PREMIER'S OFFICE

REGINA, January 19th, 1959.

The R t . Hon. J . G . Diefenbaker, Q.C., Prime Minister of Canada, OTTAWA, Ontario.

My dear Prime Minister:

The second session of t he Twenty-fourth Parliament w i l l undoubtedly soon be considering B i l l C-60 "An Act fo r the Recognition and Protection of Human Rights and Fundamental Freedoms", which had i t s f i r s t reading i n the House of Commons on September 5th, 1958. This b i l l , which i s designed t o recognize and declare the existence of ce r t a in basic r i g h t s and fundamental freedoms i s a matter of concern, not only t o members of Parliament, but a s you can wel l appreciate, t o the members of the ten provincial Legislatures of Canada and, fo r tha t matter, t o every c i t i z e n of t h i s country. With the objectives of the b i l l , few Canadians would disagree. The idea of rendering more secure those human r i g h t s and fundamental freedoms t o which the b i l l makes reference i s a worthy one. I n 1947, the Province of Saskatchewan enacted a B i l l of Rights Act, designed t o assure freedom of r e l i g ion and speech and freedom from discrimination i n a l l aspects of l i f e insofar as it i s within the power of a provincial Legis la ture t o do so. Thus, i n a sense, your own province has pioneered the road toward expanded human r igh t s and basic freedoms.

Other provinces have enacted l eg i s l a t i on i n spec i f ic f i e l d s as, fo r example, i n the f i e l d of employment, where f a i r employment pract ices l eg i s l a t i on has become the r u l e ra ther than the exception.

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The R t . Hon. J .G. Diefenbaker, Q.C. January 19th , 1959

To date, t h e ob jec t ives of a b i l l o r r i g h t s have been sought by ordinary l e g i s l a t i o n , s i n c e such ac t ion a s provincia l Legis la tures have taken could only be achieved i n t h i s manner. While I e n t e r t a i n many rese rva t ions concerning t h e e f fec t iveness of l e g i s l a t i o n i n c o n t r o l l i n g o r d i r e c t i n g human conduct i n many f i e l d s , never theless , such l e g i s l a t i o n has i t s p lace i n a t l e a s t c l e a r l y s t a t i n g t h e views which a major i ty of t h e people of a province o r of a na t ion may hold on i s s u e s r e l a t i n g t o t h e conduct of human a f f a i r s . But what a Leg i s la tu re o r Parliament may do, a f u t u r e Leg i s la tu re and a f u t u r e Parliament may undo. Thus, it i s t o be recognized t h a t b i l l s of r i g h t s which f ind expression i n ordinary s t a t u t e s can be ephemeral things, and under pressure, when they a r e most needed, can suddenly disappear. Subsequent l e g i s l a t i o n of a p a r t i c u l a r nature w i l l have t h e e f f e c t of repeal ing e a r l i e r l e g i s l a t i o n of a general character and s o i t may wel l be t h a t a B i l l of Rights passed today wi th t h e utmost good f a i t h , may gradually be whi t t l ed away by s p e c i f i c enactments over a period of years. Thus when i t i s sought t o r e s o r t t o i t s premises i t may be found t o v i r t u a l l y have vanished i n t o t h i n a i r .

For t h i s reason, many Canadians f e e l t h a t i n order t h a t t h e human r i g h t s and fundamental freedoms of which t h e b i l l i n quest ion speaks may be rendered secure, they ought t o f ind expression, not i n an o rd ina ry Act of Parliament but r a t h e r i n amendment t o t h e c o n s t i t u t i o n of Canada, The B r i t i s h North America Act.

Now it w i l l be r e c a l l e d t h a t i n 1950, t h e Federal Government convened meetings i n t h e months of January and September, at tended by represen ta t ives of t h e Federa l Government and by t h e Premiers and Attorneys General of t h e t en provinces of Canada f o r t h e purpose of considering methods by which The B r i t i s h North America Acts (1867 - 1949) might be amended i n fu tu re . Unfortunately,

The R t . Hon. J . G . Diefenbaker, Q.C. January 19th, 1959

the meetings resul ted i n no very tangible recomendations f o r action, but ce r ta in general c l a s s i f i ca t i ons were made of the provisions of the Acts, insofar a s they concerned amendment, these being s i x i n a l l . They included:

(1) provisions which concerned Parliament only;

(2) provisions which concerned provincial Legislatures only;

(3) provisions which concerned Parliament and one or more but not a l l of the provincia l Legislatures;

(4) provisions which concerned Parliament and a l l of the provincial Legislatures;

( 5 ) provisions concerning fundamental r i g h t s (as, f o r instance, education, language, solemnization of marriage, administrat ion of jus t ice , etc.) and amendment of t he amending procedure; and

(6) provisions which ought t o be repealed.

Certain recomendations by t he Attorneys-General of each province were made concerning the method by which each group of const i tu t ional enactments might be amended and upon these there was general agreement.

It was generally agreed t h a t provisions concerning fundamental r i gh t s should be added o r amended by an Act of the Parliament of Canada and by Acts of the Legislatures of a l l of the provinces and t h i s appears t o have been a reasonable approach t o a very fundamental problem.

B i l l C-60, t o which you and members of Par l ia- ment w i l l be giving a t ten t ion shor t ly , i n my view, should l ay t he foundation f o r t he protection of human r i g h t s and

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The R t . Hon. J . G . Diefenbaker, Q.C. January 19th, 1959

fundamental freedoms i n the soundest and most d e f i n i t e manner possible. To include the type of provision therein contained i n an ordinary s t a t u t e of Parliament would r e s u l t i n a t l e a s t two important l imita t ions . F i r s t i t w i l l r e s t r i c t t he application of the pr inc ip les of the b i l l t o matters so le ly within the ju r i sd ic t ion of Parliament a s s e t out i n The Br i t i sh North America Act. A t once, the effect ive- ness of these pr inciples i s ser iously r e s t r i c t ed . To broaden the app l i cab i l i t y of these fundamental r i g h t s t o encompass a l l f ace t s of Canadian l i f e , it appears t o me t o be necessary t o incorporate the provisions i n an amendment t o The Br i t i sh North America Act i t s e l f , This w i l l require the concurrence of the provinces, it i s t rue , but i t seems t o me t h a t i n securing the concurrence of the provinces a very great ad- vantage w i l l be secured through public debate and discussion and t o t h a t type of consideration which a cons t i tu t iona l amendment is bound to provoke.

Secondly, only by placing these fundamental r i g h t s and freedoms i n cons t i tu t iona l form, w i l l they stand above the l i s t s of da i l y b a t t l e and controversy which a r e bound t o wh i t t l e away o r destroy pr inc ip les which may appear t o stand i n the way of expediency o r eff ic iency a s any pa r t i cu l a r government may view it a t some fu ture time.

For these reasons, I urge you t o reconvene the cons t i tu t iona l conference of Federal and Provincial Governments which was held i n 1950 and to submit t o it your proposals f o r an amendment t o the cons t i tu t ion which w i l l contain a statement of human r i g h t s and fundamental freedoms i n c l ea r and e x p l i c i t form. These proposals fo r amendment may then be considered, debated, and incorporated a s an amendment t o The Br i t i sh North America Act. I am of opinion t h a t t he amendments should be s e t out i n a very spec i f i c way to provide t h a t the r i gh t s which you have i n mind a r e r i g h t s which a r e t o be guaranteed t o a l l Canadians and t h a t a breach of them w i l l be enjoined by simple lega l process.

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The R t . Hon. J .G. Diefenbaker, Q.C. January 19th, 1959

Accompanying t h i s letter is a d r a f t amendnent which I bel ieve was considered some years ago by a non- pa r t i san conanittee on c i v i l r i g h t s , consis t ing of eminent lawyers and others , t o which I f e e l reference can again be use fu l ly made today. I commend i t s considerat ion, and I s h a l l be pleased t o hear from you concerning t h e suggest ions concerned the re in contained and those set out i n t h i s communication.

Yours s ince re ly ,

Encl. (1) T.C. Douglas.

Proposed Amendment t o the Br i t i sh North America Act, Assuring Fundamental Rights and Freedoms

1. This Act s h a l l be known a s The Br i t i sh North America Act, 1959.

2. The Br i t i sh North America Act, 1867 i s amended by adding a f t e r Section 147 the following sections:

"148. Notwithstanding anything i n t h i s Act, i t sha l l not be lawful f o r the Parliament of Canada or the Legislature of any Province t o make laws:

-(a) abridging freedom of speech and expression o r of- the press o r other means of communication, o r freedom of re l ig ion , o r the r i g h t of lawful assembly, associat ion or organization;

(b) requiring o r imposing excessive b a i l or cruel o r unusual punishment o r exi l ing Canadian c i t i z ens ;

( c ) subjecting any person to unreasonable in te r fe rence with h i s o r her privacy, family, home or corres- pendence;

(d) subjecting any person t o a rb i t r a ry a r r e s t o r detention o r denying t o any person the r i gh t , a f t e r a r r e s t , t o be promptly informed of t he charges against such person and t o t r i a l wi thin a reasonable time, o r t o be released;

(e) suspending t h e r i g h t t o habeas corpus o r depriving any person of a f a i r t r i a l or the r i g h t t o be represented by counsel;

( f ) depriving o r r e s t r i c t i n g the r i g h t of any person t o own, l ease or otherwise t o hold and enjoy property.

"149. The r i g h t s provided i n Section 148 s h a l l be enjoyed without d i s t i nc t i on o r discrimination on account of race,

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sex, r e l i g ion o r language and:

(a) the r i g h t t o be a member of o r t o vote f o r _ ' t h e e lect ion of Members of t he Parliament

of Canada or the Legislature of any Province;

(b) the r i gh t t o employment a t any occupation and the r i gh t t o work;

( c ) the r i g h t t o education; and

(d) the r i gh t t o enjoy membership i n any professional association;

s h a l l not be abridged on account of race, re l ig ion , language o r sex.

"150. The r i gh t s conferred by Sections 148 and 149 of t h i s Act sha l l not be deemed t o abridge any ex is t ing r i g h t s of any person.''