The Right to Be Arrested, Some Thoughts on a Bill of Rights for Canada

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The Right to be

Some Thoughts on a
Bill of Rights for Canada



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The Right To Be Arrested

IN an address at the close of last year, Arthur
Garfield Hays of the American Civil Liberties
Union pointed out that one of the most import-
ant American rights is, strangely enough, the right
to be arrested. Mr. Hays explained it thus:

“Vigilante and police activity often consists of
intimidating, evicting and assaulting undesirables.
Civil rights are worth little unless you can get
yourself arrested. The right of trial by jury, to
habeas corpus, to reasonable bail, to a fair trial,
all depend upon your right first to get yourself

“I first observed this in Jersey City some years
ago under the Hague regime. If they didn’t like
you, the authorities there just threw you out. You
had no opportunity to test your rights. They denied
people the right to be arrested.

“I have often said that in Germany they threw
dissenters into concentration camps. In Jersey City,
they threw them into Hoboken. A case carried to
the Supreme Court curbed the Hague power.”

Right to Personal Prejudices

Mr. Hays went into many angles on civil rights,
and he touched on the important right to have per-
sonal prejudices. He pointed out that individuals
have the right not to like Protestants, Jews, Catho-
lics, Negroes, Communists, or men with red hair.
He added that at the same time they had the right
to reveal their own ignorance and bigotry. It was
a sly dig at those who bare their prejudices to public
view. He also added that individuals have the right
to be hypocrites and liars, but he didn’t recommend

But the right to be a hypocrite and a liar doesn;t
mean that you can be either or both to the detriment
of your fellow man. That is where the other fellow’s
right comes into the picture. The rights of an in-
dividual end where another individual’s right begins
or, as Mr. Hays put it:

“My right to swing my arm ends where the other
fellow’s nose begins.”

Nothing could be more specific. Rights are things
that work both ways, particularly in a complicated
society. They are things that lay the foundation
for a fair and honest community, and that is what
makes them so essential and why they should be
specific in writing.

Protection From Government

There is another protection required for the
citizen–protection from the government he has
elected. It was H.L. Mencken who said that in the
course of time all governments tend towards two


ends. One is taking away the liberty of citizens and
the other is stealing the property of citizens.

Mr. Hays quoted the Mencken comment, and he
added that free government means protection of
people from the government, and protection at all
times and under all circumstances.

In commenting on the compaign for a Bill of
Rights in Canada, The Vancouver Province touched
on the same question of government activities. The
Province put it this way:

“Canada has no Bill of Rights in her constitu-
tion because none of the men who made the consti-
tution thought such a guarantee was necessary. They
stated in the preamble to the constitution they drew
up that what they wished was a constitution similar
in principle to that of the United Kingdom.

“Such a constitution, they asserted, would include
the British Bill of Rights, habeas corpus and all the
other fundamental rights won through the centuries
by the British people.

“For a long time the assumption held and the
rights stood. Then, because the governing institu-
tions found themselves hampered by the constitution,
some of them attempted to chip or nibble inconveni-
ent bits away. Some of them had their fingers
smartly slapped either by Canadian courts or by
the Privy Council or by the supervising federal
government. But here and there a dent was made
and a precedent established.

“The worst offender has been the present federal
government which, under the pretense of emergency
following the war, has done more violence to the
sacred rights of Canadians than all the other chip-
pers and nibblers combined.”

Canadian Bill is Needed

It all points to one conclusion- the thing for
Canada today is a Bill of Rights to establish clearly
personal freedoms, economic rights and civil rights
so that they will be laid down for all time to come.

The time is ripe for a Bill of Rights. It is needed
as a complementary legislation to the new Citizenship
Act which at long last defines a citizen of Canada.

Efforts to write a Bill of Rights into the Citizen-
ship Act failed, and rightly so. It is not the proper
place. The Secretary of State, Hon. Paul Martin,
recognized it and said so, and he did the best thing
when he promised Parliament would definitely con-
sider a declaration of rights for Canadian citizens.

Canada has no Bill of Rights. Then men who wrote
the British North America Act didn’t think it
necessary to write down rights in black and white.
They acted under the assumption that Canadians
have such rights under British law.

Now it is time for stock-taking. It is time to
analyze just what is involved in being a citizen of
Canada, whether by birth or by naturalization. It


is time to quit accepting citizenship as something
casual, and recognize that it is a responsibility.

We have a complicated society today, both at
home and abroad. Under a complicated society,
there can be no absolutes. Yet there are inherent
rights, which all must respect, whether they act as
individuals, or representatives of organizations or

Those are the rights which should be written
into a Bill of Rights. They are the rights which
must be protected against infrignement by individu-
als and by governments.

Magna Carta

Possibly the cornerstone of all rights is in the
Magna Cart of 1215. It declared in simple language:

“No free man shall be taken or imprisoned or
dispossessed or outlawed or banished or in any
way injured, except by the legal judgment of his
peers or by the law of the land.”

Those 34 words established the legal right of
every individual in the England of the 13th century
to protection against oppression. They are just as
effective in Canada today as they were when they
were written and accepted.

Along with it goes the right of habeas corpus-
a right which prevents a man’s being held in jail
more than 24 hours without arraignment in court.
Once he is in court, the arraignment and the charge
are on public record, and that too prevents oppres-
sion and abuse.

From those rights have grown many others, but
there are many that are taken for granted and are
really non-existent.

The U.S. Constitution

The citizens of the United States have long had
certain rights, but when the parliamentary committee
gets down to work it will not find them listed in
any one place. It will find them in the American
constitution, and in the legal record of the country.

The United States could not, by constitution or
otherwise, establish any rights while it had slavery
or, rather, establish any human freedoms. Up to that
time, no general right of personal freedom was,
or could be recognized in the constitution or other-

There can be no personal freedom where there
is slavery.

The Thirteenth Amendment in 1885 prohibited
slavery in the United States and all its territories.
It went further. It declared there could be no form
of “involuntary servitude except as a punishment
for crime whereof the party shall have been duly

In effect, it was the adoption of the Magna
Carta principle.


But out of the Thirteenth Amendment arose a

What constitutes “involuntary servitude?”

There was no doubt it meant slavery. That was
the reason for the Thirteenth Amendment. But what
else did it mean? Was it a loophole to escape from
contractual obligations involving the person?

Court actions have the answer.

Judgments laid down the principle that involun-
tary servitude does not arise when a person is held
against his will to the completion of service upon
which he entered freely. Thus, a contract promising
service, fairly entered, must be completed and does
not constitute involuntary servitude.

The American courts, however, have laid down
the principle that involuntary servitude does arise
in other cases which certainly reflect the principles
of the Magna Carta. They have declared involuntary
servitude arises where an employer endeavors to
hold an employee in service because of a debt which
the employee may owe to the employer.

Statements Must Be Clear

The single point of involuntary servitude, a key-
stone in civil and personal rights, is an example
of the work that lies ahead of any committee setting
out to write a Bill of Rights. All the ramifications
have to be considered, and the statements must be
clear and specific.

Two points which the proponents of a Canadian
Bill of Rights would like to see included in any
Dominion legislation are these:

1. Habeas Corpus shall not be suspended except
by Parliament.

2. No one shall be required to give evidence be-
fore any tribunal or commission, at any time,
if denied counsel or constitutional safeguards.

The plea that habeas corpus should not be sus-
pended except by Parliament is important. It pre-
vents a government from suspending it. It puts the
onus on Parliament, where all parties are represent-
ed and all laws are written. It removes the authority
from a small group of men and places it with the
representatives of the electorate in the House of
Commons and the Senate.

The importance of counsel before giving evi-
dence before a tribunal or commission is also high.
Even the smartest of laymen can become entangled
in the law when they attempt to put a legal inter-
pretation on it. Likewise a layman, smart and in-
telligent though he may be, can be hamstrung by
legal minds.

The proponents of a Canadian Bill of Rights also
want to declare specifically freedom of religion,
freedom of speech and the right to peacable


The Basic Freedoms

Freedom of religion gives everyone the right to
accept any religion he desires. It gives him the right
to exercise his chosen religion. And it gives him the
right to refuse to belong to any church, creed or

The right of refusal is just as important as the
right of acceptance.

But the right to accept a religion and practise
it, does not continue to the point where it affects
another person’s rights. It does not allow him to
practise his religion if it interferes with or injures
another. It allows freedom in the religious field
within the rights of the individual, but the right
to impair another’s rights in the same field is not

Freedom of speech works in many directions.

The principle gives the right to speak; and it
also gives the right to listen. For if you did not
have the right to listen and hear, then the right to
speak would be worthless.

Freedom of Expression

So far in the campaign for a Canadian Bill of
Rights it has been accepted generally that freedom
of speech embraces the freedom of the press, free-
dom of radio broadcasting and freedom of motion

That is not enough. Assumption is not establish-
ment of fact. There is danger in assuming a con-
dition, and then suddenly finding the right does not

Freedom of the press, radio broadcasting and
motion pictures should be written into any Bill of
Rights. It should be there specifically. It should not
be assumed to exist under the heading freedom of

The United States constitution specifically men-
tions freedom of the press where it declares “Con-
gress shall make no law respecting…abridging the
freedom of speech, or of the press.”

There was no radio broadcasting or motion pic-
tures in those days. But there are both in Canada

It is impossible to divide the right of utterance,
whether it be speech from a public platform, speech
through a microphone, printing, or the motion pic-
tures. They are all avenues of expression and come
within the one principle which embraces freedom
of speech, but which should be specifically stated.

The Right of Refusal

In each case, the right to speak or print is linked
with another right. It is the right not to read, or
not to listen, or not to attend a motion picture show.
It is the right to toss aside a newspaper or maga-
zine; the right to twist the dial to another station


or turn it off completely, and the right to pass by a
motion picture house and not go into it.

Yet linked with the rights of speech, radio, press
and motion pictures are responsibilities. They are
equal in importance to the rights, and they add care
and caution against injury to others.

There can be no honest expression, whether oral-
ly or through the written or printed word, if it is
not done with a sense of responsibility.

The right of free speech does not give an indi-
vidual the right to slander. It does not give him
the right to call his neighbor vile names. It does
not give him the right to spread gossip, or malic-
iously slander in revenge for a wrong he may be-
lieve to have been done. Nor does freedom of the
press give the right to libel. It does not give news-
papers, magazines or authors of books the right to
make false allegations under the guise of analysis.

Right of Assembly

The right of peaceable assembly is important.
If it were destroyed or not guaranteed, there could
be no political meetings of any kind. There could
be no union meetings. There could be no sewing
circles. There could be no school classes. Anytime
two or three persons gathered, it could be established
that it was an assembly, and freedom would be lost.

With the right to peacable assembly goes the
right to refuse to assemble. An individual should
have the right to decline to attend any gathering,
no matter what its nature. It’s just as important as
the right to assemble.

Tied in with this is the right to belong to an or-
ganization or the right to refuse to belong to it. An
individual should have the right to be a member of an
organized labor union, and he should also have the
right to refuse to become a member. He should
have the right to fair employment whether he is a
union member or not. Such a right should be estab-
lished in black and white.

Both the workman who refuses to join a union,
and the business man who refuses to join his trade
association, should have the right to protection
against intimidation.

There should be the right to persuade and the
right to refuse to be persuaded. But coercion is
something that should be banned. The individual
would have to be persuaded- or shown. And he
would still have the right to refuse.

There should always be the right to offset the
right of refusal to be persuaded. That is the right
of not associating with the one who declines to be
persuaded. But the one who refuses to be persuaded
must, under all circumstances, have protection
against coercion or intimidation.

There are important general guides in the general
freedoms available if the committee wishes to take


them. They are general in nature, but they are
essential guideposts.

The late President Franklin D. Roosevelt tried to
epitomize the personal freedoms when he delivered
his “Four Freedoms” address and declared the allied
objective in the Second Great War was to secure and
establish “freedom of speech, freedom of religion,
freedom from want and freedom from fear every
where in the world.”

The speech of the American president was to set a
goal; not to lay down expansive principles. In the
goal that he did set, Canada can find a guiding
light. The parliamentary committee will have to
go far beyond it.

Freedoms Are Linked

It can find another guiding principle in the prize-
winning editorial by George W. Potter in the Provi-
dence Journal-Bulletin. It was in the editorial that
the vital points of human freedoms and economic
freedoms were tied in with each other.

Mr. Potter declared:

“There is a well known generalization that human
rights come before property rights. It is used by
demagogues because of its surface appeal, to play
upon the emotions of the unthinking. Like all glib
generalizations, it should be subject to critical exam-

“We would not say that property rights come be-
fore human rights, or that human rights come before
property rights. Unqualified absolutes like these
do not contain the truth as tested by human experi-
ence. What we do say is that human rights and
property rights are related to one another, are inter-
twined with one another, work with and play upon
one another for the general good; depend upon one

It definitely ties in human freedoms and civil
rights with property rights. The United States con-
stitution does it too. It does it to maintain the old
saying that a man’s home is his castle.

One of the constitutional rights of the home-owner
bars soldiers from being quartered in a home with-
out the consent of the owner, or in time of war
except by manner prescribed by law.

There is another:

“The right of the people to be secure in their
persons, houses, papers, and effects, against unreas-
onable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particu-
larly describing the place to be searched, and the
person or things to be seized.”

They are protection of property rights as well as
civil rights or personal freedoms.

And the constitution clearly recognized the impos-
sibility of listing all civil rights, for it declared:


“The enumeration in the constitution of certain
rights shall not be construed to deny or disparage
others retained by the people.”

In that paragraph lies complete evidence of the
job ahead of any Canadian parliamentary committee.

And in doing its work, it must remember that
human rights and property rights, human freedom
and economic freedom are not separate categories.
They are part and parcel of each other, and part
and parcel of the responsibilities that go with citizen-

The job for the parliamentary committee is to
chart the course in detail, and write out the rights
so that all may know them.


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