Toward the Charter: Canadians and the Demand for a National Bill of Rights (review)

So saturated is the consciousness of present-day Canadians with the Canadian Charter of Rights and Freedoms that for many it may come as a surprise to learn that the Charter had a precursor, the Canadian Bill of Rights that was the product of a political movement extending over a quarter of a century. This pre-Charter history is a story well worth telling, and Christopher MacLennan's Toward the Charter tells it very well.

It was the treatment of striking workers, the outlawing of the Communist party, the massive deportation of immigrants, and Duplessis's anti-Bolshevism Padlock Law that first gave rise to a Canadian civil liberties movement in the 1920s and 1930s. MacLennan shows how the internment of dissidents and the removal and dispossession of west-coast Japanese-Canadians during the Second World War, followed after the war by the Gouzenko espionage inquiry's gross violation of basic civil liberties, broadened support for the movement. But it was Canada's participation in the founding of the United Nations and the adoption of the Universal Declaration of Human Rights that created significant public support, across the political spectrum, for Canada to adopt its own charter of fundamental rights and freedoms. Between 1947 and 1950 two joint parliamentary committees and a Senate committee considered the proposal for a constitutional bill of rights. In February 1949, an eleven-foot-high stack of some six hundred thousand names supporting the proposal was presented to the House of Commons.

But nothing happened. MacLennan shows why. Those wily Liberals, Canada's 'government party,' were able to stall the movement with two classic pieces of Canadian constitutionalism. The King and St Laurent governments were all for upholding rights and freedoms but not through a device that would undermine the sovereignty of Parliament or encroach on provincial rights. It took the election of a Conservative government led by John Diefenbaker to revive the bill of rights proposal.

From his earliest days in national politics, Diefenbaker had been a strong advocate of a bill of rights. His eloquence in arguing the case for such a measure was a key factor in his rise to political prominence. Diefenbaker's advocacy focused on traditional 'blue rights' to protect individual liberty from an intrusive state, rather than 'red rights' to advance equality. This was evident in the contents of the Bill of Rights which his government brought forward in 1959. The bill also bore the marks of the constitutional philosophy that continued to dominate the Department of Justice. It would take the form of an ordinary Act of Parliament and would not apply to the provinces. In the end, passage of the bill by the Conservative majority in 1960 was full of irony. The Liberals now had totally reversed their position, claiming that nothing but an entrenched constitutional bill of rights would do, and Quebec's Quiet Revolution produced a premier, Jean Lesage, who, on arriving in Ottawa for a federal-provincial fiscal conference just as Diefenbaker's Bill of Rights was coming before a House of Commons committee for final discussion, indicated that Quebec would now support a constitutional bill of rights.

Though eclipsed by the 1982 constitutional Charter, the Canadian Bill of Rights remains part of Canadian law. Its recognition of a property right and some of its administrative safeguards occasionally come into play to fill lacunae in the Charter. More important, MacLennan's book illuminates better than anything I have read how Diefenbaker regarded his Bill of Rights as a lever to make Parliament more responsible in protecting citizens' rights. In the Charter era with all of its emphasis on judicial review, Canada could do with more of that part of the Bill of Rights legacy.