John Diefenbaker and the Canadian Bill of Rights
By: Brendan Campisi
Brendan Campisi is a student, researcher, and occasional writer living on Anishinaabe and Lenni Lenape land in London, Ontario. He has a BA in History from the University of Guelph and is currently studying at Huron University College. He is interested in the histories of labour and left-wing politics in Canada and internationally, and in understanding Canadian history as part of the histories of the British Empire and settler colonialism globally.
In August 1960, after nearly two years of debate on successive drafts, Canada’s parliament passed the Bill of Rights. Although little-known today and criticized by many at the time as ineffective, the Bill marked an important development in the history of human rights in Canada. It was also a personal triumph for Prime Minister John Diefenbaker, who had become one of the country’s most prominent advocates of a bill of rights early in his parliamentary career and now, having shepherded it through parliament, presented the Bill as one of his government’s major accomplishments. The Bill was also a victory for the wider community of human rights and civil liberties advocates who had called for legislation of this kind for years, but it was at the same time the focus of controversy among them, and of disappointment for many. Diefenbaker’s relationship with these activist circles was complex, and his vision of what the Bill of Rights should be and do was far from universally shared. Examining the movement for a Canadian bill of rights, Diefenbaker’s role as an advocate, and the debates about his Bill can provide a valuable window into the complexities of the idea of human rights in Canadian politics during the period when they became increasingly central to it.
The idea of a Canadian bill of rights was not a new one when it arrived at the center of the political stage at the end of the 1950s. As early as 1927, Winnipeg MP and future CCF leader J. S. Woodsworth proposed a bill recognizing the rights of linguistic and cultural minorities across the country as a means of shoring up support for national unity in Quebec.[i] In the late 1930s, in the context of debates on the constitution, provincial-federal relations and Quebec’s infamous “Padlock Law”–which allowed for arbitrary restrictions on political activity and labour organizing under the guise of fighting communism–proposals for a more general bill of rights spread in civil libertarian circles. These proposals met with the resistance of a government which held firmly to the traditional British and Canadian belief that parliamentary sovereignty should not be constrained by any US-style codification of specific rights, and they fell from the public agenda with the outbreak of the Second World War. Wartime and post-war abuses of civil liberties–including the plan to expel Japanese Canadians from the country and the use of detention without charge against alleged Soviet spies–brought the demand for a bill of rights back into public discussion. By the end of the War, the concept had become part of the platforms of Canada’s two main left-wing parties, the social-democratic Co-operative Commonwealth Federation and the communist Labour-Progressive Party.[ii] But it also gained a prominent advocate on the right: recently elected Saskatchewan MP John Diefenbaker.
Elected to the House of Commons in 1940, Diefenbaker’s German surname and upbringing in the multiethnic environment of the Prairies had given him a sensitivity to the intolerance and injustice of early 20th century Canada. As a lawyer before entering parliament, he gained a reputation as a defender of the marginalized. In one notable case, he (unsuccessfully) defended First Nations’ treaty hunting rights at a time when these were almost entirely neglected in Canadian law.[iii] While he said relatively little about civil liberties issues during his first years in the House, the abuses of the immediate postwar years stirred his conscience and he became a prominent critic of the Liberal government. When the government introduced a bill to create a distinct Canadian citizenship for the first time in 1946, Diefenbaker introduced an amendment to include a declaration of the rights this citizenship would entail, which was rejected.[iv] When the Universal Declaration of Human Rights was issued, he criticized the government’s hesitant response, characterizing the parliamentary committee set up to study possible consequences of the Declaration as nothing more than “shadow boxing, postponing, and procrastinating.”[v] In this period, Diefenbaker became publicly regarded as a prominent voice for civil liberties, with one activist commending him as “the spokesman of true liberalism in the House.”[vi] He began introducing a motion for a bill of rights to the House annually, continuing through the 1950s even as the wider movement faded during that decade in the face of continued government intransigence and a turn to action at the provincial level.[vii]
In light of this record, civil libertarians greeted Diefenbaker’s election victories in 1957 and 1958 with optimistic expectations. In 1958 Diefenbaker made the promise to introduce a bill of rights into his campaign message, and in September of that year the draft bill was duly presented. The bill protected an enumerated set of rights and freedoms, including the classical liberal freedoms of religion, speech, assembly and press as well as freedom from various forms of discrimination. In order to avoid the difficulties associated with amending the constitution, which Diefenbaker and his cabinet believed would not win agreement from the provinces, the bill took the form of a parliamentary statute, that is, a law like any other, as well as applying only to federal actions.[viii] These aspects of the bill immediately drew criticism from civil libertarians and others, who argued that it would be impossible to enforce effectively. Leading constitutional authority and human rights activist F. R. Scott called the bill “almost meaningless,” while fellow legal theorist Bora Laskin argued that it was “disappointing in its approach, unnecessarily limited in its application and ineffective in its substance.”[ix] In the parliamentary debate on the bill, some opposition members repeated these criticisms of its effectiveness, while others–especially from the CCF–focused on the exclusion of economic and social rights such as employment and healthcare. Diefenbaker’s classical liberal vision was focused above all on protecting the citizen from the state; for those who believed in an active role for the government in securing material well-being he seemed to be fighting yesterday’s battles. CCF members also invoked Diefenbaker’s record on human rights to express their disappointment in the limits of a bill that BC MP Ernest Winch called “unworthy of the high motives and principles which have been expressed by the Prime Minister in the past.”[x] For Progressive Conservative members, by contrast, the bill was a crowning accomplishment for a leader who had “shown by his whole life that he believes in the little man and the big rights of the little man,” in the words of Alberta MP Jack Bigg.[xi] Despite these criticisms of the bill’s form and substance, the opposition parties agreed that it at least represented a step in the right direction, and it passed on August 4, 1960.[xii] While those who predicted that the Bill of Rights would have little legal effect were mostly vindicated, it nonetheless marked a key moment in the emergence of human rights as a central element of Canadian political culture.
Carmela Patrias and Ruth Frager, ‘“This Is Our Country and These Are Our Rights”: Minorities and the Origins of Ontario’s Human Rights Campaigns,” Canadian Historical Review 82, 1, March 2001.
Christopher MacLennan, Toward the Charter: Canadians and the Demand for a Bill of Rights, 1929-1960 (Montreal/Kingston: McGill-Queen’s University Press, 2003).
George Egerton, “Entering the Age of Human Rights: Religion, Politics and Canadian Liberalism, 1945-1950,” Canadian Historical Review 85, 3, September 2004.
George Egerton, “Writing the Canadian Bill of Rights: Religion, Politics, and the Challenge of Pluralism 1957–1960,” Canadian Journal of Law and Society, 19, 2004, pp.1-22.
John F. Leslie, ‘Assimilation, Integration, or Termination: The Development of Canadian Indian Policy, 1943-1963’ [PhD dissertation, Carleton University, 1999].
[i] Christopher MacLennan, Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960 (Montreal/Kingston: McGill-Queen’s University Press, 2003), 17.
[ii] Ross Lambertson, Repression and Resistance: Canadian Human Rights Activists, 1930-1960 (Toronto: University of Toronto Press, 2005), 319-24.
[iii] John F. Leslie, ‘Assimilation, Integration, or Termination: The Development of Canadian Indian Policy, 1943-1963’ [PhD dissertation, Carleton University, 1999] p. 306.
[iv] MacLennan, Toward the Charter, 45-46.
[v] Ibid., 346-47.
[vi] Ibid., 167.
[vii] Ibid., 116.
[viii] Ibid., 117-25.
[ix] Ibid., 130.
[x] Debates of the House of Commons, July 4, 1960, p. 5689.
[xi] Debates, 5707.
[xii] MacLennan, Toward the Charter, 148.