Building the New Jerusalem, One Clause at a Time - LawNow Magazine

Building the New Jerusalem, One Clause at a Time

The Saskatchewan Bill of Rights, 1947, was landmark legislation that inaugurated a new era in Canadian law. The Bill, which contained a clear description of the rights and freedoms to be protected by the provincial government, anticipated the much better known document of the United Nations, which was declared a year after this bill of rights. The Universal Declaration of Human Rights inaugurated a new era of respect for and attention paid to fundamental rights and how they might best be protected and sustained.

Philosophers such as Hobbes and Locke and their political followers saw “rights” as something granted to citizens through their political masters and the state. Declaring that individuals have rights changes the calculus.The Saskatchewan Bill of Rights represented the refreshing new and innovative thinking of a relatively new party, the Cooperative Commonwealth Federation (CCF). From the outset, the party proclaimed the need for an entrenched bill of rights in the Canadian Constitution. The leader of Saskatchewan’s CCF, the fiery yet humorous and engaging former Baptist minister, Tommy Douglas, had long had a commitment to the protection of fundamental rights. Despite his diminutive stature, he would, over his long career, forge an impeccable record as champion of fundamental rights and freedoms. Douglas and the CCF took on the powerful federal Liberal government, that had been in power for many years, by offering an innovative platform that placed the equality of all members of society at its heart. He followed through with a direction to develop a bill of rights, designed to ensure that the rights of all would be respected, without discrimination based on race, ethnicity, creed or religion.

The Saskatchewan Bill of Rights marked the first time fundamental rights were enshrined in a statute within the British Commonwealth of nations since the original bill of rights was enacted by the English Parliament in 1689. Taken together with the United Nation’s Universal Declaration of Human Rights, the passage of the European Human Rights Act, and later rights legislation in Canada and other countries committed to overturning the status quo, it can be seen as the inauguration of an Age of Rights.

The Bill included the right to vote, and in the context of the times therefore sounded a clarion call for democratic rights. The Douglas government faced two challenges: the consensus that any entrenchment of rights in legislation represented a threat to Parliamentary or legislative supremacy; and the social and legal views of the day. In the 1940s there was little or no legal protection for racial minorities from even the most blatant acts of discrimination. Many, perhaps most, Canadians were quite content with that state of affairs. Certainly they were ready to pour scorn at any radical initiatives to protect the right to equality of various races and ethnic minorities.

Throughout the first half of the twentieth century (and to a lesser degree for some decades beyond that), Canadians to a high degree subscribed to notions of racial superiority. In his superb book, “Race,” Rights and the Law in the Supreme Court of Canada, James W. St. G. Walker quotes the fatuous words of the prominent English scholar and humanitarian, Gilbert Murray. The sentiment he expressed was considered unchallengeable in 1900:

There is in the world a hierarchy of faces… [some] will direct and rule the others, and the lower work of the world will tend in the long run to be done by the lower breeds of men. This much we of the ruling colour will no doubt accept as obvious.

Politicians and activists who proclaimed freely on the differences between the races often drew on the “leading” scientific studies of the early and middle twentieth century. In the last years of World War II, the more reprehensible acts of racial discrimination finally garnered widespread disapproval. Nonetheless, it would take decades to perceive the development of progressive views on matters of racial and ethnic equality. In 1956, one of Canada’s finest mainstream magazines, Saturday Night, published an article, “The Myth of White Supremacy”, explaining that racial prejudices were the result of illogical, discredited views. Still, these views persisted and only a concerted effort would bring about an unequivocal commitment to equality.

The Supreme Court of Canada confirmed that the tavern was well within its rights to exclude members of a given race. Freedom of commerce was the almighty principle that the Court considered swept all other considerations aside.Some readers may be surprised to learn just how complicit our legal system was in the acceptance of racial prejudice and widespread acts of discrimination. While courageous activists and their lawyers attempted to challenge the discrimination suffered by Afro-Canadians, Japanese-Canadians, and Chinese-Canadians, these were invariably rejected by judges. Precedent favoured the liberty of commerce and the right to contract with whomever one wished over the claims of racial minorities to receive fair and equal treatment. Common law equality only meant entitlement to equal treatment “under the law or before the courts or as against the Crown and the government.” It had no application whatsoever as between private individuals. In the 1940s and beyond, swimming pools, hotels, taverns, sports centres and other venues prevented various races from entry. A Calgary dance hall barred blacks “because the parents of white girls attending dances would have objected.” Restaurant owners, to take another example, in various cities simply refused to serve black customers.

It is fascinating, disheartening, but ultimately instructive to study the Supreme Court of Canada’s decision in Christie v York Corporation (1940). On the evening of July 11, 1936, Fred Christie and two friends entered the Montreal Forum to watch the Montreal Canadiens in action. Christie was a black man, originally from Jamaica, a chauffeur, a member of the United Church and long-time Montrealer who wished to share a drink with his buddies on the ground floor of the Forum. The man had an impeccable dress sense and was quite likely the best dressed, would-be patron in the establishment.  He was nonetheless surprised to learn that his request for three steins of beer, having put his 50 cent piece on the table, would be met with a flat rejection – African Canadians were certainly not welcome.

The Supreme Court of Canada confirmed that the tavern was well within its rights to exclude members of a given race. Freedom of commerce was the almighty principle that the Court considered swept all other considerations aside. The Christie Defence Committee , who had rallied to provide support and raise funds for the appeal on behalf of Fred, was further required to hand over monies to pay York Tavern’s legal costs.

Frank Scott, the extraordinary democratic socialist, rights activist, poet and legal scholar, wrote an article on Christie, expressing disappointment at the narrowness of the decision. He concluded, however, that “the great principle of equality must prevail at some point over the other value of freedom of conscience.” He issued a plea for legal reform. Scott would go on to be a key constitutional law advisor to Tommy Douglas’ government.

The Saskatchewan Bill of Rights marked the first time fundamental rights were enshrined in a statute within the British Commonwealth of nations since the original bill of rights was enacted by the English Parliament in 1689.The Douglas government not only acted on long-standing commitments to enact laws to promote and protect equality but exemplified its wide-ranging dedication to this cause by hiring a number of key public servants who were members of racial minorities. Particularly noteworthy were the embrace of Japanese Canadians like Tommy Shoyama and Kiyoshi Izumi. These Japanese Canadians had been part of a persecuted group that suffered forced removal from their homes and confiscation of their property during the war. The CCF party opposed the racial discrimination practiced against them and the efforts of Mackenzie King’s Liberal government to deport some citizens to Japan at war’s end. In the context of such shocking actions in the late 1940s, Frank Scott was quick to point out the significance of the United Nation’s Universal Declaration of Human Rights. He emphasized that Parliament and the legislatures would come under an obligation, moral if not legal, to bring our laws into line with the requirement to protect rights that is at the heart of the Declaration. In Saskatchewan, Canadians could take pride in legislative actions that were consistent with a commitment to fundamental rights. Many years later, other provinces would follow suit.

It was exemplary in its way that Douglas assigned a young, rising lawyer in the province, Morris Shumiatcher, to draft the Saskatchewan Bill of Rights. Morris had initially intended to do graduate work in English literature at the University of Alberta. He was the son of middle class Jews from Poland and well aware of the devastating treatment of fellow Jews in Germany and elsewhere in Europe. He was not an individual to shrug off discriminatory actions or anti-Semitic remarks. So, when a professor made such a remark, he was impelled to enroll in law school and combat racial discrimination through his legal practice.

A week before the summer election of 1944, Morris told his parents that a CCF victory would “lay the foundations for a better society…more interested in the welfare of the human beings of the country than the ledgers and profits of monopolistic enterprise.” Douglas thereafter enticed the young lawyer to help with the building of the “New Jerusalem” by serving as legal counsel to the Executive Council, with particular emphasis on labour issues (rights to collective bargaining and labour rights generally being nonexistent in the province). The idealistic concept of building a new, progressive society was given an emotional charge by the Premier, when he recited from memory the stirring lines from William Blake’s poem “Jerusalem.”

Shumiatcher acted on the guidance that Douglas and his team provided and included affirmation of fundamental freedoms (of conscience, religion, expression, peaceful assembly and association, and freedom from arbitrary imprisonment). The Bill included the right to vote, and in the context of the times therefore sounded a clarion call for democratic rights. The Bill further prohibited various forms of discrimination, on grounds of race, creed, religion, colour, and ethnic or national origin. It included enforcement provisions, fines, and allowed injunctions to be obtained against the government or against any private individual who attempted to deprive a person of any rights included in the Bill.

The Saskatchewan Bill of Rights represented the refreshing new and innovative thinking of a relatively new party, the Cooperative Commonwealth Federation (CCF).In subsequent years, there were only a limited number of actions taken by citizens under the Saskatchewan Bill of Rights and a later bill included a more extensive enforcement mechanism. But have no doubt, the Bill was a beacon and a model for later human rights statutes, the Canadian Bill of Rights, and less directly but no less importantly, for the Canadian Charter of Rights and Freedoms. It represented nothing less than a Copernican revolution in Canadian society and within the hitherto staid legal structure. Together with the Universal Declaration of Human Rights, it genuinely offered hope and a willingness to conceive of individuals as being at the foundation of the legal and political order. Philosophers such as Hobbes and Locke and their political followers saw “rights” as something granted to citizens through their political masters and the state. Declaring that individuals have rights changes the calculus. It was the philosopher Immanuel Kant who glimpsed that a declaration of rights could be viewed as a prophetic sign of a better world to come. In pondering the implications of the French Revolution and particularly the revolutionary introduction of the Declaration of the Rights of Man, he perceived the entrance onto the historical scene of a “people’s right not to be obstructed by other forces from giving itself a civil constitution which it considers to be good.”

Obstacles were placed in the way of the successful implementation of the “Rights of Man” once the French Revolution took a bloody and violent turn. Nonetheless, the last days of World War II and the victory over fascism presented the world with a brilliant opportunity to begin anew. The Saskatchewan Bill of Rights represents Canada’s contribution to, and awareness of, the beginning of an Age of Rights. The process of affirming and protecting fundamental rights has been gradual. Without the initial efforts of the bold pioneers in Saskatchewan, the country would have continued for some time to adopt an impoverished stance on what some of us believe to be the great cause of our times.

Authors:

Rob Normey
Rob Normey is a lawyer who has practised in Edmonton for many years and is a long-standing member of several human rights organizations.
 


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