McGILL LAW JOURNAL
Montreal
Volume 17
1971
Number 3
The Canadian Bill of Rights
From Diefenbaker to Drybones
W. S. Tarnopolsky*
Introduction
From its inception the Canadian Bill of Rights evoked widely
divergent comments. Mr. Diefenbaker, whose project it was, de-
scribed it in glowing terms.’ His critics,’ while not quite calling
it a “mere scrap of paper”, did denigrate it as “merely a statute”.
Perhaps the Bill’s most inglorious moment came a few years after
its enactment when copies were circulated as part of a toothpaste
promotion campaign. (In the early 1960’s we still believed that
cleanliness was next to godliness!)
This survey of the judicial application of the Canadian Bill of
Rights will attempt to assess these contradictory evaluations, not
by a detailed case by case analysis, but by summarizing the overall
* Dean, Faculty of Law, University of Windsor.
1 For some of these, see, Canada – House of Common Debates (Hansard)
1958, 4638-4649, and esp. 1960, 5643-50; Proceedings of the Canadian Bar Asso-
ciation, 1959, 94; and P. C. Newman, Renegade in Power: The Diefenbaker
Years, (Toronto, 1963), c. 17, p. 230.
2See generally: Special Committee on Human Rights and Fundamental
Freedoms, Minutes of Proceeedings and Evidence, 1960; Canada – House of
Commons Debates (Hansard), 1960, 5650-5790 and 5884-5938; and the symposia
in (1959) 37 Canadian Bar Review; (1961) 11 Themis; and (1961) 8 McGill L.J.;
Newman, supra, n. 1, pp. 226-30.
McGILL LAW JOURNAL
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effect, and then section by section. The Drybones case,3 however,
will have to be considered in some considerable detail, because it
is by far the most important decision on the Bill of Rights. But
first, in order to evaluate the judicial application of the Canadian
Bill of Rights, it is necessary to make a few observations about
the decisions of our highest courts to protect civil liberties before
they were ever concerned with a written Bill of Rights.
Thus, this paper will be divided into three parts-
in the first
part judicial protection of civil liberties before the enactment of
the Canadian Bill of Rights will be considered, the second part
will deal with the interpretation given to the Canadian Bill of
Rights by the judiciary (which will include an evaluation of the
Drybones case), and the third part will survey the decisions on the
various detailed provisions contained mainly in sections 1 and 2
of the Bill of Rights.
Part I –
Judicial Interpretation of Civil Liberties Issues
Before the Canadian Bill of Rights
The Canadian Supreme Courts (the Judicial Committee of the
Privy Council was in effect a Supreme Court for Canada), have
in the past resorted mainly to two interpretive techniques which
have protected civil liberties: the restrictive interpretation tech-
nique, and the power allocation technique.4
The restrictive interpretation technique arises out of the relation-
ship between Parliament and the judiciary which we inherited
from Great Britain whereby, because of the doctrine of Parliamentary
supremacy, the courts do not have the right to invalidate an Act
3 Regina v. Drybones [1970] S.C.R. 282. For comments on the case see:
F. M. Auburn, “Canadian Bill of Rights and Discriminatory Statutes”, (1970)
86 L. Q. Rev. 306; W. F. Bowker, “Comment – Regina v. Drybones”, (1970)
8 Alta. L. Rev. 409; L. H. Leigh, “The Indian Act, the Supremacy of Parliament
and The Equal Protection of the Laws”, (1970) 16 McGill L.. 389; K. Lysyk,
“Equality Before the Law”, (1968) 46 C.B.R. 141; H. W. Silverman, “Dry Bones:
Are They Alive?”, (1970) 10 C.R. 356; J. C. Smith, “Regina v. Drybones and
Equality Before the Law”, (1971) 49 Can. Bar Rev. 163; E. E. Dais, “Judicial
Supremacy in Canada in Comparative Perspecttive: A Critical Analysis of
Drybones”, paper presented at the Canadian Political Science Association
Annual Meeting at Memorial University, Newfoundland, on 8 June, 1971; Paul
Cavalluzzo, “Judicial Review and the Bill of Rights. Drybones and its After-
math”, unpublished LL.M. thesis for Harvard University, Spring, 1971.
4There are times when the sociological jargon introduced by the “Ivy
League” law schools is useful. I acknowledge adoption of the terms from the
excellent paper given by E. E. Dais, and the unpublished LL.M. thesis of P.
Cavalluzzosupra, n. 3.
No. 3]
THE CANADIAN BILL OF RIGHTS
of Parliament on the ground of its arbitrariness, or its alleged
contravention of civil liberties. Nevertheless, the courts have used
a principle of statutory interpretation whereby the common law
rights of the subject cannot be restricted by ambiguous statutes.
The presumption is against the imposition of taxation, or the im-
position of penal sanctions, or the taking away of common law
rights, unless the words of the statute are clear. Thus, if the courts
have any choice in interpreting a statute which is not clearly and
precisely drawn, the ordinary rules of statutory interpretation urge
them to protect civil liberties.
This can be illustrated in Canada by two leading cases. The
first of these is Boucher v. The King.’ In this case the Supreme
Court was concerned with a charge of seditious libel laid under
section 133 (now section 60) of the Criminal Code against a
Jehovah’s Witness for distribution of pamphlets which made scur-
rilous and scathing attacks upon the Catholic church. Because of
the vague definition of sedition in the Criminal Code the Supreme
Court was able to interpret the offense narrowly as including actual
incitement to violence, but excluding mere advocacy which might
create ill-will between Her Majesty’s subjects. The accused was,
therefore, acquitted, and the result was that freedom of speech in
Canada was significantly expanded.
Another more recent example of the restrictive interpretation
technique is to be found in the case of Brodie, Dansky and Rubin
v. the Queen.6 In this case the Supreme Court, by a majority of
five to four, held that the book Lady Chatterly’s Lover was not
obscene within the meaning of obscenity as provided for in section
150 of the Criminal Code of Canada.
The third case that can be used as an illustration of the expansion
of a human right, even where the Supreme Court deliberately
avoided an opportunity to discuss the issues from a human rights
point of view, and instead confined the decision to a technical
distinction, is the case of Noble and Wolf v. Alley.’ Here the
Supreme Court was concerned with a racially restrictive covenant,
and was invited to declare the covenant invalid on the ground
that it contravened the public policy of Ontario which favoured
the promotion of human rights. This was the basis upon which
Mr. Justice Keiller MacKay, in the case of Re Drummond Wren,8
[1951] S.C.R. 265.
o [1962] S.C.R. 681.
7 [1951] S.C.R. 64.
8 [1945] O.R. 778.
McGILL LAW JOURNAL
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had invalidated a racially restrictive covenant some years earlier.
However, the Supreme Court declined to adopt this ground. Instead,
the court held that a restrictive covenant was valid only if it related
to user of the land, and the race of the prospective purchaser had
nothing to do with user. Second, it held the covenant void for
vagueness on the ground that proof of a person’s membership in
a racial group was too difficult. Thus, racially restrictitve covenants
were declared invalid in Canada, although on a narrow interpret-
ative ground which avoided discussion of human rights issues.
An interesting application of the restrictive interpretation tech-
nique resulted from the application of another fundamental doctrine
of the British Constitution which is quite often overlooked when
reference is made only to Parliamentary sovereignty, and that is,
“the rule of law”. In the case of Roncarelli v. Duplessis 1 the Supreme
Court, inspired by an exhilarating view of the “rule of law”, held
that a government officer, even the Prime Minister of a province,
could not use powers which he clearly has, for a purpose unrelated
to the object of the statute which gives him those powers.
The power allocation technique has promoted civil liberties
through the invalidation of legislation on the ground that, by the
operation mainly of sections 91 and 92 of the B.N.A. Act, the
statute in question was not within the jurisdiction of the legislature
concerned because it was within the legislative competence of the
other order of legislative body. Perhaps the most famous illustration
of the application of this interpretation is the decision of the
Supreme Court of Canada in Switzman v. Elbling (the Padlock
case)10 In this case the Quebec -Padlock Act, which provided for
the padlocking of any house found to have been used for the
dissemination of “Communist” or “Bolshevik” literature, was in-
validated on the ground that it was beyond the jurisdiction of the
legislature of Quebec, because it was an exercise of the criminal
law power which was within the jurisdiction of the Parliament
of Canada. Thus, the fundamental freedoms of speech, and to
some extent, of assembly, association, and of religion, were promoted
through invalidation of provincial legislation by the power allocation
technique.
A much earlier illustration of this technique, although the case
was not dealt with by the Courts, nor referred to at the time, as
dealing with human rights, was the case of Union Colliery of
9 [1959J S.C.R. 121.
10 [1957] S.C.R. 285.
No. 3]
THE CANADIAN BILL OF RIGHTS
British Columbia Ltd. v. Bryden.11 In this case, British Columbia
legislation restricting the rights of “Chinamen” to work in mines
was invalidated on the ground that it was not legislation relating
to “property and civil rights”, but rather legislation in relation to
“naturalization and aliens”, a subject matter reserved exclusively
for the Parliament of Canada. Thus, the human rights of Chinamen
were protected by the Supreme Court through the use of the power
allocation device, even though the decision was not rendered in
recognition of the human rights issues involved.
A case which can be taken to illustrate the application of the
“rule of law”, as well as both of the interpretive techniques, is
the Alberta Press Bill case.’2 By referring to the preamble to the
B.N.A. Act, which provides that Canada is to have a constitution
“similar in principle to that of the United Kingdom”, three members
of the Supreme Court of Canada were able to conclude that the
core of our governmental system was Parliamentary democracy.
They were further able to deduce that this presupposed a free flow
and exchange of ideas across the Dominion which could not exist
if restrictions were placed upon the freedom of the press by one
of the provincial governments. Somewhat bound up with this
interpretation, although forming a more important element in the
decision of Mr. Justice Cannon, was the power allocation technique
in that he decided that the restriction involved was an exercise
of the criminal law power which was within the jurisdiction of the
Parliament of the Dominion.
On the other hand, the resort to the restrictive interpretation
and the power allocation techniques to protect civil liberties was
subject to limitations. Thus, the orders-in-council passed pursuant
to the War Measures Act, which provided for the deportation of
Japanese-Canadians after the Second World War, were upheld
because they were explicit as to their intention. 3 Where the statute,
or the delegated legislation under it, is clear and unambiguous, the
restrictive interpretation technique will not serve. So also, where
the legislation in question was clearly within the jurisdiction of
the legislature, as for example in Cunningham v. Tomey Homma,1 4
which concerned the denial of the franchise in British Columbia
to some races, the Judicial Committee had no option but to uphold
11 [1899] A.C. 580.
12 Re Alberta Statutes [1938] S.C.R. 100.
13 Co-operative Committee on Japanese-Canadian v. Attorney-General for
Canada [1947] A.C. 87.
14 [1903] A.C. 151.
McGILL LAW JOURNAL
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the legislation concerned. Similarly, in the case of Quong Wing
v. The King,’5 the Supreme Court upheld a Saskatchewan statute
which forbade white girls to work for Chinese. Without a written
Bill of Rights there are limits to the power of the judiciary to
protect civil liberties.-
Part II –
Judicial Interpretation of the Canadian Bill of Rights
Pre-Drybones
In 1960, with the enactment of the Canadian Bill of Rights, the
Canadian judiciary was given another instrument to use in the
promotion of civil liberties, at least within the federal sphere.
As indicated in Part I above, prior to 1960, where the courts decided
that the subject matter of legislation was within federal jurisdiction
and the language of the statute was unambiguous, the courts had
no alternative but to apply the statute even if, in the opinion of
members of the court, the statute contravened civil liberties.
Now, for the first time, Parliament directed the courts to “construe
and apply” federal laws so as not to “abrogate, abride, or infringe”,
certain human rights and fundamental freedoms set out in the
Canadian Bill of Rights.
Within two or three years of the enactment of the Canadian
Bill of Rights, however, the trend in the lower courts seemed to
have been to ignore or explain away its existence. The Supreme
Court of Canada, however, did not openly dismiss or reject the
applicability of the Canadian Bill of Rights to federal laws. Rather
the issue was avoided. Thus, in the Rebrin and the Louie Yuet Sun
cases, 6 the Supreme Court declined to define “the due process
of law” clause by stating that in their opinion the immigration
officers concerned had acted “according to law”. Similarly, in the
case of Regina v. O’Connor,17 the Supreme Court avoided having
to decide the effect of refusal to permit access to counsel by finding
that the breathalizer tests in question were taken before the accused
requested permission to call his counsel. In the case of Robertson
and Rosetanni v. The Queen, 8 again the majority in the Supreme
Court avoided the necessity of deciding the effect of the Bill of
Rights on an inconsistent statute, by giving an interpretation to
15 (1914), 49 S.C.R. 440.
16 Rebrin v. Minister of Citizenship and Immigration et al [1961], S.C.R.
376; Louis Yuet Sun v. The Queen [1961] S.C.R. 70.
17 [1966] S.C.R. 619.
is [1963] S.C.R. 651.
No. 3]
THE CANADIAN BILL OF RIGHTS
“freedom of religion” which was consistent with the existence of
the Lord’s Day Act.19 Nevertheless, it must be emphasized that the
Supreme Court was cautious enough, and perhaps perspicacious
enough, not to throw any doubt upon, or raise any question about,
the effectiveness of the Bill of Rights. In each of these cases, in
the particular fact-circumstances, the Supreme Court was able to
hold that application of the Canadian Bill of Rights was unnecessary
for the determination of the issues. In fact in the Robertson and
Rosetanni case, on behalf of the majority, Mr. Justice Ritchie
repeated on several occasions expressions to the effect that “the
Canadian Bill of Rights guarantees” freedom of religion. He merely
went on to define freedom of religion as not including the right
of a person to work on Sunday even though his Sabbath falls on
a different day.
The first time that the Supreme Court of Canada faced up
squarely to the issue of the effect of the Canadian Bill of Rights
on a statute found to be inconsistent with its provisions was the
Drybones case.2
The Drybones Case and the effect of the Bill of Rights
The facts in the Drybones case were very simple: On the 8th
day of April, 1967, a Canadian Indian by the name of Joseph Dry-
bones was found drunk in the Old Stope Hotel in Yellowknife,
N.W.T., and was charged under section 94(b) of the Indian Act 2
on the grounds that “being an Indian, he was unlawfully intoxicated
off a reserve, contrary to section 94(b) of the Indian Act”. Drybones,
who spoke no English, pleaded guilty, and the magistrate sentenced
him the minimum fine of ten dollars plus costs, and in case of
default to three days in jail. Subsequently, Mr. Justice Morrow, a
judge of the North West Territorial Court, suggested that the
conviction by the magistrate be appealed. After hearing the appeal
by way of trial de novo, he acquitted the accused.
The Court of Appeal for the North West Territories dismissed
an appeal by the Crown from the judgment of Mr. Justice Morrow 22
The decision was in turn appealled to the Supreme Court of Canada2 3
There was no question but that the accused was an Indian, that
he was intoxicated on the evening of April 8th, 1967, on the premises
19 R.S.C. 1970, c. L-13.
2O Regina v. Drybones [1970] S.C.R. 282.
21 R.S.C. 1952, c. 149; Now R.S.C. 1970, c. 1-6, s. 95.
22 (1967), 64 D.L.R. (2nd) 260; 61 W.W.R. 370.
23 [1970] S.C.R. 282, (1970), 9 D.L.R. (3rd) 473.
McGILL LAW JOURNAL
[Vol. 17
of the Old Stope Hotel in Yellowknife, and that there is no reserve
within the meaning of the Indian Act in the North West Territories.
Section 94 of the..Indian Act provides:
94. An Indian who
(a) has intoxicants in his possession,
(b) is intoxicated, or
(c) makes or manufactures intoxicants off a reserve, is guilty of an
offence and is liable on summary conviction to a fine of not less
than ten dollars and not more than fifty dollars or to imprisonment
for term not exceeding three months or to both fine and imprisonment.
Section 19(1) of the Liquor Ordinance of the North West Terri-
tories 24 provides:
No person shall be in an intoxicated condition in a public place….
There is, however, no provision for a minimum fine, and the
maximum term of imprisonment is thirty days.
It was agreed both in the Court of Appeal and in the Supreme
Court of Canada that although it was an essential element to any
charge laid under section 94 to prove that the accused was “an
Indian … off a reserve”, it was quite irrelevant that there were
no reserves in the North West Territories. The important elements
in the case concerned the disparity between the treatment of liquor
offences by Indians under the Indian Act, and of others under the
Liquor Ordinance. The Indian Act had a minimum fine, whereas
the Ordinance did not; the maximum term of imprisonment under
the Indian Act was three months, as against thirty days in the
Ordinance; and yet most important of all, as a result of the Indian
Act, and because there are no reserves in the North West Territories,
an Indian could be convicted for being intoxicated anywhere in
the North West Territories, whereas all others could be convicted
under the Liquor Ordinance only for being intoxicated “in a public
place”.
The argument we are concerned with, then, was that a “law
of Canada”, within the definition of section 5 of the Canadian
Bill of Rights, contravened the “equality before the law” clause
in section 1(b) of the Canadian Bill of Rights, and was therefore
invalid by section 2 of the Canadian Bill of Rights. The Court of
Appeal of the North West Territories agreed with Mr. Justice
Morrow that section 94 of the Indian Act was rendered inoperative
because of the Canadian Bill of Rights.
There are really two main issues considered in this case, and
they will be dealt with separately. One concerns the scope of the
24R.O.N.W.T. 1957, C. 60.
No. 3]
THE CANADIAN BILL OF RIGHTS
“equality before the law” clause and this will be considered later.
The other, which will be discussed first, is the effect of the Canadian
Bill of Rights on laws which are determined to be contrary to it.
The most important portion of the Canadian Bill of Rights to
consider for this purpose is the opening paragraph of section 2,
and particularly the meaning of the words “construed and applied”.
What are courts and administrative officials to do in “construing
and applying”? Is this merely an interpretation act? 25 Is this
provision to be applied disjunctively? What if there is no way to
construe a statute so as to conclude that it did not “abrogate,
abridge, or infringe” any of the human rights and fundamental
freedoms in the Canadian Bill of Rights? How does the court then
apply the statute in question? 26 Is the phrase then merely a rule
of construction which might be used to promote civil liberties when
the statute can be construed in conformity with the Canadian Bill
of Rights? What if a statute is unambiguous, and cannot be con-
strued in conformity with the Canadian Bill of Rights, does the
court then still have to “apply” the statute according to its plain
terms, and ignore the Canadian Bill of Rights? Is the opening
paragraph of section 2 a declaration by Parliament to the courts
which must be followed in any case? If so, does this not amount
to an abrogation of Parliamentary sovereignty and the establishment
in Canada of judicial supremacy in the application of the Con-
stitution?
In the initial years after the enactment of the Canadian Bill of
Rights the Canadian courts were hesitant in their conclusion as to
the meaning of section 2. The results were contradictory. There
were some judges who did state’ that the Bill of Rights had to
override legislation inconsistent with it27 Most of the judges, how-
ever, gave the Bill no effect. Where possible some courts circum-
vented the problem by stating that the Bill of Rights merely affirmed
the traditional principles of the common law, or that it was a
general enactment which could not have been intended to repeal
specific enactments, or that Parliament could only have intended
25 See suggestions to this effect made before the Special Committee of the
House of Commons on Human Rights and Fundamental Freedoms, Minutes
of Proceedings and Evidence, 1960, pp. 37, 42, 53, 371, 484-5.
2 6 See B. Laskin, “Canada’s Bill of Rights: A Dilemma for the Courts”,
(1962) 11 LC.L.Q. 519, 529.
27 See the list of cases in W. S. Tarnopolsky, The Canadian Bill of Rights,
(Toronto, 1966), 95-96.
McGILL LAW JOURNAL
[Vol. 17
the repeal of existing statutes if it had stated so specifically, and
not ambiguously.
28
Prior to the decision of the Supreme Court in Regina v. Dry-
bones, there were only two important decisions discussing the
effect of the Canadian Bill of Rights at any length. The first of
these was the decision of the British Columbia Court of Appeal in
Regina v. Gonzales,20 which concerned the application of the liquor
provisions of the Indian Act. The second case, which was a decision
of the Supreme Court of Canada, is Robertson and Rosetanni v.
The Queen, (the Sunday Bowling Alley case). 3 This case concerned
the validity of Sunday observance legislation in the light of the
Canadian Bill of Rights.31
In Regina v. Gonzales the British Columbia Court of Appeal was
concerned with a conviction of the accused on the charge that
he “being an Indian as defined by the Indian Act of Canada…
was unlawfully in possession of an intoxicant off an Indian Reserve”,
contrary to section 94(a) of the Indian Act. The Court of Appeal
unanimously dismissed the appeal from the conviction. In the
course of his judgment, Mr. Justice Davey stated the problem that
all courts face in considering the implications of the Canadian
Bill of Rights: 32
The difficulty in interpreting and applying the very general language of
the Canadian Bill of Rights has not been exaggerated. It is, in my
opinion, impossible at this early date, to fully grasp all the implications
of the Act, or to determine its application in circumstances that cannot
be fully foreseen.
Both Mr. Justice Tysoe and Mr. Justice Davey, who gave separate
judgments, held that section 2 of the Canadian Bill of Rights could
not be more than a rule of construction which may require a
28 Loc. cit.
29 (1962), 32 D.L.R. (2d) 290, (1962), 37 W.W.R. 257.
30 [19631 S.C.R. 651.
31 Alcohol and Sunday Observance have played a crucial role in the develop-
ment of our constitution. From Russell v. The Queen in 188,1 through the
Local Prohibition case of 1896, to the Canada Temperance Act case of 1946,
the attempted regulation of liquor has provided some of our most famous
constitutional decisions. Similarly, from the Hamilton Street Railvay case
in 1903, to the Birks v. City of Montreal, 1955, regulations of activities on
Sundays or “holy” days has been the subject of our most important cases
determining the extent of the criminal law power. Thus, perhaps, it is fitting
that the two leading cases on the Canadian Bill of Rights, i.e., Robertson &
Rosetanni v. The Queen, and Regina v. Drybones, deal with Sunday Observance
and Liquor respectively.
32 Supra, n. 29, at p. 291.
No. 3]
THE CANADIAN BILL OF RIGHTS
change in the judicial interpretation of some statutes where the
language permits, but which does not repeal any legislation which
cannot be construed or applied so as to avoid conflict with section
1 of the Canadian Bill of Rights. Mr. Justice Davey concluded by
saying that section 1 expressly recognizes the continued existence
of legislation even though such legislation may contravene section 1.
Mr. Justice Tysoe did not deal with that issue because he so
construed the term “equality before the law” as to find that there
was no conflict between section 94(a) of the Indian Act and the
Canadian Bill of Rights.
In Robertson and Rosetanni v. The Queen, (the Sunday Bowling
Alley case), the Supreme Court of Canada was invited to consider
the effect of the Canadian Bill of Rights and more particularly,
the effect of the opening paragraph of section 2 of the Canadian
Bill of Rights because of an alleged conflict between the provisions
of the Lord’s Day Act and section 1(c) of the Canadian Bill of Rights,
i.e., “freedom of religion”. Only Mr. Justice Cartwright (as he then
was) specifically dealt with the effect of section 2, and he specifically
declared his disagreement with Mr. Justice Davey in the Gonzales
case as to the effect of the “construed and applied” clause: 33
With the greatest respect I find myself unable to agree with this view. The
imperative words of s. 2 of the Canadian Bill of Rights quoted above,
appear to me to require the courts to refuse to apply any law, coming
within the legislative authority of Parliament, which infringes freedom
of religion unless it is expressly declared by an Act of Parliament that
the law which does so infringe shall operate notwithstanding the Canadian
Bill of Rights. As already pointed out s. 5(2) quoted above, makes it
plain that the Canadian Bill of Rights is to apply to all laws of Canada
already in existence at the time it came into force as well as to those
thereafter enacted. In my opinion where there is irreconciable conflict
between another Act of Parliament and the Canadian Bill of Rights
the latter must prevail.
Mr. Justice Ritchie, who gave judgment on behalf of himself,
Taschereau C.J.C., and Fauteux and Abbott JJ., did not deal with
the issue directly because he did not find conflict between the
Lord’s Day Act and section 1(c) of the Canadian Bill of Rights.
However, in the course of his judgment Mr. Justice Ritchie stated
at least three times that the Canadian Bill of Rights “guaranteed”
religious freedom, and on one occasion he referred to freedom of
religion as being “safeguarded” by the Bill of Rights. In any case,
by the time that the Supreme Court came to deal with the inter-
pretation of section 2 of the Canadian Bill of Rights in the Drybones
33 Supra, n. 30, at p. 662.
McGILL LAW JOURNAL
[Vol. 17
case, no member of the court had previously precluded himself
in any of his judgments from the finding in the Drybones case
that legislation which is contrary to section 2 of the Canadian Bill
of Rights is “inoperative”.
The decision of the Supreme Court of Canada in the Drybones
case witnessed one of the most amazing conversions ever proclaimed
by a judge in a judicial decision. In his dissenting judgment in
the Robertson and Rosetanni case, Mr. Justice Cartwright became
the highest judge in the country to declare that the effect of
the Canadian Bill of Rights was to declare inoperative any fed-
eral
laws which were inconsistent with its provisions. In the
Drybones case, he recanted completely and expunged his error by
declaring that “after most anxious reconsideration of the whole
question, in the light of the able arguments addressed to us by
counsel, I have reached a conclusion that the view expressed by
Davey, J.A., as he then was, in the words quoted above, is the
better one.”
Two factors would appear to have persuaded him:
(1) He felt
that the language used in section 2 was unclear, and that if Parlia-
ment had really intended the Canadian Bill of Rights to be over-
riding, it might have used some such terms as: “if any law of
Canada cannot be so construed and applied, it shall be regarded
as inoperative, or pro tanto repealed”. (2) He seems to have been
frightened by the prospect of the power and responsibility “imposed
upon every justice of the peace, magistrate, and judge of any court
in the country who is called upon to apply a statute of Canada
or any order, rule, or regulation made thereunder”, to declare any
legislation contravening the Bill of Rights to be inoperative.
It is incumbent upon everyone to treat conversions with respect,
but one cannot avoid noting that that duty and responsibility which
Mr. Justice Cartwright feared might be too onerous for any justice
of the peace, magistrate or judge, is one which has always existed
in Canada. In the first place, prior to the Statute of Westminster,
because of the Colonial Laws Validity Act, 1865, any Canadian
statute, order, rule, or regulation, could be declared invalid if it
were contrary to an Imperial statute extending to Canada. In the
second place, since 1867, the additional task has been assumed by
our courts of ruling ultra vires either statutes, or regulations made
thereunder, which by the British North America Act were beyond
the jurisdiction of the legislature concerned. The Canadian Bill
of Rights may have broadened the scope of this responsibility, but
the change is one of degree, not one of kind.
No. 3]
THE CANADIAN BILL OF RIGHTS
As far as his first point is concerned, one could easily agree
that it might have been preferable for Parliament to have made
section 2 of the Canadian Bill of Rights more explicit, but it did
not, and speculating what might have been will not nece’ssarily
provide us with a valid interpretation of what has in fact been
adopted.
Chief Justice Cartwright was joined in dissent by Mr. Justice
Abbott, who had sat on the bench in the Robertson and Rosetanni
case, and by Mr. Justice Pigeon, who had not. Mr. Justice Abbott’s
judgment was very brief – he merely agreed with the Chief Justice,
with Pigeon, J., and with Davey J.A., in the Gonzales case, that
section 2 merely provides a canon of interpretation. The view taken
by the majority, he said: 34
necessarily implies a wide delegation of the legislative authority of
Parliament to the courts. The power to make such a delegation cannot
be questioned but, in my view, it would require the plainest words to
impute to Parliament an intention to extend to the courts, such an
invitation to engage in judicial legislation. I cannot find that intention
expressed in s. 2 of the Bill.
Mr. Justice Pigeon gave the longest and most explicit dissenting
judgment in the Drybones case.
With the greatest respect, one cannot help but conclude that
Mr. Justice Pigeon’s judgment was motivated by a desire to avoid
the difficult role which the Supreme Court would probably assume
with a finding that section 2 of the Canadian Bill of Rights renders
“inoperative” any statute inconsistent with the terms of the Bill.
Thus, he pointed out that “the rights and freedoms enumerated in
s. 1 are not legal concepts of precise and invariable content.”
Further he went on to say that: 35
The meaning of such expressions as “due process of law”, and “equality
before the law”, “freedom of religion”, “freedom of speech”, is in truth
to individual views and
largely unlimited and undefined. According
the evolution of current ideas, the actual content of such legal concepts
is apt to expand and to vary as is strikingly apparent in other countries.
In the traditional British system that is our own by virtue of the
B.N.A. Act, the responsibility for up-dating the statutes in this changing
world rests exclusively upon Parliament.
It should be noted that Mr. Justice Pigeon’s judgment does not
state that Parliament could not pass to the courts the power of
declaring statutes inoperative on the ground of being contrary to
the Canadian Bill of Rights. Rather, he emphasized that if Parlia-
34 Supra, n. 23, at p. 299.
35Ibid., p. 306.
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ment had so intended, it would have done so in plain terms. Since
it did not explicitly grant this power to the courts, he reasoned
that such wide-reaching power was not intended. He buttressed
this conclusion with a number of arguments. Like Mr. Justice Davey
in the Gonzales case, he referred to the opening paragraph of section
1, whereby the Bill of Rights declares that the human rights and
freedoms “have existed and shall continue to exist.. .”, and de-
duced therefrom that Parliament could not have intended the repeal
or invalidation of legislation then existing. He said: 31
If in s. 1 the act means what it says and recognizes and declares existing
rights and freedoms only, nothing more than proper construction of
existing laws in accordance with the Bill is required to accomplish the
intended result. There can never be any necessity for declaring any
of them inoperative as coming in conflict with the rights and freedoms
defined in the Bill seeing that these are declared as existing in them.
He suggested that it is necessary to choose between section 1 and
section 2 and that he felt that paramount effect should be given
to section 1, because, “it is the provision establishing the principle
on which the whole act rests”.
With respect, it has always been recognized that section 2 is the
“operative” section, whereas section 1 is the “declaratory” section.
This is obvious from the very fact that these are the words used
in the two sections respectively. It may very well be, as the majority
in the Robertson and Rosetanni case found, that the words used
in the opening paragraph of section 1 will induce a court to define
the rights and freedoms in section 1 in the light of the existing law.
Thus, it would have been possible, applying reasoning similar to
that in the Gonzales case, to conclude that the liquor provisions
of the Indian Act did not create “inequality before the law”, just
as the Supreme Court in the Sunday Bowling Alley case had con-
cluded that the Lord’s Day Act did not infringe freedom of religion.
One could disagree with this interpretation, but it is an interpretation
which could logically follow from the analysis of Mr. Justice Pigeon.
However, since an express provision overrides an ambiguous one,
and Mr. Justice Pigeon does so argue, then surely the words in
section 2 of the Canadian Bill of Rights are more explicit than
those in section 1. Finally, section 1 does not purport to be a
direction to the courts as to what to do in “construing and applying”
the law of Canada. Section 2 does.
The other argument used by Mr. Justice Pigeon was that the
approach of the majority “would be a radical departure” from the
36 Ibid., p. 305.
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THE CANADIAN BILL OF RIGHTS
basic British constitutional rule that the courts are not authorized
to fail to give effect to clearly expressed words of Parliament.
He felt that there was nothing in section 2 which clearly shows
that Parliament intended such a drastic change. He did not think
that the crucial words “construed and applied” indicate more than
a rule of construction. He went on to say: 37
Certainly the word “construed” implied nothing else. Does the word
“applied” express a different intention? I do not think so and, even if
thib may appear a trite saying, I must point out that what respondent
asks the Court to do and what the Courts below have effectively done
is not to apply the statute, the Indian Act, but to decline to apply it.
No one could take issue with those who contend, as Chief
Justice Cartwright did, that the meaning of section 2 could have
been made clearer if words had been added or used which made
explicit the intention of Parliament that courts were to declare
laws inconsistent with the Canadian Bill of Rights invalid or in-
operative. However, although one may not like the choice of words,
the intention of Parliament seems obvious that reference to every
law of Canada, “unless it is expressly declared by an Act of Parlia-
ment of Canada that it shall operate notwithstanding the Canadian
Bill of Rights”, shall be so construed and applied as not to abrogate,
abridge, or infringe the rights and freedoms which are enumerated
in the Canadian Bill of Rights. Furthermore, the opening paragraph
ends with the words: “no law of Canada shall be construed or
applied so as to” contravene any civil liberties in the ways therein-
after enumerated. It is no more illogical to conclude, in the light
of these words, that Parliament intended the courts not to apply
a law which abrogates, abridges or infringes rights or freedoms
set out in the Canadian Bill of Rights, than it is to conclude that
the law is to be applied even though it does “abrogate, abridge, or
infringe” these rights and freedoms. A direction to apply a law so
as not to bring about a certain result must clearly be a direction
not to apply that law. It would seem, then, that by the opening
paragraph of section 2 Parliament intended what the majority of
the Supreme Court said it intended, and that is that courts are
to declare “inoperative” any laws which contravene the Canadian
Bill of Rights.
The specific choice of the term “inoperative” as an alternative,
to “void”, or “invalid”, must have been intended to restrict the
effect of these decisions to the particular fact circumstances. Thus,
section 94 of the Indian Act is not void, and in fact, as will be
37Ibid., p. 304.
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argued later in this article, is operative in all parts of Canada unless
another “law of Canada” provides for a lesser sanction for people
other than people who are Indians within the terms of the Indian
Act.37a
Mr. Justice Ritchie, on behalf of the majority, adopted the
words of Mr. Justice Cartwright in the Robertson and Rosetanni
case, and confirmed what has been stated just above. He laid
considerable stress upon the non-obstante clause in section 2. Mr.
Justice Pigeon made reference to the fact that when Parliament
enacts legislation, it is presumed to be aware of the state of the
law. Surely, one must at the same time conclude that Parliament
would not, in the very same paragraph, add a completely superfluous
clause, thus, as Mr. Justice Ritchie said, “a more realistic meaning”
must be given to the opening paragraph of section 2. The non-
obstante clause is a clear indication that Parliament intended that
laws which do not contain the clause, and which cannot sensibly
be construed and applied so as not to abrogate, abridge or infringe
the rights and freedoms enumerated in the Bill, then such law
must be inoperative.
Manner and Form, Parliamentary Sovereignty
It should be pointed out that both the minority and majority
judgments in the Drybones case made no explicit reference either
to the question of entrenchment or to that of Parliamentary sover-
eignty.
Quite rightly, no reference was made to the fact that the
Canadian Bill of Rights is not entrenched, and therefore of less
effect. The matter of entrenchment has been confused as being
necessarily bound up with the doctrine of Parliamentary sover-
eignty. It has to be emphasized that entrenchment is nothing more
nor less than a matter of procedure. Of itself it does not place
substantive limitations on the power of Parlament, but rather
procedural limitations.
Although not so explicitly worded, the majority decision in the
that
Drybones case must be taken as support for the proposition”
Parliament can impose a “manner and form” requirement for the
enactment of certain types of legislation, and that such a require-
ment, until changed, is applicable whether one accepts the doctrine
37a Therefore, Regina v. Whiteman (No. 2) (1970), 13 C.R.N.S. 356 was wrongly
decided on this point. However, as the case is now being appealed, further
comment can await further decision.
3 Tarnopolsky, supra, n. 27, Chapter III, pp. 66-89.
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THE CANADIAN BILL OF RIGHTS
of Parliamentary sovereignty or not. It has to be acknowledged
that the facts of this particular case are particularly consistent with
the doctrine of Parliamentary sovereignty in that the Indian Act
is a prior statute of Parliament, while the Canadian Bill of Rights
is a subsequent Act of Parliament. Therefore, applying the tra-
ditional Diceyan view 39 of Parliamentary sovereignty which states,
inter alia, that a subsequent Act of Parliament overrides any prior
Act of Praliament to the extent of any inconsistency, the decision
in the Drybones case would seem to be a substantiation of this
doctrine. In fact, the dissenting judgments in the Drybones case,
and the decision of Mr. Justice Davey in the Gonzales case, although
purporting to apply the law in accordance with the supremacy
of Parliament, fly in the very face of the doctrine of Parliamentary
sovereignty.
Nevertheless, Mr. Justice Ritchie made specific reference
to
section 5(2) of the Canadian Bill of Rights, which purports to
apply the provisions of the Bill of Rights to laws of Canada enacted
before or after the coming into force of the Bill of Rights. And
he goes on to refer to the protection of “equality before the law”
as if it were to apply equally to pre-existing, or to subsequent legis-
lation. This could be a recognition, as some have stated,4 0 of the
fact that Parliamentary sovereignty has come to an end. On the
other hand, inasmuch as a major reason given by Mr. Justice Ritchie
for his conclusion that section 2 renders inconsistent legislation
inoperative, is the specific inclusion of the non-obstante clause,
one could deduce from this that the clause was intended to protect
and maintain the doctrine of Parliamentary sovereignty, by acknow-
ledging the need for imposing a “manner and form” requirement.
Thus it could be argued that if Parliamentary sovereignty still
exists today, Parliament can direct the courts to apply laws which
do not contain the non-obstante clause, whether enacted before
or after the Canadian Bill of Rights, only if they are consistent with
the Canadian Bill of Rights.
It may very well be that Parliamentary sovereignty in a specific
field, such as that of civil liberties, can only be restricted if the
restrictions are to be found in the very statute which grants
Parliament the authority to make laws. This would seem to be
the purport of the decision of the Judicial Committee of the Privy
39A. V. Dicey, Introduction to the Study of the Law of the Constitution,
10th ed. revd. by E. C. S. Wade, (London, 1961), pp. 39 ff.
40S. R. Peck, “The Supreme Court’s New Supremacy”, Globe and Mail,
March 14, 1970, 7.
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Council in Bribery Commissioner v. Ranasinghe.4 1 If this were to
be so, then the only way that Parliamentary sovereignty could
be restricted so as not to permit deliberate Parliamentary
in-
fringements of civil liberties, would be if the Canadian Bill of Rights
were included in the British North America Act. Nevertheless, this
issue should not be confused with that of entrenchment, because
the Canadian Bill of Rights, which could limit Parliament, (or the
provincial legislatures or both if the British North America Act
were appropriately amended), could yet be left unentrenched if
the amending procedure for the Bill of Rights is the same as
the procedure for enacting any other Act of Parliament. Or, in
other words, a Bill of Rights does not have to be entrenched in order
to override inconsistent legislation. Conversely, even if entrenched, a
Bill of Rights does not necessarily override inconsistent legislation.
The question is: was it intended to do so?
Thus, the mere fact that the Canadian Bill of Rights can be
amended in the ordinary manner by the Canadian Parliament, in
no way detracts from its overriding power while it is in existence.
It is true that Parliament can repeal the Canadian Bill of Rights
tomorrow by simple majority. However, until it does so, it has now
provided a “manner and form” requirement under which no law
of Canada can operate if it “abrogates, infringes or abridges” those
civil liberties enumerated in the Canadian Bill of Rights, and does
not have a required non-obstante clause outlined in the opening
paragraph of section 2. Parliament seems to have recognized this
fact when enacting the Public Order (Temporary Measures) Act,
1970, because s. 12 of this Act explicitly includes the non-obstante
clause of s. 2. of the Canadian Bill of Rights.
Drybones and Equality Before the Law
The other main issue dealt with in the Drybones case, and in
the Gonzales case, was the meaning of the clause “equality before
the law”. There is no doubt but that this phrase was taken from
the Fourteenth Amendment of the United States Constitution. How-
ever, it should be noted that the wording is different. In the
Fourteenth Amendment reference is made to “equal protection
of the laws”.
In the Gonzales case, Mr. Justice Tysoe referred to the opening
paragraph of section 1 in which reference is made to the existence
of the freedom “without discrimination by reason of race, national
41 [1965] A.C. 172.
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THE CANADIAN BILL OF RIGHTS
origin, colour, religion, or sex”, and suggested that these were not
qualifying words, but that this phrase was to be interpreted merely
for the purpose of emphasizing “that the rights and freedoms exist
for all persons no matter who they may be”. He referred to the
fact that in the United States laws dealing with Indians, which
are similar to the Canadian laws, have been upheld by the courts.
However, it should be pointed out that the “equal protection of
the laws” clause in the Fourteenth Amendment to the American
Constitution is a restriction only upon certain rights, and upon
the states, not upon Congress. Since legislative jurisdiction with
respect to Indians is federal, and since the “equal protection of
the laws” clause does not restrict Congress, the situation is not
analogous.
Mr. Justice Tysoe went on to point out that the same rights,
privileges, duties and obligations cannot rest upon all members
of society. He suggested that in a civilized society certain persons
must be denied rights or privileges of some particular kinds, and
that equality before the law is a practical impossibility. He made
an analogy to himself as a judge being denied the right to the
federal franchise. He suggested that the expression “equality before
the law” means that the law shall be “applied equally and without
fear or favour to all persons to whom the rights extend”. He
went on to give his own definition: 42
It is sufficient to say that in my opinion in its context s. 1(b) means
in a general sense that there has existed and there shall continue to
exist in Canada a right in every person to whom a particular law relates
or extends, no matter what may be a person’s race, national origin,
colour, religion or sex, to stand on an equal footing with every other
person to whom that particular law relates or extends, and the right
to the protection of the lawv… So all persons to whom a particular
law relates or extends shall be on the same level in such respects, and
no one of such persons shall be in either a more or less advantageous
position than any other of such persons, provided that the requirements
of the particular law have been met.
In the Drybones case, Mr. Justice Ritchie correctly pointed out
that pursuant to this interpretation “the most glaring discriminatory
legislation against a racial group would have to be construed as
recognizing the right of each of its individual members to ‘equality
before the law’ “, so long as all the other members are being dis-
criminated against in the same way. In his concurring judgment,
Mr. Justice Hall more vividly illustrated the fallacy of the reasoning
of Mr. Justice Tysoe by comparing its effects to the infamous
42 Supra, n. 29, 296.
McGILL LAW JOURNAL
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“separate but equal” interpretation first put forth in the United
States in the case of Plessy v. Fergusson,43 and finally repudiated
in 1954 in the case of Brown v. Board of Education.44
Mr. Justice Ritchie, while disclaiming that he was giving an
exhaustive definition of the clause, suggested: 44a
… that s. 1(b) means at least that no individual or group of individuals
is to be treated more harshly than another under that law, and I am
therefore of the opinion that an individual is denied equality before
the law if it is made an offence punishable at law, on account of his
race, for him to do something which his fellow Canadians are free to
do without having committed any offence or having been made subject
to any penalty.
Further on in his judgment he emphasized that the judgment is
to be limited: 44b
… to a situation in which, under the laws of Canada, it is made an
offence punishable at law on account of race, for a person to do something
which all Canadians who are not members of that race may do with
impunity; in my opinion the same considerations do not by any means
apply to all the provisions of the Indian Act.
Although Mr. Justice Ritchie does not make this explicit, it would
seem clear that the Drybones case would not be applicable to the
operation of section 94 of the Indian Act in any of the provinces
of Canada. The reference in the Canadian Bill of Rights is to “the
law of Canada”, which is defined as referring to that law which
is within the legislative jurisdiction of Parliament. Therefore, an
inequality which arises because of different provisions in a federal
statute as contrasted with a provincial statute, would not be
covered by the present “equality before the law” clause in the
Canadian Bill of Rights. Thus, although the Indian Act limits the
testamentary rights of Indians in a way that no provincial laws
limit the testamentary rights of any other person, this provision
in the Indian Act could not be declared inoperative merely on the
strength of the Drybones decision. It cannot apply to an inequality
which arises because of the operation of a federal law and a
provincial law. For one thing, this answers Mr. Justice Pigeon’s
problem which he says arises out of the fact that Parliament is
given specific legislative jurisdiction with respect to Indians and
their lands. He was bothered by the fact that almost any legislation
in the Indian Act, unless it treats Indians equally with everyone else,
43 163 U.S. 537, (1896).
44 347 U.S. 483 (1954). To the same effect see Tarnopolsky, supra, n. 27,
p. 217.
44a (1970) 9 D.L.R. (3d) 473, at p. 484.
44b Ibid., at pp. 485-486.
No. 3]
THE CANADIAN BILL OF RIGHTS
even, or perhaps, if it treats Indians better than anyone else, would
necessarily be declared invalid. Whether this should be so or not
is not the issue for this article. The effect of the Drybones decision
does not go that far. The decision is limited to an inequality which
arises by operation of two or more provisions in federal statutes
or regulations.
On the other hand, it would seem that that part of Mr. Justice
Tysoe’s judgment is correct which indicated that the “equality
before the law” clause is not necessarily restricted only to inequality
as between members of different races, religions, etc., since the
non-discrimination clause in the opening paragraph of section 1
merely affirms that the rights and freedoms therein listed belong
to everyone.
Similarly, one might question whether the courts should get
involved at all in the issue that is so often raised with respect
to the Indian Act at least, and that is whether the liquor provisions
in the Act were intended as a protection for Indians, or as a dis-
advantage for them. Even though it is true that some of the original
provisions were inserted at the request of Indian Chiefs who feared
the effects of alcohol on their people, no evidence has ever been
produced to show that there is a biological incapacity on the part
of Indians when consuming alcohol. At most, there may be some
sociological explanations, but since these are removable it does not
seem a valid or predictable base for a court to judge whether the
legislation is beneficial or not.
Rather, it would seem that the only rational interpretation to
be given to the clause is that offered by the American courts,
which is: “whether the challenged classification rests on grounds
wholly irrelevant to the achievement of a valid state objective”.45
To restate in the light of the particular issue involved, I would
suggest that the test might be “is the law reasonably justifiable in
a liberal-democratic state which is committed to a policy of non-
discrimination?”
Part III –
Judicial Interpretation of the Canadian
Bill of Rights –
Specific Provisions
Section 1(a) –
“Due process of law”
Although in the United States the “due process of law” clause
has been the subject of more cases and articles than any other part
45 Turner v. Fouche, 90 S. Ct. 532, 541 (1969).
McGILL LAW JOURNAL
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of the American Constitution,46 it has received almost no definition
in Canada. In the first few years after the enactment of the Canadian
Bill of Rights, the various courts did not go further then to equate
the “due process of law” clause to “the law of the land as ap-
plied to all the rights and privileges of every person in Canada
when suspected of or charged with a crime, and including a trial
in which the fundamental principles of justice so deeply rooted
in tradition apply”.47
This early reluctance to define the due process clause has con-
tinued 4s even after the Drybones decision.4 9 It would appear, there-
fore, that the following summation, made in 1966, would still
apply today: 50
… [T]he due process clause in the Fourteenth Amendment was given
a broad definition because vis-&-vis the states there is not a long list of
specific prohibitions as in the first eight amendments vis-&-vis the federal
government. In the case of the Canadian Bill of Rights, on the other hand,
the due process clause is listed as one of a number of specific rights and
freedoms. Thus, for instance, there is no need to develop concepts of liberty
of speech, press, religion, assembly and association out of the due process
clause because these are explicitly set out. Then, too, s. 2 lists specifically
many of the procedural safeguards which the American courts had to
evolve out of the due process clause… It would appear that the due
process clause would be relied on in those cases where there is a
purported infringement of a purported right which is not listed in ss. 1
or 2. Thus, if an accused person claims that his property has been illegally
searched or seized, he would probably rely on the due process clause.
Section 1(b) — “Equality before the law”
The most important case on this topic is the Drybones case.
However, there are several other decisions, rendered after Drybones,
that should be looked at briefly. One group of these cases concerns
the vagrancy clause in the Criminal Code woa and prompts one to
wonder how long the “Women’s Liberation” movement will tolerate
such special status for some women. Or, are some women more
equal than others?
46 W. J. Brockelbank, The Role of Due Process in American Constitutional
Law, (1953-54), 30 Cornell L.Q. 561, at p. 565.
47 Regina v. Martin (1961), 35 C.R. 276, at p. 290.
4SWhitfield v. Canadian Marconi Company (1968), 68 D.L.R. (2d) 251; af-
firmed by (1968), 68 D.L.R. (2d) 766 (S.C.C.).
49 Regina v. Provincial Court Judges; Ex Parte Nevin (1971), 2 O.R. 25;
Regina v. Rival [1971] 1 W.W.R. 223.
5OTarnopolsky, supra, n. 27, p. 154.
Soa Crim. Code, s. 164(1).
No. 3]
THE CANADIAN BILL OF RIGHTS
In the first of theser’ a judge of the provincial court referred
to Mr. Justice Ritchie’s judgment in the Drybones case, and decided
that: 51a
[Slection 164(1) (c) of the Criminal Code, being a statute of the Parliament
of Canada, creates an offence whereby a female person having a specific
status which is not an offence punishable at law, and I emphasize those
words, is denied the right to do something her fellow Canadians are free
to do without having committed any offence or having been made
subject to any penalty, namely: “being found in a public place … is
required to give a good account of herself.”
He therefore held that section 164(1)(c) of the Criminal Code is
inoperative on the basis of the Drybones case. Subsequently, how-
ever, in two other cases the courts came to a different conclusion.
In the case of Regina v. Beaulne, Ex parte Latreille,52 Mr. Justice
Houlden of the Ontario High Court held that section 164(1)(c)
of the Criminal Code is not inoperative by virtue of the “equality
before the law” clause in the Canadian Bill of Rights, because the
Criminal Code section does not apply to all females, but merely
to a particular group of females. Similarly, in the case of Regina
v. Lavoie,15 a judge of the county court in British Columbia came
to the same conclusion.
There is no doubt but that section 164(1)(c), which provides
that: “Every one commits vagrancy who being a common prostitute
or a night walker is found in a public place and does not,, when
required, give a good account of herself;” is a provision which ap-
plies only to females. It is a law of Canada which treats females
on a different basis than males, without any reasonable justification.
There is no reason to assume that a “common prostitute” or a
“night walker” is more offensive or more or less able to fend
for herself than is a “gigolo”. Whether one agrees or not, this would
seem to be a case of “inequality before the law” and therefore should
result in the section being declared inoperative, until or unless
the provision is amended to cover males as well.
In fact, one could question whether the whole vagrancy section
is not discriminatory as between rich and poor. It is a provision
which treats everyone equally only in the sense suggested by Anatole
France of the law which equally forbids the rich and the poor
to beg in the streets.
G’Regina v. Viens (1970), 10 C.R.N.S. 363.
ia Ibid., at p. 372.
.52 [1971] 2 C.C.C. (2d) 196, 1 O.R. 630.
53 [1971] 2 C.C.C. (2d) 185, [1971] 1 W.W.R. 690.
McGILL LAW JOURNAL
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The other major area in which arguments have been raised on
behalf of accused that they have not received “equality before the
law”, comes in that of discretionary alternate criminal procedures.
Perhaps the best known of these cases is Regina v. Smythe.5 4 This
was a decision of the Supreme Court of Canada which held that
a clause which confered a discretion on the Crown whether to
proceed by way of summary conviction or by indictment does not
contravene the “equality before the law” clause in the Canadian
Bill of Rights. Similarly, in Re McClary’s Prohibition Application,15
the Alberta Supreme Court held that the right of the Attorney-
General under the Federal Food and Drug Act to proceed by way
of indictment or by summary proceeding was not contrary to the
Canadian Bill of Rights because the Act applied equally to all
Canadians. Both of these cases followed an earlier decision of the
Quebec Court of Appeal 56 dealing with a similar discretion under
the Income Tax Act.
Two additional cases should be referred to, if only because
one misinterpreted the Drybones decision, and the other applied
it. In Re Shea,57 a decision of the Nova Scotia Supreme Court,
it was stated: 57a
With respect, I cannot find that the Supreme Court of Canada has thereby
[Regina v. Drybones] laid down any principle of general application that
would state that where any statute of Canaaa is in conflict with the
Bill of Rights, the Bill shall prevail. Even Ritchie, I., is careful to say
“it is unnecessary to express any opinion respecting the operation of any
other section of the Indian Act”. The implication of those words must
be that the decision is meant to extend no further than a single section
of the Indian Act, R.S.C. 1952, c. 149, and I cannot see that it necessarily
extends to all federal law.
With respect, although the learned Judge may be right that since
the Immigration Act provides procedures that apply equally to
all members of the class of immigrants concerned, and thereby
does not violate the Canadian Bill of Rights, his statement about
the effect of the Drybones case is mistaken.
In Regina v. Chapman and Currie,”8 Algoma District Court Judge
Vannini held that section 6 of the Habeas Corpus Act could not
be applied merely to those few who are committed for trial to Courts
54 [1971] 3 C.C.C. (2d) 366.
55 [1971] 1 W.W.R. 741. See also Regina v. Fauth (1971), 13 C.R.N.S. 353.
56 Regina v. Court of Sessions of the Peace et al., Ex Parte Lafleur [19673
3 C.C.C. 244.
57 [1970] 5 C.C.C. 107.
57a Ibid., pp. 114-115.
58 [1971] 1 O.R. 601.
No. 3]
THE CANADIAN BILL OF RIGHTS
of Assize, because such an interpretation would be a denial of the
“equality before the law” clause and therefore, contrary to section
1(b) of the Canadian Bill of Rights. This judgment was affirmed
by the High Court.59
Section 1(c) to (f) –
“Freedoms of religion, speech, assembly and
association, and of the press.”
Although the Canadian Bill of Rights declares the fundamental
freedoms of religion, speech, assembly, association, and press, with-
out any qualifying or restrictive clauses, a very certain prediction
is that these freedoms will never be interpreted in an absolute,
unfettered manner. Even in the United States, where the First
Amendment declares that, “Congress shall make no law.., abridging
the freedom of speech, or of the press”, the United States Supreme
Court has upheld sedition laws, libel and slander laws, obscenity
laws, etc., as long as they have been, in the opinion of the judiciary,
reasonable restrictions consistent with the needs of a liberal de-
mocratic state.
The most important case on freedom of religion since the
Canadian Bill of Rights was enacted was the case of Robertson
and Rosetanni v. The Queen (Sunday Bowling Alley case) which
was discussed earlier.00 Only one judge, Mr. Justice Cartwright,
found that the Lord’s Day Act, which prohibited pursuing one’s
ordinary calling on a Sunday, was invalid because of conflict with
section 1(c) of the Canadian Bill of Rights. The majority held that
the freedom of religion which was guaranteed by the Canadian
Bill of Rights must have been intended to contemplate the continuing
validity’of the Lord’s Day Act. The majority judgment specifically
endorses the suggestion made above that these freedoms must
be interpreted with some limitations: 61
It is to be remembered that the human rights and ffndamental freedoms
recognized by the courts of Canada before the enactment of the Canadian
Bill of Rights and guaranteed by that statute for the rights and freedoms
of men living together in an organized society subject to a rational,
developed and civilized system of law which impose certain limitations
on the absolute liberty of the individual.
In the case of Regina v. MacLeod et al.0 2 the British Columbia
Court of Appeal held that the freedom of the press under section
1(f) had to receive the same meaning as that given to the phrase
50 Ibid., p. 617.
6oSupra, n. 18.
61 Ibid., p. 655.
62 (1970), 75 W.W.R. 161, [1971] 1 C.C.C. (2d) 5.
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“freedom of speech” in section 1(d), and must mean that it is a
freedom which is governed by law. Similarly, in the case of Regina
v. Prairie Schooner News Ltd. and Powers, 3 the Manitoba Court
of Appeal held that the freedom of the press protected by the
Canadian Bill of Rights in section 1(f) did not result in making
section 150 of the Criminal Code, which deals with obscenity,
inoperative. The freedoms protected in the Canadian Bill of Rights
were not without limit. The future controversies, then, will not
be whether limits must be placed, but rather where and when to
place them.
Because of the phraseology chosen by Mr. Justice Ritchie, who
gave the judgment of the majority in the Sunday Bowling Alley
case,63
a there was some possibility that the effect of the decision
would be to define the freedom of religion protected by the
Canadian Bill of Rights in terms of the extent of the freedom on
the day that the Canadian Bill of Rights was enacted, i.e., August
10th, 1960. Thus he said: 64
It is to be noted at the outset that the Canadian Bill of Rights is not
concerned with ‘human rights and fundamental freedoms’ in any abstract
sense, but rather with such ‘rights and freedoms’ as they existed in Canada
immediately before statute was enacted.
Fortunately, Mr. Justice Ritchie specifically rejected this interpret-
ation in the Drybones case where he emphasized that the decision
in the Sunday Bowling Alley case could not be considered “to
be any authority for the suggestion that the Bill of Rights is to
be treated as being subject to federal legislation existing at the
time of its enactment…” 65
Section 2(a) –
“Arbitrary detention, imprisonment, or exile”
Only one case has dealt with this clause, and that is the Ontario
Hight Court case of Ex parte Beauchamp,6″ in which the petitioner
asked for a writ of habeas corpus to obtain his release from com-
mittal due to suspension of his parole. The applicant alleged that
the parole board did not consider his story in coming to its decision,
and that section 12 of the Parole Act violated section 2(a) and (c)
of the Canadian Bill of Rights. The court rejected this contention,
although it did go on to say that the parole board had a duty to
act fairly, and if it did not do so,mandamus might lie.
6 [1971J 1 C.C.C. (2d) 251.
63a Supra, n. 18.
64Ibid., p. 654.
6OSupra, n. 20, pp. 295-6.
66 [1970] 3 O.R. 607, [1971] 1 C.C.C. 101.
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Section 2(b) –
“Cruel and unusual treatment or punishment”
The Supreme Court of Canada came to deal with this clause
as early as 1964, in the case of Magda v. The Queen.6 7 In this case
the petitioner alleged that he was interned by Canadian authorities
during World War II and subjected to “cruel and unusual treatment
and punishment”. However, the Supreme Court held that there
was no liability in the Crown under Section 19(1) (c) of the Ex-
chequer Court Act, and also rejected the petition as claimed on
the grounds that the Canadian Bill of Rights was not in force
during the period referred to, and, “…
the pre-existing rights
which it recognized do not include the right to bring an action in
tort against the Crown except as specifically provided by statute”.67 a
Two cases arose in 1965. In Ex Parte Kleinys, 8 the British
Columbia Supreme Court held that the detention of an accused
subsequently found to be insane, pursuant to sections 523 and 526
of the Criminal Code, was not “cruel and unusual treatment or
punishment”, even though the detention was at the discretion of
the Lieutenant Governor. The other case came before the Manitoba
Court of Appeal as Regina v. Dick, Penner and Finnegan.69 The
majority held that a sentence of whipping for rape, rendered under
s. 136 of the Criminal Code, was not contrary to s. 2(b) of the
Canadian Bill of Rights (corporal punishment). The court held,
it may be “cruel” to some people, but it is not an “unusual”
punishment.
In the most recent decision”0 on this clause, an Ontario Pro-
vincial Court Judge held that section 660 of the Criminal Code,
which provides for a sentence of indeterminate length for a habitual
criminal, is not cruel and unusual punishment so as to violate
section 2(b) of the Canadian Bill of Rights.
Section 2(c)(i) –
“Prompt informing of reason for arrest
or detention”
There has been almost no judicial interpretation of the right
of “a person who has been arrested or detained.., to be informed
promptly of the reason for his arrest or detention”, except in the
67 [1964] S.C.R. 72.
67a Ibid., p. 78.
68 (1965), 49 D.L.R. (2d) 225.
69 [1965] 1 C.C.C. 171.
7ORegina v. Buckler [1970] 2 C.C. 4, [1970] 2 O.R. 614.
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case of Regina v. Viens, mentioned earlier.71 Provincial Judge
Morrison dealt with the charge that the accused: 71a
“Being a common prostitute or a night walker was found in a public
place and when required failed to give a good account of herself. Contrary
to section 164(1)(c) of the Criminal Code of Canada.”
The evidence was that the accused was stopped in a street by a
detective who asked her to give an account of her earlier actions
in a restaurant, and a hotel nearby. She replied that she would
not give any account of herself until she had spoken to her lawyer.
The court held that, by applying the Shorter Oxford English
Dictionary definition of the word “to detain”, i.e., “to keep from
proceeding; to keep waiting; to stop”, the accused was “detained”.
Therefore, she had the right to invoke the protections of section
2(c) of the Canadian Bill of Rights. She had, therefore, properly
invoked her legal right to refuse to give an account of herself
until she had spoken to her lawyer. The court then went on to
hold that such an invocation of her legal rights could not be used
“as evidence that she failed to give a good account of herself, and
in the circumstances of this case, I find that she did give a good
account”. The judge also found that the accused was not found
in a public place, and that section 164(1)(c) of the Criminal Code
was inoperative on the grounds that it contravened section 1(b)
of the Canadian Bill of Rights.
Sections 2(c)(ii) and (d) –
“Right to counsel”
At the outset a number of observations must be made about
the right to counsel in the Canadian Bill of Rights. In the first place,
the right to counsel outlined in section 2(c)(ii) applies to the
period between arrest and trial while the right to counsel in section
2(d) arises only when “a court, a tribunal, a commission, board
or other authority” compels “a person to give evidence”. Secondly,
it should be noted that both clauses are worded differently from
the “right to counsel” clause in the Sixth Amendment of the
American Constitution, which reads: “… [I]n all criminal prose-
cutions, the accused shall enjoy the right.., to have the Assistance
of Counsel for his defense.” It is possible that some day Canadian
courts will evolve, out of the right to counsel clauses
in the
Canadian Bill of Rights, the same obligation upon the state to
provide legal counsel as has been held to apply in the United States.
However, the wording is different. In section 2(c)(ii) it is “a right
71 Supra, n. 51.
71a Ibid., p. 365.
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to retain and instruct counsel without delay”, and in section 2(d)
it is the right not to be compelled “to give evidence” if a person
is denied counsel. This is somewhat less positively stated than in
the American clause which provides for the right “to have the
assistance of counsel for his defense”. On the other hand, the
Sixth Amendment to the American Constitution refers to criminal
prosecutions, whereas no such restriction applies, at least in para-
graph (d) of section 2 of the Canadian Bill of Rights. The right
to counsel in the United States has, of course, been developed to
include non-criminal proceedings, but this has been a recent devel-
opment expanding the right to counsel through a broad interpret-
ation of the “due process of law” clause in the Fifth and Fourteenth
Amendments to the United States Constitution.
From the beginning Canadian courts were not prepared to give
great effect to the “right to counsel” clauses. Thus, in Re Walsh
and Jordan 72 the Ontario High Court held that the word “counsel”
did not necessarily have to be “legal” counsel, and so the provision
under the Royal Canadian Mounted Police Act which prohibited
legal counsel was held not to be in conflict with section 2(c)(ii)
nor with s. 2(d), nor (e) –
“the “fair hearing” clause”.
There were some early decisions where reliance upon the right
to counsel was successful. Thus, in Regina v. Gray,73 a British
Columbia provincial magistrate held that a denial of the right to
counsel under section 2(c(ii) would result in a failure to accord
the accused a “fair hearing”, as provided for in section 2(e), and
therefore the accused could not make a full answer and defense,
and so should be acquitted. Similarly, in Re Sommerville,74 Disbery
J. of the Saskatchewan Court of Queen’s Bench granted an order
of prohibition against a provincial magistrate who denied counsel
to a person who was being questioned pursuant to section 174
of the Canadian Criminal Code as being a “found-in”. The learned
judge found that the denial of counsel was contrary to section
2(d) as well as (e). Shortly thereafter, however, the Nova Scotia
Supreme Court in the case of Regina v. Steeves, 75 held unanimously
that although the accused was questioned following his arrest on
a charge of failing to stop at the scene of an accident, contrary
to section 221(2) of the Canadian Criminal Code, and was denied
access to counsel, he could not be acquitted on the ground that
72 (1962), 31 D.L.R. (2d) 88.
73 (1962), 123 C.C.C. 337.
74 (1962), 133 C.C.C. 323.
75 [1964] 1 C.C.C. 266.
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this contravened either the right to counsel under section 2(c) (ii)
or (d), or the right to a fair hearing under section 2(e) of the
Bill of Rights. Similarly, the Manitoba Court of Appeal in the case
of Regina v. Piper76 held that although the accused did not have
counsel at his trial (there was no evidence that he had requested
counsel), neither section 2(d) nor (e) applied so as to invalidate
the trial.
This decision was applied by the British Columbia Court of
Appeal in the case of Re Vinarao77 The court quoted the headnote
of the Piper case, which reads as follows: 77a
Section 2(c)(ii) of the Canadian Bill of Rights, 1960 (Can.) c. 44, provides
only that an accused has the right to retain counsel, and that he might
receive free legal aid, a failure so to advise the accused is not an infringe-
ment of the Bill of Rights since he was not deprived of the privilege to
retain counsel.
Therefore, the court in the Vinarao case held, a failure by a Special
Inquiry Officer under the Immigration Act to inform the applicant
that she had a right to counsel did not contravene the Canadian
Bill of Rights, because she was not “denied or deprived of the
right of counsel”.
A few years later, however, in Regina v. Ballegeer,71 the Manitoba
Court of Appeal unanimously allowed an appeal to quash a con-
viction and sentence on a plea of guilty, and directed a new trial,
in a case where the accused showed that he had made and signed
a statement when he had been “actively and deliberately” denied
the right to obtain legal advice. On behalf of the court, Mr. Justice
Freedman (as he then was), stated: 79
The facts surrounding this aspect of the case are disturbing to anyone
who prizes the rights of individual liberty in a free society. Among these
is assuredly the right, on being arrested or detained, to retain and instruct
counsel without delay. This is a right enshrined in English common law,
vindicated by many judicial decisions of high authority, and clearly and
unmistakably affirmed in the Canadian Bill of Rights, 1960 (Can.), c. 44
s. 2(c)(ii).
Perhaps the most important case to deal with the right to
counsel was the decision of the Supreme Court of Canada
in
O’Connor v. The Queen.80 The accused was driving his car when
he was stopped by a policeman at about 1:20 a.m. The constable
76 (1965), 51 D.L.R. (2d) 534.
77 (1968), 66 D.L.R. (2d) 736.
77aIbid., pp. 739-40.
78 (1969), 1 D.L.R. (3d) 74.
79 Ibid., 76.
80 [1966] S.C.R. 619, 57 D.L.R. (2d) 123.
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decided that the accused’s driving was impaired and so he arrested
him and took him to the police station, although the accused did
not know he was under arrest and was not informed of this until
after he had been given two breathalizer tests. He then requested
permission to telephone his lawyer and was permitted one call.
When he failed to contact his lawyer on the first try, he was denied
permission to make a further call. Subsequently, he was convicted
on a charge of impaired driving. Mr. Justice Haines of the Ontario
High Court reversed the decision, and held that the case should
be re-tried ignoring the evidence of the breathalizer. 81 This judg-
ment was reversed by the Ontario Court of Appeal,8 2 and the
Supreme Court of Canada unanimously dismissed the appeal from
the Ontario Court of Appeal.
On behalf of himself and three other members of the Supreme
Court, Mr. Justice Ritchie dismissed the argument that the mere
denial of the accused’s “right to retain and instruct counsel without
delay” automatically nullified the subsequent proceedings. He ex-
pressed his agreement with the decision of the Nova Scotia Court
of Appeal in the Steeves case to the effect that there is no general
rule that a person who has been denied the right to instruct counsel
without delay must necessarily be acquitted. As far as the argument
that the evidence of the breathalizer should be excluded is con-
cerned, Mr. Justice Ritchie stated that there was no evidence of
the accused being denied the right to obtain and instruct counsel
prior to the taking of the breathalizer evidence. He therefore
concluded in these terms: 83
The evidence in the present case does not, in my opinion, disclose that
the circumstances under which the police refused “to allow the accused
while under arrest to contact a lawyer” were such as to in any way
deprive him “of the right to a fair hearing in accordance with the prin-
ciples of fundamental justice” and I am accordingly of the opinion that
no question arises as to the effect which the Canadian Bill of Rights
might have upon such circumstances if they did exist.
The fifth member of the court, Mr. Justice Spence, agreed with
the majority in the result, but specifically limited his concurrence
to the particular circumstances of this appeal. He specifically went
on to say: 84
There may well be cases where the same failure to warn the accused
that he is under arrest and to state the charge against him results in the
obtaining of evidence which it could not otherwise have been obtained.
81 (1965), 48 D.L.R. (2d) 110.
82 (1965), 52 D.L.R. (2d) 106.
83 Supra, n. 80, p. 628, 57 D.L.R. (2d) at 130.
84 Ibid., p. 629, 57 D.L.R. (2d) at 131.
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The only way that these various decisions could be reconciled
is by concluding that the Supreme Court of Canda did not have
to face the full implications of the right to counsel in section
2(c)(ii) in the O’Connor case because the denial of access to
counsel which occurred in that case, occurred after the taking of
the evidence which was challenged before the Court. As far as
the Manitoba Court of Appeal is concerned, the decision in the
Ballegeer case, overrules the decision in the Piper case, at least
to the extent that the court would probably quash a conviction
where the denial of access to counsel is particularly repellant to
the court. At the moment, one cannot yet envisage the Supreme
Court of Canada being prepared to overrule the Kuruma Rule,”‘
adopted by the Supreme Court of Canada in Attorney General for
Quebec v. Bggin,86 which holds that “the illegality affecting the
method of obtaining the evidence does not affect, per se, the
admissability of this evidence at the trial”.
Section 2(c)(iii) –
“Habeas corpus”
Although several of the cases which have considered the Bill
of Rights involved application for habeas corpus, they were not
dealt with under section 2(c)(iii), probably because this provision
in the Bill of Rights goes no further than to assure a right to
habeas corpus. Habeas corpus has been suspended only once in
Canada since the enactment of the Canadian Bill of Rights, and
this was on October 16th, 1970, with the invocation of the War
Measures Act. Since section 6(5) of the War Measures Act, and
section 6(5) of the Canadian Bill of Rights, specifically provide
for the suspension of the Bill of Rights in the event of the invocation
of the War Measures Act, questions concerning section 2(c) (iii)
could not arise. Section 12 of the subsequent Public Order (Tempo-
rary Measures) Act, 1971, which replaced the invocation of the
War Measures Act in December 1970, specifically invoked the
non-obstante clause in the opening paragraph of section 2 of the
Canadian Bill of Rights, and therefore questions concerning the
applicability of section 2(c) (iii) could not arise while the Act
was in force up to April 30th, 1971.
Section 2(d) –
“Protection against self crimination”
Until recently, various courts have consistently declined to
apply either paragraphs (d) or (e) of Section 2 of the Bill of
85 Kururna v. The Queen [1955] A.C. 197 at p. 204.
86 [1955] S.C.R. 593, 5 D.L.R. 394.
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Rights so as to uphold any right against self-incrimination or a
lack of a fair trial to exclude evidence obtained by a person being
asked to perform certain physical tests8 7 or being required to
take the breathalizer test.8 8
Similarly, in Regina v. McKay,”9 Mr. Justice Dohm of the British
Columbia Supreme Court held that the compellability of an accused
to take a breathalizer test did not amount to self-crimination and
was therefore not contrary to section 2(d) of the Canadian Bill
of Rights. It should be noted that in this case he applied the
decision of Mr. Justice Laskin of the Supreme Court of Canada in
Reference concerning the Proclamation of Section 16 of the Crimi-
nal Law Amendment Act 90 where Mr. Justice Laskin gave probably
the best summation of the views of the Canadian Courts on
this point: 91
There is no compellability of an accused to self-crimination by reason
only of statutory prescriptions for presumptive proof of facts in issue.
In a similar vein, the Ontario Court of Appeal in the case of
Regina v. Steinberg,92 and the British Columbia Supreme Court in
the case of Regina v. Pearson et al,93 both in very brief references,
held that a recording obtained from a wire-tap, or “bugging” device,
did not contravene the right against self crimination in section
2(d) of the Canadian Bill of Rights.
In a case which only briefly dealt with the meaning of sec-
tion 2(d) of the Canadian Bill of Rights, the Ontario Court of
Appeal held 94 that it was not contrary to section 2(d) of the
Canadian Bill of Rights for any employees of a company to be
compelled to testify under the Combines Investigation Act because
such testimony of the employees did not amount to self-crimination.
s Regina v. Martin (1961), 35 C.R. 276.
88 See O’Connor v. The Queen, supra, fn. 80.
89 (1970), 12 C.R.N.S. 122.
90 [1970] S.C.R. 777.
91 Ibid., p. 803. In the past few months these questions have been raised
again in connection with breathalizer tests because accused persons are
not being provided with capsules of their breath as was enacted in the
new legislation but never proclaimed. It is beyond the scope of this article,
however, to speculate on the possible results of these cases when they reach
higher courts.
92 [1967] 1 O.R. 733.
93 (1969), 66 W.W.R. 380.
94 Regina v. Judge of the General Sessions of the Peace for the County
of York, Ex parte Corning Glass Works of Canada Ltd. [1971] 2 O.R. 3.
Application for leave to appeal to the Supreme Court of Canada was refused.
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Section 2(e) –
“Right to a fair hearing”
Although this paragraph has the potential of developing into
the Canadian equivalent of the American “due process of law”
clause, thus far it has received very little interpretation in Canada.
Usually, it has been invoked along with other provisions in the
Canadian Bill of Rights, like paragraphs (c)(ii), (d), or (f).
It has been held that an appeal by way of trial de novo, by
the Crown against an acquittal, pursuant to section 720 of the
Criminal Code, does not amount to double jeopardy for an accused
and therefore is not in conflict with section 2(e).95 The Ontario
Court of Appeal has held that section 467(c) of the Criminal Code,
which gives a magistrate absolute jurisdiction to try a charge of
obstructing a police officer in the performance of his duty, does
not deprive a person of the right to a fair hearing in accordance
with the principles of fundamental justice. 0 In one case,97 an
accused moved for prohibition on the grounds that there was a
real likelihood of his being denied a fair hearing in accordance
with the principles of fundamental justice because the magistrate
lacked a law degree and was ineligible for membership in the
Law Society. The Alberta Supreme Court rejected the contention
that this was a contravention of section 2(e) of the Canadian Bill
of Rights. On the other hand, an accused was able to obtain an
order prohibiting a named judge from proceeding with a charge
on the basis that there were at least two informations and sum-
monses dealing with the same offence, and that to allow the second
summons would be a contravention of section 2(e) of the Canadian
Bill of Rightsf 8
In another case 99 it was held that a delay in laying a charge
might have prejudiced the accused’s ability to make a full answer
and defence to the charge and was therefore a deprivation of the
accused’s right to a fair hearing in accordance with fundamental
justice.
The Supreme Court of Canada has had only one opportunity
to define and apply section (e) of the Canadian Bill of Rights.
This was the case of Guay v. Lafleur.100 Guay was appointed as
95 Regina v. Jordan [1971] 1 C.C.C. 385.
96 Regina v. Judges of the Provincial Court (Criminal Division) of the County
of York, Ex parte Nevin [1971] 2 O.R. 25.
97Pichd v. The Queen (1970), 12 C.R.N.S. 102.
9s Regina v. Bonnycastle, ex parte Welch [19701 4 C.C.C. 382.
9 Regina v. Dixon [1965] 2 O.R. 540.
100 [1965] S.C.R. 12.
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a special inquiry officer by the Minister of National Revenue under
the Income Tax Act to inquire into the affairs of Lafleur in con-
nection with his liability for tax. Lafleur requested to be present
at the investigation session, and to be represented there by counsel.
This right was denied to him. The Supreme Court of Canada
reversed decisions of the trial judge, and the Quebec Court of
Appeal, and held that section 2(e) of the Bill of Rights was not
applicable, “since no rights and obligations are determined by the
person appointed to conduct the investigation.” 101 The majority
of the Supreme Court decided that the person holding the inquiry
neither decides nor adjudicates upon anything, and so the audi
alteram partem rule would not apply because this was not a judicial
or quasi-judicial hearing. One person was charged with the re-
sponsibility of conducting an inquiry, and the decision-making was
in the hands of another.
Since the powers of a Board of Inquiry under the Ontario Human
Rights Code are similar to those of a special inquiry officer under
the Income Tax Act, and since a Board of Inquiry merely recom-
mends to another agency a course of action, and has no right of
binding decision, it would seem that, following its own decision
in Guay v. Lafleur, the Supreme Court should have held that a
Board of Inquiry under the Human Rights Commission is not a
judicial or quasi-judicial body. However, in Bell v. Ontario Human
Rights Commission,10 2 the Supreme Court held, without indicating
how it distinguished the two cases, that the inquiry under the
Ontario Human Rights Commission was unquestionably a judicial
inquiry to which certiorari applies. If some future distinction is
not drawn between the Ontario Human Rights Commission case
and all other cases, then we might look forward to an occasion
on which the Supreme Court will define the scope of section 2(e)
with reference at least to administrative tribunals.
Section 2(f) –
“Presumption of innocence”
Very soon after the enactment of the Canadian Bill of Rights,
several courts considered clauses in the Criminal Code which
provide for presumptions of fact or guilt after proof’of certain
facts, and in the absence of evidence to the contrary. In all cases
it was held that these provisions do not infringe or abrogate the
right of an accused to be presumed innocent until proved guilty
101 Ibid., p. 16.
102 (1971),
18 D.L.R. (3d) 1, overruling the Ontario Court of Appeal in
Regina v. Tarnopolsky ex parte Bell (1920), 11 D.L.R. (3d) 658.
McGILL LAW JOURNAL
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according to law pursuant to section 2(f) of the Canadian Bill
of Rights.10 3
The most recent decision of the Supreme Court of Canada on
this topic substantiates these early cases. In Regina v. Appleby 104
the Supreme Court considered section 224A(1)(a) of the Criminal
Code which reads as follows:
224A(1)
In any proceedings under section 222 or 224, (a) where it is
proved that the accused occupied the seat ordinarily occupied by the
driver of a motor vehicle, he shall be deemed to have had the care or
control of the vehicle unless he establishes that he did not enter or mount
the vehicle for the purpose of setting it in motion.
The Crown appealed from a finding of the Court of Appeal for
British Columbia that the standard of proof required to rebut the
statutory presumption was not proof by the balance of probabilities,
but only proof raising a reasonable doubt. The decision of the
Court of Appeal accorded with its own earlier decision in Regina
v. Silk. 0 5 This case concerned a provision of the Food and Drug Act,
which shifted the onus onto the accused to show that he was not
trafficking, upon proof that he was in possession of a controlled
drug. The Court of Appeal held that to have the accused do more
than raise a reasonable doubt was too great an onus, and would
be contrary to section 2(f) of the Bill of Rights. In the Appleby
case the Supreme Court of Canada overruled the British Columbia
Court of Appeal and held that the provision in question imposed
a burden of proof on the accused “by a preponderance of evidence
or by a balance of probabilities and …
it is not enough for an
accused merely to raise a reasonable doubt”.
In the course of the argument it was contended that this con-
struction of the section ran contrary to the provisions of section
2(f) of the Canadian Bill of Rights. Because it would “deprive
a person charged with the criminal offence of the right to be
presumed innocent until proved guilty according to law”.
Mr. Justice Ritchie, who gave the majority judgment (Mr. Justice
Laskin gave a separate concurring judgment with which Mr. Justice
Hall concurred), rejected this argument by referring to the famous
definition of Viscount Sankey, L.C., in Woolmington v. Director of
Public Prosecutions 10 where he said: 100a
Throughout the web of the English Criminal Law one golden thread is
always to be seen, that it is the duty of the prosecution to prove the
103Regina v. Goldstein (1961), 34 C.R. 314; Regina v. Guertin (1961), 34
C.R. 345; Regina v. Sharpe (1961), 35 C.R. 375.
104 [1971] 3 C.C.C. (2d) 354.
105 [1970] 3 C.C.C. 1, 9 C.R.N.S. 277.
106 [1935] A.C. 462.
loa Ibid., p. 481.
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prisoner’s guilt subject to what I have already said as to the defence
of insanity and subject also to any statutory exception.
Mr. Justice Ritchie declared that the clause “subject to any statutory
exception” must be taken as referring to “those statutory exceptions
which reverse the ordinary onus of proof with respect to facts
forming one or more ingredients of a criminal offence.” He there-
fore concluded: 10T
It seems to me, therefore, that if the Woolmington case is to be accepted,
the words “presumed innocent until proved guilty according to law” as
they appear in s. 2(f) of the Canadian Bill of Rights, must be taken to
envisage a law which recognizes the existence of statutory exceptions
reversing the onus of proof with respect to one or more ingredients of
an offence in cases where certain specific facts have been proved by the
Crown in relation to such ingredients.
If the accused fails to rebut the assumption under section 224A(1)
(a), Ritchie J. said, then he is guilty of an offence under section
222, but, he added: 108
There is in my view nothing in this procedure which deprives the accused
of the right to be presumed innocent until proved guilty according to law
within the meaning of Woolmington v. Director of Public Prosecutions,
supra, and section 2(f) of the Canadian Bill of Rights.
In his concurring judgment, Mr. Justice Laskin defined the
“right to be presumed innocent” in section 2(f) as being one which
gives an accused “the initial benefit of a right of silence and the
ultimate benefit (after the Crown’s evidence is in and as well any
evidence tendered on behalf of the accused) of any reasonable
doubt.” 109
Whether one likes it or not, and at least for the moment, this
decision puts to rest any argument that the reverse onus clauses
are in conflict with the presumption of innocence clause in section
2(f) of the Bill of Rights.
Section 6(5) –
“The Bill of Rights and emergencies”
Although there is no evidence one way or the other, it would
probably be accurate to state that at the time of the enactment
of the Canadian Bill of Rights the invocation of the War Measures
Act during peace time was not in the minds of any of the legislators.
When section 6 of the Canadian Bill of Rights, which is also section
6 of the War Measures Act, was discussed, it seemed clear that
all members of Parliament contemplated a situation similar to
the two World Wars. Nevertheless, the first time that the Canadian
Bill of Rights was suspended pursuant to section 6(5) was on
1o7 Supra, n. 104, pp. 3634.
108 Ibid., p. 364.
109 Ibid., p. 365.
McGILL LAW JOURNAL
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October 16th, 1970, on the basis of a government declaration that
there was an “apprehended insurrection”.
It is beyond the scope of this article to discuss this event at
any length. However, one should perhaps at least note that the
first time the “non-obstante” clause in the opening paragraph of
section 2 came to be applied was in Section 12 of the Public Order
(Temporary Measures) Act, of December, 1970, which replaced the
invocation of the War Measures Act. This became the first time
that Parliament acknowledged the necessity for such a clause in
order not to have legislation overridden by the Canadian Bill of
Rights. It is somewhat ironic, therefore, that this important recog-
nition of the overriding applicability of the Canadian Bill of Rights
should occur as a result of the suspension of the operation of
section 2 of the Bill of Rights.
Conclusion
It should be pointed out that limitations of time and space
required this article to be confined to a survey of the effect given
to the Canadian Bill of Rights in the Courts. However, it would
be misleading to assess the Bill of Rights merely in the light of
its application by the judiciary, without taking account of the very
important influence it can have regardless of the actions of judges.
This ignores the very important role of public opinion and of
legislatures and governments with respect to effectuation of civil
liberties. It ignores the fact that most citizens, including agents
and officers of governments, tend to govern their activities in ac-
cordance with the law. Given a publicly declared sense of values,
such as a declaration of human rights and fundamental freedoms,
few individuals, much less civil servants subject to the censure of
elected officials, who are themselves subject to the censure of the
electorate, are prepared to ignore a condemnation of their conduct
which is deemed contrary to an accepted set of principles such
as a Bill of Rights.
In considering this survey of the judicial application of the
Bill of Rights one should recall that most of the opposition to the
adoption of the Canadian Bill of Rights, either as originally enacted
while Mr. Diefenbaker was Prime Minister, or as currently proposed
by Prime Minister Trudeau by way of a new Charter of Human
Rights which would be entrenched in the written part of our
Constitution to bind not only Parliament but the provincial legis-
latures as well, is based upon a distrust of the judiciary. The fear
seems to be that a Supreme Court would become activist and
conservative, like the United States Supreme Court from 1890 to
1937, introducing a wide substantive due process interpretation,
No. 3]
THE CANADIAN BILL OF RIGHTS
or activist and liberal, like the Warren court in the United States
in the 1960’s and give an extensive procedural due process inter-
pretation. However, the above survey of the judicial interpretation
and application of the Bill of Rights in the past eleven years must
certainly quiet most of these fears. There is no evidence thus far
that our provincial courts of appeal, or the Supreme Court of
Canada, are rending legislation inoperative because of excessive
zeal to protect our civil liberties against the legislators and ad-
ministrators of Canada.
Despite the Drybones decision, one cannot yet predict the wide
application of the Bill of Rights. For one thing, it must be remem-
bered that unless and until the provinces agree to a new Bill of
Rights which would apply to them as well, only Parliament and
the federal government are presently restrained. For another thing,
it will still be a question of the scope of the definition which the
Supreme Court chooses to give to the civil liberties concerned.
The extreme caution of the Supreme Court of Canada in avoiding
an activist role is illustrated in the case of Walter et al. v. Attorney-
General of Alberta.”0 In this case the Supreme Court was concerned
with the Alberta Communal Property Act I” which limited the ter-
ritorial area of communal land currently held by existing “colonies”,
and controlled the acquisition of lands by new colonies. In defining
a “colony” the Act covered religious and other groups, but it
specifically provided that it “includes Hutterites or Hutterian
Brethren and Doukhobors”. It was admitted that the legislation
was prompted by large-scale landholdings by Hutterite colonies,
and that the purpose of the legislation was to control the expansion
of Hutterite colonies in Alberta. Nevertheless, the Supreme Court
applied both the restrictive interpretation and the power allocation
techniques to uphold the provincial legislation, rather than to rule
it invalid. The Supreme Court decided that the purpose was eco-
nomic, relating to property and civil rights, and was not intended
to interfere with freedom of religion. It was, therefore, intra vires
the provincial legislature.
As long, then, as the Canadian Bill of Rights does not extend
so as to apply to the provinces, and as long as the Supreme Court
of Canada continues in its cautious tradition, the fear is not that
the judiciary will supplant the legislators as policy-makers in the
field of civil liberties but rather that they will abdicate that minimum
responsibility for protecting civil liberties which the Supreme Court
did adopt during the Rand period in the 1950’s.
110 [1969] S.C.R. 383, (1969), 3 D.L.R. (3d) 1.
111 R.S.A. 1955, c. 52.
