1953-59 The Supreme Court of Canada
The first, and perhaps most famous, Canadian legal case on free speech arose in 1937. During that year, Alberta’s Social Credit government passed the Act to Ensure the Publication of Accurate News and Information, which was part of a major legislative package to regulate the provincial economy. In essence, the law would have required newspapers to disclose their sources, identify their writers, and publish “corrections” (furnished by the government) of any critical coverage. Violation of the act could incur a large fine and a ban on publishing restricted material. Unquestionably, the act represented Canada’s most flagrant peacetime attempt to muzzle the press.
In 1938, the Supreme Court of Canada considered the act and found it ultra vires (beyond) the powers of the Alberta legislature, ruling 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 Cannon 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 of the British North America Act (Property and Civil Rights)were limited to purely local matters and did not extend to issues that affected all Canadians (such as the freedom of the 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 (until the Charter was created in 1982), Parliament was the ultimate arbiter of what constituted a legitimate limit on individual rights.
Canadian courts had historically proven a poor forum for defending individuals against discrimination. In Christie v. York (1939), the Supreme Court of Canada determined that merchants had a legal right to refuse service to an individual because of his or her race. Twenty years later, after the first anti-discrimination laws were introduced in Canada, little had changed, as Ted King discovered on 13 May 1959, when he attempted to rent a room at Barclay’s Hotel in Calgary, only to be told that Barclay’s did not serve coloured people. A year later, the Alberta District Court ruled that the hotel was within its rights, even though the Hotelkeeper’s Act prohibited innkeepers from refusing to serve travellers. The court acknowledged that Barclay’s had indeed discriminated against King, but it based its decision on a technicality regarding the definition of an inn. The Hotelkeeper’s Act prohibited an inn from refusing to serve an individual, but according to the court, because the hotel did not serve food, it was not an inn and could thus decline to accept black patrons. The ultimate effect of this decision was to sanction discrimination. (Soon afterward, however, the Alberta legislature removed the “food” requirement from the Hotelkeeper’s Act.)
Despite their lacklustre track record, the courts were not completely unresponsive. In 1945, an Ontario court declared that restrictive covenants were illegal (in Re Drummond Wren). Restrictive covenants prohibited selling land or homes in a neighbourhood to Jews, racial minorities, and/or anyone of “questionable nationality.” Justice Mackay, the first Canadian judge to draw on an international human rights treaty, determined that the restrictive covenant was too vague and that it violated the 1944 Ontario Racial Discrimination Act. A few years later in the case of Noble and Wolf v. Alley, the Supreme Court of Canada ruled against another restrictive covenant, concluding that its language was uncertain and that, because it did not relate to the user of the land, it could not run with the land. Admittedly, both decisions rested largely on technicalities, rather than a clear statement against discrimination. Still, the cases represent important precedents that challenged a common discriminatory practice.
The 1950s were a critical moment in the history of the Supreme Court of Canada and civil liberties. The court handed down several famous decisions involving discrimination against communists and Jehovah’s Witnesses in Quebec, where Premier Maurice Duplessis waged a virtual war against unpopular minorities. Communists were easy targets in the heyday of the Cold War, and Jehovah’s Witnesses, whose religion led them to attack the Catholic Church (often while evangelizing on people’s doorsteps), were hardly popular in a predominantly Catholic province. In Switzman v. Elbling (1957), lawyer Frank Scott convinced the Supreme Court of Canada to strike down a Quebec law that allowed the province to padlock any premises suspected of being employed in the promotion of communism (without a warrant or the need for evidence). The law, passed in 1937, had long been considered one of the most offensive violations of civil liberties in a generation. Its vague language enabled it to be used against unionists, Jews, Jehovah’s Witnesses, communists, and anyone of left-leaning politics. Victims could appeal for redress only to the attorney general, who was Duplessis himself (he was both attorney general and premier). Scott was involved in two other important civil liberties cases during 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 who were targets of repression and abuse in Quebec.
Frank Roncarelli, the plaintiff in Roncarelli v. Duplessis, had provided bail to large numbers of Jehovah’s Witnesses who had been arrested in Montreal, with the result that he had attracted the unfriendly attention of Duplessis. A 5 December 1946 Montreal Gazette article quoted the premier’s claim that Roncarelli’s sympathy for “the Witnesses of Jehovah in 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.” When the Quebec Liquor Commission cancelled the liquor licence of Roncarelli’s Montreal restaurant in 1947, Roncarelli sued Duplessis. His lawyer, Frank Scott, accused Duplessis of ordering the revocation of the licence and suggested that such action was an abuse of his powers as attorney general. Under section 1053 of the Quebec civil code, a civil servant who exploited the power of his position was liable for civil damages. Duplessis was found guilty of misuse of power and fined $25,000. His lawyers attempted to argue that he was simply trying to prevent criminal offences by recommending to the liquor commission that Roncarelli’s licence be cancelled. Justice Ronald Martland concluded that this reasoning 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 Witnesses successfully sued the police for damages. In Chaput, the police had raided a home in which a Jehovah’s Witness religious service was under way, seizing Bibles and other religious paraphernalia, and disrupting the service. They had no warrant and had no intention of laying charges. Lamb, a Witness was held for a weekend for distributing seditious pamphlets on city streets and was offered freedom from jail if she agreed to sign a release form in which she absolved the police for wrongful detention. After she refused, she was charged with sedition but was later acquitted.
Still, these victories had their limits. Although several judges referred to the sanctity of freedom of speech and religion, their decisions ultimately 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 the 1950s, it remained unclear which level of government had jurisdiction over human rights.
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.
Lambertson, Ross. Repression and Resistance: Canadian Human Rights Activists, 1930-1960. Toronto: University of Toronto Press, 2005.
Walker, James. “Race,” Rights and the Law in the Supreme Court of Canada: Historical Case Studies. Toronto: Wilfrid Laurier University Press, 1997.