The first, and perhaps most famous, legal case in Canadian history on free speech was in 1937. Alberta's Social Credit government, as part of a major legislative package to regulate the provincial economy, passed the Act to Ensure the Publication of Accurate News and Information (1937). In essence, the law would have required newspapers to publish “corrections” from the government of any critical coverage, disclose sources and identify writers. Any violation of the law could include a large fine and a ban on publishing restricted information. It was, unquestionably, the most blatant peacetime attempt to censor the press. In finding the law ultra vires the powers of the Alberta legislature, the Supreme Court of Canada ruled for the first time that provinces could not unilaterally restrict fundamental freedoms. Justice Lawrence Cannon accused the provincial government of imposing a doctrine which “must become, for the people of Alberta, a sort of religious dogma of which a free and uncontrolled discussion is not permissible.” Justice Lyman Duff, writing one of the most cited legal decisions in Canadian history, argued that “even within its legal limits, it [public discussion] is liable to abuse and grave abuse, and such abuse is constantly exemplified before our eyes; but it is axiomatic that the practice of this right to free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions.”
Justice Canon was the first member of the Supreme Court of Canada to articulate a distinction between fundamental and local rights. He argued that the provinces’ powers under Section 92 (s.13) of the British North America Act (Property and Civil Rights) were limited to legislating over purely local matters and not issues affecting all Canadians (e.g., free press). It was a momentous decision. In Canada's Parliamentary system of government,the courts did not invalidate legislation that violated a delineated set of rights. Instead, Parliament was (until the Charter in 1982) the ultimate arbiter of what was a legitimate limit on individual rights.
Canadian courts had historically proven to be a poor forum for defending individuals against discrimination. The Supreme Court of Canada case
Christie v York (1939) exemplified this situation. A black man was denied service in York Tavern in Montreal because of the corporation’s policy of not serving negroes. When Fred Christie called the police to challenge such a blatant discriminatory practice, the officers claimed that they could do nothing. With no existing legal bans on discrimination at the time, Christie’s lawyer was forced to argue in court the common law rule of innkeeper’s not being allowed to refuse service unless under exceptional conditions. York Corporation responded by arguing freedom of contract and the right of a merchant to arbitrarily refuse service. Confronted with a choice between freedom of contract and the right of individuals to be served equally, the Supreme Court chose the former.
Twenty years later, after the first anti-discrimination laws were introduced in Canada, little had changed. On 13 May 1959, Ted King attempted to rent a hotel a room at Barclay’s Hotel in Calgary but was informed that the hotel did not serve coloured people. A year later the Alberta District Court ruled that the hotel was within its rights to refuse service despite provisions in the Hotelkeeper’s Act prohibiting innkeepers from refusing to serve travelers. The court, which based its decision on a technicality surrounding the definition of an Inn, acknowledged that King had been discriminated against. The effect of this decision was to essentially sanction discrimination. [Soon after, however, the legislature removed the “food” requirement from the Hotelkeeper’s Act - the law prohibited an Inn from refusing to serve an individual but, according to the court, because the hotel did not serve food, it was not by definition an Inn and could thus refuse to serve blacks]
Nonetheless, the courts were not completely unresponsive. An Ontario court declared a restrictive covenant illegal in 1947 (the Drummond Wren case). Restrictive covenants prohibited selling land or homes in a neighbourhood to Jews, racial minorities and/or people of 'questionable nationality.’ Justice Mackay, the first Canadian judge in history to cite an international human rights treaty (the United Nations' Charter), determined that the restrictive covenant was too vague and violated the 1944 Ontario Racial Discrimination Act. The Supreme Court of Canada ruled against another restrictive covenant a few years later in the case of
Noble and Wolf v. Alley. The court ruled that the covenant did not relate to the user of the land so the covenant could not run with the land, as well as for uncertainty. Admittedly, both decisions rested largely on technicalities, rather than a clear statement against discriminatory practices. Still, the cases represented important precedents challenging a common discriminatory practice.
Frank Scott defended the rights of two popular targets of repression (Communists and Jehovah's Witnesses) in a
series of famous civil liberties cases in the 19505. Maurice Duplessis, the autocratic Premier
of Quebec who claimed that the Bible was sufficient protection for human rights, waged
a virtual war against unpopular minorities. Communists were easy targets in the heydays
of the Cold War, and Jehovah's Witnesses, whose religion led them to attack the
Roman Catholic Church (often on people's doorsteps), were hardly popular in a vastly
Catholic province. In
Switzman v. Elbling (1957), Scott convinced the Supreme Court of Canada to strike down a Quebec law that allowed the province to padlock any premises suspected of promoting communism (without warrant or the need or any evidence). The law, passed in the 1935, had long been considered one of the most offensive violations of civil liberties in a generation. It was so vague that it was used against unionists, Jews, Jehovah's Witnesses, Communists and people on the political left in general. Victims could only appeal to the Attorney General who, conveniently, was Duplessis (he was both Attorney General and the Premier). Scott was involved in two other important civil liberties cases in the 1950s:
Saumur v. City of Quebec and Attorney General (1953) and Roncarelli v. Duplessis (1959). In both cases, the court provided redress to Jehovah's Witnesses as targets of repression and abuse in Quebec.
Roncarelli v. Duplessis symbolized the conflict between the authorities and Jehovah's Witnesses in Quebec . The plaintiff, Frank Roncarelli, had lost his restaurant’s liquor licence in 1947 for providing bail to large numbers of Jehovah’s Witnesses arrested in Montreal. An article in the Montreal Gazette on 5 December 1946 quoted Premier Maurice Duplessis who claimed that Roncarelli’s sympathy for “the Witnesses of Jehovah is such an evident, repeated and audacious manner, is a provocation of public order, to the administration of justice and is definitely contrary to the aims of justice. He does not act, in this case, as a person posting bail for another person, but as the mass supplier of bails, whose great number by itself is most reprehensible.”, Frank Scott, Roncarelli's lawyer, accused
Maurice Duplessis, Premier of Quebec
Duplessis of ordering the removal of the license and that such action was an abuse of the powers of the Attorney General (Duplessis was both Premier of Quebec and Attorney General). Under section 1053 of the Quebec civil code, a civil servant exploiting the power of their position was liable for civil damages. Duplessis was found guilty of misuse of power and fined $25 000. Duplessis' lawyers attempted to argue the Premier was trying to prevent criminal offences by recommending to the Quebec Liquor Board Roncarelli's license be cancelled. Justice Ronald Martland concluded that such a claim amounted “to a contention that he is free to use any methods he chooses; that on a suspicion of participation in what he thinks would be an offence, he may sentence a citizen to economic ruin without trial. This seems to me to be a very dangerous proposition and one which is completely alien to the legal concepts applicable to the administration of public office in Quebec, as well as in other provinces in Canada.”
In several other cases, including
Chaput v Romain (1955) and
Lamb v Benoit (1959), Jehovah’s Witness successfully sued the police for damages. In Chaput, police had raided a home where a religious service by Jehovah’s Witnesses was being conducted, seized bibles and other religious paraphernalia,a and disrupted the service. The police did not have a warrant and no charges being laid. In Lamb, a Jehovah’s Witness was held over a weekend for distributing seditious pamphlets on city streets, and was offered freedom from jail if she agreed to sign a release form absolving police for wrongful detention. After she refused, she was charged with sedition and later acquitted.
Still, these victories had limits. Although several judges referred to the sanctity of freedom of speech and religion, in the end their decisions had little to do with civil liberties. Instead, in Saumur for instance, the Court ruled that the province had exceeded its jurisdiction under the constitution. In fact, by the end of 1950s, it remained unclear which level of government had jurisdiction over human rights.
The 1960 Bill of Rights was a dismal failure. Frank Scott noted in 1964 that “that pretentious piece of legislation has proven as ineffective as many of us predicted.” The Bill of Rights suffered a painful reception at the hands of
the judiciary. In
Robertson and Rosetanni v. The Queen (1963), the Supreme Court
of Canada rejected arguments that the Lord’s Day Act (banning the operation of a
business on a Sunday) violated freedom of religion under the Bill of Rights. According
to Ronald Ritchie in his decision for the majority, the Bill of Rights only
enshrined existing rights when it was passed in 1960. The statute did not create any
new rights, and since freedom of religion already existed before 1960, when the
Lord’s Day Act was enforced, there was no basis for making the law inoperative.
By 1969, the Court had yet to use the Bill of Rights to assert an individual’s civil
liberties against the state. Even the famous Drybones case in 1970, in which the
Court ruled Section 94(b) (prohibiting Aboriginals from being intoxicated off reserves)
of the Indian Act inoperative because it violated the equality under the law
clause of the Bill of Rights, failed to set an effective precedent. In 1974, the Court
effectively reversed itself in Attorney General of Canada v. Lavell, where the Court refused to accept that a section of the Indian Act that required women (but not
men) to surrender their Indian status if they married a non-Indian violated equality
under the law. Once again writing for the majority, Ritchie suggested that to accept
Lavell’s claim would essentially invalidate the federal government’s ability to
designate special treatment for Native people and thus render it impotent in carrying
out its responsibilities under the Constitution. In effect, the judgment meant
that Indian women could be discriminated against so long as all Indian women
were discriminated against equally.
Subsequent attempts in the 1970s to use the Bill of Rights’ “equality under the law” clause to render legislation inoperative were equally unsuccessful. Out of this failure, however, came success. The inability of the Bill of Rights to provide
concrete protection for human rights led activists and policy makers alike to demand
a constitutional amendment in 1982. The Charter of Rights and Freedoms
would transform the courts into a far more active agent in combating human
Adams, Eric M. "Building a Law of Human Rights: Roncarelli V Duplessis in Canadian Constitutional Culture." McGill Law Journal 55 (2010): 437-60.
Backhouse, Constance, and Wes Pue, eds. The Promise and Perils of Law: Lawyers in Canadian History. Toronto: Irwin Law, 2009.
Ross Lambertson, Repression and Resistance: Canadian Human Rights Activists, 1930-1960 (Toronto: University of Toronto Press, 2005).
Frank Scott, Essays on the Constitution- Aspects of Canadian Law and Politics (Toronto: University of Toronto Press, 1977).
Walter Tarnopolsky, The Canadian Bill of Rights, 2nd ed. ( Toronto: McClelland and Stewart Limited, 1978).
Walker, James. "Race," Rights and the Law in the Supreme Court of Canada: Historical Case Studies. Toronto: Wilfrid Laurier University Press, 1997.