- The Empire Club of Canada Addresses (Toronto, Canada), 1 Mar 1934, p. 466-481
- Calder, Robert Louis, Speaker
- Media Type
- Item Type
- The question as to whether or not Quebec is a British Province. An exploration and examination of what it is that makes a country British. The test of the British quality of any country and any area. Some comments on the Victorian age. The accomplishment of the Victorian age with regard to the development of a greater liberty for the individual. Elements of the Victorian liberty. The freedom of the British subject, and of what it was composed and compounded: Freedom of speech; Freedom from tyranny on the part of the Civil Service by the operation of the prerogative writs; Freedom from inquisition; Freedom from torture as a method of criminal investigation; Freedom of access to the common courts in order that issues between subjects and between government and subjects might be tried; Trial by Jury; The secrecy of the ballot and the right to controvert illegal and corrupt elections. The speaker's assertion that an infringement of any one of these rights destroys them altogether, and why that is so. An examination and exploration of each of these rights and whether or not they exist in the Province of Quebec, accompanied by specific examples. A look at the Ontario Judicature Act for some similar problems. Some concluding words quoted from Lord Hewart of Bury, Chief Justice of England. The dangers of not maintaining British democracy.
- Date of Original
- 1 Mar 1934
- Language of Item
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- Full Text
- IS QUEBEC A BRITISH PROVINCE?
AN ADDRESS BY ROBERT LOUIS CALDER, K.C., M.C.
March 1, 1934
MR. CALDER was introduced by MAJOR W. JAMES BAXTER, President
MAJOR BAXTER: One of the gratifying trends to be observed in recent years has been the strengthening interest of Canadians in their own Dominion. A deep love of country has always seemed to me to be the essential soil from which all national virtues and accomplishments spring. If each Canadian and each new citizen attracted to our shores could acquire a particular intimacy with and affection for the Dominion's traditions and historical associations, Canada would be truly rich in her patriots.
Canadians, of course, proved their patriotism in the War. But that was a heady, champagne-like patriotism, unsuited to the sober, deep-rooted patriotism our changing and ever-progressing Dominion needs today. And so one cannot but be gratified at the increasing interest many of our citizens are now showing in the Canadian affairs. The weekly lectures of the Ontario Historical Association by leading officials, citizens and educationists, are doing good work in this regard right here in Toronto. I would like, in fact, to draw your attention to these lectures being given on Saturday afternoons at Trinity College at half past three in the afternoon. The Canadian Radio Commission is also doing a fair job in inculcating a broader Canadian spirit throughout the land,
In view of these trends, it is appropriate that we should have as our guest of honour today a brilliant public personality who can teach us something about our sister Province of Quebec. Mr. Calder is a Canadian who has served Canada with distinction in France. He comes to us today as a man whose gifts have been recognized in the legal, political and literary arena, who has won his laurels in many celebrated legal battles, and whose brilliance and uncompromising integrity have won him high place in the estimation of his compeers. I am privileged to introduce to you, Mr. R. L. Calder.
MR. R. L. CALDER: Mr. Chairman, and Gentlemen: I am doing a somewhat dangerous thing, today. I am going outside of my province to speak evil of it. My motive is that having said these things which I am going to say to people within the Province without awakening them, I hope to come here and expose them sufficiently, as they would look at it, to make them angry enough tot consider my proposition.
I did that on one occasion when I ventured to travel through Nova Scotia, reprimanding the Maritimer for his supineness and habit of whining. They told me that they would like to take the speech and make a pamphlet of it. "Have you a manuscript?" they asked. I said, "No, but on the first occasion I have to speak, I will speak on the subject and get a stenographer to record what I say." I spoke in Montreal a week after and for at least two years, it was unsafe for me to travel through Nova Scotia.
The question I am bringing before you is this: "Is Quebec a British Province?" What is it that makes a country British? It is not race; it is not religion; it is not language. The Empire contains a mass of various kinds of men, from people like ourselves who are descended from the British races to people in the far flung parts of the Empire who may have head hunting instead of hockey for a national sport. The Gaelic-speaking Highlanders, the Welsh-speaking Welshman, the French-speaking journeyman, the Hindu, speaking Hindustani, are all British citizens. The test of the British quality of any country and any area is the extent to which they have the true conception of individual liberty and to what extent they have the means to enforce and assert it.
Now, I am going to be shamlessly Victorian in this address. I judge from the lack of hair and lack of vigour of some of those listening to me, there must be other Victorians in this gathering. There are also some young men and it is to those I wish to repeat the words of Sir James Barrie when he became the Chancellor of the University of St. Andrews and was speaking to the graduating class. He said, "Of course, in the full flash, of your degree, you will laugh at the Victorians as a quaintly impossible and singularly impracticable folk, but your real trouble will come when you endeavour to equal them." (Applause.)
There is one thing that the Victorian age, however wrong it may have been economically, however wrong it may have been in other things, did. By a continuous struggle from 1800 to the outbreak of the Boer War, it pressed upward to the full development of a greater liberty for the individual than the world had ever known. We don't know it in its completeness today. The Boer War, itself, started certain restrictions and since then we have crossed the range of the hill and we are going down the other side.
Of what was the liberty of the Victorian composed? What were its ingredients? I am reading now from the notes from which I am speaking seven nights a week, several afternoons, and occasional mornings, on this subject to a Province that I am trying to awaken to its condition. The freedom of the British subject was composed and compounded of the following ingredients: Freedom of speech; Freedom from tyranny on the part of the Civil Service by the operation of the prerogative writs; Freedom from inquisition; Freedom from torture as a method of criminal investigation; Freedom of access to the common courts in order that issues between subjects and between government and subjects might be tried; Trial by Jury; The secrecy of the ballot and the right to controvert illegal and corrupt elections.
Now, I stand here to assert that all these things are gone in the Province of Quebec because you can't encroach on any of these rights without destroying them altogether; that all these things are gone and however much the French-Canadian who is the closest relative of the English since he is pure Norman and he formed one of the five peoples that came out of the Jutland Peninsula which consisted of the Angles, the Jutes, the Saxons, the Danes and the Normans, but although he is your closest cousin, although every fibre in his being and every bit of his education calls on him to be British, insidiously and without him being conscious of it, the Government has gradually filed and whittled away all that made him a British citizen with the masteries and privileges of that citizenship.
Do I have to speak of the right of the freedom of speech, here, to an audience that is all British-born or British-descended? It is too often forgotten that the foundation of the British constitutional method is freedom of speech. Freedom, untramelled; freedom, unrestricted; freedom, extended to everybody, no matter what his opinions may be. Agitation is our method of testing public opinion and of getting a public mandate. I know that the word, "agitator," has sinister implications. There are so many people who think that an agitator is necessarily an unwashed, unshaven man, in tatters, with a pamphlet in one hand and a bomb in the other who offers no other alternative except to choose between them. Of course, Oliver Wendell Holmes said that you can take any choice of words and render innocuous if you define it by definition. What is agitation? It is the promotion of a plan of public betterment by public speech. And that being the meaning of the word, for goodness' sake, what person in the world could object to it? You people may not know the plan; you may not appreciate it; you may be hostile to it; you may not allow it to be presented. If you don't, you do two things detrimental to the state. You may pass up something that is valueless, if it is valueless, you may be creating a martyr out of a fool. And you haven't granted freedom of free speech until you grant it to the man who is in opposition to you in his contentions and desires. You must adopt the noble attitude of Voltaire whey, he wrote to Helvetius: "I hate what you think like the devil, but I would lay down my life for your right ho say it."
I am even told that in this City, there are restrictions of free speech, but in the Province of Quebec we have gone beyond Section 98; we have gone beyond all legislation in the world in restricting free speech. The Government of Quebec says, "We don't restrict free speech. You can hold any meeting you like, so long as nobody comes to it." There has been a bill presented to the House by the Government and when a Bill is presented it is necessarily passed. There is no independence, no original thought in any of the Members--and that includes both parties. The Bill will inevitably be passed. What does it lay down? It lays down this: If you want to hold a public meeting and you want to advertise by circulars or posters or advertisements in the papers, you must first submit your poster or other matter of advertising to the Chief of Police of the jurisdiction where you want to speak, who by absolute discretion on his part says whether the circular will be published or not. If every Chief of Police were like the Chief of Police in the City of Montreal, who is an educated and cultured gentleman, it might be different, but where you have Chiefs of Police who are promoted to the head of the force, simply because they have the biggest belly in it, or Chiefs of Police forces that are so small in numbers that when he puts on his cap, the entire force is covered for the day, and the Act goes further and says that that power, where there is no Chief of Police, is invested in the Mayor elected for an abundance of political prejudice.
I ask if this is not a way of striking at the root of freedom of speech, accompanied by the cowardice of pretending not to do it. But there is one thing that will interest you and I hope that Mr. Taschereau now hears my voice; it is this: no circular of any kind at all, no, matter what its character, may be published by anybody unless he lives in the Province of Quebec, so if you try to convince us to any noble ideas, you have no chance of getting an audience unless you pay our fare to some point outside the Province of Quebec.
The next ingredient of freedom, was freedom from officialism through the prerogative writs. You know it is rather a funny thing, there is an institution called the Civil Service and people are called Civil Servants because they belong to it and although the word "Civil Servants" is underlined, they believe themselves to be the masters and they cease to be civil.
Now, under all countries that have British liberty, you have a method of cracking the whip-you, the master citizen-along the spine of the civil servant who will not do his duty and of asserting your mastery. This method is the opposite of the prerogative writs.
I am going to talk about the driest subject in the whole world and the most repelling, to the average mind. I am going to talk of law. There are six prerogative writs which are the pillars of our constitutional right to be British. These are: The writ of Habeas Corpus; the writ of Quo Warranto; the writ of Mandamus; the writ of Injunction; the writ of Certiorari and the writ of Prohibition. I know these are long words" put down in the English language when the Englishman was speaking a haze of French and Latin and English and didn't know what he would speak eventually.
It is easy to understand what the objects of the writs are and for what ends they were designed. The writ of Habeas Corpus implicated rights which had existed from the Magna Carta, that to no man must we deny the right to a full inquiry into the legality of any restraint made. The writ of Quo Warranto was the broadest thing. It is a writ which provides the right to enquire into the authority of a person who wants to do something he has no right to do or wants to go beyond his right in doing it.
The writ of Mandamus is a writ which is directed to the Civil servants--they are rather numerous. He is dangerous because he does nothing which he is not obliged to do, and under this writ he gets an order.
The writ of Injunction is for civil servants doing inevitable damage by some action and which orders him to stop still; it is a writ to provide for the requiring of persons to refrain from doing certain acts.
The writ of Certiorari is the writ which is directed by the Chief justice, by the high-minded, high position judge, this judge who should be, according to the mode of his election, certain of security in his position, to the little magistrate who decides every action between the government and the subject with an eye upon the government.
Then, there is the right of Prohibition which says to the junior magistrate or the inferior magistrate that he mustn't outstep his jurisdiction. I haven't time to go further than to the consideration of the writ, but the fact remains, you must surely stand with their definitions; with them you can repress and control the civil servant in everything he does that is illegal. If he has a right to do it, your writ is quashed and you pay the. penalty in costs of the folly of going to law without a reason for it. If, on the other hand, you are right, the civil servant is reminded that you are the master and that he is the servant and that he mustn't reverse the position.
Now, what has happened to the prerogative writs in the Province of Quebec? I hold in my hand am enactment which I have always defended, like the Parson's Act, as good in part. This is a copy of the law destined to regulate thirst in the Province of Quebec. I am against regulating thirst. I am for the French method which permits anything to be sold anywhere, twenty-four hours a day and three hundred and sixty-five days in the year, because nobody gets drunk on the system that doesn't hold that stolen waters are sweet and bread eaten in secret is pleasant. If you are going to do it by government fiction you might as well do it in a wise way. This Act is a wise dispensation in that respect but it had the one serious defect that it created a government monopoly in business and here I am going to be thoroughly Victorian and say that a government has no business going into any business. (Applause.) I think I have lost the support of the C.C.F., now. (Laughter.) Now, it has created a monopoly and to enforce the monopoly it decreed some exceedingly savage penalties. For instance, (I haven't time to give all the examples)-I may say that this speech usually takes three hours and T have only twenty minutes to go) I will tell you this, however: In tie Province of Quebec' you buy a bottle from the Liquor commission and take it to the office and give somebody a drink or take one yourself; you render yourself open to a penalty of not less than one thousand dollars, in default of which you get six months in prison. It seems to, me and I put it to you, when you have a sumptuary of that character, all the safeguards of the citizen should he maintained.
Now, I read to you simply from the law, and at Section 339, I read the following:
Denial of the writ of quo warrantor denial of the writ of mandamus; denial of the writ of injunction; denial of the writ of certiorari; denial of the writ of prohibition; denial, if put in simpler English, denial of justice, the whole truth would be manifest.
These chapters go on to say, as respects the Liquor Commission or any servant, or any employees or any courts administering the Act, there shall be no, resort to the writs which have been the foundations of the British liberty from almost time immemorial. No writ of injunction may be granted to prevent either temporarily or permanently, the Commission or any of its members from doing anything.
In Section 130, it assassinated the write of Habeas Corpus, only they were overcome by shame and didn't say it in so many words. Why was this law passed? I can remember the AttorneyGeneral saying, "Good honest people of the Province of Quebec, this is not meant for you; it is meant for the bootleggers." A bootlegger is a man convicted, not a man merely suspected. As long as he is just suspected of it, why shouldn't he have the same rights as a man suspected of murder, rape, holdup or theft? Do you know what he was acting upon? He was acting on a characteristic that you have in Quebec,, which you have in Ontario and which they have in all the nine provinces of the Dominion-the concept in the mind of every citizen that a thing is not unjust unless it is done to him personally, and nobody imagines that he is going to be a bootlegger so he says, "It frees me; to hell with the other fellow. Who cares? It will never matter."
You know, if there is one thing I would like you to carry away it is this idea that you can't hurt anybody by law without hurting everybody. Conceivably, if anybody walked along the east side of Yonge Street, treading on everybody's toes, with a pair of good heavy boots, people on the west side would say, "'What of it? We are not on that side." An Englishman would cross the (street and call a policeman and smash the treader of toes in the eyes, because he is against treading on toes as a matter of principle. (Applause.) We must do one thing or the other-either we must become British again in that particular, or else stop proclaiming ourselves as British.
Having tasted blood in this respect, having said, "I can do anything to these people" what is the next step taken by the government. I am going to read an amendment to the Act. You remember that I told you that the writ of mandamus and the other writ of certiorari were abolished as regards the Liquor Act in favouring the Liquor Commission. The amendment says: "No proceeding by way of injunction, mandamus or other special or provisional measure shall be against the government of this Province or against any Minister thereof, or any officer acting upon instructions of any such Minister for anything done or omitted, or proposed to be done or omitted in the exercise of the duties thereof including the exercise of any authority conferred or purporting to be conferred upon same by any act of this legislature." So, with the exception; of the writ of certiorari, forgotten in this enactment, all means of control of the civil servants have been abolished in the Province of Quebec.
I wish I had time to give an instance of that but I must press on.
But it is no use preaching entirely to the Province of Quebec. I would like to preach about Ontario a bit. What was the next thing? We had freedom from inquisition. The British constitutional method of prosecuting crime or any penal offence is this, and it is an honest, sporting, above-board method of prosecuting: There must be some man responsible for the charge, responsible civilly arid criminally. He must reduce his Charge to writing; the writing must be sworn to before a judge. A copy of it must be served upon the accused person in order that he may know what he is accused of and he must be warned that he has a right to remain silent until the charge is brought home to him.
This, you will see, is in direct opposition to procedure by inquisition. In the Province of Quebec, procedure by inquisition has started to be established by an amendment in 1933 to the Quebec Liquor Act. Suppose I commit the offence of having a broached bottle of liquor in my office--and I may say that I ommit the offence often--I strongly hold with my friend, Clarence Darrow, that citizen is obliged to be a damned fool! Suppose I commit that offence and some evening I give a client, on my way back from court, a treat. Perhaps he thinks 1 should have pleaded the case better and he wants revenge. He goes to the Liquor Commission and tells them that I have a broached bottle in my office and therefore I have committed the heinous offence for which I can be fined a thousand dollars. The Liquor Commission sends a man down to swear the information that I live in the Province of Quebec; that I have knowledge of an infraction committed against the Quebec Liquor Act, and therefore I must appear before the magistrate to answer questions about it. In I walk and say, "Here I am, in answer to your earnest invitation." He says, "Sit down; put your hand on the Bible. You swear to tell the truth, the whole truth and nothing but the truth, so help me, God." Never was any prayer better needed! I say, "Judge, am I accused of anything?" He says, "We don't have to tell you that. You answer questions; that is all you have to do." I must either perjure myself to save paying a thousand dollar fine or tell the truth and incriminate myself or go to jail for not speaking. Silence is golden but we are off the gold standard in that respect.
Not only can that be done to me, but to my private secretary, my partner, my office boy, any of my clients, and they must be put to the alternative of incriminating me or perjuring themselves through loyalty to me, or going to jail for an indefinite time for contempt of court. Have you ever heard of more monstrous legislation than that? I don't think that a more serious blow has been struck at the integrity of British institutions since the beginning o f time.
The next thing the government has done by way of filing down liberty is to give official approval to torture as a method by which to investigate crime. I have been practicing law for twenty-six years. I have been a Crown prosecutor, and never have I resorted to third degree methods which I proclaim here as illegal, silly, monstrous and inefficient. If you are going to proceed against a man by torture it is only a question of the amount of torture before you get an admission that he is guilty.
Let me tell you what happened in the Province of Quebec: A poor derelict tramp was arrested in Hull. He was suspected of a murder. Was there evidence that he had committed it? I don't know; that is immaterial. There wasn't enough evidence to bring him before the magistrate, so the police took him to the cells and for six weeks held him there. They said, "Tell the truth and you go out of here." He says, "I am telling the truth. I am not guilty." "That isn't the truth," they say. For the policemen, the only truth is self-accusation. There he was for six weeks, waiting the alternative of speaking and going on the scaffold or remaining silent and, as far as he knew remaining there forever. He saved them the trouble. He hanged himself to the bars of his own cell. By any conviction in the world, that is murder and I would be prepared, if the Attorney-General of Quebec would give me the prosecution, to hang the man who gave this order. (Applause.) Everybody understands that. Every policeman hangs his head in shame when you bring it home. This legislation has started to go back two hundred years and reconsecrate torture as a method of investigation but we in the Province of Quebec have seen the Attorney-General, after the Court of Appeal quashed a conviction on account of these things, get up and say to the assembled Chiefs of Police of the City of Montreal and the Province of Quebec: "Never mind what the Court of Appeal says. I approve of the third degree as a method of investigation."
I am here to proclaim my shame of the leading man in the Province and a man required by it to cause the law to be respected.
Time is fleeting. I must pass on. But when the British people have freedom of access to the courts of the land to try every issue, it is not to courts which do trot permit the usual method of examination by cross inquiry and argument. We have in the Province of Quebec, two bodies lifted high above the control of any court-the Quebec Liquor Commission and the Workmen's Compensation Board and I proclaim those as workers of injustice.
Then, we have had as one of the guarantees of our liberty, trial by juries. In the Province of Quebec it is going and going fast. You can't blame the FrenchCanadian so much. The principle is not so much a part of their consciousness as it is of ours. But I warn you of this: Your governments are constantly copying our governments in what they do that is evil, so now I ask you to be on you guard. Grand jury has been abolished -abolished, according to the Attorney-General, because it costs a lot of money and because it very seldom reverses the magistrate's judgment, and because they have created in the Province of Quebec the highest minded magistracy it ever had-as if you could do that after holding power for thirty-five years and appointing only your own henchman in all that time! I could make as good an argument for the elimination of fire brigades. They cost a lot of money, they are very seldom used!
The secrecy of the ballot was your guarantee. By a simple modification the ballot is no longer secret. You know your ballot and the Federal ballot and also those in the Province of Quebec had a stub detached from the ballot and endorsed with the initials of the returning officer. When the stub came back he knew it was the one he had issued by a letter marking the counterfoil. The government made sure that the man who sold the vote would deliver it. He gave him a marked ballot. If you want your ten dollars you go in and bring out a blank ballot and you get your ten or your five-C.O.D. voting.
Well, the Dillion Act was passed which changed, the law.
The reason for this legislation was that it was a terrible, attack on the parliament of the Province. We were sullying the Province by saying that some one else had sullied it and Mr. Taschereau was to contend that the Province of Quebec was as pure and white as driven snow and he forbade her stripping for a bath!
I have preached it and I have said to every Quebecker who would listen, that nothing of individual liberty is left in the Province of Quebec, and now I come to my real sermon to you. When I entered this controversy and I hope you are all taking note of this-you have a house to sweep, too-when I began the controversy, the Prime Minister said, "O, it's all been said before," and he didn't pay much attention. As I went on, he decided that something had to be said about it and you have in The Gazette of November 8, an article on the front page, headed, "Premier Takes Calder In Hand Over Speeches.; Stoutly Refutes 'Reactionary Tide' Attack on Quebec." When you are in a Pharisaical mood you say, "We are better than Quebec." When we, in Quebec, are in a Pharisaical mood, we say, "We are no worse than Ontario." I don't know which is the more complimentary. I am going to leave this paper an the table for your inspection. Mr. Taschereau said, "What about Ontario? In Ontario the following statutes have been passed:
"In the Ontario Mining Act, injunction, mandamus and prohibition have been abolished. In the Ontario County Courts Act, Section 23 restrains prohibition and Section 26 restricts certiorari. In the Ontario Public Health Act, no order or proceeding shall be vacated, quashed or set aside for want of form or be removed or removable by certiorari or otherwise into the Supreme Court.
"In the Ontario Railway and Municipal Board Act, no order, decision or proceeding of the Board shall be questioned, reviewed, restrained or removed by prohibition, injunction, certiorari or any other process or proceeding in any court.
"In the Workmen's Compensation Act, there is no Injunction, prohibition or any other process or proceeding in any court.
"In the Ontario Liquor Control Act, there is the total abolition of injunction, prohibition, or mandamus or other process or proceeding.
And listen to this: "The Ontario Judicature Act: No extraordinary remedy by way of injunction, mandamus or otherwise shall lie against the Crown or against any Minister thereof or any officer acting upon the instructions of any Minister for anything done or omitted or proposed to be done or omitted in the exercise of his office including the exercise of any authority conferred or purporting to be conferred upon him by an Act of this Legislature." A few minutes ago, you thought ill of Quebec because you thought we had such legislation. I think it is time to remove the beam out of your own, eye.
Mr. Taschereau goes on, citing statute after statute. I haven't time to do any more. Mr. President has to have an innings again.
I want to say this as a parting word and I am paraphrasing now, no less a man than Lord Hewart of Bury Chief Justice of England who wrote a book, entitled, "The New Despotism," in which he denounces the tyranny of the civil servants and the oblivion of the master citizen. He goes on to say this: Democracy is not a patent medicine; it is not a fancy religion. It is a mode of control and an assertion of liberty which has been evolved by two thousand years of Nordic ancestry. It may not be good for others but it is best for us and owing to the gradual encroachment of the civil servants and the supineness and servility of the citizen master, it is disappearing.
I will say this, and I say it, weighing my words: If you don't maintain British democracy and if you don't defend it wherever it is threatened, then the only thing that holds this Empire together is gone and there is no advantage in saying as Paul used to say, "I am a Roman citizen." There is no more advantage in saying, "T am a British citizen," and if there is no advantage in saying, "I am a British citizen," why have an Empire at all? The time to kill these things is when they are beginning. (Applause) And let me say, since Shakespeare also relieved the horror of his worst sins by a little humour, let me tell you what is going on now in Ontario and Quebec, only in Quebec there was one just man,, myself, who has denounced these things considerably and will continue to denounce them as long as he has a tongue to wag and a brain to think. The process is an insidious one. We are losing our liberties and that is happening to us in a respect similar to that which happened to the dear little girl who went to am infantry regiment ball an was in what we pleasantly called "a hugging booth," with a young subaltern. He noticed a little wool protruding from under the epaulette of her evening dress. He pulled on it and the more he pulled, the more it came. Finally, he had a ball of silken wool in his left hand. When the little girl went home, she said to her mother, "I don't know how it happened but I have lost my combinations." (Prolonged Applause.)