January 6, 1958 (23rd Parliament, 1st Session)


David James Walker (Parliamentary Assistant to the Minister of Justice and Attorney General)

Progressive Conservative

Mr. Walker:

Thank you very much. Of course there is one great difference between the resolution presented today by my honourable and learned friend and that advocated by my leader over the years, but it is only a difference in the modus operandi, the way in which it will be worked out. The hon. member for Rosetown-Biggar proposes an amendment to the constitution, the British North America Act, and in that regard he has received certain assistance from constitutional lawyers. The Prime Minister on the other hand proposes, not that we should take that circuitous and lengthy way, but that the bill of rights should be enacted as a dominion statute.
Now may I say this lest there be any doubt about it. The government is in favour of a bill of rights, but it is a matter of such importance and of such far-reaching consequence, that when it is enacted it will rank with the important constitutional documents of western democracy. There is no question about that. Therefore, Mr. Speaker, we must move cautiously. There is a great deal of homework to be done, because the Liberal government which occupied office for 22 years spent part of 11 years in opposing a bill of rights. Never did the opportunity really come for a vote on this important subject. Therefore for the first time the skilled law officers

Human Rights
of the crown have had their attention turned to implementing a bill of rights and the working out of this problem.
I am delighted to learn from the hon. member for Rosetown-Biggar that one of those who serve under him, the hon. member for Vancouver-Kingsway, I understand himself a lawyer, is going to expound to this house how we can bring a bill of rights into being. I would be delighted to have his assistance. Here are some of the problems which must face the government and hon. members before an act can be finally passed. I am not going to solve them at this time; I am going to outline them very briefly, and I would be glad to have the assistance of the hon. member for Vancouver-Kingsway.
First, should a bill be submitted to the Supreme Court of Canada and, if so, how? Should it be a draft bill, with the question asked as to whether it is within the jurisdiction of the federal parliament, keeping in mind, Mr. Speaker, that in constitutional law Canada is woefully lacking, as the hon. member I am sure will agree, in decisions on questions of this kind? In other words, where do the rights of the dominion cease under section 91 of the British North America Act and where do the rights of the provinces under section 92 begin, particularly when one discusses such abstract but very real values as freedom? Second, should we submit a series of questions to the supreme court? As my hon. friend no doubt is fully aware, to do so is very difficult because we must frame questions of law as distinct from questions of policy which latter, of course, the supreme court will not deal with.
Third, should we have a parliamentary committee to explore and agree on a draft that will be suitable to parliament when it finally reaches parliament? Fourth, would it be premature to submit a draft to the supreme court and then, having their approval, come back to the house to find that it is not acceptable to hon. members, or should the government by-pass the courts and reach rapport with the provinces by calling them into session, having a dominion-provincial conference on the question of a bill of rights, in which the property and civil rights of the provinces would be properly protected? Fifth, should the government itself draft a bill for the approval of and amendment by the provinces, send it to them and have them deal with it? Sixth, should we draft a strictly federal bill? Is this possible under the circumstances, in view of the property and civil rights of the provinces?
Then we must consider very carefully and with great respect the resolution of the hon. member for Rosetown-Biggar, who suggests

that this legislation should be in the form of an amendment to the British North America Act. If the amendment concerns matters of purely federal jurisdiction, Mr. Speaker, it can be made without provincial consent; but if the matter concerns, as his resolution concerns, matters which are within the peculiar and distinct rights of the provinces then, Mr. Speaker, it is a very serious matter and, as my hon. friend so well knows, would involve its submission to the British House of Commons, but only after the amendment had been concurred in not only by the federal government but by each of the 10 provinces involved. And that, in the history at least of amendments to the British North America Act, is something which is not very often done.
Another problem on which my hon. friends who follow me might assist us is this. Would it be better to avoid an amendment to the British North America Act and substitute a statute instead, as suggested by the Prime Minister? The ninth question is this. Should a bill of rights exclude the application of the War Measures Act in time of emergency? Or how should the War Measures Act be handled in the circumstances if we are to have a bill of rights, as we most certainly hope we shall?
The tenth question is this. Could the whole thing be wrapped up and handled by a declaration of human rights passed by this parliament? I am giving no suggestions at this time for a solution; but I do ask the house to believe that the government has this matter in hand. It is being given very careful consideration by my chief, the distinguished Minister of Justice (Mr. Fulton), as well as by myself and the law officers in his department.
The question might be asked; why incorporate freedom in a statute? That question has often been asked and I am sure has been asked in this house. Have we freedom at this time? Yes, we have freedom at the present time; and, of course, although this may appear to my hon. friend to be partisan, we hope we shall continue to have freedom as long as a Conservative government is in power in this dominion. Of course that might be for the next 22 years, and this matter might not appear to be too urgent; but everyone knows -and no one knows this better than the hon. member for Rosetown-Biggar-that freedom has a habit of slipping very quickly away in crises and in changes. We know that eternal vigilance is always the price of freedom.
My suggestion to hon. members is this. We have freedom at the present time; but we should have an anchor to which the principles of freedom can be attached. That anchor is a statute, so that new Canadians

and old Canadians can pick up that statute and say, "These are our freedoms; these are our rights."
May I give my French-speaking friends an illustration of the importance of incorporating freedom into law. In 1763, as a result of the treaty of Paris, 60,000 French-speaking Canadians were left in this country; and had it not been for statute and for law, including the Quebec Act of 1774 and subsequent acts, does one think for one moment that the great French Canadian race would have continued its freedom of language, its freedom of religion and its freedom of law? I think these freedoms might have been done away with. But almost 200 years later we find that as a result of incorporating those freedoms into law the 60,000 French Canadian population has increased to a population of almost 5 million, still French speaking, still practising their own religion and still practising their own civil law, a veritable island in a sea of 185 million English speaking citizens on the North American continent.
This is an example of how freedom incorporated into law can succeed. Louisiana, populated by French people, as a result of the Louisiana purchase became part of the United States, and did so without any statutory protection, to preserve their freedoms. Nothing was incorporated into law, with the result that what was once a great French culture and a delightful French people, are gone. They have disappeared; they have been swallowed up in the great American democracy. Why? Because there was no law to protect them.

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