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WINNIPEG FREE PRESS PAMPHLET No. 15

BILL OF RIGHTS
FOR CANADA

BY BRUCE HUTCHISON
Associate Editor
WINNPEG FREE PRESS

The following articles appeared on the
editorial pages of the Winnipeg Free
Press, May 30 to June 3, 1947.

PARLIAMENTS ALARM

FOR the first time in its history
the Parliament of Canada is
seriously concerned about the most
basic principle of democratic gov-
ernment—the freedom of every citi-
zen. In forming a committee of the
House of Commons and the Senate
to consider some kind of new
charter of rights for all Canadians.
Parliament is undertaking a task
which the founders of the nation
considered already completed. When
they constructed the political ma-
chinery of the nation under the
British North America Act they
assumed that the basic rights of
citizens were already established
by the complex structure of Eng-
lish Common Law, which became
the law of Canada, and by all
those English precedents, from
Magna Carta onwards, which as-
serted the rights of the citizen
not only against his fellows but
against the state itself.

* * *

We have now reached a point
in our history—as the British
people did over and over again—
where it becomes necessary to re-
consider primary princlples, to de-
cide whether basic liberties are be-
ing infringed in spite of all the old
safeguards, and perhaps to erect
new safeguards. Two reasons im-
pel this re-examination.

In the first place, a new and
potentially powerful instrument of
politics has come into being
throughout the world—the United
Nations. One or the objects of the
United Nations, as stated in some
or the first words of its Charter,
is to protect the rights of the in-
dividual man. The Canadian gov-
ernment proposed the present par-
liamentary inquiry to consider the

means by which Canada, as a sub-
scriber to the Charter, could make
good its aims within the laws of
Canada, so far as those aims affect
individual Canadians.

Mr. Ian Mackenzie, who intro-
duced the subject at the present
parlia,me.ntary session in one of the
most eloquent and scholarly
speeches of recent times, warned
the Commons that all members
of the United Nations do not re-
gard freedom in the same way.
Democracy has a different mean-
ing, for example, in Ottawa and
in Moscow. Therefore, when the
United Nations completes the inter-
national Bill of Rights which it is
now slowly drafting, that instru-
ment may fall far short of Cana-
dian ideals of liberty. But the in-
ternational Bill of Rights can grow
over the years.

Meanwhile, Mr. Mackenzie said,
Canada should aid the process of
growth by making clear, within its
own jurisdiction, its own theories
of liberty. Canada must aid the
world project of liberty by “experi-
ence, by example and by educa-
tion.” In other words, by itself
framing a national declaration or
the citizen’s liberties, Canada will
give leadership to the international
movement. The first purpose of the
Canadian inquiry, therefore, is to
consider how Canada can best in-
terpret and make good in its own
territory any Bill of Rights which
emerges eventually from the United
Nations.

* * *

THERE is a more local and per-
haps a more urgent reason for
the present inquiry. It is that Can-
adians have begun to suspect that
all is not well with liberty here

at home. Mr. John Diefenbaker,
the able young Conservative who
introduced the whole subject a year
ago, summarized the reason for
these suspicions. He mentioned
among other things the restriction
at religious rights in Quebec; the
attempt by an Alberta government
to interfere with freedom of the
press; the attempt to deport Cana-
dians of Japanese origin because
oi their race and color; and the
mistreatment of accused in the
espionage trials.

All these disquieting developments
have compelled Parliament to ask
itself whether the citizen’s civil
rights, assumed under the British
North America Act are, in fact,
safe when a provincial or federal
government undertakes to violate
them, since these governments.
separately and in combination, ac-
tually have complete legal control
over every citizen. No legal bar-
rier stands in the way of the ex-
ercise of such authority.

The government seems by its
speeches to attach first importance
in this argument to the proiect
of implementing in Canada the
proposed international Bill of
Rights. Naturally, since it is ac-
cused of violating individual liberty,
it is inclined to sweep aside as
unproved and rather imaginary the
fear that liberty has ever been

endangered by it. The opposition
speakers attach first importance
to the state of liberty now actually
existing within Canada. They are
concerned mainly with establishing
a Canadian Bill of Rights whatever
may be done by the United Nations.
They do not have to go beyond
the record or Mr. Mackenzie. who
is so deeply concerned with human
liberty, to discover reason for their
own fears. it was Mr. Mackenzie
who chiefly promoted the most
serious recent interference with
Canadian liberties—racial discrim-
ination against Canadians of Jap-
anese origin in particular—at the
very time when he was powerfully
defending liberty in general.

* * *

The resolution finally introduced
by Mr. Mackenzie provides two
avenues of approach to the whole
problem of individual freedom. Un-
der it. the parliamentary commit-
tee will consider not only means
of implementing an international
Bill of Rights in Canada but also
what steps should be taken “for
the purpose of preserving in Cana-
da respect for and observance of
freedoms.” The whole field of free-
dom, international and Canadian.
human rights and fundamental
liberty, is thus open to the inquiry
which will shortly begin.

CITIZEN AND CONSTITUTION

NO sooner does the Parliament
of Canada resolve to consider
the protection of individual liberty
among Canadians than it encounters
the Canadian constitution and our
system of power divided between
federal and provincial governments.

The project of writing a Bill of
Rights for Canadians becomes at
once, like all major political pro-
jects in this country. a constitu-
tional problem.

As was pointed out repeatedly in
the recent House of Commons de-

bate, and as every Canadian should
know, Canada’s position in this mat-
ter differs from that of Britain and
the United States, the two nations
from which we derived our con-
stitution, the British North America
Act.

* * *

In Britain one Parliament is
vested with total power over all
the affairs of the realm and over
every individual in it. The British
Parliament can destroy the liberties
of any individual or of the whole
people simply by passing a statute.
It is not prevented from doing so
by any over-riding law but only by
a vast and sacred volume of pre-
cedent, established through cen-
turies of experience, revolutions
and civil wars.

In the United States sovereign
power is divided between the na-
tional and state governments. But
even in combination these govern-
ments cannot repeal certain basic
individual liberties because they are
guaranteed by the Constitution, un-
der a series of amendments called
the Bill of Rights. Only by an
amendment of the Constitution it-
self, a very difficult business re-
quiring the assent of a majority of
the states, could these basic lib-
erties be touched by any power in
the nation.

In Canada, however, while power
is divided, as in the United States,
between a central and nine provin-
cial sovereign governments, there
is no limit to the power of these
governments, if they act together,
to interfere with the basic rights of
the citizen. Our constitution con-
tains no Bill of Rights simply be-
cause its trainers considered such
safeguards unnecessary.

As was pointed out in a previous
article, the people and Parliament
of Canada are beginning to think
that safeguards are needed because.
in recent times, basic human lib-
erties have been infringed in this
country. The intangible safeguards
of the constitution, the great body
of precedent and custom. are in fact
proving inadequate against the en-
croaching power of some govern-
ments. But when Parliament con-
siders a plan to write a Canadian
Bill of Rights it finds that, alone, it
may lack power to do so. Since the
provinces are sovereign in ficertain
fields—and especially in the great
field of property and civil rights
which lie at the root of all individ-
ual rights—how can the national
authority legislate in this area with-
out invading the sovereignty oi the
provinces? Two methods are open
to it.

Parliament could pass a statute
asserting that certain basic rights
are possessed by every Canadian
and that they must never be invaded
by any authority. Then, if some
provincial legislature or govern-
ment attempted to override this
declaration, the legal issue could be
fought out in the courts; or, if some
provincial statute seemed to con-
travene the national legislation, that
statute could be disallowed by the
central government under its ulti-
mate constitutional power—a right
which no central government will-
ingly exercises.

Admittedly, as the parliamentary
debate showed, this would be at
best a haphazard method of guar-
anteeing liberty, subject to doubt-
ful legal dispute and likely to en-
gender friction between the central
and provincial governments. The
only safe and satisfactory method

of establishing a national Bill of
Rights is to graft it into the organic
body of the national constitution,
where it could be varied only by a
constitutional amendment as in the
United States.

How the Canadian constitution is
to be amended in the future, wheth-
er it is to remain a statute of the
British Parliament, subject to
change at the request of Canada, is
another and separate problem
which Canada doubtless will solve
in time. But in any case, a Bill of
Rights written into the constitu-
tion itself, with the agreement of
the provinces, or at least a large
majority of them, would be the
most effective safeguard of liberty
we can provide.

* * *

IT is toward such a constitutional
amendment that Parliament ob-
viously is working in its present
consideration of the whole problem
of human liberty. But even suppos-
ing an agreement is reached be-
tween the national Parliament and
the various provinces on the terms
of a Bill of Rights, there are those
in Parliament who fear it as a
possible restriction on liberty.

Mr. Ian. Mackenzie, who spoke for
the government, warned against
“the impulse to put freedom in a
straitjacket by seeking to define it

in words.” He feared that if certain
basic human rights were defined
in law then some other rights might
be left out of the law by an over-
sight, so that the courts would rule
that they did not exist in law at
all and therefore could be infringed.

To this Mr. Diefenbaker replied
effectively for the opposition that
there was no real danger here. The
Canadian Bill of Rights. like that of
the United States, could clearly
state that it was guaranteeing cer-
tain stated liberties but that “the
enumeration of certain rights shall
not be construed to deny or dispar-
age others retained by the people.”
And if any essential rights were
found to be missing from the law,
they should be added to it by a fur-
ther amendment to the constitution.

* * *

If Parliament decides to write a
Bill of Rights into the constitution
the next step presumably will be to
consult the provinces. If they are as
sensible as Parliament to the pres-
ent dangers to human liberty, the
provinces should not fear a consti-
tution which does not infringe upon
their jurisdiction in the practical
affairs of government but only pre-
vents them from infringing upon
the rights of individuals, of whom
they have always claimed to be the
chief protectors.

THE PERSON AND THE PEOPLE

ASSUMING that the project of
a Canadian Bill of Rights
overcomes the constitutional prob-
lems standing in the way, it im-
mediately encounters what might
be called an ideological problem.
This is a very large problem in-
deed.

It arises out of the revolutionary
times in which we live. In Canada,
as elsewhere, some parties and
groups are determined to alter the
economic and social system now
prevailing. In place of private
owners they would establish the

state as the dominant power over
all man’s economic activities.

* * *

A government which undertakes
this responsibility obviously must
be equipped with far-reaching au-
thority. In all countries where
such a system has succeeded the
state has accepted no limit on its
authority whatever. But the major
purpose of a Bill of Rights is to
protect the individual from the
state in certain prescribed areas.
In the United States, for example.
the Bill of Rights prevents the
state from lmprisoning the individ-
ual without trial, from inflicting on
him cruel and unusual punish-
ments, from taking his property
from him without due process of
law, and so on. Any such restric-
tions on the power of the state
must curtail its right to manage
the national economy as it pleases
without regard to the individual.

Up to now the conflict between
the state and the individual in the

economic sphere has not been gen-
eral or serious in Canada. Except
in wartime the state has attempted
to manage the daily economic ac-
tivities of the citizen only under
broad and general rules which do
not conflict with the citizen’s per-
sonal llberties. But lately the clash
between the state and the indi-
vidual in the economic sphere has
developed, in a preliminary fashion,
in Saskatchewan, where a socialist
government is in office. Instances
of this clash were cited in Parlia-
ment by Mr. Walter Tucker, the
Liberal leader in Saskatchewan.
The danger to which he pointed
appears now as a small cloud on the
horizon. no bigger than a man’s
hand, but it can grow. It will
certainly grow it the Canadian
people decide to embark on in-

creasing state management of the
economy.

The advocates of state manage-
ment admit no such danger. In-
deed, in Parliament the most vig-
orous advocates of a Bill of Rights
are among the C.C.F. members.
The C.C.F. alone among the politi-
cal parties denounced the most
outstanding recent invasion of hu-
man rights, the present govern-
mental discrimination against Can-
adians of Japanese origin. The C.
C.F., jealous of these human rights,
apparently believes that it can es-
tablish socialism in Canada with-
out infringing them in any way.
Mr. Tucker and many others do
not agree. They point to Saskat-
chewan where, they say, the es-
sential liberties of the individual
in the ownership of his property
already have been infringed by a
C.C.F. government.

The core of this problem of hu-
man rights versus the power of
state planning appeared in a brief
and little-noted aside in the parlia-
mentary debate. Mr. Tucker said
that when an untaxed state enter-
prise in Saskatchewan put a pri-
vate enterpriser out of business
without compensation this was an
invasion of basic human liberties.
For the C.C.F. Mr. Stanley Knowles
replied that the government was
doing such things “for the benefit
of the people.” Here is the crux of
the economic problem of liberty and
is worth examination.

* * *

ALL governments which under-
take to manage the economy
of a nation and regulate the liveli-
hood of citizens invariably act “for
the benefit of the people.” The in-
dividual may be sacrificed but the
people benefit, or at least the

government thinks they do. As
against this concept of society the
whole theory of a Bill of Rights is
that the state can never be allowed
to touch the individual, in certain
aspects of his life, no matter how
compelling the reasons. State plan-
ning must stop at the point where
it threatens to repeal the rights
guaranteed to the individual by the
Bill of Rights.

It is not to be expected that any
Canadian government will make a
practice of secret arrest, torture,
murder or the other techniques of
totalitarian governments, though
we have lately witnessed an ex-
ample olf secret arrest and some
of our citizens have been perse-
cuted for their race and color. But
even if governments could be trust-
ed to avoid these more obvious
forms of tyranny, there remains
the broad question of the sanctity
of the individual’s property.

The United States Bill of Rights
protects property and the individu-
al’s method of earning his liveli-
hood by saying that they shall not
be touched except by due process
of law. If the individual considers
himself unjustly used he can go to
the courts and the courts have
been rigorous in resisting the ty-
ranny of the state. They have al-
ways insisted that it an individual
suffers from the increasing econ-

omic power or the state he must
be compensated by the state.

* * *

A Canadian Bill of Rights. to
be of practical use to the individual,
would have to contain some such
provision. it is true, of course, that
a Bill of Rights is not designed
to fix the exact pattern of a society.
It is not designed to establish capi-
talism, socialism or any other par-
ticular system. The people must
be free to choose their own system
or they have lost their collective
liberty. But it must be designed to
make sure that, however the sys-
tem changes, it cannot infringe
on certain basic individual rights
which are considered more impor-
tant than any system.

The C.C.F., the chief advocate
of a new state-planned system, says
it wants a Bill of Rights. If so, it
will have to abide by such a bill
even though it is thus prevented
from doing many things it would
like to do, in Mr. Knowles’ words
“for the benefit of the people”. For
the basic theory of a Bill of Rights.
and the most basic belief of our
free society is that the individual.
in certain sacred aspects of his
life, must stand above the power
of the state. The. person, in these
aspects, is more important than
the people. The people are only
safe collectively as the person is
safe individually.

TOWARD A BILL OF RIGHTS

THE recent parliamentary debate on civil liberties must con-
vince most Canadians of the need of a Bill of Rights in this
nation. Certainly the debate seems to have brought this con-
viction to most members of Parliament, regardless of party, for
two compelling reasons.

In the first place, Canada has a responsibility to the United
Nations, whose Charter binds it to respect “human rights and
fundamental freedoms for all.” Since the United Nations is
attempting to draft an international Bill of Rights, protecting
the basic liberties of all peoples, it will be Canada’s duty to
apply such an agreement within its own boundaries. It was
primarily in aursuance of this purpose that the Canadian govern-
ment proposed the present parliamentary inquiry.

It may be said that Canada’s protection of human freedom
is certain to be above the standard set by any international code
at the present stage of history; that we can accept any inter-
national Bill of Rights without altering our present laws and
practices in any respect. But there seemed to be agreement
among all parties in our Parliament that Canada should not be
satisfied merely to follow the leadership of other nations in
this matter but should give leadership to them.

Only a few nations in the world today can give such leader-
ship for only a few nations enjoy real freedom. Among this
small group, and as free as any of them, is Canada. The argu-
ment which apparently was accepted in Parliament is that, having
declared in favor of freedom in an international charter, Canada
should demonstrate its devotion to this ideal by positive action
which all the world can see and understand. In short, if we
believe in freedom for the individual, we should no longer hesi-
tate to write it into definite law, which we presently lack.
Thus, we shall not only provide protection for our own people
but we shall encourage the development of freedom elsewhere.

* * *

The second argument for a Bill of Rights was mainly
stressed by opposition parties and, naturally enough under the
circumstances, minimized by the government. It is that the
personal freedom of some Canadians already has been violated
by federal and provincial governments. The same Parliament
which is bent on protecting human rights has consented to their
suppression in the case of Canadians of Japanese origin, with
only the C.C.F. objecting. The government which sponsors the
present investigation, though it sought to defend itself, could

not explain away some of its actions in the espionage trials.
Outside federal jurisdiction the Quebec government has been
interfering with religious liberty while the Saskatchewan gov-
ernment has been edging steadily toward interference with the
private property of individuals.

Thus, after assuming for eighty years that liberty was safe
in Canada without any sure legal guarantee, Parliament has been
compelled to realize that liberty has lately been infringed by
the state in a fashion unforeseen by the framers of our consti-
tution. Tlie infringement as yet is small, but it can grow. The
purpose of a Bill of Rights is to make sure that it does not grow.

If the two premises are accepted — that Canada has an
international responsibility to the principle of freedom and that
freedom is in need of legal protection here — it should not be
too difficult for the parliamentary committee to agree on what
freedoms should be guaranteed to all Canadians by law. The
freedoms laid down in the British Bill of Rights, as signed by
William of Orange, and the freedoms which the United States’
Bill of Rights largely imitated from the British original, gen-
erally will meet Canada’s present needs. The main problem will
not he to define basic rights, on which nearly all Canadians
agree, but to overcome the constitutional difficulties inherent
in our federal state.

* * *

Since sovereign power in Canada is divided between a
central and nine provincial governments — the latter possessing
the vital power over property and civil rights — it is highly
desirable that a Bill of Rights should be the joint product of
both authorities, federal and provincial. Parliament could write
a federal statute purporting to guarantee certain freedoms, but
its validity would be doubtful and subject to litigation as an
invasion of provincial rights. A federal government could dis-
allow any provincial statute which seemed to infringe on the
freedoms laid down by Parliament, but no government willingly
uses the ultimate power of disallowance and no government
could be depended upon to use it whenever it was necessary.

Therefore, as seemed generally agreed in the House of
Commons, a satisfactory Bill of Rights should take the form of
a constitutional amendment, an organic addition to the British
North America Act, which could be abridged only by a further
amendment of the constitution.

It is true that the constitution, in its present unsatisfactory,
equivocal and temporary position, can be changed by a simple
resolution of Parliament, forwarded to London, but in fact it

would be difficult if not impossible, once a Bill of Rights is
established, to persuade our Parliament to repeal it. Moreover,
when control of the constitution is moved to Canada, as it will
be, and rules framed for its method of amendment, undoubtedly
the consent of a majority of provinces will be required before
it is changed in vital respects and the repeal of a Canadian Bill
of Rights would then be as difficult as the repeal of the United
States Bill, which no one has ever dared to touch or question.

To secure agreement with the provinces it will be desir-
able for the federal authorities to consult with them in framing
a Bill of Rights. It was said in the recent debate that any such
statute would be in itself an invasion of provincial jurisdiction
but this is true only in the most technical sense. No constitu-
tional amendment which Parliament would pass would touch
the present authority of the provinces over provincial business.
It would only prevent them exercising that authority at the
expense of liberties which all Canadians deserve. The provinces
have always claimed to be the final protector of the individual.
They can hardly object to this principle of individual liberty
being written into law.

As for provinces like Saskatchewan which are bent on
establishing a new social system, the same logic applies. The
Saskatchewan government, for example, denies that any of
its policies will narrow the field of individual freedom but says
they will widen it. Therefore, this government cannot consis-
tently oppose any general law which does not in the least
prohibit socialism or any other social system but says simply
that no system must violate certain inherent human rights.
Actually the C C.F. is one of the chief supporters of the Bill
of Rights project, which thus begins without any ideological
quarrel.

Indeed, the wholly nonpartisan approach of Parliament to
this fundamental change in our constitutional structure is the
surest sign that the public desires it and the best assurance that
it will succeed.

1944 Punishment of Juveniles and Young Persons 597

sending the individual to gaol, while it may serve to protect the property
of other people, does no good to the individual imprisoned. If they
must be confined they should be confined where they may be properly
cared for.

RECOMMENDATIONS

Your Committee recommends that—

(1) Part XVII of the Criminal Code, and the Prisons and
Reformatories Act be completely revised to provide for the
treatment of juveniles under the age of sixteen who have broken
the law so that they will be dealt with, not as offenders and
criminals, but as persons in a condition of delinquency and there
fore requiring help, guidance and proper supervision. Such
revision should be conducted with due regard for all provincial
legislation.

(2) In no case should it be lawful for a child under sixteen
years of age to be committed for punishment to the common gaol,
penitentiary or other prison Where adult offenders are undergoing
imprisonment.

(3) It ought not to be lawful to impose the sentence of
hanging on a person below the age of sixteen.

(4) Immediate steps should be taken to establish in Canada
a system of treatment for young offenders over the age of sixteen
modelled on the Borstal System, with its incident methods of the
supervision and reestablishment of those released from the
institutions.

(5) The previous recommendation of the Canadian Bar
Association in regard to the adoption of an adult probation
system throughout Canada be implemented.

(6) Copies of this report be sent to the Minister of Justice,
and all Attorneys-General of the Provinces, and to the Secretary
of the Conference on Uniformity of Legislation.

All of which is respectfully submitted.

J. C. MCRUER, Chairman
W. B. COMMON,
EILEEN MITCHELL.

598

REPORT OF COMMITTEE ON CIVIL LIBERTIES

PRESENTED TO THE ANNUAL MEETING on THE CANADIAN BAR
ASSOCIATION AT Tononro, AUGUST 30, 1944.

The full report contained an account of the activities of the various
provincial committees which were appointed to work in cooperation with
the central committee and in particular to examine and analyze laws
orders-in-council, etc., affecting civil liberties. As an illustration of this
type of work, reference may be made to the Report of the New Brunswick
Committee which was printed in 21 Can Bar Rev. 810.

The Committee reported that there was not yet available the necessary
complete information to warrant a definite report on the subject of encroachments on civil liberties.

The Committee stated further that it was of the opinion that the
“work of complete scrutiny of Federal and Provincial legislation should be
pursued and completed, with a view, not to interfere in the slightest degree
with the war effort, but to have our Association prepared for sound and firm
action immediately after the war, and possibly, in many cases, before the
end of the conflict.

“Your Cornmitteealso feel that the work of complete research and analysis
of all material legislation in Canada, and of preparing an exhaustive report
of conclusions and suggestions, and of arranging action with the proper
legislative authorities, would require, for a considerable time, the full atten-
tion of able members of this Association. And we recommend the appoint-
ment of a permanent secretary or reporter, or committee, to give continuous
attention to complete this task, up to the end”.

Jurisdiction in the matter of Liberties and Property Rights

The civil liberties which we are concerned with cover the
wide field of the rights of the subject, and may be, for the
purpose of our discussion, considered in relation to three par-
ticular objects:

1. Civil and property rights proper, which are more in
relation to the civil law as distinct from the criminal
law, and cover:

(a) liberty of religion and language;

(b) liberty of opinion including freedom of speech, of
writing and of the press;

(c) liberty of enterprise, including freedom of private
initiative and industry;

(d) freedom of Work;

(e) freedom of association;

(f) the right to private property;

2. The protection of the person of the subject, which is
more or less in relation to criminal law; and

3. The preservation of the political institutions under which
liberties have been acquired and appear to be guaranteed.

1944 Report of Committee on Civil Liberties 599

As everybody knows, property and civil rights are, in the
Constitution, assigned exclusively to the legislative jurisdiction
of the provinces, save particular classes of subject matters
enumerated in section 91 of the British North America Act.
The criminal law pertains exclusively to the Federal power.

The political rights, which are of a varied nature, may,
according to circumstances, fall within the Federal or the Pro-
vincial jurisdiction.

The War Emergency

It is now settled by the Privy Council that the existence
of a state of war shifts from the Provincial to the Federal
legislative authority, the power to control Provincial rights and
liberties, such as property and civil rights in a Province, inasmuch
as it is necessary for the safety of the Dominion as a whole, in
case of great emergency, such as the outbreak of a great war.

Though, by section 91 of the B.N.A. Act, the power assigned
to the central Parliament “to make laws for the peace, order,
and good government of Canada” is, in terms, restricted to
“all matters not coming within the classes of subjects by this
act assigned exclusively to the Legislatures of the Provinces”,
it is quite reassuring for the preservation of the national life,
that the highest judicial authority has so broadly interpreted
section 91 to determine that in time of war, the central Parlia-
ment has full control of all property and civil rights for the
purpose of coping with the emergency.

It is proprietary and civil rights, in new relations which they do not
present in normal times, that have to be dealt with; and these relations
which affect Canada as an entirety, fall within Section 91, because in
their fullness they extend beyond what Section 92 can really cover.

The kind of power adequate for dealing with them is only to be
found in that part of the constitution which establishes power in the
State as a whole. “Fort Francis Pulp Co. v. Manitoba Free Press, [1923]
A.C., p. 695).

It is in virtue of that principle that we now have an abun-
dant Federal legislation, limiting property and civil rights of the
citizen, by way of a few acts of Parliament, and thousands of
orders-in-council, orders of Boards, rulings of subordinate bodies
and civil employees, which have brought a very extensive con-
trol, often called bureaucratic, of the activities of the subject
throughout Canada.

To illustrate the amplitude of that control, let us quote
two federal Acts of general bearing:—

600 The Canadian Bar Review [Vol. XXII

A. The War Measures Act——(R.S.C. 1927, c. 206—Which
Was enacted for the last war and is being utilized in
this War):

Section 3:

The Governor in Council may do and authorize such acts and
things, and make from time to time such orders and regulations, as he
may by reason of the existence of real or apprehended war, invasion or insur-
rection deem necessary or advisable for the security, defence, peace, order
and welfare of Canada; and for greater certainty, but not so as to restrict
the generality of the foregoing terms, it is hereby declared that the
powers of the Governor in Council shall extend to all matters coming
within the classes of subjects hereinafter enumerated, that is to say:—

(a) Censorship and the control and suppression of publications, Writings,
maps, plans, photographs, communications and means of com-
munication;
(b) Arrest, detention, exclusion and deportation;
(c) Trading, exportation, importation production and manufacture;
(f) Appropriatiion, control, forfeiture and disposition of property and
of the use thereof.

All orders and regulations made under this section shall have the
force of law, and shall be enforced in such manner and by such courts,
officers and authorities, as the Governor in Council may prescribe. . .

Section 4:

The Governor in Council may prescribe the penalties that may be
imposed for violations of orders and regulations made under this Act. . .

B. The Mobilization Act—(4 Geo. VI. c. 13—which was
enacted in 1939 during this war):

Section 2:

Subject to the provisions of section three hereof, the Governor in
Council may do and authorize such acts and things, and make from time
to time such orders and regulations, requiring persons to place themselves,
their services and their property, at the disposal of His Majesty in the
right of Canada, as may be deemed necessary or expedient for securing
the public safety, the defence of Canada, the maintenance of public
order, or the efficient prosecution of the war, or for maintaining supplies
or services essential to the life of the community.

Section 3 above referred to is as follows:

The powers conferred by the next preceding section may not
be exercised for the purpose of requiring persons to serve in the military,
naval. or air force outside of Canada and the territorial waters thereof.

Prtncvipte and Extent of Control Not Opposed

Whatever opinion anyone might have as to any possible
abuse by the Federal authorities, or their delegated boards, of

1944] Report of Committee on Civil Liberties 601

the wide powers so granted to them, and in spite of the civil

encroachments this war legislation has developed against the
liberty of the subject, your Committee feel that this Association
ought not to do anything that might appear to antagonize, or
even directly criticize the principle of full control, during the
war, of the citizen, his liberty, property and activities, to the
extent that the Government deem necessary for the safety of
the nation. The Government alone have full information of
the necessities of the hour, and however well informed we, of
this Association, may be, we should not assume the risk of
embarrassing in the least degree the Government of the country
in the paramount task of winning the war.

Wartime Emergency Controls to Cease with the War

It will be noticed that most of the Federal legislation
encroaching on civil liberties, and arising from the state of war,
is to cease to have any effect with the end of the emergency.
Section 6 of the War Measures Act says that the powers given
to the Governor in Council, as hereinabove mentioned, shall
cease with the war. But let us observe the wording that has
been used:

. . . shall only be in force during war, invasion or insurrection,
real or apprehended.

In this, there lies a potentially great and serious issue.
For, after the cessation of hostilities, and under pretext that
there is an apprehension of some incidental difficulties, it may
be contended that there is still a war apprehended.

The essential reason for the control of the liberties of the
subject is the menace of imminent national disaster calling for
prompt action. As long indeed as the enemy is still fighting,
the menace remains. And the individual’s liberty could hardly
be sustained, if the country were to fall. But once hostilities
have ceased and an armistice has been signed, and the Allies’
troops are in full control, urgency no more exists. The nation
had then better suffer some inconveniences, and restore liberty.

Therefore, it would appear proper to insist on having imme-
diately after the hostilities have ceased, a proclamation of the
Governor in Council, to declare that the state of war has ended.

The Application of Control—To Depend on the Relative Urgency in the Particular Matter

The application of the power to control should depend on
the relative urgency of the situation as to each particular liberty.

602

Because the Government is granted the authority to control,
it does not follow that all the liberties of all citizens should be
actually encroached upon, all at once, to the full extent, and
continuously.

Process, Form and Procedure of Control Legislation
to Be Discussed

If on the one hand, one has to admit, as we do admit, that
the principle and extent of wartime control legislation should
not be disputed, it is proper to discuss the legislative process
and form through which such legislation should be enacted, and
the procedure with which it should be enforced. And this raises
the questions of legislation by orders-in-council or rules of subor-
dinate powers, and of judicial jurisdiction being assigned to the
executive or their special boards and administrative officers.
These questions, however, are of equal importance in peacetime
as well as during the war. They concern the whole principle of
the Rule of Law so dear to the British subject, and which is
the guarantee of all essential liberties, even in times of war.

As Ridges puts it (Con.stitutional Law of England by Ridges,
6th edition, page 25): “The Rule of Law”-

The idea includes the principles

(1) that the executive has no arbitrary power over the subject, and
that the latter has under common law or statute certain rights which
cannot be invaded by executive action without his leaving the right to
invoke the aid of the Courts. So much is this so that it has been necessary
to confer by legislation special powers on the executive to counter
internal disorders, but this is carried out by making formal regulations
always subject to Parliamentary control. . .

(2) it includes also the rule that judicial decisions shall be based on
fixed principles already established.

Separation of Powers

An important structure in the Rule of Law consists in the
separation of the legislative, administrative and judicial powers,
and in the policy of vesting these different powers in separate
persons.

The principle of the separation of powers is of the very
essence of democracy. While in England, it has developed
gradually in the conscience of the people and into the parlia-
mentary institutions, in the American Republic it has taken the
form of a positive enactment in the Declaration of Rights:

603

Article 8

That the legislative, executive, and judicial powers of the Govern-
ment, ought to be forever separate and distinct from each other; and
no person exercising the functions of one of said departments, shall
assume or discharge the duties of any other.

The Legislative Power to be exercised by Parliament,
not by Orders-in-Council

Laws should be enacted by the Parliament directly. The
essence of democracy is that the people govern themselves
through their freely chosen representatives. It is true that the
Cabinet Ministers, though indirectly, represent the people in
that they are responsible to Parliament. But they represent
also a political interest, and from that point of view, only a
part of the nation.

If legally, Parliament vested as it is with plenary powers,
can delegate powers to the executive, or a minister, a commis-
sion or even civil servants, the delegation of legislative powers
is not in the spirit of democratic institutions, the purpose of
which is that the people’s elected representatives alone shall
make the laws.

Under democratic institutions, the people accept to be
governed by majority decisions, but on the condition that the
laws be discussed in the open, traversed by the criticism of the
opposition, and be the result of a free and enlightened decision
of Parliament. The part played by the opposition, as an essen-
tial characteristic of our parliamentary system, is our guarantee
that the laws have been minutely examined, tested and refined,
both as to the remedy looked for, as well as to the essential
civil liberties to be preserved.

Inversely, laws passed in secret border on dictatorship.

While the people will readily recognize the social and national
character of laws openly approved by both Chambers of Parlia-
ment and the Crown, they instinctively distrust orders made at
will and secretly in departmental offices. Such decrees do not
bear in the public eye the sacred authority of Law. They are
held as abuses of dictatorship, as orders to which one has to
submit on account of the force which is behind them; but they
are not accepted loyally as laws which a free people would
impose upon themselves.

In the measure that laws escape discussion and control by
Parliaments, they take on a character of autocracy, and lessen

604

popular confidence in democratic institutions, which are seen
developing into despotism.

Governments that try to place in the mind of the people
the same respect for orders and regulations of delegated bodies,
as for public laws of Parliament, simply degrade the whole
system to the level of dictatorship.

Parliaments, in introducing into democratic institutions the
methods of dictatorship, render democracy odious to the people,
who, in consequence, will be thrown into all sorts of novel
theories and political systems, hoping thereby to escape despotism
which they abhor.

Legislation by Order-in-Council as a Necessity Arising
out of War Emergency

We admit, however, that during the War, and in so far as
urgency commands, legislation by orders-in-council may be
necessary in many cases. For it cannot be claimed that all
questions resulting from the very changing and pressing con-
ditions of the war could wait for the next sitting of Parliament
to be dealt with. But while admitting the necessity to resort
to such legislation in time of war, your Committee feel that
all emergency orders-in-council should be brought before Parlia-
ment at the next ensuing session, and should not continue in
force if not ratified by Parliament.

In that respect, a great inspiring example again comes to
us from the Mother of Parliaments, through the Emergency
Powers Act, enacted in 1920 by the Parliament of the United
Kingdom (10 & 11 Geo. V., c. 55). In the first place, it
empowered His Majesty to declare by proclamation that a state
of emergency existed:

of such a nature, and of so extensive a scale, as to be calculated, by
interfering with the supply and distribution of food, water, fuel or
light, or with the means of locomotion, to deprive the community or
any essential portion of the community, of the essentials of life;

but it clearly provided that no such proclamation shall be in
force for more than one month, unless another proclamation is
again issued for another month and that any such proclamation
“shall forthwith be communicated to Parliament” at the next
ensuing session, and, for that purpose, that Parliament should
be called in session within five days. In such a case of a
proclamation of emergency, His Majesty in Council may, by
orders, make regulations “as he may deem necessary for the

1944] Report of Committee on Civil Liberties 605

preservation of peace . . . . and other purposes essential to the
public safety and the life of the community”. But the Act
also enacted that such regulations “shall be laid before Parliament
as soon as may be after they are made, and shall not continue
in force after the expiration of seven days from the time when
they are so laid, unless a resolution is passed by both Houses,
providing for the continuance thereof”.

Among the powers delegated to the executive in the Federal
or in the Provincial field, some are of such a nature that, in the
opinion of your Committee, they should never be handed over
by Parliament to any other body. We mention, amongst others,
the power of:

A — Rendering inoperative, by order-in-council, a statute of
Parliament or of a Legislature;

B — Empowering the Executive to “supply deficiencies” in a
statute, ot “to carry out the true intent” of a statute,
or “to meet cases not provided for” therein;

C — Imposing, changing and lifting fines and penalties, at
discretion, or with discrimination;

D — Levying taxes, fixing or changing the rate thereof, abat-
ing same, or granting exemptions therefrom, the whole
at discretion or with discrimination, either between
corporations of the same type, or between individuals;

E — Granting, refusing, or suspending, business licences, at
discretion, that is for reasons other than the fulfilment
of the conditions previously determined by law or
regulations.

For instance, under some Provincial Securities Acts,
brokers and dealers are often licensed at discretion.
The Quebec Securities Act provides that “no person
shall trade in any security, unless he be registered as
a broker, or as a salesman . . . .”; and “a broker”
includes a company trading in securities, and the security
issuer (sections 2 & 3). The Attorney-General, however,
may order:

. . . that any application for registration or renewal, or change,
of registration, shall, or shall not, be granted, for any reason which.
he may deem sufficient.

So a security issuer company, or a broker, could
be refused registration, and therefore, be prevented from
trading in any securities, on account of some unwritten
rules, or unknown reasons. This power is so abusive

606

that any comment is unnecessary. Registration or
licensing, in any field, should go as a matter of course,
when the proper fees are paid, and conditions already
determined by rules are complied with. No suspension
or cancellation should be had, unless on specific grounds
mentioned in rules already enacted and published. And
the determination of any guilt under the rules should
be left to independent judicial bodies. The executive,
or any registrar, should not have the arbitrary power
to let the granting or refusal of a licence or registration
depend on the secret opinion they may form as to the
standard of ethics of the applicant.

F — Giving a minister, or subordinate bodies, judicial or
semi-judicial powers, without appeal;

G — Authorizing the executive to dissolve companies at
discretion.

Legislative Powers Delegated to Boards

At all events, there does not seem to be any cogent reason
for Parliament, far less for the Governor in Council, to delegate
to executive and administrative officers, or to inferior bodies
and boards foreign to Parliament, any power to legislate for
the whole community.

We could understand delegating to municipal corporations,
or joint stock companies, the power to regulate matters limited
to the scope of their territorial jurisdiction, or membership
interests and internal management. But no power to make
orders or rules intended to have the effect of laws of a national
character should be delegated to subordinate bodies. The reason
or urgency cannot justify omitting to bring any order before a
committee of the Privy Council for formal. approval in the form,
at least, of an order~in-council.

Public servants and boards of experts may be personally
fully competent to prepare urgent and adequate legislation.
But, in the eye of the public, they have not the authority to
make the law. They are looked upon more as being under the
control of the executive or of some minister, than as voicing
the views of Parliament or of the nation.

Right to Appeal from Judicial or Semi-Judicial Decisions
of the Executive, or Administrative Boards

To whatever extent the policy of delegating judicial or
semi-judicial powers, to the executive or to subordinate bodies,

607

may be resorted to, there should always be provided a right of
appeal to independent courts or judges.

Under some Acts, appeals are provided for from the deci-
sions of departmental officers to the Minister. In so far as
this is intended to assure a better ministerial direction, there is
no cause of complaint. In fiscal matters, for instance, there
should always be an initial decision in the Department. But
ultimately, in all matters, there should be a right to appeal
from a ministerial decision of a judicial or semi-judicial character
to the ordinary coLu’ts of law, or, at least, to judicial bodies
totally independent of the executive and Parliament.

Judicial Power not to Be Performed by the Executive
but to Be Left Exctusiviely to Independent Courts

The principle is as old as the Magna Carta, where it was
stated that:

No freeman was to be arrested, imprisoned, put out of his freehold,
outlawed, exiled, destroyed, or put upon in any way except by the
lawful judgment of his peers or the law of the land.

And that rule of law has been gradually formulated, as above
quoted from Ridges, (Constitutional Law of England by Ridges,
6th edition, page 25), in the following maxim:

. . . that the executive has no arbitrary power over the subject, and that
the latter has under common law or statute certain rights which cannot
be invaded by the executive action without his hearing the right to invoke
the aid of the courts.

Though the B.N.A. Act does not say in terms that all the
difficulties arising in the interpretation and application of the
laws are to be left with the ordinary courts, a mere glance at
sections 91 to 95 as to legislative powers, and at sections 96
to 101, inclusive, as to judicature, suggests a strong inference
to that effect.

The principle of the independence of the courts from any
control by the executive, or even by Parliament, has found a
very clear and ïfirm expression in a decision, one amongst many
others, of the Court of Appeals of the State of Maryland,
(American Reports 1874—37 Md. 64—Volume 11, page 528)
as follows:—

An act of the Legislature authorizes the Court of Appeals to re-open
and re-hear certain enumerated cases, which had been previously decided
by the Court, and, upon the hearing thereof, to pass such judgments,
orders and decrees, in the said cases, as right and justicexmay require.

608

On a motion to re-instate such cases—

Held:—

That the act was unconstitutional as an attempt on the part of
the Legislature to exercise judicial power.

This decision was based on Article 8 of the Declaration of
Rights, which we have elsewhere quoted.

However, we must admit that of recent years, during the
war and even in time of peace, departure from the principle
has now become frequent, not only in the Federal field, but in
all the Provinces. But coincident with the gradual acceptance
of such legislation, a corresponding measure of democratic free-
dom disappearing.

It is true that, under many of the Federal war enactments
encroaching on civil liberties, resort is provided to the ordinary
courts, or independent judges. Yet, there are exceptions of a
most perturbing significance. For instance, The Defence of
Canada Regulations provide that:

Section 21:

The Minister of Justice, if satisfied that, with a view to preventing
any particular person from acting in any manner prejudicial to the public
safety, or the safety of the State, it is necessary so to do, may notwith-
standing arnything in these regulations”, make an order:

(b) imposing on him such restrictions as may be specified, . . . in
respect of his activities, in relation to the dissemination of news, or the
propagation of opinions;

(c) directing that he be detained in such place, and under such con-
ditions, as the Minister of Justice may, from time to time, determine.

We all see that, here, it is not the ordinary independent
courts of law that will have to be satisfied of the guilt of the
subject, but the Minister himself. And there is not preserved
to the subject, for his protection, any open court process of
trial with full defence. What is left to the subject, in the
premises, is the right to make an objection to

an advisory committee as provided in this regulation. (Section 22).

But, it is the Minister of Justice who

shall appoint one or more advisory committees, each to consist of three
persons, to consider and make recommendations to him, with respect
to any objections against an order made under the last preceding
regulation.

Needless to say that these advisory committees cannot be
considered as an ordinary court of law, and that their members
are not appointed for life: they are answerable to the Minister.

609

The full right of defence is not assured to the accused, as, for
instance, the committee will only supply him with such full
particulars of the reasons of the order

as, in the opinion of the Chairman, the circumstances permit;

and the Minister, indeed, shall put before the committee all
the information about the accused,

except such as is not in the public interest to disclose.

We have all to admit that, in the emergency of war, it is
expedient to have prompt justice in pressing circumstances.
But it is sufficient for prompt justice that citizens suspected
to be dangerous be taken in custody. Once they are in the
hands of justice, there is no urgency to deprive them of a full
trial before an independent court. Otherwise, we are offering
the executive an open door for discrimination, and, possibly,
for a shouldering of political manoeuvres by the instrumentality
of ministerial detention.

The Ixibcrty of the Subject in Relation to the Criminal Law

This brings us directly to the criminal law and procedure
in relation to the liberty of the subject. To put it again in the
words of a well known authority,

The right to personal freedom means that no man may be punished,
imprisoned, or coerced, except for a breach of the law proved in a legal
manner before an ordinary tribunal, and this right flows directly from
the provisions of Magna Carta, the Petition of Right, and the Bill of
Rights. (Ridges, supra)

The affirmation of that right has evolved some standard
principles which have acquired almost sacred significance in the
mind of the citizen:

1. The right not to be detained at the mere arbitrary will
of the , Crown, or any Government, or administrative
authority;

2. The right not to be arrested, unless under the authority
of a magistrate’s warrant, issued on a complaint duly
executed, and based on the ordinary law;

3. The right, when under suspicion, or arrest, or sentence,
not to be coerced to give any information or evidence
against oneself, or to testify in one’s own case;

4. The right to have an open trial before the courts of law;

5. The right to a full defence, with the assistance of counsel.

610

To preserve these rights, legal remedies have been provided
in the form of prerogative writs, the most important of which
is the writ of Habeas Corpus.

We are sorry to say these liberties and rights have been,
and not infrequently, tampered with by laws, orders and rules,
not only for the reason that it was necessary so to do for the
prosecution of the war, but, surprisingly enough, also as a peace-
time policy.

Under different acts and orders, Federal and Provincial,
citizens are sometimes arrested without warrant, are subjected
to examination as to their guilt, and forced to speak against
themselves, and their evidence may be filed by the Crown, at
trial, against all rules of common law. In many cases, under
either civil or criminal law, prerogative writs have been
abolished.

Contrasting with the British Emergency Act above referred
to, where His Majesty in Council must submit to the approba-
tion of Parliament any rule adopted under an emergency pro-
clamation and for the safety of the nation, we quote an example
of some very drastic encroachments on the personal freedom of
the subject, which are found, for instance, in the Foreign
Exchange Control Order P.C. 7378:

Section 36:

(1) The board, each member of the Board, and any Inspector appointed
by the Board may conduct any enquiry or investigation in matters
relating to this Order and may require any person to furnish such infor-
mation as the Board, such member of the Board, or Inspector may deem
necessary and may summon and enforce the attendance of any person
at any place and time and may examine him. and require him to give
evidence orally or in writing, on oath or on solemn affirmation if he is entitled
to affirm in civil matters, or by statutory declaration, on any matter
pertinent to such enquiry or investigation, and any person thus author-
ized to conduct an enquiry or investigation may administer such oath
or afiirmation or receive such statutory declaration.

(2) Any person authorized to conduct any such enquiry or investigation
may for the purpose thereof issue a subpoena or other request or
surnmons, requiring and commanding any person therein named to
appear at the time and place mentioned therein, and then and there to
testify to all matters within his knowledge relative to the subject matter
of such enquiry or investigation, and to bring with him and produce
any document, book, paper, record, or thing, which he has in his posses-
sion or under his control relative to any such matter as aforesaid; and
any such person may be summoned from any part of Canada by virtue
of such subpoena, request or summons; no person shall be entitled to
claim any privilege in respect of attendance or in respect of any information,
document, book, paper, record of thing asked for, given or produced on the

611

ground that he might be incriminated or exposed to a penalty or to civil
litigation thereby or on any other ground, and no evidence given or produced
shall be privileged under the Canada Evidence Act or otherwise, and sub-
sections 3 and A of section 2.9 of the said Act shall not be applicable to pro-
ccedings hereunder.

(,3) Any information given by a person in compliance with the provisions
of this section may be used as evidence against him in any prosecution
for an ofience under this Order, notwithstanding that such information was
given as required pursuant to this Order or that it may tend to incriminate
him or that he objected to answer upon that ground.

Section 36A:

Without permission granted by or on behalf of the Board, no
disclosure of any exercise or proposed exercise of any power conferred by
Section 35 or Section 36 of this Order shall be made to any person. (Added
by P.C. 10064, December 24th, 1941).

It is admitted that in some emergency conditions created
by the War, it may be necessary to cause a person to furnish
information for the better and quicker investigation or preven-
tion of evil doings against the nation. But, if the testimony of
a person is needed in the interest of the State, there is no need
to utilize that testimony to convict the one who gave it.

Once that person has already given his assistance by supply-
ing information to the authorities, no principle of justice could
be served, by having his trial, if any, conducted otherwise than
under the rule of law common to all citizens.

An old statute passed under Phillip and Mary, repealed and
re-enacted afterwards, had authorized magistrates to take the
examination of the person suspected; and this examination,
“which was regarded as moral compulsion”, might be given in
evidence against the accused. This continued till the year 1848,
when, by statute (11 & 12 Victoria, chapter 42), “the present
system was established, under which the prisoner is asked
whether he wishes to say anything, and is warned that if he
chooses to do so, what he says will be taken down, and may be
given in evidence at his trial”. (Stephen, infra)

The result of the whole, says Stephen, (History of the Criminal
Law of England, p. 441) is that, as matters stand the prisoner is
absolutely protected against all judicial questioning, before or at the trial. . .

This, continues Stephen, is one of the most characteristic
features of English criminal procedure, and it presents a marked contrast
to that which is common to, I believe, all continental countries. It is,
I think, highly advantageous to the guilty. It contributes greatly
to the dignity and apparent humanity of a criminal trial.

612

In the United States, the rule has been embodied in the
Constitution itself, Article V of the Amendments of 1791,
declaring that:

No person . . . shall be compelled in any criminal case to be a
witness against himself.

Presumption of Guilt

Your Committee strongly recommends that the practice of
creating, by legislation of any kind, a presumption of guilt
against an accused in criminal and penal matters should be
abandoned.

In the development of the British institutions, the presumed
innocence of the citizen has become an integral part of the
conscience of the people. For a long time, it has been a sacred
rule of the common law, also embodied in our criminal code,
that the prosecutor, even though he be the King, has the burden
of proving the guilt of the person at bar.

The rule is almost absolute in the United States, and is
formulated as follows in Corpus Juris (16 C.J. p. 534, para-
graphs 1006 and 1007):

Accused is presumed to be innocent of the crime charged against
him. The presumption of innocence exists in every criminal case and
extends to every person and corporation accused of any crime; and it
applies to every element of the crime charged.

[It] is a presumption both of fact and of law, is founded on the first
principles of justice, and is intended, not to protect the guilty, but to
prevent, so far as human agencies can, the conviction of an innocent
person.

A system of law that has such regard for the dignity of
man ought to be preserved as an incentive to patriotism of the
highest order.

The Right to Lay a Charge Should Not Be Subject to the
Permission of the Executive

The right to lay a charge should not be subject to the
permission of the executive. Under a number of Acts, and
wartime regulations, offences are created, often of a very serious
character, complaint for which cannot be laid without the leave
of the Attorney-General of Canada, or of the province, or
sometimes, of the Minister, or even of a Board.

For the reasons already outlined, it is obvious that legis-
lation of that character opens the door to discrimination. It is
tentamount to detaining at discretion. Leave is given to the

613

executive to arrest some and protect others. True, those who
are arrested may have their trial before a regular court. But
the magistrate, or jurors, so desirous in time of war to help
protect the nation, might naturally feel that, since the charge
could not be laid without the approval of the executive, the
Crown’s case has a particular merit, in that it is supposed to
have been fully examined before approval. In criminal or penal
matters, the power left with the average citizen to lay a charge
is a kind of safety valve, which counteracts and almost elimi-
nates the possibility of a political or partisan desire to oppress.

The Petition of Right

The necessity of first securing permission of the Crown, by
petition of right, before suing, has become much criticized, and
is, in the opinion of your Committee, totally unwarranted.
Whatever good reasons we may have for continuing to keep the
words “King” or “Crown” associated with the question, it is a
fact that, in modern times, recourses against the Crown are
simply recourses against the State or the Commonwealth, which
is nothing but the body politic, that is the people as a nation.
It is the community of citizens as distinct from the individual
citizen.

The subject may be indebted to the nation, under law or
contract, or for his own wrongful acts. The State in turn may
become indebted to the subject, either by law, or contract, or
for torts. Full right of action should, and as a matter of course,
lie equally in favour of the citizen against the State, as in favour
of the State against the citizen.

Why, in a democratic country, must a free citizen ask per-
mission of the Government he has elected, in order to sue the
same Government for the fulfilment of their obligations to him?

We believe that, in all cases where settlement is not
secured by agreement, access to the ordinary courts should be
freely open to the subject against the State, Without the neces-
sity of asking permission or in other words taking a petition
of right.

Action for Torts against the State

The old principle that “the King can do no wrong” which
is still repeatedly invoked has lost its significance. Since now
the King only acts through the advice of his Privy Council,
it is obvious that he personally has not to answer for the acts

614

of his Ministers. But the community should be responsible for
the damages caused by public servants in the execution of their
functions. There is no sound reason why the Government repre-
senting the people can not be sued for wrong-doings and torts
caused to a private citizen, in the same way as they can sue the
citizen for a similar cause.

Protection of Agents of the Crown from Legal Process

No doubt, in the eyes of many, we may appear disloyal in
trying to defeat the immunity of Government, so well covered
by the maxim:

“The King can do no wrong”,

since there is now almost an army of executive officers, boards
and controllers, who are given by statutes a little kingship of
of their own in the form of immunity for their wrong-doings,
or protection from the legal process of the prerogative writs.

Without referring to the many relevant statutes, we will
only quote three instances where each of the two immunities
have been enacted.

From 3 Geo. V, Quebec, c. 59, s. 13:

Actions seeking to enforce any rights and remedies against the
Commission or any member thereof, shall be brought against the Commission as such. . . .”

From the New Brunswick Revised Statutes, 1927, c. 28:

Every action, order or decision of the Board as to any matter or
thing in respect of which any power, authority, or discretion, is conferred
on the Board under this chapter shall be final, and shall not be questioned,
reviewed or restrained by injunction, prohibition or mamiamus or other
process or proceeding in any court or be removed by certiorari or otherwise.

From the Revised Statutes of British Columbia, 1936, c. 254,
s. 32:—

No action whatever, and no proceedings by way of injuntionu
mandamus, prohibition, or other extraordinary remedy, shall lie or be
instituted against any person, whether in his public or private capacity,
or against any company in respect of any act or omission in connection
with the administration or carrying-out of the provisions of this Act
or the regulations where such person is the Attorney-General or his
representative or the Superintendent, or where such person or company
was proceeding under the written or verbal direction or consent of any
one of them, or under an order of the Supreme Court or a judge thereof
made under the provisions of this Act.

615

Needless to say that there is here no cause to extend any
particular disrespect to these three Provinces, as members of
this Association could no doubt find analogous enactments in
Federal or other Provincial legislation.

Limitation of Actions

Sometimes immunity for torts is also granted in the indirect
form of excessive limitation of actions, which, under the Quebec
law, is called short prescription. It would also result from a
condition “sine qua non” that notice of accident be given within
a limited time, almost prohibitive.

An example of these two abuses could be found in the
Charter of the City of Montreal, chapter 536:—

Notwithstanding any law to the contrary, no right of action shall
exist against the city for damages resulting from bodily injury, caused
by an accident, or for damages to moveable or immoveable property,
unless within thirty days from the date of such accident or damages,
and, in the case of accident and of damages caused by a fall on the side-
walk or the roadway, unless, within the ten days from the date of such
accident, a written notice has been received by the city, containing the
particulars of the damages sustained, indicating the surname, Christian
names. occupation and address of the person who has suffered the same,
giving the cause of such damages, and specifying the date and the place
where the same occurred.

No action for damages or for compensation shall be instituted
against the city before the expiration of thirty days from the date of
the receipt of the above notice.

Failure to give the above notice shall not, however, deprive the
victims of an accident of their right of action, if they prove that they
have been hindered from giving such notice by irresistable force, or for
any other similar reason deemed valid by the judge of the court, but no
reason may be declared to be such, if the said victim has been able to com-
municate wilh some relation, friend or acquaintance during the course
of the ten days above mentioned, or if, within the same delay, he has
signed a document in favour of third parties by which he transfers to
them a part of his claim.

It is quite extraordinary to observe that when a man is lying
in bed in an hospital, he is nevertheless obliged to give the
notice Within the delay of ten days, if simply he has had the
visit of some friend; in which case, the law obliges him to rely
on the friend to do his work, And the notice must give the
cause of the damages, the particulars thereof, the date and
place where the accident occurred, and a number of indications
as to the person injured.

616

The right of action itself is subject to a limitation of six
months.

There are a number of cases when substantial damages
could not be recovered, because of these prohibitive conditions.

Such abusive enactments are almost equivalent to a denial
of justice.

The Wisdom of the Post

In closing, we wish to bring here together the following
essential constitutional lanclmarks and principles governing the
whole subject matter.

From the British:

The M agna Carts — (1215) :—

No freeman was to be arrested, imprisoned, put out of his freehold,
outlawed, exiled, destroyed, or put upon in any way except by the
lawful judgment of his peers or the law of the land.”

(Ridges, p. 7).

The Petition of Right — (1628) :—

No freeman should be forejudged of life or limb, or imprisoned or
detained against the form of the Great Charter and the law of the land.

(Ridges, p. 8).

The Bill of Rights — (1689) :—

The pretended. power of dispensing with laws or the execution of
laws as it hath been assumed and exercised of late is illegal.

(Ridges, p. 8).

From the American:

First Amendment — (1791) :—

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.

(Willoughby, On the Constitution of the United
States, Vol. 1, p. xxviii and following)

Fourth Amendment:—

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 warrant shall issue, but upon probable cause, supported by oath
or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.

(Id.)

617

Fifth Amendment :—

No person . . . shall be compelled in any criminal case to be 9.
witness against himself, nor be deprived of life, liberty or property,
without due process of law; nor shall private property be taken for public
use without just compensation.

(Id.)

Sixth Amendment:—

In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial; . . . to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defence.

(Id.)

As to the British landmarks, it has been said that the name
commonly given to the Acts declaring the rights and liberties of
the subject, the Bill of Rights,

“is the nearest approach to a written constitution which the
United Kingdom possesses. Its provisions, so far as applic-
able, were embodied in the Constitution of the United
States of America.” (Everyman’s Encyclopedia)

We wonder if, for Canada, we had not better follow the
American procedure, and incorporate these rights and liberties
of the subject in our own Constitution, for greater guarantee
that our democrats will not forget Democracy.

GUSTAVE MONETTE,
Chairman.

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FROM AN ENGLISH OFFICE WINDOW

The title of these notes has acquired a new meaning through
the activities of a pilotless plane. One of them landed about
forty yards away. As I approached the ofiice, I was diverted
from my path by a member of the Home Guard as a space to
clear up the mess is a first essential. The amount of glass which
is broken by blast cannot be realized until one has seen it.
Nor can anyone explain the extraordinary vagaries of the path
of the blast. All the windows are out of this room yet the glass
in the door is almost ‘intact and two glass windows in a partition
throwing a secondary light into a corridor are unharmed. A
similar partition on the other side of the passage is splintered.
The house telephone had been put out of action. The synchro-
nised clock records the hour at which the bomb fell. The men
on the premises were unharmed and only one man in a considerable
block of business premises had to be taken to hospital owing to
the effect of escaping gas from a fractured pipe. Although fire
watchers are in each building, the number was not large as the
bomb fell in the early hours of the morning. Perhaps the moral
to be drawn from the present condition of the window is that it
will enable things to be seen more clearly and in a truer perspective.
The “incident” illustrates the progress of the war. In the early
days my office was demolished by a bomb and work was inter-
rupted for some days. From there, I moved into a basement set
of chambers of which the upper portion was burnt and the lower
damaged by water. Again there was some difficulty in resuming
work but the interval was not so long. This time, an active
staff had cleaned up the place so that it was possible to write
this note and resume work on the same morning. Incidentally
the law library which I am accustomed to use has been temporarily
put out of action among the victims of the blast.

The Open Door

As a mother and her two children travelled down to London
in the Scotch Express, the elder, a boy of four, asked if he might
go to the lavatory just after the train left Grantham. As she
had already taken him earlier in the journey and was then busy
with her baby she allowed him to find his own way. Whether
he ever reached the lavatory or not there was no evidence to show
but another passenger as he left it noticed an open door. The
child’s body seriously injured was picked up a short distance