Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960 (review)

Abstract

Reviewed by: Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960 Kirk Niergarth Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960. Christopher MacLennan. Montreal and Kingston: McGill-Queen's University Press, 2003. Pp. 236, illus. $70.00 cloth, $27.95 paper The teleology implied by the title Toward the Charter is characteristic of this 'narrative analysis of the bill of rights idea in Canada' (9). The term narrative analysis is a curious fusion - and here we have seemingly more narrative than analysis - but perhaps what is really implied is 'selective discourse analysis,' that is, an attempt to trace various manifestations of 'bill of rights' talk that cumulatively construct a linear storyline. The [End Page 160] climax of MacLennan's story is the 1982 Charter, but his book ends two decades earlier in the aftermath of the passage of Diefenbaker's much-maligned and largely ineffective 1960 Bill of Rights. MacLennan's narrative approach may be justly criticized for reducing the complexity of thirties, forties, and fifties rights discourse and for privileging certain manifestations and connotations of the 'bill of rights idea' above others. With these limitations in mind, Towards the Charter could still be used effectively at the undergraduate level to provide students with a basic framework for understanding the history of rights legislation in Canada before 1960. MacLennan's story begins with the 1931 conviction of eight Toronto Communists under the auspices of the infamous Section 98 of the Criminal Code. While the Canadian state's record on human rights was hardly unblemished before this juncture, MacLennan is probably correct to highlight this notorious case because of the range of supporters who protested the perceived violation of the Communists' traditional legal civil liberties. Many prominent Depression-era civil libertarians did not themselves suffer civil rights abuses (including Communists, recent immigrants, the unemployed, women, and racial and religious minorities); rather they were often highly educated, waspish men like Frank Scott, B.K. Sandwell, and Arthur Lower, who had access to the mainstream media and connections to the increasingly powerful group of academics-turned-civil-servants that Douglas Owram has dubbed the 'government generation.' These figures remain central to MacLennan's story as it slips into the 1940s and discusses the influence on the civil liberties movement of the controversial Defence of Canada Regulations; the evacuation, deportation, and dispersal of Japanese Canadians; and the suspension of the legal rights of espionage suspects in the aftermath of the 1946 Gouzenko affair. MacLennan regards the last as a watershed in demonstrating to the public the need for a national bill of rights. Despite efforts of rights activists in Canada and at the United Nations, the federal government was reluctant to endorse domestic or international rights legislation. Ministers and bureaucrats argued that a bill of rights would undermine traditional parliamentary sovereignty and provide no additional protection to Canadians. But the main stumbling block was, and would remain, Dominion-provincial relations. From the opposition benches, John Diefenbaker had argued for a Canadian bill of rights for more than a decade, but his ascendancy to the prime minister's office in 1957 faced him with the difficulty of obtaining consent from provincial premiers like Maurice Duplessis to achieve a constitutionally entrenched rights guarantee. Diefenbaker was forced to argue that a [End Page 161] federal parliamentary statute, rather than a constitutional amendment, could provide adequate and effective protection of Canadians' rights. But his argument was rejected by constitutional scholars like Frank Scott and Bora Laskin, who correctly anticipated the limited effectiveness of Diefenbaker's Bill of Rights. MacLennan's slim monograph is especially effective in navigating through the machinations of the parliamentary committees and justice department bureaucracies that complicated and delayed rights legislation in Canada. MacLennan should also be commended for recognizing the variety of rights activists and organizations of the time - including Communist, labour, ethnic, religious, and women's groups. His coverage of these groups, however, gives insufficient attention to the differences in their rights claims and ability to voice them effectively. In the book's only explicit foray into rights theory, MacLennan argues that the Canadian case follows the international shift in...