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Notes for a Pre-History of the Canadian Charter of Rights and Freedoms

Last week, I had the pleasure of spending a couple of hours digging through old Debates of the Senate so that I could pinpoint references I had made in my current thesis to material I read 30 or 40 years ago. One of the points for which my browsing these old debates brought to mind was that the Canadian Charter of Rights and Freedoms has what I will call a “pre-history” that is very little known.

(I generally dislike the term “pre-history” because I’ve mainly encountered it in the context of Indigenous experience before the coming of the white man. What I mean here is something much fairer and bears no resemblance to that kind of condescension.) What I mean by pre-history is that there is an interesting and worthwhile story of earlier efforts to secure an entrenched bill or charter of rights.

No one should be surprised that the Charter has a pre-history. Pre-history is the main alternative to a virgin birth theory, the theory that underlies the statement “Trudeau gave us the Charter of Rights. I don’t think it does Pierre Trudeau any less credit, kudos, admiration or respect to recognize that while he was a major player, perhaps the major player; he was also one among many. This is no less true during the period from Trudeau’s introduction of the Patriation Resolution in the fall of 1980 to the royal signing in April of 1982. That part has been reasonably well chronicled by other writers, though it does also continue to be overlooked.

I want to focus this note on the early postwar history period, with a possible nod to the Bill of Rights of 1960. (I need to stress that I am writing this largely from memory of sources I scoured for quite other purposes.)

In 1947, a joint Senate-Commons Committee on a Bill of Rights was set up, largely in response to a resolution from a UN agency, calling on member countries to consider what we would later call an “entrenched” bill of rights, chaired by Senator Leon M. Gouin (Liberal, De Salaberry), a noted scholar and J.L. Ilsley MP, later to be appointed Minister of Justice. John Diefenbaker was a member of the Committee. That Committee’s report, which has been criticized for being thin and not addressing the key questions in the Canadian dilemma, came down against an entrenched bill, saying that it was out of keeping with parliamentary democracy and the common law.

The next year Senator Arthur Roebuck (Liberal, Toronto-Trinity) introduced a resolution calling on the government to consider bringing a draft bill of rights to the next Dominion-Provincial conference (as such events were then known). After a considerable debate, Sen. Roebuck withdrew his motion (to avoid bringing it to a vote when the government was opposed). Just a little over two years later, in 1950, Sen. Roebuck chaired a Senate Committee mandated to study a draft charter of rights.

Sen. Roebuck came back to this idea periodically over the next 20 years when he not only continued in the Senate but continued to attend regularly and to speak fairly often. In at least one speech he mentioned having sat, as a child, on the knee of his great uncle who defended some of the chartists of the Chartist Rebellion of 1848. That may seem like a bit of a stretch but it does suggest that there had been periodic efforts at promoting a Charter of Rights well before Pierre Trudeau renewed the effort.

When Roebuck spoke on the Second Reading of John Diefenbaker’s Bill of Rights, in 1960, he expressed his strong disappointment at two features. First, that the Bill was simply another statute and would have no effect in limiting the possibilities of abuse of power. Secondly, that the Bill allowed that measures taken under the War Measures Act would trump the protection of rights by the Bill of Rights.

There is a longer pre-history in the sense that Trudeau first introduced the idea at a federal-provincial meeting of Justice ministers while he was Pearson’s Minister of Justice. He then had a succession of measures from 1970 to 1980. Those I will save for another Slaw column.

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Comments

  1. According to Christopher MacLennan, the two main factors among the public for a national bill of rights:
    1. recognition of Canada’s historic “human rights abuses and racism,” such as persecution of communists, and application of the War Measures Act, including the Japanese internment
    2. decline of legal positivism following WWII, and the need for an international and universal human rights, promoted by the United Nations

    These calls go back to the 50s, well before Trudeau. But for a number of reasons he’s the only one who could pull it off.