Ottawa, November 2, 1959
There is a general criticism of the present Bill of Rights proposal that it is fundamentally defective in not providing for the Bill of Rights being placed in the Constitution.
This means I think that:
- The sovereign legislative authority of Parliament or the legislatures, or both, should be curtailed so that any law that encroached on a human right or fundamental freedom would be a nullity; and
- The power, if any, to amend or override the Bill of Rights would be outside Parliament and the legislatures – the repository of all sovereign legislative authority in Canada.
In other words what is proposed by the critics is that the Bill of Rights be so “entrenched” in our Constitution that there can be no alteration to it, or departure from it, by way of any exercise of sovereign legislative authority in Canada.
There are two questions in this connection that, as far as I know, have not been sufficiently considered by the advocates of “entrenchment”. These are
- What are the advantages and disadvantages of “entrenchment” and where does the balance lie?
- Can “entrenchment” be effected under our constitutional set-up, and, if so, how?
II. Merits of Entrenchment
The hypothesis on which the Bill of Rights is based, as I understand it, is that there are, under our philosophy, certain rights and liberties of the individual that are so fundamental to our way of life that no law and no force should be allowed to encroach on them.
The Bill of Rights is the instrument to make that hypothesis a reality.
If the Bill of Rights in operation is completely successful in achieving its objective, entrenchment would undoubtedly be desirable.
If the Bill of Rights in operation does nothing but restrain the legislature from encroaching on the essential rights and freedoms, nothing but an alien or an evil agency would have any reason for overriding it and it would be far better that that were impossible.
However, the Bill of Rights has been drafted by men and will be applied and interpreted by men who, notwithstanding their high offices in the executive and judicial branches of government, are human beings and therefore subject to error when judged by fundamental standards. In particular
- The Bill may, in the light of subsequent world developments, appear to have overlooked fundamental considerations;
- The Bill, as ultimately interpreted by the Supreme Court of Canada, may appear, in one or more respects, not to have been so worded as to achieve the desired results.
It must be assumed, therefore, that there is real possibility that the Bill may be so interpreted in a particular case of general importance as to be injurious to the individual rather than a protection to him. (For example, it might be held to have the effect of requiring children charged with offences to be tried in the full glare of newspaper publicity rather than in a more suitable setting.)
The question of entrenchment must be considered in the light of that possibility. Is a government, faced with a judgement of the Supreme Court of Canada which it is convinced is going to have terrible social consequences and which it is convinced is abhorrent to the vast preponderance of right-thinking people, going to have to say that the country must resign itself to such consequences because nine judges (or three out of five) felt constrained by words which taken literally appeared to dictate such an unforeseen and calamitous result?
The position is therefore that, if we have entrenchment, alien or evil agencies will not be able legally to overthrow or cut down the rights and liberties guaranteed by the Bill; and, if we do not have entrenchment, a government will be able, in a sufficiently clear
Case, to cause Parliament to correct unforeseen harmful results of the Bill.
In considering which state is preferable, two factors may be relevant –
- No matter how you look at it, entrenchment is abandoning, or transferring to some outside agency, some part of Canadian sovereignty; and
- Under the proposed scheme, while there would be no entrenchment, there can be no interference with the results obtained from the Supreme Court of Canada unless a Government is so clearly satisfied that the result is abhorrent to right-thinking people that it is prepared to meet Parliament and the country on a proposal to pass a law “notwithstanding the Bill of Rights”.
III. Means of Accomplishing “Entrenchment”
Assuming that the proposal is to be restricted to limiting the powers of Parliament, the two obvious ways of placing the Bill of Rights in the Constitution are
- An amendment to the British North America Act by the Imperial Parliament request by the Government of Canada after a resolution has been passed by the two Houses of the Canada Parliament; and
- An amendment to the “Constitution of Canada” by the Parliament of Canada under s. 91 (1) of the British North America Acts, 1867 to 1949.
Upon analysis, it would not appear that either of such methods would result in entrenchment. As far as a s. 91 (1) amendment is concerned, any subsequent amendment would be made in exactly the same way as an amendment to the present Bill of Rights, if it is proceeded with. As far as an Imperial amendment is concerned, just as the original amendment can be obtained with less fuss and debate in the Canadian Parliament, so, as a practical matter, any subsequent change could be obtained with less trouble than would be involved in amending the proposed Bill of Rights.
Handwritten note: “Because an Adden. to this in Parlt. invokes only a “one-stage” debate, whereas an amending Bill would involve 3 Readings, etc. – J.”
What then is necessary for entrenchment? My answer is that, under our present constitutional law and conventions an Imperial statute imposing a fetter on Parliament alone can only be passed at the request of the Canadian Government and would have to be repealed upon a similar request and, indeed, since the Statute of Westminster could probably be repealed by Parliament.
The situation would be more complicated if an Imperial statue were passed, at the request of the Canadian Government, concurred in by all the provincial governments, imposing a Bill of Rights as a limitation on Canadian sovereign legislative power. It might then be said that, until all eleven governments agreed, there could be no change in the constitutional limitation. While it is not so clear, I think there is good ground for saying that, under the Statute of Westminster, Parliament and each of the legislatures could repeal such a law so far as its own legislative authority is concerned.