Letter from T.C. Douglas to John Diefenbaker
REGINA, January 19th, 1959.
The Rt. Hon. J.G. Diefenbaker, Q.C.,
Prime Minister of Canada,
My dear Prime Minister:
The second session of the Twenty-fourth Parliament will undoubtedly soon be considering Bill C-60 "An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms", which had its first reading in the House of Commons on September 5th, 1958. This bill, which is designed to recognize and declare the existence of certain basic rights and fundamental freedoms is a matter of concern, not only to members of Parliament, but as you can well appreciate, to the members of the ten provincial Legislatures of Canada and, for that matter, to every citizen of this country. With the objectives of the bill, few Canadians would disagree. The idea of rendering more secure those human rights and fundamental freedoms to which the bill makes reference is a worthy one. In 1947, the Province of Saskatchewan enacted a Bill of Rights Act, designed to assure freedom of religion and speech and freedom from discrimination in all aspects of life insofar as it is within the power of a provincial Legislature to do so. Thus, in a sense, your own province has pioneered the road toward expanded human rights and basic freedoms.
Other provinces have enacted legislation in specific fields as, for example, in the field of employment, where fair employment practices legislation has become the rule rather than the exception.
To date, the objectives of a bill of rights have been sought by ordinary legislation, since such action as provincial Legislatures have taken could only be achieved in this manner. While I entertain many reservations concerning the effectiveness of legislation in controlling or directing human conduct in many fields, nevertheless, such legislation has its place in at least clearly stating the views which a majority of the people of a province or of a nation may hold on issues relating to the conduct of human affairs. But what a Legislature or Parliament may do, a future Legislature and a future Parliament may undo. Thus, it is to be recognized that bills of rights which find expression in ordinary statutes can be ephemeral things, and under pressure, when they are most needed, can suddenly disappear. Subsequent legislation of a particular nature will have the effect of repealing earlier legislation of a general character and so it may well be that a Bill of Rights passed today with the utmost good faith , may gradually be whittled away by specific enactments over a period of years. Thus when it is sought to resort to its premises it may be found to virtually have vanished into thin air.
For this reason, many Canadians feel that in order that the human rights and fundamental freedoms of which the bill in question speaks may be rendered secure, they ought to find expression, not in an ordinary Act of Parliament but rather in amendment t o the constitution of Canada, The British North America Act. Now it will be recalled that in 1950, the Federal Government convened meetings in the months of January and September, attended by representatives of the Federal Government and by the Premiers and Attorneys General of the ten provinces of Canada for the purpose of considering methods by which The British North America Acts(1867 - 1949) might be amended in future. Unfortunately, the meetings resulted in no very tangible recommendations for action, but certain general classifications were made of the provisions of the Acts, insofar as they concerned amendment, these being six in all. They included:
- provisions which concerned Parliament only;
- provisions which concerned provincial Legislatures only;
- provisions which concerned Parliament and one or more but not a l l of the provincial Legislatures;
- provisions which concerned Parliament and all of the provincial Legislatures;
- provisions concerning fundamental rights (as, for instance, education, language, solemnization of marriage, administration of justice, etc.) and amendment of the amending procedure; and
- provisions which ought to be repealed.
Certain recommendations by the Attorneys-General of each province were made concerning the method by which each group of constitutional enactments might be amended and upon these there was general agreement.
It was generally agreed that provisions concerning fundamental rights should be added or amended by an Act of the Parliament of Canada and by Acts of the Legislatures of all of the provinces and this appears to have been a reasonable approach to a very fundamental problem.
Bill C-60, to which you and members of Parliament will be giving attention shortly, in my view, should lay the foundation for the protection of human rights and fundamental freedoms in the soundest and most definite manner possible. To include the type of provision therein contained in an ordinary statute of Parliament would result in at least two important limitations. First it will restrict the application of the principles of the bill to matters solely within the jurisdiction of Parliament as set out in The British North America Act. At once, the effectiveness of these principles is seriously restricted. To broaden the applicability of these fundamental rights to encompass, all facets of Canadian life , it appears to me to be necessary to incorporate the provisions in an amendment to The British North America Act itself, This will require the concurrence of the provinces, it is true, but it seems to me that in securing the concurrence of the provinces a very great advantage will be secured through public debate and discussion and to that type of consideration which a constitutional amendment is bound to provoke.
Secondly, only by placing these fundamental rights and freedoms in constitutional form, will they stand above the lists of daily battle and controversy which are bound to whittle away or destroy principles which may appear to stand in the way of expediency or efficiency as any particular government may view it at some future time. For these reasons, I urge you to reconvene the constitutional conference of Federal and Provincial Governments which was held in 1950 and to submit to it your proposals for an amendment to the constitution which will contain a statement of human rights and fundamental freedoms in clear and explicit form. These proposals for amendment may then be considered, debated, and incorporated as an amendment to The British North America Act. I am of the opinion that the amendments should be set out in a very specific way to provide that the rights which you have in mind are rights which are to be guaranteed to all Canadians and that a breach of them will be enjoined by simple legal process.
Accompanying this letter is a draft amendment which I believe was considered some years ago by a nonpartisan committee on civil rights, consisting of eminent lawyers and others, to which I feel reference can again be usefully made today. I commend its consideration, and I shall be pleased to hear from you concerning the suggestions concerned therein contained and those set out in this communication.
Proposed Amendment to the British North America Act, Assuring Fundamental Rights and Freedoms
- This Act shall be known as The British North America Act, 1959.
- The British North America Act, 1867 is amended by adding after Section 147 the following sections:
"148. Notwithstanding anything in this Act, it shall not be lawful for the Parliament of Canada or the Legislature of any Province to make laws:
- abridging freedom of speech and expression or of the press or other means of communication, or freedom of religion, or the right of lawful assembly, association or organization;
- requiring or imposing excessive bail or cruel or unusual punishment or exiling Canadian
- subjecting any person to unreasonable interference with his or her privacy, family, home or correspondence;
- subjecting any person to arbitrary arrest or detention or denying to any person the right,
after arrest, to be promptly informed of the charges against such person and to trial within a reasonable time, or to be released;
- suspending the right to habeas corpus or depriving any person of a fair trial or the right to be
represented by counsel;
- depriving or restricting the right of any person to own, lease or otherwise to hold and enjoy
"149. The rights provided in Section 148 shall be enjoyed without distinction or discrimination on account of race, sex, religion or language and:
- the right to be a member of or to vote for the election of Members of the Parliament of Canada or the Legislature of any Province;
- the right to employment at any occupation and the right to work;
- the right to education; and
- right to enjoy membership in any professional association;
shall not be abridged on account of race, religion, language or sex.
"150. The rights conferred by Sections 148 and 149 of this Act shall not be deemed to abridge any existing rights of any person.''