A BILL OF RIGHTS AND FUNDAMENTAL LAW
Illusion and Reality
Edward McWhinney*
(soon overwhelmingly realised
Shortly after the Conservative Party’s surprise electoral victory in June,
1957, an Indian jurist who was acquainted with Mr. Diefenbaker’s announced
public support of a decade ago for the principle of adoption of a Canadian
Bill or Rights, asked me as to the practical possibilities for translating the
new Prime Minister’s earlier, partisan advocacy (as an Opposition member)’
into concrete action, now that he controlled the machinery of government in
Canada and had the further potentiality
in
the elections of March, 1958) of a working majority in Parliament. In reply
I pointed out2 that the matter had to be examined from two different view-
points –
first, a procedural question as to machinery problems of formally
establishing as part of the constitution or otherwise enacting as fundamental
law, any Canadian Bill of Rights, once it had been finally drafted; and second,
the substantive question as to the actual content of the proposed Bill of Rights
and that in either case the issues seemed at least as difficult and complex
–
as the drafting of the Bill of Rights and the allied Directive Principles of
State Policy had proved to be in the case of the Indian Constitution of 19493.
This is not the place to discuss in detail the machinery problems attendant
on the adoption of any Canadian Bill of Rights. A brief review must suffice
here. The most effective (and irrevocable) form of adoption would undoubted-
ly be the passage of the Bill of Rights as a formal amendment to the Canadian
Constitution. Here we run into the major political problems that have stale-
mated, since 1950, all attempts at the securing of self-operating amending
*Professor of Law University of Toronto, Toronto.
IThe function of an Opposition member, and particularly of one who is only a rank-
and-file member and not the party leader, is so intrinsically different from that of
the head of a government that Mr. Diefenbaker might readily have been pardoned
if, in his new office as Prime Minister, he had neglected to proceed with the adoption
of a Bill of Rights.
Part IV, Directive Principles of State Policy, (Arts. 36-51).
When, in support of President Truman’s seizure of the Steel industry in 1952
during the Korean war crisis, and in argument for an expanded judicial
interpre-
tation of the scope of inherent Executive powers during ‘an emergency, the govern-
ment’s counsel sought to rely on an opinion which, in 1941, the then Solicitor-General,
Robert M. Jackson, had given to President Roosevelt in the North American Avia-
tion Company case, Jackson, now a Justice of the Supreme Court, quite properly
rebuked counsel, with the comment: “I do not regard it as a precedent for this, but,
even if I did, I should not bind present judicial judgment by earlier partisan advo-
cacy .. .” Youngstoun Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 649 (1952).
2See my article, Problems in adopting a Bill of Rights in Canada, 6 Vyavahara
SRepublic of India, Constitution, Part III, Fundamental Rights, (Arts. 12-35);
Nirnaya (University of Delhi)
(1957).
A BILL OF RIGHTS
No. 1]
machinery for the Canadian Constitution 4. Has the old, (pre-Commonwealth
of Nations era) mode of amendment of a formal request by the Canadian
government to the British Parliament for passage of a simple statute amend-
ing the B.N.A. Act now lapsed into desuetude 5, except perhaps as to a final
request for a British statute authorising new self-operating (i.e. to be operated,
in futuro, wholly within Canada itself) amending machinery? If it has not
yet effectively lapsed, is there a Constitutional Convention to the effect that
the Canadian government must consult with 6, or even obtain the consent of’,
all or some of the Provincial government to any constitutional amendment to
be effected in this manner8 (including any proposed Bill of Rights) ? Consti-
tutional Conventions, of course, are in a somewhat different, (less absolutist,
perhaps) category than the general positive (enacted)
law of the constitution,
4Proceedings of the Constitutional Conference of Federal and Provincial Govern-
ments, January 10-12, 1950, Appendix V, p. 117; Proceedings of the Constitutional
Conference of Federal and Provincial Governments,
(Second Session), September
25-28, 1950, especially Appendix III, at p. 83-4.
And see generally Rowat, Recent Developments in Canadian Federation, 18 Can.
1136, 1156 (1951).
SAs to the procedure for amendment of the constitution generally, see Gerin-Lajoie,
29 Can. B. Rev. 1136 (1951); Gin-Lajoie, Constitutional Amendment in Canada
(1950);” McWhinney, Amendment of the Constitution, in Studies in Federalism 790
et seq. (Bowie and Friedrich eds. 1954).
9 0n the other hand, one should beware of the correlative danger of regarding
Constitutional Conventions as more binding and irrevocable than the enacted law of
the constitution, especially where
that
originally gave birth to particular Conventions and gave them, so to speak, their
constitutional validity or raison d’Stre, are no longer present.
the special space-time political conditions
Thus Prime Minister Diefenbaker refused to be over-awed by essentially “eighteenth
(rooted in eras when arbitrary, unfettered Royal
century” constitutional precedents
J. Ec. and Pol. Sci. 1, 12 (1952).
5Compare the remarks of a French-Canadian jurist, L-P. Pigeon: “With respect
to the process of constitutional amendments, Canada’s present situation is anomalous.
Canada’s constitutional evolution has clearly not kept pace with recent developments
in national sovereignty and independence. As
long as legal power over Canada’s
constitution remains vested in the British Parliament, it would dearly be a retrograde
step to seek constitutional safeguards of human rights and fundamental freedoms. This
could properly be done only by seeking at the same time to evolve a process of consti-
tutional amendment consonant with Canada’s situation as a sovereign power.
“In my view this is a most desirable development, a development which is really
past due However, no one I think will deny that such a development requires the
co-operation of the Provinces, because it involves setting up a process whereby their
powers and rights may be modified.”
Comment of M. Pigeon, in The Joint Committee on Human Rights and Funda-
mental Freedoms, 26 Can. B. Rev. 706, 712-3 (1948).
For the position that consultation by the Canadian governments with the Provin-
ces regarding proposed constitutional amendments is a matter of courtesy, but only
of courtesy, see, for example, Clokie, Basic Problems of the Canadian Constitution,
20 Can. B. Rev. 395, 429 (1942) ; Scott, Note, 8 U. of Toronto L. J. 201, 202 (1950).
7Gerin-Lajoie, Du pouvoir d’amendement constitutionnel au Canada, 29 Can. B. Rev.
McGILL LAW JOURNAL
[Vol. 5
but good manners and good federalism, in the case of a plural society, may
require that in certain circumstances they be accorded all the deference norm-
ally given to other constitutional provisions.
A second form of adoption might be –
less than the securing of a formal
some type of constitutional “entrenchment”
as enunciated, classically, by Dicey, –
amendment to the constitution –
of the Bill of Rights against subsequent repeal or amendment or modification”
by subsequent transient majorities in Parliament “Entrenchment”, as a consti-
tutional protection, has received a good deal of attention and study as a
result of the great South African constitutional controversy of the last decade.
The South African constitution, as adopted in 190910, embraced the general
English constitutional principle, –
of
the Sovereignty of Parliament, except in relation to two principles, –
the
equality of the English and Afrikaan languages, and the retention, after the
Union of 1909, of special voting rights of non-whites (i.e. their inclusion on
the common electoral rolls) in the Cape Province. These two principles were
sought to be specially safeguarded, under the constitution of 1909, by explicitly
providing, in the constitutional instrument itself, that they could not be repeal-
ed or altered except by a special two-thirds majority vote at a joint sitting of
both Houses of Parliament 1 . These provisions, so far as they secured the
existing, (extremely limited) voting rights of non-whites in the Cape Province,
were enforced, in their letter, by a resolute Chief Justice and Supreme Court
against an intransigent legislative majority in two great judicial decisions of
195212; but the court for reasons partly technical and principally psychological
the difficulty of long sustaining a judicial position against overweening
–
government power –
finally surrendered to the government in a land-mark
decision of 19573s. The “entrenchment”, in the case of South Africa, was, of
course, an integral part of the constituent act of 1909, and so South African
Prerogative Powers were a political rule of the day),
in successfully establishing,
in connection with the dissolution of March, 1958, that dissolution of Parliament rests
at the discretion of the Prime Minister of the day. The characterisation of the
older view that dissolution of the legislature remained at the complete discretion of
the titular Head of State (whether Queen, Governor-General, or Lieutenant-Governor)
rather than the Prime Minister concerned as “eighteenth century” is not mine: it is
cited in the Parliamentary Papers published in connection with the dissolution
in
the State of Tasmania, Australia, in 1956. See The Australian States and Dominion
Status, 31 Aust. L.J. 42, 44 (1957).
109 Ed. VII, c. 9. (U.K.).
I”South Africa Act, 1909, ss. 35 and 152.
12Harris v. Minister of the Interior, [1952] 2 S.A.L.R. 428 (A.D.), (the “Coloured
Voters” case); Minister of the Interior v. Harris [1952] 4 S.A.L.R. 769 (A.D.),
(the “High Court of Parliament” case).
‘ 3Collins v. Minister of the Interior, [1957] 1 S.A.R.L. 552 (A.D.),
(the “Senate
Act” case). And see generally Wade, The Senate Act Case and the Entrenched Sections
of the South Africa Act, 74 So. Afr. L.J. 160
(1957); McWhinney, Law and
Politics and the Limits of the Judicial Process – An End to
the Constitutional
Contest in South Africa, 35 Can. B. Rev. 1203
(1957).
No. 1]
A BILL OF RIGHTS
analogies are not precisely in point in regard to proposals for “entrenchment”
of a Canadian Bill of Rights, since the Canadian constitution is after all a
living institution and there would be a certain element of contrivance and
legal artifice in any move to declare, in respect to legislation enacted now by
ordinary majorities, that it should only be subject to repeal or amendment in
the future by some extraordinary process such as a special or two-thirds ma-
jority.
More precisely in point perhaps, in so far as involving “entrenchment”, ad
hoc, in a constitution that had already been in existence for a considerable
number of years is the New South Wales “entrenchment”, effected in 1929,
by an outgoing government of the State. Fearing abolition of the then nominee
upper House of the State parliament by an incoming Labour administration,
the Conservative government of 1929 enacted, by ordinary legislative majority
as was then all that was required for securing amendments to the New South
Wales (State) constitution, that no bill seeking to abolish the Upper House
should become law until, after securing passage through both Houses, it had
also been submitted to and approved by a popular majority at a public
referendum. This provision was upheld by the High Court of Australia, and
by the Privy Council on appeal, in Trethowan’s case in 193114. It should be
noted at once that the New South Wales “entrenchment” survived, as a
matter of legal doctrine, because of the “manner and form” limitations as to
imposed on
the effecting of constitutional amendments regarded as being
legislatures by the old (Imperial) Colonial Laws Validity
State (Provincial)
Act of 186515. On this score alone, Trethowan’s case’s express approval of
the New South Wales “entrenchment” of 1929 is
to Canadian
problems of the present day since limited to “entrenchments” effected by State
legislatures and similar dependent legislatures. A more serious
(Provincial)
objection to the New South Wales “entrenchment” of 1929, and even to the
court decision in Trethowan’s case, goes to their essential ad hoc-ness’ 6, –
irrelevant
14Attorney-General (New South Wales) v. Trethowan, 44 C.LR. 394 (1931)
(High
. .
‘eCompare
Court of Australia); 47 C.L.R. 97 (1931)
(Privy Council).
1528 and 29 Vict c. 63 (U.K.)
s. 5: “Every representative legislature shall, in
respect to the colony under its jurisdiction, have, and be deemed at all times to have
had, full power to make laws respecting the constitution, powers and procedure of
such legislature, provided that such laws have been passed in such manner and form
as may from time to time be required by any Act of Parliament [i.e. the United Icing-
dom Parliament]
. or colonial law for the time being in force in the said colony.”
in discussing
Trethowan’s case for British readers more than a decade after the date of decision:
“It is necessary to recall the facts . . . because they are already forgotten by most
people outside New South Wales”. Sawer, Injunction, Parliamentary Process, and
the Restriction of Parliamentary Competence, 60 L.Q. Rev. 83 (1944). Trethowan’s
case has been severely criticised by authoritative jurisprudential opinion, first, as to
its procedural aspects, the issue here being the judges’ “premature” handling of the
case, the High Court of Australia moving in quickly to rule on the legislative bill
the remarks of the Australian jurist, Geoffrey Sawer,
McGILL LAW JOURNAL
[Vol. 5
first of all, as a purported exercise in democratic government by a soon-to-
disappear legislative majority 7 , and secondly, as a response by a court to a
great political cause cglebre’8. For these reasons, I suggest, any invocation
of the New South Wales “entrenchment” of 1929 as a constitutional precedent
for Canada”9 , legally fool-proof though such “entrenchment”
turned out to be
in New South Wales in the end result, would be politically unfortunate unless
all major parties and all significant Provincial and regional opinion concurred
in advance as to the precise manner of user of “entrenchment” in Canada and
the precise end to which it was to directed”.
A third form of adoption of a Canadian Bill of Rights could be by simple
legislation of the Canadian Parliament, viewed either as a constitutional
amendment limited in its effectiveness to the precise area of Dominion legis-
lative competence in terms of the B.N.A. (No. 2) Act of 194921, or else as
involved in Trethowan’s case even prior to its submission for Royal assent, Sawer,
id. at 85-6; and second, as to its substantive aspects, Professor Friedmann in particular
having strikingly demonstrated some of the unfortunate
implications of the judges’
signal failure to consider the practical consequences, in action, of their decision in the
case. Friedman, Trethowan’s Case, Parliamentary Sovereignty, and
limits of
Legal Change, 24 Aust. L.J. 103 (1950).
1 7 This is the nub of the thoughtful dissenting opinion,
in Trethowan’s case, by
McTiernan J. of the High Court of Australia, in which he crucial distinction is
drawn between a requirement as to “manner and form” and a requirement as
to
substance to which latter, in McTiernan J’s view, no transient legislative majorities
could bind their successors. 44 C.L.R. 394, 433 (1931).
the
It is not, of course, necessary to agree with McTiernan J’s actual factual applica-
tion of his test in the instant case –
in effect that the 1929 Act’s requirement of
approval at a public referendum by (simple majority of the popular vote) is a require-
ment of substance and not of “manner and form” and therefore not binding on the
State legislature Id. at 442-4. And compare, on this point, Friedmann, op. cit., 24 Aust.
L.J. 103, 106 (1950). However, in an Australian context, a requirement of popular
referendum approval is, in the light of voting patterns at such referenda, tantamount
to a kiss-of-death. Studies in .Federalism 790 et seq.
(Bowie and Friedrich eds.,
1954).
‘sSee, in this regard, the latter-day doubts as to the correctness of the Trethowan’s
case rationale, recently advanced by the Chief Justice of the High Court of Australia,
Sir Owen Dixon, who had himself participated in the High Court’s decision in 1931.
Hughes and Vale Pty. Ltd. v. Gair, 28 Aust. LJ. 437 (1955). And see generally
McWhinney, Trethowan’s Case Reconsidered, 2 McGill L.J. 32 (1955); Cowen, Note,
71 L.Q. Rev. 336 (1955); Kahn, Note, 72 So. Afr. LJ. 201 (1955).
‘0 Compare, in this regard, the remarks of F. R. Scott, in Book Review (Wheare),
32 Can. B. Rev. 802, 804 (1954).
2 0 The rescuing from a well-deserved oblivion that
the South African Supreme
Court in effect gave to Trethowan’s case by its decision in the “Coloured Voters”
case, [19521 2 S.A.L.R. 428 (A.D.) was not, it is submitted, necessary to the end-
result of that decision. The “Coloured Voters” decision itself (though not neces-
sarily its actual rationale), must be regarded as lvving become severely attenuated
by the court’s volte face in the “Senate Act” case, [1957] 1 S.A.L.R. 552 (A.D.).
21British North America
(.No. 2) Act, 1949.
1o. 1 ]
A BILL OF RIGHTS
simple declaratory legislation for the future much after the fashion set by
the Saskatchewan Bill of Rights of 194422. As to the first of these two modes,
we would undoubtedly be faced with a certain penumbra of constitutional
uncertainty unless, in its substantive content, the Bill of Rights were so tightly
drafted as to be clearly within the ambit of Dominion authority alone, as
understood to date: the danger, here, would be of getting from the govern-
ment’s advisers a very skimpy, skeletal draft in which caution was the keynote.
The better way probably then is for the Dominion Parliament to go ahead
and simply enact a declaratory act that is accompanied if necessary by a formal
severability clause declaring that the act is to be construed to the extent of
Dominion legislative power and that any provisions in excess of such power
are to be regarded as severed and as not affecting in any way the validity of
any of the remaining portions. It may be suggested, in reply to this proposal.
that the Bill of Rights will then be no very substantial thing, subject to possi-
ble repeal or amendment by the Opposition parties when they come to power
again, and providing no adequate reason in itself why even the Supreme
Court should give it any more deference than any other Dominion legislation.
As to this, I think the answer clearly lies in the substantive provisions of
the Bill of Rights when it is finally drafted and the enthusiasm with which
government and general public respond to it. If the Bill of Rights succeeds
in capturing the public imagination then the Bill will surely have teeth in
it, and I see no difficulty as a formal matter in the Supreme Court’s being
persuaded to apply to it, (much as they have done, in Quebec, to the Quebec
Civil Code)s a beneficial rule of interpretation that no subsequent Dominion
statute should prevail over the provisions of the Bill of Rights except to the
extent that such intention is clearly indicated by Parliament. The gap be-
tween paper, positive law affirmations and the “living law” reality of accept-
ance as part of a community’s working attitudes and practice is a difficult
one to bridge, as all students of sociological jurisprudence know full well,
but it can be bridged. If the Bill’s actual contents correspond to deeply-felt
popular wants, no government is likely to interfere with it; if its provisions
do not so correspond, then the business of formally “entrenching” or even
adopting as a constitutional amendment can hardly, by themselves, ensure that
it will be meaningful in action24 .
2 2The Saskatchewan Bill of Rights Act, 1947. [Revised Statutes of Saskatchewan,
1953, Vol. IV, Cap. 3451.
23Compare Scott, Dominion Jurisdiction over Human Rights and Fundamental
Freedoms, 27 Can. B. Rev. 497, 504 (1949).
2 4Note the remarks, in this regard, of the late Mr. Justice Jackson of the United
States Supreme Court: “. . . It is my belief that the attitude of a society and of its
organised political forces, rather than its legal machinery, is the controlling force
in the character of free institutions . . .
“In Great Britain, to observe civil liberties is good politics and to transgress the
McGILL LAW JOURNAL
[Vol. 5
in the whole concept of
the American “Rationalised Constitutionalism” brought over
My main remarks are directed to the question of the substantive provisions
that the Bill of Rights is to contain, when finally drafted. There is, be it noted,
a certain element of “datedness”
legislatively-
established Bills of Rights. They stem, in the best sense, from the 18th
century and the spirit of Rationalism regnant. Their archetype is the American
Bill of Rights –
the first Ten Amendments adopted immediately after the
successful establishment of the United States Constitution and as part of the
unofficial, background conditions to its establishment. Bills of Rights enjoyed
a new wave of popularity in the Europe of the post-World War I eraF, as
part of
to
Europe in the wake of President Wilson’s Fourteen Points, and as part also
of a general post-war reaction to the excesses of the recent conflict and a new
interest in ultimate right of man26 . It is only necessary, in this context, to
recall the Moral Re-armament Movement, “All Quiet on the Western Front”,,
and the League of Nations, to understood the wishful thinking of the genera-
tions of the 1920’s and 1930’s that it was sufficient, to eliminate wars and
man’s oppression of man, to legislate to that effect in the form of international
covenants and sounding declarations of human rights. It would be surprising
if the Prime Minister, as one whose early adult years corresponded with that
era, did not share something of the “lost generation’s” hope in the efficacy
of creating human-rights by legislative action, in spite of the subsequent
tempering of his idealism through bitter experience in practical politics.
The antipodal approach
to “human-rights-through-rationalised-constitu-
tionalism” is the basic .English constitutional concept, through Dicey27 , that
rights of the individual or the minority
is bad politics. In the United States, I
cannot say that this is so. Whether the political conscience is relieved because the
responsibility here is made largely a legal one, I cannot say .
.” Jackson, The
Suppreme Court in the American System of Government 81-2
.
(1955).
2SSee generally, Mirkine-Guetzevitch, Les Constitutions Europennes (1951).
26The analogies of post-1918 -European attitudes in law to similar reactions, three
centuries before, to the destruction and carnage of the Thirty Years War, is striking:
modern theories of Public International Law have their genesis in the 17th century
in the great wave of Natural Law thinking, evidenced particularly in the writings
of Grotius. The further analogy
in
Continental European, and especially German, philosophy of law after 1945,
is not
unfanciful: as to Continental legal thought, consult, for example, Radbruch, Rechts-
(4th ed., Wolf, 1950); von Hippel, Die Perversion von
philosophie, 333-357
(1956) ;
Rechtsordnungen (1955) ; Evers, Der Richter iund das unsittliche Gesetz
and, more generally, note the continuing pressure in
for a
binding and enforceable International Convenant on Human Rights.
to the anti-positivist, fundamentalist, emphasis
2 7Dicey, Law of the Constitution (1st ed., 1885). Though Dicey’s
theories are
essentially rooted in basic English political and societal attitudes, he is not without
his American followers. I have elsewhere sought to demonstrate Dicey’s strong in-
fluence on 4r. Justice Felix Frankfurter’s philosophy of law, through Frankdurter’s
revered mentor, James Bradley Thayer who certainly was well acquainted with, and
an admirer of, Dicey’s teachings. See, as to Thayer, his Legal Esnsy: 191 et seq.
the United Nations
1,4o. i ]
A BILL OF RIGHTS
protection and safeguardings of minority rights and interests is a matter of the
self-restraint of legislative majorities –
the adhering to the “rules of the
game” by both government and opposition parties. The best-known present-
day exponent of this particular, essentially English, approach, is Sir Ivor Jen-
nings25 . Through the special ethical-cultural facts that have made the sover-
eignty of parliament palatable as a working principle of government in the
United Kingdom in so far as they have provided moral checks to a power
that is, legally, absolute and uncontrolled –
the reasonable homogeneity of
race and religion in the UOnited Kingdom, and
the general agreement on
fundamentals of basic political and social beliefs –
should perhaps have given
Sir Ivor some pause because these facts are hardly paralleled elsewhere –
it is true that the constitutions that he has drafted, or assisted in drafting, for
the newly emergent colonial societies that have progressed to independence
and self-government, are notable for their fairly general avoidance of elaborate
checks and balances –
formal separation of powers, federalism as a mode
of decentralising political power, bills of rights – which might act as a barrier
between government and people and also serve as a machinery protection for
minority rights in what are, after all, in comparison to the United Kingdom,
usually complex, multi-racial societies. Now, Sir Ivor’s special bias in consti-
tutional drafting can no doubt be justified, pragmatically, (even though this
was not his own personal intention or belief), on the score that a constitu-
tionalism of checks and balances is really only suited to politically mature,
Western, society because involving fragmentation and dissipation of political
power, where the newly independent, ex-colonial, communities urgently need
some strong central direction and control if they are quickly to make the
transition to a technologically-based type of society. This, after all, is Prime
Minister Nkrumah of Ghana’s concept of “guided democracy”: we should
not assume too easily that Western, and particularly American, –
constitu-
tional stereotypes are capable of successful reception in non-Western, non-
(1908) ; and, more generally, see my article, The Great Debate, Activism and Self-
Restraint and Current Dilemmas in Judicial Policy-makling, 33 N.Y.U.L. Rev. (1958).
(reviewed
(reviewed
(reviewed
28See, for example, Jennings, The Approach to Self-Government (1956)
35 Can. B. Rev. 358 (1957)); Constitutional Problems in Pakistan (1957)
35 Can. B. Rev. 993 (1957); Problems of the New Commonwealth (1958)
36 Can. B. Rev. 278 (1958)).
29Though, as to some of the undesirable by-products of “guided democracy”, and
as to some of the dangers inherent in the English constitutional thesis of all power
to executive and legislative authority where such uncontrolled constitutionalism
is
not accompanied by the traditional English political self-restraints vis-i-vis minorities,
see, for example, as to Ghana, On Being the Boss, The Economist (London), August
31st, 1957; Bossmanship in Ghana, The Economist (London), September 21st, 1957;
Anglin, Whither Ghana?, 13 International journal 41, 50-1
(1958).
McGILL LAW JOURNAL
[Vol. 5
technological societies, without considerable modification and adaptation to
special local conditions 30 .
I do not doubt that Sir Ivor’s bias in drafting is due principally to Dicey’s
influence, on whole generations of British-trained students3 1, in
pervasive
favour of essentially simple, skeletal, uncluttered constitutional instrunents.
Perhaps, to this extent, Sir Ivor would do well to remember Dicey’s other
famous teaching – well appreciated by students of sociological jurisprudence
on the necessary relationship, or symbiosis, between Law and Opinion:
–
that while Public Opinion shapes and determines the content of the positive
laws, the positive law, in its turn, may shape and mould new norms of
community behaviour32. In looking back on the record of actual working
practice over the past decade, there is quite a lot to be said in favour of
rationalised constitutionalism as applied in the Republican Indian Constitution
of 1949: certainly, India’s has been much the most impressive achievement
in democratic government to date among the countries that have gained their
self-government and independence since War II, and the detailed, explicit,
and exhaustive constitutional instrument has been of profound significance and
importance in educating Indian citizens in democracy. Considering the marked
percentage increases in Canadian population since the War and the effects
both of immigration in bringing in new and widely differing cultural grbups
and also the continuing situation of the bi-cultural (French Canadian, English
Canadian) society, it must be recognised that as in India in the past decade
and as in the United States during the crucial period of population growth
of the middle and late 19th century a Bill of Rights might be of great public
educational value in the development of a distinctive Canadian ethos.
The problem, of course, remains of what actually is to go in the Bill of
Rights. The American Bill of Rights enshrines the classic political rights of
English const-tutional law – Blackstone’s Common Law rights of Englishmen,
with their emphasis on free communication of ideas and procedural guarantees
of speedy and fair trials and criminal administration. This is supplemented –
in the case of the 13th, 14th, and 15th Amendments incorporated into the
by a series of
Constitution as part of the post-Civil War Reconstruction.-
guarantees historically intended to integrate the newly freed slaves into normal
30For the somewhat mixed results of introduction of American constitutionalism
in a non-Western society, even though technologically based like the United States,
see Kawai, Sovereignty and Democracy in the Japanese Constitution, 49 Am. Pol. Sci.
Rev. 663 (1955).
SiAs to Dicey’s influence in Ireland see Kohn, The Constitution of the Irish Free
State xi (1932) ; in the Union of South Africa, –
Pollak, The Legislative Competence
of the Union Parliament, 48 So. Afr.
Jennings,
The Approach to Self-Government 20 (1956). And see the assorted comments of Mr.
Justice Holmes, made after Dicey’s death: 1 Holmes-Laski Letters 422, 712 (Howe
ed., 1953).
.J. 269, 286 (1931); in India, –
32Dicey, Law and Public Opinion in England (1905).
No. 1]
A BILL OF RIGHTS
political and civil rights –
community life in the United States, and so in effect to promote civil rights
and in particular the ideal of racial equality.
Now these particular categories of rights –
are
of course the rights associated, in a twentieth century with what Dr. Popper
has since made into a term of art –
the Open Societyas. They are well suited
to a society that has a continuing belief in its own ability to progress and that
emphasizes a continuing exchange of ideas as a stimulus to such progress and
that in general encourages vertical social mobility’ 4. The further association
with the Protestant ethic and the spirit of incipient capitalistic entreprise 5
is not completely fanciful –
these concepts flowered in the England of the
post-First Reform Bill era, in which Dicey was the high priest of the cult,
up to the- close of the 19th century, and in the United States in the period
from after the Civil War until the late 1920’s, and except for one period
when the defenders of American capitalism temporarily lost faith in their own
future and their own continuing entreprise and sought to use the Bill of Rights
for purely defensive purposes vis-A-vis their own special interests, acted as
a stimulus and instrument of political progress. But these rights, if we are
to accept recent Canadian Supreme Court decisions and judicial dicta as of
predictive value38 , are already part of Canadian constitutional law, and im-
mune from abridgment by Provincial action”7 , and possibly by Dominion
action as well”. A Canadian Bill of Rights, if it is simply to be a repetition,
in terms, of the American Bill of Rights -would, apart from its public educa-
tional value already referred to, add nothing new to Canadian constitutional
law except to the extent that it might care to declare the extent to which
3 3 Popper, The Open Society and Its Enemies, (1st ed., 1945).
3 4 Ibid.
3 5 See Max Weber’s, Die protestantische Ethike und der Geist des Kapitalismus
[English translation, (Talcott Parsons), 1930]; and see also Tawney, Religion
(1904)
and the Rise of Capitalism (1926), a work heavily influenced by Weber.
36See, especially, Re Alberta Statutes, [1938] 2 D.L.R. 81, per Duff C.J.C. at pp.
107-8, and per Cannon J. at p. 119; Winner v. S.M.T. (Eastern) Ltd.,
[1951] 4
D.L.R. 529, per Rand J. at p. 558; Saumur v. Quebec, [1953] 4 D.L.R. 641, per
Rand J. at 670-1; Henry Birks & Sons (Montreal) Ltd. v. Montreal, [1955] 5 D.L.R.
2d. 321, per Rand J. at p. 322; Switsman v. Elbling, 7 D.L.Rh 2d. 337 (1957), per
Rand J. at pp. 357-8.
3 TThis, certainly, has been the position taken by Rand J., and most recently by
Abbott 3. See, as to the latter’s position, Switzman v. Elbling, 7 D.L.R. 2d. 337, 368
(1957). And see generally Laskin; Our Civil Liberties –
The Role of the Supreme
Court, 41 Queen’s Quartely 455 (1955); Brewin, Note, 35 Can. B. 554 (1957); Mc-
Whinney, Judicial Review in the English-Speaking World 190 et seq. (1956).
88See per Abbott J. (concurring), Switzman v. Elbling, 7 D.L.R. 2d. 337, 371
(1957) ; and see, as to this point, my article, Mr. Justice Rand’s “Rights of the
Canadian Citizen” – The “Padlock” Case, 4 Wayne L. Rev. 115, 121
(1958).
McGILL LAW JOURNAL
[Vol.5
these rights are safeguarded from abridgment, in the future, by Dominion
action3 0.
Where a proposal for a Canadian Bill of Rights might break new ground
would be, –
either if it sought to delineate more precisely the American
catalogue of rights and to render concrete what the American Bill sometimes
(quite fortuitously, I believe) spells out in vague generalities, –
or else if
it sought to add to and extend on the American guarantees, taking note of the
general switch, in all the main Western countries, from laissez-faire to a
more collectivist organisation of society and of the acceptance by all major
political parties of the principles of the Welfare State.
As to the first point, we approach one of the major dilemmas of constitu-
tional and general legal drafting. Is it better to draft generally –
running
the possible risk of being so vague and cloudy as to render one’s Bill of
Rights empty of content and meaningless in practice but having the advantage
still of allowing the Bill’s gaps to be filled in by subs- juent judicial inter-
to b,. accommodated to
pretation and allowing the whole document thus
changing social needs, demands, and expectations? It is a rather different
American society now to what it was in 1787, but the constitution has stood
the test of time –
and it is this lapidarian generality of constitutional phrasing that has permitted
new content to be poured into the Bill of Rights as American society has
evolved. The constitution is a living one, indeed!
it is by far the oldest written constitution in existence –
The risk of precision in drafting is that the constitutiona, Is-l of Rights
becomes an elaborate blueprint that may, because of its very length and
detail, be ignored in day by day operation, or lend itself to selective inter-
pretation in which some provisions are overlooked; and that it tray eventually
fall under its own weight. If, however, some greater precision than the
American model is desired, then some special cultural facts in Canadian
federalism need attention since they may require a different solution to problem
situations than has emerged under judicial interpretation of the lapidarian
phrases of the American Bill. Freedom of speech has never been regarded as
completely unqualified even in an American context, it being recognised by
the U.S. Supreme Court, very early4 , that certain categories of speech rank
very low in the American hierarchy of values41. There is, however, as .yet
to “abrogate”
these particular rights, would apparently concede a national power to “limit” them,
7 D.L.R. 2d. 337, 371 (1957).
39Abbott J., though denying the existence of any national power
4ORecognition of the necessary qualification, in a democratic society, of any abso-
lutist claims to user of free speech, is, of course, behind Holmes J’s classic enunciation
of the “clear and present danger” test’s limitation of the First Amendment’s Free
Speech guarantee. Schenck v. United States, 249 U.S. 47, 52 (1919).
41See, most recently, Cantwell v. Conn~ecticut, 310 U.S. 296 (1940); Chaplinsky
v. New Hampshire, 315 U.S. 568 (1942); Kunz v. New York, 340 U.S. 290 (1951);
Feiner v. New Yark, 340 U.S. 315 (1951).
No. 1]J
NA BILL OF RIGHTS
insufficient
long-accepted
local
in particular,
there may be
a certain tinge of absolutism in the Canadian judicial opinions, as they have
emerged case by case:
judicial
recognition of the fact that, in a bicultural country, what seems to one section
to be a legitimate exercise of long-recognised rights of political discussion4 2
may, to another section, with perfect consistency, seem to be an ill-mannered,
and deliberately provocative attack on
traditions and
practices4 3. I do not pretend that there is any easy road to solution of this type
of problem-situation: the answer sensibly, I believe, should be sought only in
the concrete fact-settings of individual cases44. Here, examination of techniques
and procedures actually employed by legislative or executive authority to
implement particular values in particular contexts may yield an answer that
alternative, more moderate, controls could have been availed of to achieve the
-same end-result 45. Thus consideration of means used may shape and condition
approval of ends sought to be attained. Emphasis, in pragmatist fashion, on
technique or method thus liberates one from the dilemma of choice, (especially
complex and difficult in a culturally plural society), among competing ultimate
values46. But this is something –
I mean this delicate business of balancing
421n effect, the majority position on the Canadian Supreme Court in Sauinur v.
Quebec, [1953] 4 D.L.R. 641.
43Compare Rinfret C.J.C. (dissenting),
in Saumur v. Quebec, [1953] 4 D.L.R.
641, 659: “Who would dare to claim that pamphlets containing the preceding decla-
rations, distributed in a city like Quebec, would not constitute a practice inconsistent
with the peace and safety of the city or Province? What Court would condemn a
municipal council for preventing
the circulation of such statements? And I have
chosen but a few passages from the books and tracts which are swarming with such
affirmations. Besides, decency would command me not to cite any more of them. And
that does not appear to me necessary to demonstrate that a municipality whose popula-
tion is 90% Catholic not only has the right but the duty to prevent the dissemination
of such infamies.”
441 regret, in this context, the as yet rather
inadequate attention given by the
Canadian Supreme Court to the devising of new and more efficient techniques of fact-
finding in constitutional cases. Note the court’s summary rejection, (without support-
ing argument), of counsel’s ambitious attempt, in the Saumur case, to introduce the
American technique of adducing of factual evidence to the court through the Brandeis
Brief.
See per Kerwin J., (concurring), Saumur v. Quebec [1953] 4 D.L.R. 641, 666.
45Compare Freund, On Understanding the Supreme Court 27 (1951); Frankfurter
J., (concurring), Dennis v. United States, 341 U.S. 494, 539 (1951).
46Thus, I suggest, both the Saumur case and Padlock case (Switzman v. Elbling)”
clearly manifest, on examination of their actual fact-situations, a gross disproportion
between the ends sought to be obtained by Quebec executive-legislative authority (in
general, the protection of the Catholic Church and Catholic values against insulting
or abusive attack) and the techniques used by Quebec executive-legislative authority
to attain thbse ends
(blanket or absolute prohibition, unredeemed by the establish-
ment of any administrative standards moderating or otherwise controlling actual
executive prohibitions). Whether or not, as a question of ultimate values of Canadian
federalism, the Catholic church in Quebec should be entitled, in view of the particular
McGILL LAW JOURNAL
[Vol. 5
–
to
that
competing interests and scrutinising executive-legislative techniques
requires the making of an ally of time47 . The best solution can clearly only
be reached through the trial-and-error experimentation of case by case ela-
boration. The Canadian Supreme Court is especially well equipped for this
task, its record over the past decade since the final abolition of the appeal
from Canadian courts
the Privy Council showing an increasing self-
confidence and expertise and flexibility in the difficult business of handling
public law materials. I do not, in any case, think that everything can be left
to the parliamentary draftsman: apart from the risks of a premature solution
to value-conflicts that would jell the status quo, the parliamentary draftsman
cannot, without establishing something that is really an elaborate Code rather
than a section of a constitution, foresee all possible proliferations of executive-
legislative technique. My recommendation, then. to the Minister of Justice,
in the area of political and civil rights, is to draft generally after the American
fashion and leave it to the judiciary to fill in the gaps in the future and to
make the necessary continuing adjustments, reconciliatic-.3, harmonising, and
synthesis of competing societal interests.
The remaining question is –
going beyond political and civil rights
–
what notice, if any, the proposed Canadian Bill of Rights should take of the
onset of the Welfare State and the general acceptance, in all main political
parties of the Western World, of principles of social utility. Two constitutions
which the Canadian draftsmen should undoubtedly study in this regard are
the Irish Constitution of 1937 and the Republican Indian Consti -tion of 1949.
One may hope, of course, that any such recourse to comparative ,.onstitutional
law will not be a mere exercise in scissors-and-paste eclectisism 48 but will
facts of Canadian history, to some form of special Provincial protection against certain
types of attack, –
an issue, perhaps, too important to be decided in a single case –
the Province on this view can have no licence as to modes of protection
employ.
it may
Somewhat analogous to this more modest, fact-oriented, approach to decision-making,
in intent if not in actual form, is Kerwin J’s “statutory construction” emphasis in
his crucial, tie-breaking, opinion in the Saumur case, [1953] 4 D.L.R. 641, 661.
471 am referring, here, to the dangers of making the first case that comes along, in
years, in a particular area,
the occasion for a thundering enunciation of broad
policy principles: thus the United States Supreme Court’s decision in the Steel case
has rightly been censured as one where a court has rushed in too quickly and suffered
for its pains because of the absolutism, and lack of qualification for the future, in the
majority judicial opinions filed in the case. Youngstown Sheet and Tube Co. v. Sawyer,
343 U.S. 579 (1952). See, for example, Pritchett, Civil Liberties and the Vinson Court
249 (1954); Freund, (Book Review), 29 N.Y.U.L. Rev. 1164 (1954); Freund, The
Year of the Steel Case, 66 Harv. L. Rev. 89 (1952).
48Thus the idea of having in the constitution Directive Principes of Policy, which
are to be of a Fundamental Rights-character but which are, however, non-justiciable,
seems to have been arrived at, in the case of the Irish Constitution of 1937 and
later the Indian Constitution of 1949, as just such an exercise in mechanical eclecticism.
(Republican)
The Irish constitution-makers borrowed
the idea from the Spanish
No . 1 ]
A BILL OF RIGHTS
proceed upon systematic study of background societal conditions in the countries
concemed, and on examination of the extent to which the positive law of the
constitution in those countries is a response to those special conditions which
may or may not be reproduced in full measure in Canada.
Ireland’s constitution, as that of a Catholic polity, deserves special atten-
tion in Canada of course in view of the Catholic affiliations of so many
Canadians. The Irish constitution gives special place,. in its Bill of Rights,
to the position of the family49, and, in a Catholic setting (reflecting much of
Maritain’s inspired teachings) 5, to the rights of labour in modem society 51 .
It is only necessary to add, here, that these provisions of the Irish constitu-
tion have been but rarely invoked in practice, even the judiciary seeming to
prefer to have recourse to other, non-Catholic, sections of the Constitution
in the arriving at decisions whose actual end results would be equally capable
of justification, in terms of
legal doctrine, under the essentially Catholic
sections52 .
In attempting any listing of social and economic rights, due regard should
be given to the fact that community attitudes change most quickly here as
knowledge of the technical facts of social and economic organization improve.
As already noted, there is a risk, in attempting too concrete an enumeration
of social and economic rights, as with the enumeration of any other rights,
of simply perpetuating the status quo of socio-economic organisation with all
the risks that that involves in a society that is still growing economically, and,
furthermore, a status quo that may be, in fact, already dated in view of basic
changes in economic thinking over a period of years. One has only to examine
constitution of 1931, the Indian constitution-makers
tion.
in turn from the Irish constitu-
In practice, in the case of both countries, the Directive Principles seem to have
been highly amorphous –
Jennings called the Indian Directive Principles “Fabian
socialism without the socialism”, Jennings, Some Characteristics of the Indian Consti-
tution 31 (1953)
and the judiciary have shown an extreme disinclination to rely
on them in their decisions. For a somewhat more optimistic appraisal of their utility
than that advanced by Jennings, see, however, Alexandrowicz, Constitutional Develop-
ments in India 103-7 (1957); and see also Gledhill, Fundamental Rights in India
(1955) ; Aiyar, The Constitution and Fundamental Rights (1955).
–
4 9Republic of Ireland, Constitution, Art. 41,
5 0For Maritan’s most recent writings in this area, see, for example True Humanism
(The Family).
156 et seq. (6th ed., 1954); The Rights of Man and Natural Law 50-60 (1944);
Christianity and Democracy (1945).
5 lRepublic of Ireland, Constitution, Art. 40, (Personal Rights, including the “right
of association” [Art. 40 (6) 11).
52 See, especially, In the matter of Tilson, Infants,
[1951] Ir. R 1, and also the
discussion, The Courts and
in McWhinney,
Judicial Review in the English-Speaking World 152-169 (1956) ; Delany, The Consti-
tution of Ireland: Its Origins and development, 12 U. of Toronto L.J. 1 (1957);
Donaldson, Some Comparative Aspects of Irish Law 154-180 (1957).
the Constitution’ in Catholic Ireland,
McGILL LAW JOURNAL
[Vol. 5
the widespread changes in thinking among all major political parties in the
last decade or so to appreciate this truthm.
On the whole, then, if we are to have an enumeration of social and econo-
mic rights, I think we should make sure that, as recommended with political
and civil rights, they be drafted generally and not focus too much on detail
and thereby confuse transient community emphasis on techniques for achieving
ultimate values with those values themselves. The better way may well be
not to have an enumeration of sodo-economic rights at all. Whatever the
academic invalidity of the various judicial attempts at demonstration that,
historically, the “Open Society” guarantees were intended to occupy a “pre-
ferred position” under the U.S. Constitution 54, the fact remains that for most
purposes they are more than enough to ensure maintenance of a democratic
polity. So long as the basic political processes remain free and unobstructed 55,
every political opinion may have its day58 and the business of community pro-
wFor example, the evolution in official socialist doctrine, (as associated particularly
with the British Labour Party), is most striking in the years between first publication
of the Fabian Essays in 1889 and the sobering responsibilities of having to maintain
a government in the difficult reconstruction years from 1945 to 1951: nationalisation
of the means of production, distribution, and exchange, for so long regarded as an end
in itself, is now seen as only a possible technique not always satisfactory in itself
and even then only one technique among a number of techniques –
of achieving ends
of social welfare. See, for example, New Fabian Essays (Crossman, ed., 1952).
The evolution of right-wing, conservative, political thinking from ari
itwhile rigid
and unyielding faith in undiluted laissez-faire and uncontrolled “free entreprise” to
Mr. R.i A. B. Butler’s “Tory Democracy” in the case of the United Kingdom, and
the Dewey-Eisenhower “Modem Republicanism”
in the case of the United States,
is much better known, by comparison.
54As to the “preferred position” of the First Amendment guarantees under the
United States Constitution, see Black J’s dissent in Dennis v. United States, 341 U.S.
494, 580-1
(1951). And compare the severe strictures by Frankfurter J. in Kovacs v.
Cooper, 336 U.S. 77, 90 et seq. (1949); and also in Dennis v. United States, 341
U.S. 494, 526 (1951).
55Compare United States v. Carolene Products Co. 304 U.S. 144, 152, –
Stone
J. for Court.
56We should, of course, recognise that the dividing line between political rights
of the “Open Society”-type and socio-economic rights may occasionally become blurred
or confused. The fatal equation made by the U.S. Supreme Court majorities, in the
period between the Civil War and the mid-1930’s, of political rights (the 5th and
14th Amendments to the constitution’s guarantee of “Due Process of Law”) and the
interests of corporate entreprise in being free from governmental regulation of any
kind –
is so notorious that every country
drafting a constitution since that time has been at pains to avoid having, in terms,
a “Due Process” clause. Mendelson, Foreign Reactions to Ameiican Experience with
‘Due Process of Law’, 41 Va. L. Rev. 493 (1955); Frankfurter, Of Law and Men
22 (Elman ed., 1956).
the so-called “Substantive Due Process” –
No. I1]
A BILL OF RIGHTS
gress through experimentation and trial-and-error may go on unimpeded 57.
The author draws attention to the fact that this work was completed for pur-
poses of publication in early July, and that subsequently on September 5, 1958, the
Prime Minister introduced into the House of Commons for first reading, a bill
entitled:
BILL C-60
An Act for the Recognition and Protection of
Human Rights and Fundamental Freedoms.
Her Majesty, by and with the advice and consent of the Senate and House
of Commons of Canada, enacts as follows:
PART I
Bill of Rights
1. This Part may be cited as the Canadian Bill of Rights.
2. It is hereby recognized and declared that in Canada there have always
existed and shall continue to exist the following human rights and funda-
mental freedoms, namely,
(a)
(b)
the right of the individual to life, liberty, security of the person and
enjoyment of property, and the right not to be deprived thereof except
by due process of law;
the right of the individual to protection of -the law without discrimina-
tion by reason of race, national origin, colour, religion or sex;
(c) freedom of religion;
(d)
freedom of speech;
(e)
freedom of assembly and association; and
(f) freedom of the press.
3. All the Acts of the Parliament of Canada enacted before or after the
commencement of this Part, all orders, rules and regulations thereunder, and
all laws in force in Canada or in any part of Canada at the commencement of
this Part that are subject to be repealed, abolished or altered by the Parlia-
ment of Canada, shall be so construed and applied as not to abrogate, abridge
57 In this regard, the Federal Constitutional Court (Bundesverfassungsgericht)
of
West Germany has, profiting from the past mistakes of Supreme Courts in other
countries, refused
to spell out from the general provisions of the West German
constitution of 1949 either a constitutional guarantee of governmental non-intervention
in the economy or a “guarantee of the principles of the “social market” economy.
“Das Grundgesetz garantiert weder die wirtschaftspolitishe Neutralitgt
der
Regierungs- und Gesetzgebungsgewalt noch eine nur mit marktkonformen Mitteln zu
steuernde “soziale Marktwirtschaft”.” (Decision of July 20, 1954. 4 B Verf GE 7, 17
(1954)). And as to this, see Nipperdey, Die soziale Marktwirtschaft in der Verfasswng
der Bundesrepublik (1954); Cole, The West German Federal Constitutional Court:
An Evaluation After Six Years, 20 J. Politics 278, 301
(1958).
McGILL LAW JOURNAL
[Vol. 5
or infringe or to authorize the abrogation, abridgement or infringement of any
of the rights or freedoms recognized by this Part, and, without limiting the
generality of the foregoing, no such Act, order, rule, regulation or law shall
be construed or applied so as to
(a)
impose or authorize the imposition of torture, or cruel, inhuman or
degrading treatment or punishment;
(b) deprive a person who has been arrested or detained
(i) of the right to be informed promptly of the reason for his arrest
or detention,
(ii) of the right to retain and instruct counsel without delay, or
(iii) of the remedy by way of habeas corpus for the determination of
the validity of his detention and for his release if the detention
is not lawful;
(c) authorize a court, tribunal, commission, board or other authority to
compel a person to give evidence if he is denied counsel or other
constitutional safeguards;
(d) deprive a person of the right to a fair hearing in accordance with the
principales of fundamental justice for the determination of his rights
and obligations; or
(e) deprive a person of the right to a fair and public hearing by an inde-
pendent and impartial tribunal for the determination of any criminal
charge against him.
4. The Minister of Justice shall, in accordance with such regulations as
may be prescribed by the Governor in Council, examine every proposed regu-
lation submitted in draft form to the Clerk of the Privy Council pursuant to
the Regulations Act and every Bill introduced in the House of Tommons, to
ensure that the purposes and provisions of this Part in relation thereto are
fully carried out.
PART II
5. Nothing in Part I shall be construed to abrogate or abridge any human
right or fundamental freedom not enumerated therein that may that existed
in Canada at the commencement of this Act
6. Section 6 of the War Measures Act is repealed and the following sub-
stituted therefor:
“6
(1) Sections 3, 4 and 5 shall come into force only upon the issue of
a proclamation of the Governor in Council declaring that war, invasion or
insurrection, real or apprehended, exists.
(2) A proclamation declaring that war, invasion or insurrection, real or
apprehended, exists shall be laid before Parliament forthwith after its issue,
or, if Parliament is then not sitting, within the first fifteen days next there-
after that Parliament is sitting.
No. 1]
A BILL OF RIGHTS
53
(3) Where a proclamation has been laid before Parliament pursuant to
subsection (2), a notice of motion in either House signed by ten members
thereof and made in accordance with the rules of that House within ten
days of the day the proclamation was laid before Parliament, praying that the
proclamation be revoked, shall be debated in that House at the first convenient
opportunity within the four sitting days next after the day the motion
in
that House was made.
(4) If both Houses of Parliament resolve that the proclamation be re-
voked, it shall cease to have effect, and sections 3, 4 and 5 shall cease to be
in force until those sections are again brought into force by a further pro-
clamation but without prejudice to the previous operation of those sections
or anything duly done or suffered thereunder or any offence committed or
any penalty or forfeiture or punishment incurred.
(5) Any act or thing done or authorized or any order or regulation made
under the authority of this Act, shall be deemed not to be an abrogation,
abridgement or infringement of any right or freedom recognized by the Cana-
dian Bill of Rights.”
