunals (also see Bills of Rights Canadian Bill of Rights ss. 1(a) and 2(d) and (e): M cR uer Report: Right to fair hearing.) 6. 57-66. 68-70. 74-6. 120-3. 125-6. 131-2.229. 244. 246. 259-60. 264-74. 294. 312. 324-6. Judicial and quasi-judicial 6. 266-74. Alberta 38. 54. 65-6. 7 1. 72. 178. 301. 302.

Bank Taxation Act 54. Communal Property Act 71. 72. 169. Human Rights Act 69. Individual Rights' Protection Act 69.

Land Stiles Prohibition Act 71. Ombudsman Act 65-6. Press Bill 31.38-9. 119. Aliens (also see Canada Immigration Act. Immigration Appeal Board Act. Canadian Citizenship Act: Citizenship: Deportation: Exile) 33. 45. 71. 235-6. 237. 327. Apprehended insurrection of October. 1970 (also see Bills o f Rights Canadian Bill of Rights s.6: Canada It ar Measures Act. Public Order Regulations. Public Order

I Temporary Measures I Act: Quebec Crisis) 331-48.

Arbitrary detention, imprisonment or exile (also see Bills of Rights Canadian Bill of Rights s.2(a): 235-8. Arrest or detention (also see Bills o f Rights Canadian Bill of Rights s. 2(c)(i)) 56.239-42. 246. 276-7. 326. 328-9. 342. 344-5. 346. Asiatics 45.294. Assembly, freedom of (see Freedom of assembly: also see Bills o f Rights Canadian Bill of Rights— s. 1(e)). Association, freedom o f (see Freedom o f association: also see Bills o f Rights Canadian Bill o f Rights s. 1(e)). Atkin. Lord -183-4. 323. Atlantic Charter 72. Audi alteram partem (see Right to - b e heard: also see Administrative tribunals judicial and quasi-judicial: Bills of Rights Canadian Bill of Rights s. 2(e): Natural justice.) Audio surveillance (also sec Right to — privacy)— 234. 257-9. Australia 94. 99-101. 109. 111. 175. 176-7. 327. Aylesworth. J. A. 260. Bail— (jet’ Right to bail; also see Bills o f Rights Canadian Bill o f Rights s.2(f). Banks. H. 203. Bias 262. 264-5. Bills of Rights (also see Civil liberties: Freedoms: Rights) 6, 7. 8 .9 . 10-11. 12. 22. 29.55. 87-8. 104. 111-12. Canadian Bill of Rights (also see Canadian Charter o f Hum an Rights) 7 .1 2 -1 4 .1 8 .2 2 .4 4 . 87. 88-92. 105. I 17. I 19. 120.

125-63. 220. 303. 328. preamble 117-24.152.169. 170. s. I 16. 119. 129-32. 133-5. 138-9. 168-74. 227. 230. 232. 298-301. opening paragraph 129-63. 168-73. 290-1. 295-6. 298-301. (a) 16. 120. 123. 144. 145. 146-7. 221.222, 227-35. (b) 130. 133. 136. 137, 138. 142. 143. 144. 148-9. 157-62. 172-3. 230. 290-316. (c) 134-5. 168-9. 174-80. (d)— 168. 180-201. (e)— 168. 201-9. (f) 168. 180-201. s.2 16,129-32.133-4.136-42, 227, 230. 235-77. 346. opening clause 129-63, 235. 244. 303. 304. 328. 346. (a) 143.235-8. (b) 226. 236. 238-9. (c)(i) 239-42. (ii) and (d) (right to counsel) 148. 227. 244-55. 273. (iii)- 242-4. (d) (protection against self-crimination)' 144. 230. 233. 245. 255-9. (e) 1 4 3 .1 4 7.230.232.236. 245. 246. 247. 259-74. (f) (fair hearing) 144.230. 231. 232. 245,246. 259-74. (f) (presumption of innocence) 144. 146. 245.246.274-6. (f) (rieht to reasonable bail) 276-7. (g) 277. s.3 23. 125-8. s.5 124. 129. 134. 136. 142. 152. 169. 172. 221. s.6 22.243. 321-2.328-31. 346-8. C anadian Charter of Hum an Rights 15-18, 20-1, 220. English Bills o f Rights 30.88. 105. 238. European Convention on H um an

Rights 18.87,88. Indian Bill of Rights 87. 88. 228. 254-5. Nigerian Bill of Rights 87. 88. 170. Saskatchewan Bill of Rights 12. 67-8. 73-4. 203-4. United States Bill of Rights 8, 16. 88. 146. 150. 158.' 159. 175. 177. 178, 223-7. 229. 231-2. 238, 245-6. 256. 291-3. 295. 297. 298. 302-3. 308. 309. Universal Declaration of Human Rights 2 .6 - 7 .1 0 .7 6 .8 7 .8 8 . 159. 219. 238. Binding over to keep the peace 206. Bird. J. A .— 133. Birkenhead. Earl of 243-44. Bissonnette. J. A. 270. Blasphemy 37. 177. 180. 1 81 . 184. Blackstone. Sir W m. 95. 111. 223. Bolshevism (see Com munism .) Bourassa. Robert 19. 332. 334. 335-8.340.341. Bowker. W. F. 66. Branca. J . A . 313.315. Brandeis, J. 202. 224. Breathalyzer tests 35,57, 144. 147.230-1.245. 248-52,257. 261. British Columbia 45. 48. 68-9. 302. 312-14 Coal Mines Regulation A ct — 33, 45. Equal Pay Act 69.

Fair Employment Practices Act 68 . Human Rights Act 69. l.ahour Relations Act 49-53. 202.

Trade- i 'nion I cl 202.

Brown. J. 292. British North America Act (also see Canada Parliament, powers of.) 11.12.13,29-37. 39.46. 52. 88-92. 105, 110-11.

119. 138. 142. 147. 152-4. 159. 168. 233. 234. preamble— 9, 38,41, 92, 119. s .1 5 - 3 2 2 . s . 2 0 - 29. s.35— 111-12. s.48— II I. ss.5 1 .5 IA . 52 29. s.53— II I . s.54— II I. ss.55. 56. 57 36-7. s.90— 10. 11.36-7.38. s.9l 1 3 .2 9 ,3 4 ,3 6 ,5 3 ,5 4 .7 4 . 9 0 .9 1.322-3. 325. opening paragraph 9, 33. 34. 3 7 ,4 7 ,5 5 ,9 0 , 131.322-8. (1) 89. 90. 91. 111. 142. 152. (IA )— 54. (2)-47. (2A) 54. (5) 55. (7)— 322. ( 1 0 )- 55. (15) 3 6 .4 7 .5 5 . (19) 47. (21)- 47. (22) 47. (24) 153-7.294-5. (25) 33.45. (27) 9 .3 7 .3 9 .4 7 .5 5 -6 .1 5 6 . s.92 2. 29. 34. 322-3. 325. (8) 3 4 .3 9 .4 0 .4 5 . (10) 3 3 .3 6 .4 7 ,5 4 .5 5 .7 4 . (13) 4 - 6 .8 .9 .3 2 .3 3 .3 7 .3 9 . 40. 43. 44. 45. 47. 48. 50. 53. 54, 56. 67. 72. 324-5. (14) 56. (15) 3 4 .4 7 .5 6 . (16) 33. 34. 3 9 .4 0 .4 5 . 53. 67. s.93 29. s.94A 54. s.95 45. s.99 29 s. 121— 29. $.125 29. s. 133 17.29. Buddhists 119. Burden of proof (see Reverse onus of proof clauses.)

Campbell. Lord 96-7. 108. Canada Bail Reform A cl 241-2, 276-7. Bankruptcy A d 263. Canada Elections A d 51. 52. 90. Canada Evidence A ct 56. 255-6. 259. 328.

Canada Fair Employment Practices A ct 74.75. Canada Labour Code 75. Canada Temperance A d 33. 323. Canadian Citizenship A ct 45-6. Comhines Invesligation A ct 208. 257. Continuation o f Transitional M easures A ct 325. Criminal Code ( a w Criminal Code.) Exchequer C oun A ct 90, 238. Expropriation A d 235. Extradition A ct 273. Fisheries A ct 126-8. Fair Wuges and Hours o f Labour A cl 74-5. Female Employees Equal Pay Act 74. 75. Food and Drugs A ct 275.310. Immigration A cl 229. 236. 247. 273. 294. 312. Immigration Appeal Board Act 273. Income Tax A ct 143, 270-1, 309-10. Indian A ct 133. 135-43. 148-63. 172. 294-308. Inquiries A ct 256,271. Interpretation A ct 118. Judges Act 90. Juvenile Delinquents .1 ct 313. 315-16. Lord's Day A ct (also see Sunday observance) 44. 134-5. 139. 170-2 175. Maritime Unions Trustees A cl 203. Narcotic Control A ct 127-8. 234.

National Emergency Transitional Powers Act 237. 325. 327-8.

Canadian Charter of Human Rights.) Canadian Labour Congress 13. Cannon. J. 38.182. Cardozo. J. 180. Cartwright. J. 4 2 .4 4 .5 1 .5 2 . 134. 135. 137-8. 141. 180. 196. 271. 297. Cass. F. M. 59. Censorship 37-43. 179. 181-2. 192. 200-1. 326. 327. Centlivres. C. J. 102.103-4. Certiorari, writ of (see Prerogative writs or orders

National Housing Loan Regulations— 75.

Northwest Territories Act 90.

Parliament, powers o f 7. 8-11. 13. 17-18. 22. 29-57. 72. 74-6. 88-91.92-4. 104-5. 110-12. 124. 131-2. 134. 138-43. 151-7. 161-2. 168. 169. 178. 181-2. 201.231-2. 232. 234. 260. 290, 297. 298.300-1.302.305-6. 322-31. 333-4. 339. Parole Act 236.272.

certiorari.)

Prisons and Reformatories A cl 312-14.

Protection o f Privacy Act 257-9. Public Order I Temporary Measures I Act 143. 331. 345-6.

Public Services Employment Act 75.

Royal Canadian Mounted Police A ct - 246.

Royal Commission of Inquiry into Espionage— 57.

Senate and House o f Commons A ct— 90. Statutory Instruments A ct 23. 125.

Supreme Court A ct— 90. L nemplovment Insurance -Icl

75. 11 eights and Measures .1 cl 263.

War Measure'. A c/— 17-18,

22. 37. 237. 238. 243. 321-48. Public Order Regulations— 342-5, 346. Yukon A cl 90. Canadian Bar Association 4-7, 15. 22. 66.

Canadian Bill of Rights (see Bills o f Rights Canadian Bill of Rights.) Canadian Cham ber of Commerce 4. Canadian Charter of H um an Rights — (see Bills of Rights 427

Ceylon 107-10.266-7. Chartrand. M ichel 335, 338. 341. Chinese 33.45. Chittv. R. M. W. 6. Choquette. Jerom e 333. 334. 339. 340-1. 346. 347. Christians 135. Christian Scientists 177-8. Citizenship (also see Canada C anadian Citizenship A d ) 20. 45-6. 75. 239. Civil Liberties (also see Bills of Rights: Freedoms: Rights: Liberties) 2-11. 16. 29-30.32. 36. 37. 40. 59. 60. 61. 123-24, 142. 168. 328. economic 3. 5-6. 8, 17. 46-55. 218-21. egalitarian 3. 11-12. 16-17,66-76. 124.159-60. 193.290-316. legal 3. 6. 8. 55-66. 222-77. political 3. 8. I I. 16. 18-19. 20. 37-46. 50. 119-20. 168-209. 290. 303. Civil remedies to enforce civil liberties 253-4. Cockburn. C. J. 194. Cohen. Maxwell 186. 236-7. 238. 243. Cohen Com m ittee 186-91. Coke. Sir Edward 222-3. Coleridge. Lord 180-1. Com munism 39.

Com m unist Party of C anada 327. “ C om m unity standards" test — 197. 199-200.’ Confederation of National Trade Unions ( C .S .N .) - 335.336-7. Conscientious objection to blood transfusions 177-8. to military service — 178. to patriotic observances— 178. Conspiracy— 206-8. Constitutional Conferences ( 1968-71)— (also see Victoria C harter)— 15-19. 220. Contem pt of court— 183-4. Co-operative Commonwealth Federation (C .C .F.) —(also see New Democratic Party (N .D .P .)— 11-12. 13. Coroners' inquests— 255. Corwin. E. S . - 224. 225. Counsel (see Right to counsel: Bills of Rights— Canadian Bill of R ig h ts - ss. 2(c) (ii) and (d).) Cowen. D. V .- 101. 102. 103. 106. 107. Criminal Code 3 4 .3 5 .4 2 .4 5 ,5 3 . 56. 57. 98-9. 143, 144-5, 147-8, 169-70. 177. 178. 179-80. 182. 184-5. 186. 187-200. 204. 206-9. 230-1. 236. 238-42. 247, 249-51. 252-4, 257-9, 261-4, 274-7, 301-2. 310-1 I. 315. 344-5. Criminal Law 8. 9, 32. 34. 37. 39. 42. 44. 45. 47-8. 52. 54. 55-6. 68. 75. 132. 154. 156. 234. 275-6. 290, 301. Croll, David 12. Cross Jam es— 333, 335. 336. 347. Cross, J 1 83 Cruel and unusual treatment or punishment (see Bills of Rights Canadian Bill of Rights 2 . 2(b).) Davev. J. A. 133. 134. 137. 138. 139, 141. Davey. Lord — 1 18. Davis. J. 38. Death penalty 238.

Defam ation— 37. 180-4. Denmark 64. Denning. Lord 180. Deportation (also see Bills of Rights Canadian Bill of Rights s.2(a))— 229. 236. 237. 274. 277. 312. 325. 326, 327. 328-9. de Smith. S. A. 87-8. 264-5. Detention (see Arrest a n d /o r detention: Bills of Rights Canadian Bill of Rights s. 2(a).) Dicey. A. C. - 3 0 . 37. 55. 92-3. 94-6 .9 8 .9 9 . 100. 104-5. 107. 110. I I I . 112. 120. 122, 141, 158, 160, 168. 180. 297-8. Dickson. J. 307-8.315. Diefenbaker. J. G . 12.13.89. 328. 329. Disallowance, power o f (see B.N.A. Act. s. 90) Disbery. J. 247. Discrimination, measures to overcome (see H um an Rights legislation: also see Civil liberties -egalitarian) Distribution o f legislative jurisdiction (see Canada Parliament, powers of: also see Statutory interpretation.) Disturbance a n d /o r breach o f the peace 188-90.204.205. Dixon. Sir Owen 101. 107, II I . Dominion-Provincial Conferences (al\o see Constitutional Conferences.) 13. “ Double aspect" doctrine 33. 34. Double Jeopardy (see Right to protection from double jeopardy.) Douglas. T. C. 13. D oukhobours 71. Drapeau. Jean 334. 335. 338-9. 341. Drunkom eter Tests (see Breathalyzer tests) Drunk or impaired driving (also

see Breathalyzer tests) 144, 147-8. 229-30. 248-50. 261. Due process of law (also see Bills of Rights Canadian Bill of Rights s. 1(a): Bills o f Rights United States Bill of Rights: Rule of law) 16.20. 55. 127. 138. 221-35. 246.308. Duff. C . J . C . 38-9.43.323. Duplessis. Maurice 41. 121-2. Dyer. C. J. 118.

Expropriation and nationalization (also see Right to property.) 225. 234-5. 326-7, 329. Extradition (also see Canada Extradition A d .) 234. 273. 274.

Economic civil liberties (see Civil liberties economic) Egalitarian civil liberties (see Bills of Rights Canadian Bill of Rights s. 1(b): Civil liberties egalitarian: also see Human rights legislation.) Eire 101-2. Emergency measures (see Canada War Measures A d ; Quebec crisis) Employment, right to. without discrimination (see Human Rights legislation: also see Civil liberties egalitarian: Bills of Rights s.1(b).) Entrenchment 10 -1 1. 12-13. 15. 18-19. 20. 87-1II. Equality before the law (,«v Bills of Rights Canadian Bill of Rights s. 1(b): also see Civil liberties egalitarian.) Equal pay legislation (see Human rights legislation.) Equitable remedies 63. Eskimos 203. Espionage 4 .6 . Estev. J. 4 4 .4 6 .1 1 9 .1 8 0 .2 4 3 . Examination and cross-examination, right to (see Right to examination and cross-examination.) Exile (also see Aliens: Bills of Rights Canadian Bill of Rights s.2(a): Deportation) 235. 236-7. 328-9.

429

Fair Accommodation Legislation (see Hum an rights legislation.) Fair Employment Legislation (see Human rights legislation.) Fair hearing ( see Right to fair hearing: also see Bills o f Rights Canadian Bill of Rights ss. 1(a). 2(e) and (0.) False arrest and false imprisonment 56. 253-4. Farwell. J. 235. Fauteux. C . J . C . 39. 43. 44. 49. 123. 134. 137. 143-5. 147. 180. 196. 198-9. 232. 249. 261-2. 269-70. 309-10. Field. J. 204-5. Finland— 64. Fitzgerald. J. 207. Franchise 45. 48-53. 294. 327. Freedman. C. J. M. 197. 199-200. 248. Freedoms 1-3. 29. 55-6. 59. 60, 61. 62. 125. Freedom of assembly 3. 9. 11. 18. 44-5. I 19. 123. 124. 168-9. 201-9. 220. 226. 227. association 3. 8. 18. 36. 44-5. 48-53. 119. 123. 124. 168-9. 201-9. 220 227. contract 3 .1 6 .4 7 .2 1 8 .2 2 4 . press 3 .8 .3 8 -9 .5 3 .1 9 9 -2 0 . 123. 124. 168-70. 177. 180-201. 209. 226. 227. speech or expression 3. 8. 9. II. 30. 32. 36. 37-43. 45. 50. 52. 53. 119-20. 123. 124. 138. 168-70, 177. 180-201. 202. 203. 209. 226. 227. religion or worship 2. 3. 8. 9.

14. 1 8 .3 6 ,4 1 .4 3 -4 . 45.71-2. 119. 123. 124. 134-5. 138. 139. 168-72. 174-80. 203. 209. 226. 227. 291. trade 47. work or enterprise 5. 8. Freedom from arbitrary arrest 3, 30. Friedmann. Wolfgang 10 0 -1. 102. 107. Front de Liberation du Quebec (F.L .Q .) 332.333-5.337-47. Fulton. E. D - 14. 89-91. 117. 127. 130. 131. 195. 228-9. 238. 259. 264.329-30. Fundamental freedoms (see Civil liberties political.) Fundamental justice (see Natural justice.) G agnon. Charles 335. 338. 3 4 1. Gale. J . A . 309. G alligan.J. 261. G enocide (also see Hate propaganda: Cohen Committee) 186-8. 194. G oddard. Lord 182-3. Goldenberg. H. C. 15. G ouzenko. Igor 327. G ray. H. R. 105. 106. Grossberg. J. 149. G roup defamation (*