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Reviews / Comptes Rendus

Christopher MacLennan, Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960 (Montréal: McGill-Queen's University Press 2003)

IN 1960, ONE OF THE MOST disappointing pieces of legislation ever passed by the federal government was enacted. The Canadian Bill of Rights has suffered scorn, insults, and disdain from critics since it became law; the Act was used only once by the Supreme Court of Canada to find a law inoperative, and this precedent was quickly set aside four years later. Yet, the importance our society attaches to the symbolic meaning of rights is such that the Bill of Rights has been the subject of several books, the most recent being Christopher MacLennan's Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960.

MacLennan guides us through the history of the 1960 Bill of Rights, beginning with the rise of civil liberties organizations in the 1930s. A nascent civil liberties movement first emerged in reaction to government repression of communists in the form of Section 98 of the Criminal Code and the Padlock Act in Quebec. These organizations had a short lifespan and suffered from the ideological divisions typical of the Left in the 1930s between social democrats and communists. It took the extreme repression of World War II and the deportation of Japanese Canadians, coupled with the tactics employed by the espionage commission in 1946, to stimulate another wave of civil liberties groups. By charting the history of the rights movement, MacLennan presents the history of those activists most dedicated to the creation of a national bill of rights in Canada. While newly organized rights activists clamoured for rights to be entrenched in the constitution at home, international forces added pressure on the federal government to take rights seriously. War rhetoric, the United Nations charter and the Universal Declaration of Human Rights became powerful symbolic weapons for rights activists in Canada to demand better protections for fundamental freedoms. According to MacLennan, these trends represented a resurgence of the natural rights ideology for which a bill of rights recognizing universal freedoms was the logical culmination. However, these forces were stridently resisted by a Liberal party and bureaucracy determined not to place any limits on parliamentary supremacy and violate British democratic traditions. It would take the defeat of the Liberals by John Diefenbaker in 1957 to set the stage for the passing of a bill of rights. The author provides a thorough examination of each of the parliamentary commissions between 1947 and 1950, and in 1958-9, while reviewing the key themes in the debates over Diefenbaker's proposed bill.

MacLennan's analysis of the debate on the Diefenbaker Bill of Rights between 1957 and 1960 is the most valuable contribution of his book, particularly in the way the author has gained access to Department of Justice files to understand the role of the bureaucracy. It is clear from the author's study that the bureaucracy was a major opponent of entrenching freedoms in the constitution and played a key role in providing both the Liberals and the Conservatives with arguments against constitutional freedoms. Unfortunately, this represents most of the work's original contribution. Since the completion of MacLennan's PhD thesis in 1996 (on which this book is based), a host of new material has arisen in published form and graduate theses. Little of what MacLennan examines, from the history of civil liberties groups to state repression and Canada's role in the United Nations surrounding the Universal Declaration of Human Rights, is not already available in a handful of theses and articles (several of which the author has not cited, in particular William Schabas' piece on the United Nations in McGill Law Journal, 1998, and Ross Lambertsoh's piece in Labour/LeTravail in 2001 on the Jewish Labour Committee).

Perhaps the work's greatest weakness is the lack of sensitivity to the ideological and political conflicts of the period which plagued the bill of rights movement. Frank Scott is the perfect example. A social democrat politically, Scott's views on constitutional freedoms were liberal in outlook. He rejected the inclusion of anything but the most rudimentary social and economic rights in the constitution and his drafting of the Saskatchewan Bill of Rights favoured political and civil rights, with little or no provision for such rights as education or a fair wage. In fact, little is said about the importance of the Saskatchewan Bill of Rights to the movement and there is no mention of the Alberta Bill of Rights of 1946 found ultra vires by the Supreme Court of Canada. At the same time, the author fails to note organized labour's opposition in 1948 (although not in 1959) to economic and social rights in the constitution, a position more closely related to Scott's libertarian approach and likely influenced by labour's desire to distance themselves from communist rhetoric at the height of the Cold War. In order to appreciate the complexities behind the positions adopted, the debate over social and economic rights needs to be more fully explored.

Most importantly, the author fails to appreciate the importance of French-Canadian opposition to any constitutional bill of rights in the 1950s. This would have come out more clearly with a thorough study of Arthur Roebuck, the Liberal Senator who is absolutely crucial to the early bill of rights movement. Roebuck's handwritten notations on drafts of his own proposed bill of rights for the 1950 Senate committee clearly demonstrate his frustration with the obstructionism of French-Canadian parliamentarians with regards to any effective bill of rights. Combined with the Liberals' fear of alienating Quebec voters and the lack of any French-Canadian rights organization during this period except for the small Civil Rights Union, French- Canadian opposition represented a central obstacle to the movement.

Nonetheless, MacLennan's piece represents a useful addition to the literature. While this short work (160 pages minus notes) could have been expanded to discuss a host of other issues, it brings together a variety of literature to provide the only real history of the bill of rights movement currently in print. The chapter on labour, women, and ethnic groups' views on constitutional freedoms is a particularly valuable contribution and demonstrates the effort made by the author to offer a broad perspective on the bill of rights movement. Given the recent spate of literature on the history of human rights in Canada in the past five years alone, it will likely not be long before this work is complemented by further studies in the field.


Dominique Clément Memorial University of Newfoundland

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