Rogue Tory
Page 24
More than any other MP, Diefenbaker had become a public tribune, focusing and echoing complaints about the government’s disregard for rights. Members of the King cabinet - whether out of troubled conscience or political alertness - were themselves sensitive to the issue. In Quebec, the Union Nationale government of Premier Maurice Duplessis was engaged in an aggressive battle to suppress the Jehovah’s Witnesses, using its own Padlock Law and the Criminal Code in its efforts to uphold the Catholic faith. The Witnesses responded with a national campaign for toleration, and by June 1947 they had accumulated half a million signatures on their petition to parliament for a Canadian bill of rights.53 In Saskatchewan the new CCF government had sponsored passage of a provincial bill of rights, the first to be enacted in Canada.
At the United Nations, wartime atrocities had prompted discussion of an international declaration of rights. In May 1947 the King government, responding to the mood of the times and to Diefenbaker’s nudging, proposed a parliamentary motion to establish a joint committee on human rights and fundamental freedoms. The government thus hoped to put itself on the side of the angels, taking its distance both from Quebec’s intolerance and from its own wartime record. But as Ian Mackenzie said in support of the motion, that did not necessarily mean support for a Canadian bill of rights. “It is well,” he concluded, “that Canada should play her part in drafting and proclaiming to the world an international bill of rights as a guide and a direction post for the freedom-loving peoples of the world. It is less evident that Canada, free Canada, heir to the common law, should tamper with her heritage of liberty by seeking to inscribe in statutes the freedom that is inherently ours.”54
Diefenbaker did not want to tamper. He wanted to repair a damaged heritage - and more than incidentally, to undermine the Liberal government that had initiated or tolerated recent infringements on Canadian liberties. He laid out the case with care and eloquence in a speech that became the touchstone for all his later approaches to a bill of rights.55 He favoured an international declaration of rights; but that, he insisted, “will not be sufficient to establish and assure rights in our country.” To do so would require a specific, Canadian declaration of rights, adopted “either by way of constitutional amendment or by statute.”
Diefenbaker recognized a paradox at the heart of the parliamentary tradition. Canada had inherited the English charters of freedom, but from the Star Chamber to the Gouzenko case those charters had been violated. He could even concede, as he had in his support for wartime emergency powers, that there were occasions when basic rights must be curtailed. But that should be done deliberately, by parliament, not the executive. And citizens should always have access to the courts to prevent abuse.
From the beginning of his campaign, Diefenbaker thus had two objectives: to renew ideals in a solemn declaration and to guarantee the right of appeal against the arbitrary acts of government. His list of abuses was long, and it applied both to federal and to provincial governments. A province had interfered with freedom of religion on the ground that it was a provincial right, yet those affected had no means of protecting that “charter right” by appeal to the Supreme Court of Canada. The federal government had sought to deport Canadian citizens and had limited economic freedom, detained and questioned persons in secret without access to counsel, and made administrative rulings that could not be challenged in the courts.
Diefenbaker saw remedies both legal and political. At the legal level, he wanted assurance that no laws or orders could apply without the right of appeal. At the political level, “what is needed are civil liberties by declaration of parliament which will guard the individual against the state. It might be argued that another government, another parliament, can revoke a bill of rights passed by parliament. True; but has not history shown that when laws are put upon the statute books, having the support of a vast majority of the people, they stay there?” He offered his own draft declaration of rights for study by the committee.
In addition, Diefenbaker made several specific proposals. The War Measures Act, standing on the statute books since 1914, “constitutes an invitation to any government in the future … to declare an emergency to the detriment of the rights of our people.” It was necessary in wartime, “but in the days of peace, with the challenge that the state is making to the rights of the individual … the act should be repealed.” The presumptions of guilt contained in the Official Secrets Act “which deny an innocent person his full rights of defence” should be removed. The Public Inquiries Act should be amended to deny commissions the power to examine witnesses in secret. Parliament should declare that judges should not sit on commissions of inquiry “dealing with matters in any way of a political nature,” as had occurred in the Hong Kong inquiry of 1942 and the Gouzenko inquiry of 1946. As a public broadcaster, the CBC should no longer possess the power to regulate its own competitors.
The member recognized that his speech left some loose ends. In particular, he had not dealt with the issue of constitutional entrenchment or the possible application of a federal statute to the acts of provincial governments. These were confusing matters, since the BNA Act made no clear or complete allocation of power over rights and freedoms. But he noted that the 1938 Supreme Court judgment in the Alberta Press Case suggested that “every freedom is guaranteed to every Canadian and that when the British North America Act was passed it was never intended that any provincial authority should be allowed to derogate from those freedoms which are the inherent right and heritage of every Canadian and British subject.” A declaratory bill passed by the federal parliament, at the least, would strengthen the hand of the minister of justice in disallowing provincial laws that limited individual freedom.
In his peroration, Diefenbaker linked his concerns with his own personal history, noting that “I speak with feeling on the subject.”
I want to see a bill of rights declare the principles of liberty for all racial origins who come here and have come here because of their passion for liberty and their belief in tolerance. My right hon. friend mentioned that my mother’s grandparents came to Red river with the Selkirk settlers. They came for the same reason that those who came later did so, because of intolerance and the denial of the right of the individual to have recourse to the courts of Scotland. They came to this country, as thousands since have come, because they believed that here they would find justice, righteousness and tolerance without regard to race and creed … Though we may speak different languages, all of us have the same heartfelt concept of liberty. With the trend that is taking place, having regard to the unanimity there is in this country, surely we in this parliament will join together … in a great crusade to assure, not only freedom today to every individual under the law, but freedom to those who will come after us.56
For this western outsider, the issue shrewdly combined principle, personal grievance, and political advantage. The element of advantage could conveniently, perhaps even unconsciously, be cloaked in righteous garb.
Praise for the speech was widespread. A Canadian Press dispatch, taking too easily for granted that the government now intended to sponsor a bill of rights, said that “the clear-thinking, brilliant-debating, realistic” member from Lake Centre was “father of the idea.” “It was a great speech. When the history of the Canadian constitution is written and the passage of the Bill of Rights becomes recognized for the great milestone of freedom that it will constitute, Diefenbaker’s address undoubtedly will be re-read as one of the great speeches by which the cause of human liberty has been advanced in the Canadian Parliament.”57 Elmer wrote to his brother that “the newspaper accounts are more than laudatory … You have carved yourself a niche in history. It stands out as a milestone in Canadian history and is the Magna Carta of Canada.”58
But once in committee, Diefenbaker’s initiative languished. The government had diverted the pressure and had no intention of bringing forward a bill. Diefenbaker wrote to Glen How, the lawyer for the Jehovah’s Witnesses who had organized the mass
petition, that “the Government is trying to ditch the whole question of civil rights but I am glad that we got as far as we did.” To another correspondent he wrote: “As far as the Bill of Rights is concerned there is no possibility of it being enacted so long as the present Government is in power.”59 As he had foreseen, the committee recommended against either a constitutional amendment or a parliamentary statute.60 Diefenbaker continued to advocate a bill over the next decade, while a growing body of academics, legal scholars, and trade unionists echoed his concerns.61 In 1950 a Senate committee considered the issue again, noting that an entrenched bill of rights would require prior agreement with the provinces on an amending process and that parliament should avoid any unilateral effort to invade provincial jurisdiction. Instead, the committee recommended a Declaration of Human Rights applying only to federal legislation.62 No action followed.
DESPITE THE EVIDENCE THAT WARTIME RECOVERY AND THE POSTWAR BOOM HAD been stimulated by government policy, John Diefenbaker remained a fiscal conservative unaffected by any scent of Keynesian economics. With the return of peace, he favoured tax cuts and strict reductions in the national budget. The issue seemed straightforward and politically attractive, and he pressed it hard. “I believe this,” he told the House in July 1946, “that a Trojan horse has found its way into the camp of the people of Canada, it consists of a desire to overexpend and a refusal to control, regardless of the demands in all parts of this country for curtailment. Over and over again the attitude has been, spend, spend, spend!…The government has the billion dollar mentality.”63 As illustration of “the philosophy of this government,” Diefenbaker recalled a remark of the minister of reconstruction, C.D. Howe, in 1945: “I dare say my hon. friend could cut a million dollars from this amount; but a million dollars from the war appropriation bill would not be a very important matter.” Diefenbaker gloated: “That is the philosophy; that is the psychology.”64 Thus was born a recurring Conservative taunt, later simplified to the question “What’s a million?” - a taunt aimed more and more specifically at Howe, whose autocratic style laid him open to such barbs. Diefenbaker genuinely admired Howe’s magnificent efforts as “the genius of Canada’s war production,” but found him an irresistible target because of his impatience with opponents in the House. For Diefenbaker, Howe was a useful symbol of Liberal excess and Liberal hubris.65 In fact, Howe was sceptical of central planning and quickly restored management of the postwar economy to the hands of private enterprise. In fixing on an issue of style, Diefenbaker preferred to miss the substance, with which he had no argument.
For Jimmy Gardiner, the perennial Liberal minister of agriculture and western party boss, Diefenbaker was a troublesome gadfly. His presence in the House offered daily proof that Gardiner’s skill in limiting the Saskatchewan opposition was imperfect. And Diefenbaker was not even the main challenger in the province. Liberal weakness on the prairies had been driven home by the party’s crushing defeat at the hands of the CCF in the provincial election of June 1944. In 1945, when Gardiner was in charge of national organization for the party, the Liberals suffered another huge setback in Saskatchewan. They lost ten seats while the CCF gained thirteen.66 In Lake Centre, the Conservative tribune held on against the tide, increasing his majority from 280 in 1940 to 1009 in 1945.67
Gardiner was determined to erase those political embarrassments, and he focused part of his efforts on the redistribution of parliamentary seats and the redefinition of constituency boundaries. When the redistribution bill of 1947 emerged from cabinet and committee, Diefenbaker’s Lake Centre seat, among several Tory ridings, was somewhat mangled.68 Diefenbaker complained that “to Lake Centre has been added a voting strength of 4,900, of whom only 286 were Progressive Conservatives in the last elections.” In particular, he noted that sixteen townships containing a substantial CCF majority had been sliced from the minister of agriculture’s constituency and added to Lake Centre.69
Diefenbaker rallied the Conservative caucus and the party leader to his defence, but in fact his case was disingenuous. Diefenbaker himself had been a member of the Saskatchewan subcommittee that had approved the boundaries. As its chairman, the Liberal MP Walter Tucker, told the House, the subcommittee had conceded most of Diefenbaker’s requests and he had signed a unanimous report. Diefenbaker, he said, had been exclusively preoccupied with his own riding, and the subcommittee “did, I am a little ashamed to say, more or less gerrymander things in favor of the hon. member for Lake Centre. But we did that knowing he was the only Conservative member in Saskatchewan, and he kept saying that he could not get elected unless we did something.” 70
Diefenbaker blustered at these revelations. He insisted that the boundaries remained gerrymandered against him, and referred contemptuously to Tucker as “the Minister of Agriculture’s waterboy in Saskatchewan” who “repeatedly found himself in a position in which he had to do what he did not desire to do, but was ordered to do it by his dictator in the province.”71
The CCF member of the subcommittee commented drolly that the Liberals, with only two seats to save in the province, had chosen sensibly to protect the minister at the expense of the Conservative next door - just as the Conservatives would have done if they had been in power. But he agreed with Tucker that the subcommittee’s emendations had partly restored the balance.72 Diefenbaker emerged from the debate looking less than candid. Later in the day he went to Tucker’s office - at Edna’s insistence and in her company - to apologize for his personal comments.73 In public, however, he held to his story of a blatant gerrymander. Gardiner, wrote Diefenbaker in his memoirs, “had done everything that the mind of a machine politician could envisage, short of destroying my constituency altogether.”74 The episode deepened doubts in the Conservative caucus about the trustworthiness of the member for Lake Centre.
By 1948 there were no big issues in Canadian politics. In foreign policy, as the dangers of the Cold War deepened, there was virtual consensus that the country had no choice but to shelter under American protection while playing helpful mediator at the United Nations when it could. Domestically, after an exchange crisis in 1947, there was spreading prosperity and a diffuse spirit of faith in an unlimited future. The country was in the hands of a safe and unadventurous team. John Diefenbaker continued to build his singular reputation as a free-swinging critic, populist free enterpriser, and defender of human rights, travelling the country on an endless circuit of speechmaking. But his party was in the doldrums. There seemed no central issue around which to shape a challenge to Liberal dominance.
Early in the year, the elderly and failing Mackenzie King announced his intention to retire, and in August the Liberal Party chose his preferred successor, Louis St Laurent, as its new leader. Just weeks before that convention, John Bracken was persuaded to resign his leadership, and a Conservative convention was called for October. Those who successfully belled the cat (including Ray Milner and J.M. Macdonnell, now the national president of the party) did so only after they had been assured that George Drew would seek the national leadership. After a third provincial victory in Ontario in June, his record of success in the heartland dazzled the federal party managers. They dreamed even of a breakthrough to French-speaking voters, since Drew had won six French language ridings in eastern Ontario.75
In June 1948 Diefenbaker went south to Philadelphia to observe the Republican Party’s nominating convention, and then to Prince Albert to keep his hand in at the law office. He had no warning of Bracken’s imminent resignation, writing sceptically to David Walker on July 13 of a Winnipeg editor’s claim that efforts were under way to replace Bracken with “an Ontario man.” Diefenbaker invited news: “If you hear anything at any time that might be of interest won’t you sit down and drop me a line as I find myself entirely cut off from everything of a political nature so long as I am in Prince Albert.”76
Four days later Bracken’s resignation was announced, and by the end of July the national executive had settled on a convention in Ottawa in two months’ time.
Diefenbaker had already made his decision to run and he threw himself at once into a busy summer campaign. In what was still a well-contained party affair, however, he felt no need to make a public declaration of his candidacy for several weeks. David Walker took charge of the national campaign, Bill Brunt sought Ontario delegates, and Jack Anderson managed the campaign in Saskatchewan. Diefenbaker himself conducted a large, scatter-shot correspondence while dashing to speaking engagements in six provinces.
Initially he wrote to his friend Mickey O’Brien, an advertising executive in Vancouver, to suggest a spontaneous campaign of letters to the press in his favour. That evolved, under Walker’s guidance, into an independent advertisement for Diefenbaker. He told Walker that “I will know nothing about that officially but would like to look it over, as I told you, before it goes out.”77 The ad appeared in Saskatoon and Winnipeg with local signatures in late August, and Diefenbaker commented: “The effect of the grass roots movement has been tremendous. All of Winnipeg was talking about it when it came out … I went down to the Star Phoenix today and there too one after the other of the press men spoke of it as being one of the most spontaneous movements ever started. If other cities and towns will follow that lead it will mean a great deal.”78