I Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1992]

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1 STATE AND SALVATION: THE JEHOVAH'S WITNESSES AND THEIR FIGHT FOR CIVIL RIGHTS. By William Kaplan. University of Toronto Press, Pp ($35.00). In this era of the Canadian Charter of Rights and Freedoms' and constant litigation over civil liberties, it is hard to believe that only fifty years ago there was virtually no case law on the subject of individual rights and little public concern over them. Even members of the bar were largely uninformed about the weakness of our "fragile freedoms". What happened? What changed public opinion and led to the Canadian Bill of Rights 2 of 1960 and the Charter of 1982? Professor Kaplan's book tells the story of this very interesting chapter in Canadian history. He brings archives and other original documentation to public attention, including many aspects of the battle for civil rights not previously available to Canadian readers. For the first time, light is shone on the influences and actors, some innocent, some sinister, who have played their part in this uniquely Canadian development. As shown by the subtitle, THE JEHOVAH'S WITNESSES AND THEIR FIGHT FOR CIVIL RIGHTS, Professor Kaplan has concentrated on the contribution to Canadian freedoms made by the legal battles of Jehovah's Witnesses. The attacks on this minority, usually at the insistence of the politically powerful Roman Catholic Church, helped trigger the litigation, petitions, and civil rights controversies that brought to public attention the need for constitutional guarantees to protect individual freedoms. One of the main issues explored by the book is the ban imposed on Jehovah's Witnesses by the government of Canada on 4 July Without warning, an Order in Council was made amending the Defence of Canada Regulations to outlaw this group. For Kaplan, the ban stands as: the single most serious interference with religious liberties by the state in all of modem Canada's history. 3 Overnight it became illegal to be of this faith, and years of vigorous state prosecution commenced. Across the country, church property was seized and private homes were raided. Witnesses were beaten, mobbed, and hundreds jailed, some on no more evidence than possession of a Bible. Despite this state attack, the Witnesses zealously continued in their religious activities. The government's official explanation for the ban spoke piously about the public interest and problems of administration in wartime. But the reality revealed by the archives is a little different. This book shows I Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter]. 2 R.S.C. 1985, App. III. 3 P. xi.

2 Ottawa Law Review I Revue de droit d'ottawa [Vol. 24:2 the back room scheming between Mackenzie King's Justice Minister, Ernest Lapointe, and the highly political Catholic Cardinal Villeneuve. The Roman Catholic Church controlled the province of Quebec. Its "mission", Kaplan writes: was, in fact, to make Quebec's political life conform to the Roman Catholic concept in which truth is Catholicism, error is anything non- Catholic, and liberty is the freedom to speak and live the Roman Catholic truth 4...The French-Canadian concept of religious liberty, Cardinal Villeneuve taught, did not mean freedom of religion for all. What it meant was protection from the religious ideas of others. 5 Then, as today, maintaining French-Canadian support was the key to national politics. The federal government needed Quebec's backing for the war effort. Their wartime offer to Villeneuve was simple: use the Church's power to keep Quebec quiet during the war, and we will protect the Church from the embarrassing criticism of Jehovah's Witnesses by declaring them illegal. Jehovah's Witnesses have always maintained they were condemned because they openly disagreed with the Catholic Church. In retrospect, their claim is not without foundation. Religious censorship hardly constituted a legitimate exercise of power for the benefit of the state. Mackenzie King's explanation to Parliament was feeble: Jehovah's Witnesses were banned because they believe God's law is superior to man's, and they printed a lot of books. In 1942, a Special Committee of the House of Commons was appointed to investigate the Defence of Canada Regulations. The Committee unanimously concluded that state suppression of the Witnesses had been unjustified from its inception. Committee members scathingly assessed the government's brief to justify the ban as "laughable", and "not containing enough evidence to shut up a dog." 6 The ban proved a sop to what Kaplan describes as "the intolerance of the Roman Catholic hierarchy towards dissident groups; and the happenstance of political cowardice on the part of strategically placed individuals who knew or should have known better." 7 He summarizes the reality of what happened: While the story of the Second World War ban of Jehovah's Witnesses in Canada is a tale of Canadians at their worst, it is also one of Canadians at their best. The courage of the Jehovah's Witnesses who endured repression and fought for what they believed is a testament to the human spirit...the Jehovah's Witnesses taught the state, and the Canadian people, what the practical content of legal protection for dissenting groups should be. 8 4 P P P P. xi. 8 P. xii.

3 When World War II was over Duplessis, the little Caesar of Quebec, and the ever-present Cardinal Villeneuve began the next phase of oppression in the province of Quebec. Duplessis publicly announced "War without mercy on the Witnesses of Jehovah". 9 In the guise of protecting "French Canadian interests" he launched "the most extensive campaign of state sponsored religious persecution ever undertaken in Canada."' 0 Part of the battle involved 1,665 prosecutions of Jehovah's Witnesses in Quebec for the same evangelical activities which were recognized as a lawful exercise of freedom of worship in the rest of Canada. Quebec courts, caught by the province's hysteria, refused to protect civil liberties. The book properly identifies the Supreme Court of Canada as the true champion of fundamental rights in this country. Five times the issues of freedom went to this Court, and five times in a row, the Supreme Court of Canada transcended local politics and spoke up for individual rights. '' Professor Kaplan has aptly characterized these cases fought by the Witnesses as "the bedrock of civil-liberties jurisprudence in Canada 2 today."' The most touching chapter of his book details how Witness children were also persecuted for their religious beliefs and the resulting damage to their young lives. In a number of jurisdictions a respectful refusal to sing the national anthem resulted in children being expelled from school, tried as juvenile delinquents, or placed in foster homes so that they could "grow up in conformity with standard ideas."' 13 Notorious in its malice towards the Witnesses was the city of Hamilton. Contrary to a directive from Ontario's Department of Education, the Hamilton School Board suspended dozens of Witness students. For the next five years the public school system remained barred to adherents of this faith. Only after Donald v. Hamilton Bd of Ed.,1 4 wherein a Witness parent successfully sued the Board, were Hamilton officials forced to readmit these children to their classrooms. STATE AND SALVATION is useful as an example of how one minority's determined struggle to regain legal status and rights was successful. It provides an excellent guide to other disadvantaged groups 9 P P "1 See Boucher v. R., [1951] S.C.R. 265, 11 C.R. 85 [hereinafter Boucher] for the right of a minority to criticize oppressive government; Saumur v. Quebec, [ 1953] 2 S.C.R. 299, 106 C.C.C. 289 where police censorship was declared illegal; Chaput v. Romain, [1955] S.C.R. 834, 114 C.C.C. 170 where the right of religious assembly was protected; Lamb v. Benoit, [1959] S.C.R. 321, 17 D.L.R. (2d) 369 where the police were condemned for false arrest and malicious prosecution of a minister; and Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 where the Premier of Quebec was condemned for abuse of discretion in the exercise of his office, since all men are subject to and equal under the law. 12 p. xii. 13 P '4 [19451 O.R. 518, 3 D.L.R. 424 (C.A.).

4 Ottawa Law Review I Revue de droit d' Ottawa [Vol. 24:2 in Canada. Despite small numbers and relative unpopularity, the Witnesses implemented innovative strategies to sensitize politicians and the public to their plight. When formal submissions to the government were insufficient, they went to the public with tracts and nationwide letterwriting campaigns outlining the official abuses. Wherever possible, they appealed to the courts, which ultimately proved their most successful form of redress. The Witnesses, according to Kaplan, consciously set out, not just to defend existing rights, but in cases like Boucher to overturn bad law which had existed since James I. Careful selection of test cases and vigorous advocacy at every level produced repeated victories in the Supreme Court. Their fight ultimately benefited all Canadians. As Professor Frank Scott commented regarding the cases of Jehovah's Witnesses, "We should be grateful that we have in this country some victims of state oppression who stand up for their rights. Their victory is the victory of all of us. ' 15 An interesting feature of the book is the careful study of the parallel development of religious liberty for the same minority in the United States and Australia. Professor Kaplan, like Professor McAninch in his American overview of Jehovah's Witnesses' litigation, has accurately traced how in each of these countries Witness activities spearheaded these civil rights issues before the courts. 16 Kaplan effectively ties his work to present issues with a clear analysis of the forces, including the Witnesses, which led to Canada's enactment of the Bill of Rights in 1960, and the Charter in Convinced that minorities' best protection lay in a constitutional bill of rights, the Witnesses launched two petitions in which they collected over a million signatures supporting the demand for such legislation. The book's conclusion pinpoints the Witness legacy: The Charter of Rights is the culmination of a long process that began before the Second World War, accelerated during the war, and bore fruit after the war. In this process, the Jehovah's Witnesses played an important part, although they did not volunteer for the role. They pushed Canadians' rights to their existing limits, and those rights were found lacking. They then made their cause every Canadians' cause, and one of the results was the long process of discussion and debate that led to the Charter of Rights...the Jehovah's Witnesses helped create a climate of opinion, an attitude, that continues to influence the way in which we think about civil rights. 17 The Witnesses' constitutional battles continue, making publication timely. Since the book's appearance, the British Columbia Court of 15 See F.R. Scott, CIVIL LIBERTIES AND CANADIAN FEDERALISM (Toronto: University of Toronto Press, 1959) at See W.S. McAninch, A Catalyst for the Evolution of Constitutional Law: Jehovah's Witnesses in the Supreme Court (1987) 55 U. CIN. L. REV Pp

5 Appeal in Young v. Young' 8 upheld a Witness father's fundamental freedom under subsection 2(a) of the Charter to share his religion with his children during access. In striking contrast, the Quebec Court of Appeal routinely censors Witness parents, custodial and non-custodial, to placate the parent of the majority religion. This year the Supreme Court of Canada will hear Young, from British Columbia, and Plouffe v. Shea, 19 a case from Quebec. How the Supreme Court resolves these issues will again have a major impact on civil liberties in this country. STATE AND SALVATION is a valuable work of Canadian legal and constitutional history. It probes beneath the surface of official platitudes and points to the realpolitik of how things happen. Professor Kaplan is to be commended for his fair and comprehensive coverage of this interesting development in Canadian history. His book should be required reading for law students, judges, legislators, and political scientists. Moreover, it offers a sobering historical insight into modem demands for constitutional reform. Are today's cries for increased provincial power to override guaranteed Charter rights any more than a rerun of the dictatorial arguments of the Duplessis era - arguments that the judges of the Supreme Court of Canada long since rejected in favour of the freedoms that have brought Canada into the twentieth century as a constitutional democracy? Will we unleash another shameful reign of terror and discrimination such as that already documented? Or will our history be guided by the maxim, "Eternal vigilance is the price of liberty?" W. Glen How, Q.C.* Sarah E. Mott-Trille** 18 (1991) 50 B.C.L.R. (2D) I [hereinafter Young], leave to appeal granted 16 May [1990] A.Q. No. 2110, leave to appeal granted 16 May * Of W. Glen How & Associates, Halton Hills (Georgetown). ** Of Mott-Trille, Mott-Trille & Pole, Brampton, Ontario.