January 6, 1958

CCF

Stanley Howard Knowles

Co-operative Commonwealth Federation (C.C.F.)

Mr. Knowles (Winnipeg North Centre):

He

merely quoted from the Prime Minister (Mr. Diefenbaker).

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PC

Frank Charles McGee

Progressive Conservative

Mr. McGee:

The other suggestion he made was that since there was no mention in the speech from the throne that the government was to introduce a bill of rights it was an indication that no such bill will be forthcoming. I must say this is a curious statement indeed when one considers the performance of the group in that corner during the current session. We came to this house on October 14 to open an emergency session to implement certain promises and pledges made during the campaign which culminated on June 10 last year. I submit to the hon. member for Vaneouver-Kingsway and to his colleagues that if over the past few months they had displayed a more co-operative attitude in the passage of legislation perhaps today we would be considering, not a private bill but a government motion to this effect.

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CCF

Alfred Claude Ellis

Co-operative Commonwealth Federation (C.C.F.)

Mr. Ellis:

Don't you believe in opposition?

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CCF

George Hugh Castleden

Co-operative Commonwealth Federation (C.C.F.)

Mr. Caslleden:

Then put it on the order paper.

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PC

Frank Charles McGee

Progressive Conservative

Mr. McGee:

Mr. Speaker, in my preparation for this debate I went to the parliamentary library and read at length of the literature on freedom. It seems to me that the discussions on freedom boil down to two phases: one, that in man's original state he was free and all laws tend to reduce and limit that freedom. There are statements in support of this by Algernon Sydney, who said:

The liberties of nations are from God and nature, not from kings.

Lord John Russell, indicated as probably the greatest apostle of liberty in many centuries, said:

What is called love of liberty means the wish that a man feels to have a voice in the disposal of his own property and in the formation of the laws by which his natural freedom is to be restrained.

The second concept is that freedom exists today as a result of wresting away from dictatorial powers the authority they possessed. The milestones along that road to freedom are many: Magna Carta, the declaration of rights, the petition of right, the habeas corpus act, the United States bill of rights. These and others are representative of the magnificent effort of free men down through the centuries. I think in this debate it behooves us to pay grateful tribute to those champions of freedom to whom we owe so much.

I read in Hansards of years gone the debates on human rights and I hope the house will pardon me if I repeat in part what the hon. member for Rosedale (Mr. Walker) said. In my reading I found that the words and phrases of one man stood head and shoulders above all others. What interested me even further were, in reading the comments of other hon. members of the house at that time, the flattering phrases and sincere statements concerning that man. Of course, I refer to the Prime Minister. In reading his words and the words of others in the house today as well as the words of others who have gone to the other place and some who have since died, I became more and more aware of the fact that any contribution I might make to this debate at this time would be meagre indeed.

My most outstanding personal experience with regard to the rights of man came some few years ago when I was called for jury duty in the city of Toronto and was selected as a juror on two successive murder cases. Those hon. members whose background is in the law and who deal with the law day by day perhaps do not appreciate as much as one whose day to day life has been concerned mainly with business and commerce that it was a tremendous experience and a revelation to me in serving in the capacity of a juror to achieve a fuller understanding of what the principle of law that a man is innocent until proven guilty really means. I came away from that experience with a tremendous respect for our system of justice.

I mentioned a moment ago that in my reading and perusal of debates of years gone by I had encountered significant words and phrases. I should like to quote one short passage from a speech made by the Prime Minister on March 24, 1952 in support of a motion 96698-184J

Human Rights moved by him similar to the one before us today. As found at page 716 of Hansard for that date he said:

Great as is our inheritance, events in recent years demand that we review from time to time what is our inheritance, to ascertain whether any of our freedoms are being lost either intentionally or by default, and how far the principle of the heritage of freedom that is ours and that we take for granted is ours to enjoy.

In that same speech he quoted the Marquis of Reading, speaking in the British House of Lords on May 15, 1947, at which time the Marquis of Reading said:

Personal freedom had for so long been the current coin of life in this country that we had been apt perhaps to forget that currency may be slowly and stealthily withdrawn from circulation, that coinage may be debased without any very evident outward signs and that it may even be deliberately counterfeited without immediate detection.

It is no part of my case today to allege any malign conspiracy on the part of any one deliberately to attempt to overthrow the liberties of the subject. The process has been gradual, stealthy, haphazard, almost inadvertent, but unfortunately both insidious and menacing in its cumulative effect.

Further, he quoted from a speech by Viscount Samuel in the British House of Lords in 1951 in which Viscount Samuel said: During the last 30 or 40 years, imperceptibly, almost unconsciously, here a little and there a little, there have been encroachments upon that great and precious heritage.

I do not suggest today that we have lost, or are in danger of losing, those liberties, but I do suggest that they have been again and again impaired, that that process is still continuing, and that it needs to be stopped and reversed.

Even now, after the peace, or semi-peace, of the last five years, not all these liberties have been restored, and there is danger that some of these restrictions may be allowed unnecessarily to slip into our permanent system of governments.

Surely these remarks indicate the ultimate necessity for such a bill of rights. It is almost unnecessary to state that the necessity for such a bill will receive my whole and complete support. The hon. member for Rosedale expressed the hope that this discussion would not become political in its ramifications. I have prepared something which I suppose might be considered as being political, but unfortunately something as fundamental as appears in paragraph (a) of the resolution is inseparable from this discussion. I refer to the opening part of that paragraph beginning with the words, "abridging freedom of speech and expression". If there had not been abridgement of speech in the House of Commons in recent years, Mr. Speaker, I would not be sitting in this seat today nor, I suggest, would a great many of my colleagues on this side of the house.

The principle, as ennunciated by John Stuart Mill, to which certain members of one

Human Rights

party in this country lay claim, is certainly sound today and points up what happened in the house. Mill said that if all the people in the world but one were of one opinion and only one opposed, the world would be no more justified in silencing that one man than he, if he had the power, would be justified in silencing mankind.

If I may stray a little farther into the political field, I have a suggestion which I put forward in all humility to the political party which is about to hold its convention in the very near future, a party which last June 10 was tried and found guilty by the jury of public opinion of abridgement of freedom of speech, a party which gathered to beat its breast at Presqu'ile Point, to apologize to the people of Canada for its performance when in office. I suppose it can be likened to a situation where A1 Capone, appearing in court for multiple murder, would apologize for taking a penny out of the collection plate. I hasten to assure my friends that I am by no means suggesting that they are political gangsters. That is not my intention at all. But gathering at Presqu'ile Point and confessing that a budget that was not politically attractive in the first instance and something about the brass and the grass in the second instance certainly did not atone in any way for the violence which was done to a fundamental principle in this house. As I say, if I, as one young in years and political experience, may give them one small piece of advice, may I suggest that when they again foregather in this city they admit to the Canadian people the great wrong which they perpetrated and apologize for it.

I must apologize, Mr. Speaker, for straying somewhat from the principle before us today but as I said in the first instance human rights and the incident which occurred in this house are virtually inseparable. I think it behooves us, as has been very ably pointed out today, to be on guard at all times concerning our freedom.

The principle that a man is innocent until proven guilty is curiously reversed under our present system of government, particularly with regard to income tax, customs laws and certain other statutes. In matters of income tax, the individual is assumed to be guilty and the onus is upon the individual to establish his innocence. This is a reversal of an important principle of law. It is a reversal which works a particular hardship, it seems to me, on the ordinary individual who has to summon to his assistance a lawyer, when in many cases he has little or no means to do so, to present a case against a government department and the government lawyers.

I am not prepared to offer a solution to the matter of collecting taxes. However, I would suggest to the appropriate ministers that they re-examine the situation and perhaps with the co-operation of and suggestions from members of the house arrive at some more consistent method of collecting. Before I resume my seat, may I concur with what the hon. member for Rosedale has said concerning the sponsor of the bill, the spirit behind it, and I would say that it has my complete and unqualified support'.

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PC

William Howell Arthur Thomas

Progressive Conservative

Mr. W. H. A. Thomas (Middlesex West):

Mr. Speaker, I greatly appreciate the opportunity of saying a few words in this debate. This is a subject which I have heard discussed as long as I can remember. I have spent a great many hours reading the very enlightening debate which took place in this house in 1955, when a similar resolution came before this house. There were three resolutions before the house at the same time covering this subject. On that occasion the Speaker ruled that there should be only one resolution covering the same subject before the house at one time. One was ruled in order, and therefore the other two were ruled out of order and were withdrawn by their sponsors. The one which was retained for discussion was sponsored by the hon. gentleman who is now our Prime Minister (Mr. Diefenbaker). In so far as the other two are concerned, one was sponsored by the hon. member for Rosetown-Biggar (Mr. Coldwell) and the other by the hon. member for Spadina, now Senator Croll.

The matter was discussed at great length and the various legal, moral and social implications were thoroughly canvassed. It was a great pleasure to me to read this discussion, dampened only by the fact that I was going to be placed today in a position where I would have to show my ignorance of the whole matter. However, there are several facets of this intriguing subject which will no doubt bear further discussion. First, I should like to take up, point by point, some of the suggestions made in the resolution which is sponsored as an amendment to the British North America Act. The resolution reads:

Notwithstanding anything in this act, it shall not be lawful for the parliament of Canada or the legislatures of any of the provinces to make laws:

(a) Abridging freedom of speech and expression, or freedom of religion, or of the press or other means of communication or the right of lawful assembly, association or organization.

There are a number of things mentioned in that paragraph (a), including freedom of speech, freedom of religion and freedom of the press which I should like to take up in detail later on in this address.

. JANUARY 6. 1958

Paragraph (b) reads:

Depriving any person of life or liberty by arbritary or abusive measures, or denying to any person the equal protection of the laws.

As was pointed out by one of the members on the opposite side of the house, there is no mention of property rights. Most of these resolutions which are concerned with human rights and liberties also mention property rights. I feel that the explanation given as to why property rights were not included is inadequate. After all, our property rights and our human liberties are so bound together that I do not believe we can preserve the rights in one respect without preserving them in both respects. What good is life to a man who no longer has the means of livelihood? What good is life to a man deprived of food, clothing and shelter as well as these other material things which make life worth living? What good is life to a person suffering from disease if he has nothing with which to purchase medical services and the comforts of hospitalization? I submit to this house that to separate personal rights and property rights does not make sense.

Paragraph (c) reads:

Requiring or imposing excessive bail or cruel or unusual punishment or exiling Canadian citizens.

I must admit that I have never heard of anything of this kind being done in Canada. Perhaps there is a possibility of such things happening in the future, but I cannot conceive of that. The hon. member for Red Deer (Mr. Shaw) mentioned that there is no country in the world today in which the people enjoy the same measure of liberty and freedom in every respect as do the people of this country. If one suggests such amendments to our legislation, it leaves the implication, not only with ourselves but with the world at large, that we are very fearful of the future or that we lack faith in ourselves as a nation.

I come now to paragraph (d):

Subjecting any person to unreasonable interference with his or her privacy, family, home or correspondence.

You will notice the wording carefully skirts around any reference to property rights, except the reference to a home. Being a farmer and having been a farmer most of my life it is natural for me to look at these questions from the point of view of one who has lived on the land and enjoyed that form of living. To a farmer home includes the whole farm from the front to the back, but there is something here which suggests that possibly the home is only a house or a house and lot. I think that indicates that the whole conception back of this proposed amendment to the British North America Act is drawn

Human Rights

up, not from the point of view of a farmer's holdings or a fisherman's holdings but from the point of view of the person who is living in an urban centre, with a house and lot. The resolution reads:

(d) Subjecting any person to unreasonable interference with his or her privacy, family, home or correspondence.

Any one who has been closely associated with the developments in the political world over a great many years can almost pick out the incidents in our Canadian life which have inspired every one of these sections contained in this bill. For instance, we find this:

(a) Abridging freedom of speech and expression, or freedom of religion,-

I think there would be no doubt that would go back to certain activities in one of our provinces to curtail certain activities of a certain religious sect which has already been mentioned here in the Saumur case. Then we find:

(b) Depriving any person of life or liberty by arbitrary or abusive measures, or denying to any person the equal protection of the laws.

I do not know about that one. That is so general that I could not ascribe any particular incidents which they had in mind. Again we find:

(c) Requiring or imposing excessive bail or cruel or unusual punishment or exiling Canadian citizens.

That, of course, might refer to a recent, shall I say, discrepancy in our legislation which permitted the deporting of those of our citizens who became citizens through the process of naturalization, something which I understand has since been rectified in our legislation. Then we find:

(d) Subjecting any person to unreasonable interference with his or her privacy, family, home or correspondence.

There is no doubt in my mind that that paragraph dates back 15 years or 20 years to the time between the two wars when a certain political party was being developed in this country against the wishes of a great many other people, when it was felt that, there was evidence of sedition in their activities and when certain people were arrested their personal files were examined and their literature was taken for examination. Then we find:

(e) Subjecting any person to arbitrary arrest or detention or denying to any person the right after arrest to be informed promptly of the charges against such person and to trial within a reasonable time or to be released.

I think there is no doubt that that paragraph probably dates back to the well known Gouzenko spy case. Then we find:

(f) Suspending the right of habeas corpus or depriving any person of a fair trial or the right to be represented by counsel.

Human Rights

I think that paragraph would probably refer to the same incident. Then we find:

149. The rights provided in section 148 shall be enjoyed without distinction of race, sex, religion or language and the right to vote in any election of members of the parliament of Canada or the legislative assembly of any province shall not be denied or abridged on account of race, religion, language or sex.

That is a very general statement. Aside from our Indian population or some of our Indian people who do not yet enjoy the franchise, I am not just clear to whom it would apply. Then we find:

150. The rights conferred by sections 148 and 149 hereof of this act shall not be deemed to abridge any existing right of any person.

In the debate two years ago to which I referred, the resolution at that time was slightly different. The Prime Minister, at that time the hon. member for Prince Albert, moved the following resolution:

That, in the opinion of this house, immediate consideration should be given to the advisability of introducing a bill or declaration of rights to assure amongst other rights:

1. Freedom of religion, freedom of speech, freedom of the press and of radio;

2. That habeas corpus shall not be abrogated or suspended except by parliament;

3. That no one shall be deprived of liberty or property-

It will be noted that we come back to that word "property".

-without due process of law, and in no case by order in council;

4. That no tribunal or commission shall have the power to compel the giving of evidence by any one who is denied counsel or other constitutional safeguards.

Again that sounds like a reference to the Gouzenko case.

And that as a preliminary step the government should consider the advisability of submitting for the opinion of the Supreme Court of Canada the question as to the degree to which fundamental freedoms of religion, speech and of the press and the preservation of the constitutional rights of the individual are matters of federal or provincial jurisdiction.

At the same time the hon. member submitted to the house a draft bill of rights which he suggested should be submitted to the Supreme Court of Canada for their consideration and advice. It reads as follows:

Article 1

Everyone has the right to life, liberty and the security of person.

That is slightly different from the one in the United States.

Article 2

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 3

Everyone has the right to recognition throughout Canada as a person before the law.

Article 4

All are equal before the law and are entitled without any discrimination to equal protection of the law.

Article 5

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 6

(1) No person shall be subjected to arbitrary arrest, detention or exile.

(2) Any person who is arrested or detained shall be promptly informed of the reasons for the arrest or detention and be entitled to a fair hearing within a reasonable time or to release.

(3) No one shall be denied the right to reasonable bail without just cause.

(4) No tribunal, royal commission, board or state official shall have the right to compel anyone to give evidence who is denied counsel or other constitutional safeguards.

Article 7

Every person who is deprived of his liberty by arrest or detention shall have an effective remedy in the nature of habeas corpus by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Habeas corpus shall not be abridged, suspended or abrogated except by parliament.

Article 8

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 9

Every person is entitled to all the rights and freedoms herein set forth without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 10

Any person whose rights or freedoms as herein set forth have been violated may apply for relief on notice of motion to the supreme or superior court of the province in which the violation occurred.

Article 11

The above articles shall not be deemed to abridge or exclude any rights or freedoms to which any person is otherwise entitled.

Both in the resolution now before us and in this draft bill of rights submitted two years ago we have that same concluding thought that the "above articles or amendments shall not be deemed to abridge or exclude any rights or freedoms to which any person is otherwise entitled". I submit, Mr. Speaker, that that final thought, that final idea, is an admission that over, above and beyond any written statute which we might have or any written constitution which might be prepared, there are rights and privileges which it is the intention to safeguard in this manner-that the "above articles" or any laws which might be written shall not be deemed to abridge or exclude any rights or freedoms to which any person is otherwise entitled.

The question might be asked, and I know this is a matter which has been before parliament and has been in the minds of the public, but it is the first question which came to my own mind in connection with this subject. Just how much agitation is there for such a bill of rights? How many people want this thing done? How many people want a bill of rights? I was surprised at the mass of public opinion, at the quantity of public opinion, of the numbers of our people who have in the past advocated the preparation and putting into legislative form a bill of rights such as is proposed. I gathered from a reading of the debate of two years ago that there were two petitions signed. I believe an hon. member on the other side of the house mentioned these petitions, one having 5,000 names attached to it-

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?

An hon. Member:

500,000.

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PC

William Howell Arthur Thomas

Progressive Conservative

Mr. Thomas (Middlesex West):

500,000,

thank you, and the other having some 600,000 names attached to it. I would now like to quote from the Prime Minister's speech a few remarks which were apparently accepted at that time since no objection was taken.

People say to me, what interest is there in the country in this subject? More than 800,000 Canadians have signed petitions on two occasions asking that Canada have the same protection for its rights and fundamental freedoms that 30 other countries with a federal system have, including India. The Canadian Daily Newspapers Association, a body with a membership of 86 of the 89 English and French language daily newspapers in Canada, representing 99.4 per cent of the circulation of all Canadian dailies,-

That is almost a clean sweep of our Canadian dailies, and this association of daily newspapers passed resolutions and submitted a brief to the government. Mr. Diefenbaker goes on to say:

I quote from the brief of the Canadian Daily Newspapers Association:

"... the daily newspapers of Canada urge that consideration be given to a constitutional guarantee of fundamental human rights, it is because they are convinced these rights are insecure. They know that threats have been made to freedom of speech, freedom of the press and other freedoms in the past. They feel sure that threats will be made in the future".

Then, again, from the same brief:

"The Canadian Daily Newspapers Association submits that . . . constitutional safeguards . . . not only prove that freedom of speech and freedom of the press lack adequate safeguards in Canada, but place the representatives of this country in a weak position, open to destructive attack, in implementing the obligations of this country as a member of the United Nations in respect to human rights and fundamental freedoms.

The board of directors of the Canadian Daily Newspapers Association at a special general meeting in October, 1945 and in October, 1947, unanimously resolved that a statutory guarantee of essential freedoms might be covered in the following terms:"

Human Rights

The amendment suggested by the daily newspapers association are as follows:

"No act of the parliament of Canada nor of the legislature of any province shall abridge the freedom of speech, of the press or of assembly or of worship or the right to petition the parliament of Canada or the legislature of any province for the redress of grievances."

The Prime Minister goes on to say:

I believe that an amendment in that form might invade the powers of provincial legislatures under the British North America Act. Therefore I would not approve of such a course being followed until, as I intend to suggest later on, a submission is made to the Supreme Court of Canada.

In this brief of the Canadian Daily Newspapers Association the following appeared:

"In Canada we have been coasting insecurely upon British precedents and sometimes violating them-"

I think that is very important to note and I will repeat that brief statement.

"-in Canada we have been coasting insecurely upon British precedents and sometimes violating them, and in the light of Canada's membership in the United Nations and its responsibility as a member, the Canadian Daily Newspapers Association urges that the parliamentary committee on human rights and fundamental freedoms give favourable consideration to a constitutional amendment guaranteeing these fundamental freedoms."

Now in addition to the newspaper people an association of church organizations also prepared a brief. This association of churches included the Church of England in Canada, the Baptist Federation of Canada, the Churches of Christ, the Evangelical United Brethren, the Presbyterian Church, the Reformed Episcopal Church, the Ukrainian Orthodox Church, the United Church of Canada, the Salvation Army, the Society of Friends, the affiliated members of the Canadian Council of Churches, the national council of the Y.M.C.A., the National Council of the Y.W.-C.A. and the Student Christian Movement of Canada. I submit that when you consider the membership of these churches and organizations you must conclude that they represent a broad section of Canadian opinion. I continue:

On June 6, 1950, they set forth their views in their joint brief at page 341 of the proceedings of the Senate committee on human rights and fundamental freedoms:

We are prepared to support every honest endeavour to secure a Canadian bill of rights which will adequately safeguard the personal, social, economic and political rights of every citizen. We seek after and pray for a society in which freedom is the freedom of men who acknowledge responsibility to justice and public order, and where those who hold political authority or economic power are responsible for its exercise to God and to the people whose welfare is affected by it. We do not feel that it is the duty of our council to propose the practical measures which might or should be taken to establish a bill of rights. Nor do we suggest that the wording of this brief is the final language which should be used to describe these human rights and fundamental freedoms in a legal

Human Rights

document. We are convinced, however, that it is our duty and responsibility to declare that man, because of his worth in the sight of God, has rights which should be respected by all and safeguarded by law.

The Prime Minister then submitted the names of a number of clergymen, editors, university presidents and other educators who had presented the brief asking for the inclusion in our statutes of a bill of rights for Canadian citizens. All of this would, I think, indicate that there has been no lack of public pressure for such a bill to be included in our statutes.

Turning to the legal side of the matter this is, of course, where I run into difficulty because I have not been trained in the law. Because I am a farmer it has been my experience to be associated and work in conjunction with the laws of nature rather than with the laws of men.

It has been pointed out during this debate that there are two ways of guaranteeing human rights and freedom. One is the British system where for the most part the guarantee of human freedoms and rights is contained in the precedents and practices that have been established over the years in their legal activities. On the other hand we have the United States system where an effort is made to document and codify or spell out in words the fundamental rights and freedoms of individuals to the fullest extent which the legal fraternity can do. I have reached the point in my own thinking where I am not prepared to wholeheartedly endorse this effort to set out in words the guarantee of these rights and freedoms for the reason that merely writing these down and placing them on our statute books is no guarantee that they will be respected. Parliament is all-powerful and I am inclined to agree with the statement made by some of those who have discussed the effort to establish a bill of rights that it might not accomplish all that it intends to accomplish.

I draw the attention of the house to the last idea contained in these proposals. Those who are sponsoring such resolutions are extremely careful to point out that anything that is written in a proposed bill of rights must not curtail the rights which we already enjoy which is in itself an indication that any effort to put into words a bill of rights has inherent dangers and might weaken the position we already enjoy.

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CCF

Stanley Howard Knowles

Co-operative Commonwealth Federation (C.C.F.)

Mr. Knowles (Winnipeg North Centre):

Are you still quoting the Prime Minister?

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PC

William Howell Arthur Thomas

Progressive Conservative

Mr. Thomas (Middlesex West):

Not in my last remarks, no, but I am going to quote the Prime Minister again.

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CCF

Alexander Malcolm Nicholson

Co-operative Commonwealth Federation (C.C.F.)

Mr. Nicholson:

It is the third time he has been quoted.

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PC

William Howell Arthur Thomas

Progressive Conservative

Mr. Thomas (Middlesex West):

I know of no one whom I would prefer to quote.

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LIB
CCF

George Hugh Castleden

Co-operative Commonwealth Federation (C.C.F.)

Mr. Castleden:

The gospel according to St. John.

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CCF

Herbert Wilfred Herridge

Co-operative Commonwealth Federation (C.C.F.)

Mr. Herridge:

It is the wrong bible.

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PC

William Howell Arthur Thomas

Progressive Conservative

Mr. Thomas (Middlesex West):

The legal difficulty seems to be centred around the old and much discussed problem of provincial rights versus federal rights. When Canada was established as a nation certain rights were assigned to the provinces and certain rights were assigned to the federal government and I know of no responsible political leader at any level of government who suggests that we should forget this fact.

The Supreme Court of Canada which is the highest tribunal in this land had occasion to try a case in which this question was involved. I refer of course to the Saumur case. There was no great degree of unanimity of opinion in the highest court of our land in that regard which points up the difficulty we would have in undertaking to set out a bill of rights in the form of words. The Prime Minister referred to this case in the speech he made in this house on February 7, 1955 as recorded at page 902 of Hansard of that date, in these words:

I am not going into the judgment except to refer to the Queen's Quarterly, winter 1955, in which there is an article by Mr. Bora Laskin, professor of law in Toronto. It deals with the whole subject of civil liberties, and it summarizes the Saumur case in these words:

Three of the nine judges (Chief Justice Rinfret and Justices Kerwin and Taschereau) appeared to support this position.

The position was that the jurisdiction in this particular case, the Saumur case, was a matter of provincial authority. I continue with the quotation:

"Six judges may be said to have adopted this view". That civil liberties were outside of provincial competence.

"Of these, four (Justices Rand, Kellock, Estey and Locke) took the position that freedom of religious or other expression was outside of provincial power, and of the four, only two (Justices Estey and Locke) made categorical assertions in favour of exclusive federal power; the other two (Justices Rand and Kellock) left open the possibility that perhaps the dominion too could not, in certain circumstances, interfere with civil liberties. Two of the six judges (Justices Cartwright and Fauteux) took the position that such freedom (and more particularly freedom of the press) does not belong exclusively either to the dominion or to the provinces.

This extraordinary division of opinion creates a result which is as curious as it is unsatisfactory. A majority of the court holds that the provinces have some legislative competence in the matter of freedom of religious expression. Two-thirds of the

court hold that the provinces do not, at least in some circumstances, have such legislative competence. Only one-third of the court denies federal legislative competence on religious freedom. Yet less than a majority affirmed federal legislative competence on the matter."

This is an indication of the difficulty we would have in drawing up a bill of rights.

It is admitted that in recent years, in the lifetime of hon. members, our personal rights have been gradually eroded.

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PC

Charles Edward Rea

Progressive Conservative

The Acting Speaker (Mr. Rea):

Order. I must advise the hon. member that his time has expired.

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PC

James MacKerras Macdonnell (Minister Without Portfolio)

Progressive Conservative

Hon. J. M. Macdonnell (Minister Without Portfolio):

Mr. Speaker, this debate so far has hardly been a debate at all; it has been a kind of competition in blessing the resolution and I in my way shall bless the resolution, but I hope to introduce an element of controversy because I am going to argue that our socialist friends, however highly we respect them, cannot possibly be in favour of freedom because they believe in absolute controls. If the hon. member for Winnipeg North Centre (Mr. Knowles)-

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CCF

Stanley Howard Knowles

Co-operative Commonwealth Federation (C.C.F.)

Mr. Knowles (Winnipeg North Centre):

Will the hon. member keep a straight face when he says that.

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PC

James MacKerras Macdonnell (Minister Without Portfolio)

Progressive Conservative

Mr. Macdonnell:

I shall prove it. If the hon. member for Winnipeg North Centre takes that without getting on his feet he is not the man I take him for.

Now, as I said, there has been an apparent unanimity, and I shall go so far as to say that I think the hon. member for Rosetown-Biggar (Mr. Coldwell), who is a very sincere man, when he proposed this felt that he was in favour of it, too. I shall satisfy him before I sit down, by reminding him of certain things he said in this session too, that he believes in controls to the extent that he is bound to interfere with the freedom which he blesses in this resolution. Now, of course, it is possible to define freedom in various ways and I suggest to the hon. member for Winnipeg North Centre, who I am sure will follow me, that he give us his definition of freedom and try to square it with the controls which he and his colleagues so ardently desire.

I listened with great interest to the hon. member for Rosedale (Mr. Walker), who is a very old friend of mine, and I think he covered this subject in an interesting and comprehensive way. I liked the history of the debates on this resolution which he gave us, I wish also to refer quite briefly to the speech made by the present Prime Minister (Mr. Diefenbaker) on March 24, 1952, because in his opening words he gave us an objective which

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everyone in every debate might very well take as his objective. He said, as reported at page 714 of Hansard:

I hope that I and those who follow me may discuss this subject with those qualities which Mr. Gladstone so much admired in Lord Aberdeen when he said in effect that: Whatever he discusses, he discusses with calmness, judgment, knowledge and moderation.

It is difficult for me to suggest that the hon. member for Rosetown-Biggar lacked any of these things, and yet I am going to suggest later on that somehow or other there was a slip and that he is professing things today which do not square with some of these basic principles. I wish to quote further briefly from the speech made by the then member for Lake Centre in 1952. He said, as reported at page 715 of Hansard:

The quest for freedom and the desire to maintain freedom and to assure freedom is not the monopoly of any political party-and it is in that spirit I speak. Internationally a declaration of great principles was made in 1945 when the preamble of the United Nations charter was drafted in San Francisco. The statesman who drafted that preamble was Jan Christiaan Smuts who some 30 years before had drafted article X of the league of nations.

I saw him draft that preamble, the first rough draft, on the back of a cigarette box, in the memorial hall in San Francisco. His life was a revelation of the meaning of British freedom. He had devoted his early life to fighting against everything for which the British commonwealth stands and, in his latter years, became the mouthpiece of the finest principles of our commonwealth and of democracy.

Again I quote briefly from page 716:

Two world wars in one generation have created conditions perilous to the preservation of civil liberty. Indeed, the continuing world emergency since 1945 has been no less perilous to civil liberty. And Canadians, as well as peoples in other parts of the British commonwealth, must be assured that human rights and fundamental freedoms, placed in pawn as security for victory, or lost temporarily as a result of design by parliament, shall not be lost permanently because of the apathy or the failure of the people to demand their restoration.

It is a matter of interest and perhaps of something more, for us to recall this scene as described by the Prime Minister and the part played in it by Smuts, who had such an extraordinary career in so many ways; soldier, politician, philosopher, and other things as well.

I think we cannot consider freedom at home without considering freedom abroad. It is interesting to recall that as this century opened I suppose the general feeling of educated men was that freedom was going to expand and cover the whole earth. I think it can be said of the British in the 19th century, that they went about the world trying to give everyone what they at any rate thought was the greatest thing in the world namely, individual freedom and political

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liberty. At the beginning of this century it seemed that the battle had been won and that freedom was going to spread over the earth.

I sometimes think that an incident, famous at the time, which happened in 1913, may be taken as the summit of human freedom, international freedom, freedom at any rate so far as what we call the western nations- by that I include the British commonwealth of nations everywhere-were concerned. It was an incident which some here will remember and some will have read about. It happened in Alsace. A little cobbler walking along the street was rudely thrust off the sidewalk and wounded by a Prussian officer. One cobbler, one officer, in the year 1913! A competent writer at that time said that this incident had shaken the chancellories of Europe. This offense to individual liberty and human freedom resounded throughout the whole world. It is almost impossible to believe that that happened but if you go back to the history of 1913 you will find that it did happen and that the man who used those words that shook the chancellories of Europe was hardly exaggerating. Since then millions of people have been treated far, far worse than was even dreamed of in the case of that cobbler.

I like to look back rather nostalgically to that time. The period of 1913 was just one year before the first world war. We all remember what has happened since. Now the United Nations is trying in the international sphere to give back to us some of that freedom that we lost-we all know only too well how it has disappeared in large parts of the world. I suggest that puts a special responsibilty on those who still have it to hold the banner high, to make it appear to those in the rest of the world that it is worth having. That comes very close home because it means that our representatives in every part of the world must so conduct themselves that people will feel that this freedom, this free way of life, means something in respect of our whole lives, particularly in respect of our behaviour and consideration towards other people. In effect, we have to be an example.

Some months ago I had the good fortune to be in the far east, in Malaya when the people were receiving their independence and becoming the tenth member of the commonwealth. I had never really paused to reflect before that four members out of the ten in the commonwealth are from Asia, and of course when you consider population the vast majority of individuals are from Asia. I was greatly struck with the fact that in Malaya they had a high regard for Canada.

[Mr. Macdonnell.l

They told me it was very important that a Canadian ambassador should be sent to Malaya because he could help and be of use, and I am glad to say that has been done.

They thought that they detected in us a certain resemblance. They realized that we had two races and two languages. They realized that we too had asserted ourselves and won liberties from the British, from the centre of the commonwealth. They thought, as I say, that there was a certain resemblance to us. They made me feel again the importance of our example to these people who are trying to follow in the path we have trod for so long.

I had the good fortune to meet the members of their cabinet. As I thought of the task they faced, taking over as a going concern the full apparatus of parliamentary government without the background of the generations, yes, the centuries that we have had to learn how to make it work, I had the greatest admiration for them and I felt that they were facing a terrific challenge. Again I say that when such people are looking to us it seems to me that is all the more reason why we should cherish more and more the freedom with which we have been blessed and make it appear attractive to other people.

When I was thinking of these Asian peoples joining the commonwealth I asked myself this question: What is it that brings them into the commonwealth? A few years ago I would have found it difficult to believe that India, a republic, Pakistan, a republic, would wish to be comprised in the commonwealth of nations. We do not call it the British commonwealth of nations any more but just the commonwealth of nations. I was not able to think of any answer to my question except that these people felt deep down that we had certain spiritual things in common. Freedom, the dignity and the importance of the individual, which as we know mean nothing in totalitarian countries, mean something to us, and that was the only explanation I could find as to why these peoples cared to remain associated with the commonwealth. I think it is a great tribute to the British that they have been able to exercise rule for decades, in some cases centuries, and have so conducted themselves that when they left they did so with the good will of those they had governed, as I believe to have been the case.

I was very glad to hear the hon. member for Rosedale say one thing. He pointed out that what we are proposing to do is not easy. He advised caution and he posed certain questions which I thought were important. As a constitutional lawyer he would

realize the importance of that better than I do, but even a reformed lawyer like myself realizes that these questions are difficult and that when you begin to put things into writing you have to watch your step. It is one thing to have principles which you can argue and to which able judges can give effect, but it is another thing when you begin to write things out.

I was struck, for example, with the fact that in the declaration of human rights of the United Nations there are 30 articles. If I remember rightly, there are six paragraphs in the resolution now before us. They may be more comprehensive than the United Nations articles but these make a last formidable list. Lawyers will know that when you write things out, if you put down "a", "b", "c", "d", and do not mention "e", high priced counsel can argue various results from the fact that "e" is not in there and was not intended to be in there, and I am glad for that reason that there is going to be caution and that the matter will be approached not only with caution but with recognition of the difficulties.

On the other hand, the hon. member for Rosedale pointed out, and I think quite correctly, that there is a difference in our country from Britain. In Britain, with their long tradition, their homogeneous population and their single government, they have steered away from a written constitution. As we know, they have left a good many things unwritten. That has not been so possible here. The hon. member for Rosedale pointed out that at the time of the Quebec Act, the Constitutional Act, the Act of Union and the British North America Act it had been very important to put everything down in writing and it was very important to all concerned that everything should be in writing.

Something else has also happened. I think that a good many of our new Canadians who have come here and are living happily under our system are given a feeling of security by being able to point to things in writing. They cannot be expected to have the same great respect for tradition and custom as we have. Therefore it is not surprising that they may prefer to have things in writing. That is another consideration that I think we should have in mind when we approach this task.

However much we legislate, I think we will all agree that we cannot pass a law and then say that is that and forget all about it. It is just as true as it ever was, and it will be just as true no matter how much legislation we pass, that, to use a famous phrase, eternal vigilance is the price of freedom. Freedom can only be maintained by eternal

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vigilance. It will not be enough to say that the law has been passed and that that ends the matter, like the man who signed a note, and said, "thank heaven that is paid".

It may sound somewhat doctrinaire but I had a little experience which I think will bear out what I say. During the war I belonged to a civil liberties association, and it was very interesting to see the attitude towards that organization. We were regarded as very queer people, rather open to suspicion in belonging to any such organization. I remember going to a friend of mine, a highly respected citizen, and asking him if he would join. He said, "The first thing you know you will have the communists in there." I said, "My dear fellow, they are in there already". He said, "What are you going to do about it?" I said, "Well, all we can do about it is to get enough sensible fellows like you to come in and vote them down."

He did not think very much of that reasoning, and I might say he did not come in.

However, that was true during the war, and when the chips are down, when difficulties arise, the number of people who are really ready to dictate to others is surprising. The number of people who are ready to dictate what is and what is not to be taught in universities is surprising. I think a certain number of people whom I have met in the course of my life would be quite ready to dictate in that matter and say that certain economic views should be taught, while others should not be taught. My own feeling about that is that young people should be allowed to know what other people are thinking, and as long as those in professorial chairs do not become propagandists they should be allowed the maximum of freedom.

I said at the outset that I was going to consider myself charged with the duty of pointing out certain things to our socialist friends. I have great difficulty in understanding how they are able to subscribe to the text of a resolution of this kind. As I said before, it seems to me they believe in a doctrine which is quite contrary to the text of the resolution. They seem to me to believe in a doctrine which, so far as I can understand it, will involve definite controls. I recall, particularly in the debate on the address, that the hon. member for Rosetown-Biggar, whom I respect, made the suggestion that we might have some wartime controls back. I rather think he may have repented of that later, but I am not authorized to say that. I looked up a list of the wartime controls and found they were very formidable. I feel that perhaps he had forgotten how many there were.

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At any rate, as I understand it, our socialist friends do believe in a measure of control. They believe in socialist democracy, but frankly I have always thought that to be a contradiction in terms. I have never been able to see how you could have the amount of control which they want to have without controlling people, far beyond what we do now. I am interested to observe that in England, so far as I can understand what is happening there, the view of the Labour party there is changing. Just three or four years ago, a meeting of the Labour party in Margate voted down a whole series of resolutions for further nationalization of industry. I have been interested to observe, that recently their new program has shifted from public ownership to public investment; that is to say, they are investing in the shares of companies so the public will have an interest in them. This seems to me to be very different from public ownership. I believe the Labour people in England have come to that conclusion.

This has been an entirely non-partisan debate so far, and I do not want to become partisan, certainly not in an acrimonious way. I thought perhaps I might arouse some comment on the other side, so we would not have a dead level of agreement on every point as we went along. I do not believe I have anything to add. I should like to go back and remind hon. members that the passing of legislation, if and when it comes, does not relieve us from the duty laid on each one of us in a democracy of pursuing the free way of life; supporting our laws which maintain it, and considering it our duty, in the phrase that I used before, to be eternally vigilant. As was so well said earlier, there are no people in the world more envied than we are, living as we do in comfort and whatever small measure of security there is in this world at the moment. I suggest very strongly indeed that many people are looking to us for an example in the ways of the west, and that in this matter of true freedom, liberty, we have a great opportunity and I hope we will live up to it.

Topic:   "XII HUMAN RIGHTS
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January 6, 1958