From British Liberties to Human Rights: The Canadian Case

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Charter-of-Rights-and-FreedomIn 1951 the United Nations adopted the Convention Relating to the Status of Refugees, which can be seen as a logical corollary to the emphasis on human rights in the 1945 UN  Charter, as well as to its 1948 Universal Declaration of Human Rights. Among other things, the convention commits signatory nations to respect the rights of refugees, and Article 1 defines a refugee as any person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” Only in 1969, however, did Canada agree to be bound by its provisions.[1]

This post examines two Canadian women who would have had a particular interest in this treaty had it been in force much earlier. One, Cairine Wilson (1885-1962), played a major role in campaigns to admit Jewish refugees from German persecution in the late 1930s.[2] The other, Donna Hill (1928 – ), moved to Canada from the USA in the 1950s after her marriage to a black man (illegal in some states) made her vulnerable to persecution by bigots.[3]

Both were political activists, opposed to the racism and xenophobia that was once “common sense” for most Canadians.[4] They were also feminists in the sense that they rejected the “doormat” notion of women’s inferiority to men.[5] In many ways, however, they were very different. A deeply-religious (Presbyterian) progressive member, political organizer, and financial supporter of the Liberal Party, Wilson was appointed the first female Canadian senator by Prime Minister Mackenzie King in 1930. She worked hard to promote internationalist and humanist ideals, first as a strong supporter of the League of Nations, later as part of Canadian delegations to the United Nations. In 1938 Senator Wilson became the first president of the Canadian National Committee on Refugees and Victims of Political Persecution CNCR), a coalition formed by Canada’s Jewish community, its League of Nations Society, and the more liberal elements of its Protestant churches. It set out to persuade Ottawa to accept Jewish refugees from Nazi persecution. However, since anti-Semitism was widespread, the CNCR Jews remained largely behind the scenes, letting certain Gentile “respectables” such as Senator Wilson do the visible work of lobbying Ottawa and educating the public.

Hill, in contrast, was a secular humanist social democratic grass-roots political activist. Donna Mae Bender, as she was before her marriage, attended the relatively liberal Oberlin College, where as a student activist she advocated the end of racially-segregated residences. After graduation in 1950, she campaigned for anti-discrimination legislation in Ohio, and moved to Washington D.C. where she was active in the progressive Americans for Democratic Action, lived in an inter-racial coop, and worked with the Congress on Racial Equality to organize sit-in protests against racial segregation. But then she met Daniel G. Hill III. Although American, Dan Hill had already completed an M.A. in sociology at the University of Toronto. He was teaching that subject for one year in Baltimore but already planned to return to Canada to finish his Ph.D. and become a citizen. Canada now appealed also because it seemed to be somewhat more hospitable to a mixed-race couple.[6]

Upon arrival, Donna Hill worked as the Executive Secretary of the Toronto Joint Labour Committee for Human Rights from 1953 to 1954. She had been hired by Kalmen Kaplansky, the head of the social democratic Jewish Labour Committee, which in tandem with the Canadian Jewish Congress was setting up a national network of trade union human rights committees. Much of her work involved behind-the-scenes organization but she made a significant contribution to the struggle for antidiscrimination legislation, in particular the fight to end racial discrimination against Blacks in the town of Dresden, Ontario.[7]

Wilson and Hill differed in social status. Wilson’s father was a wealthy upper-class Canadian Liberal senator. She married a wealthy businessman and became a close friend of the prime minister.[8] Hill’s father, by contrast, was a not especially well-off American pharmacist who also wrote for a trade magazine. She married an impecunious graduate student and later settled down into middle-class domesticity. While Wilson was eminently respectable, Hill was unknown.[9]

Different classes and different eras led to feminist differences. Wilson was a liberal “first wave” maternal feminist, although not a suffragist, with a strong interest in improving the lives of women.[10] By contrast, Donna Hill grew up in the uncertain period between earlier maternal and 1960s feminism. Although “liberated” enough for university and a life of her own until marriage, with pregnancy she became primarily a homemaker. While family wealth allowed Wilson to combine political activism with raising eight children, looking after three children made it difficult for Hill to resume political activism.[11]

Finally, although Senator Wilson’s activism was often effective, anti-Semitism effectively doomed her cause in the 1930s. Canada had probably the worst record of all countries accepting Jewish refugees.[12] However, despite persisting anti-Semitism in the 1950s, Donna Hill was part of an organization that successfully nudged governments into prohibiting, among other things, religious discrimination in the field of public accommodations. The difference in success owed much to different rights discourses.

As I have argued elsewhere, the concept of “human rights” was almost non-existent prior to World War II.[13] English Canada was still very much a British colony, in outlook although not in constitutional law, and the legal and political cognoscenti were enamoured with the British tradition of liberty under the umbrella of parliamentary supremacy. As a result, the ideal of civil liberties was frequently couched in terms of a heritage of “precious British liberties,” a concept which embraced at least in theory the liberal ideals of freedom and equality. For example, in the early 1930s the well-known civil libertarian law professor Frank Scott railed against anti-communist free speech limitations imposed in Ontario and Quebec, arguing that “the British method was to allow radicals to express themselves freely.” Similarly, at the end of World War II the Canadian historian Arthur Lower and his fellow Winnipeg-based civil libertarians argued that Ottawa’s efforts to deport Japanese Canadians infringed upon traditional British liberties.[14]

In retrospect, we can see that the “British liberties” discourse was fatally flawed. First, in the hands of a conservative judiciary it could permit what today would be considered serious violations of fundamental human rights.[15] More than this, it was inherently circumscribed, focussing only on traditional rights and solely on the rights of Canadians.[16] It was by no means an “open sesame” for the iron gates of Canadian immigration policy.

Not surprisingly, there is no mention of an appeal to British liberties in either the biography of Cairine Wilson or Abella and Troper’s discussion of the CNCR. (I have found, however, a 1938 letter to The Financial Post that makes reference to “British liberty” in an argument against admitting Czechoslovakian refugees.)[17] Perhaps future historians may find pro-immigration British liberties language in the archival records but it seems likely that Senator Wilson and her CNCR colleagues never used this particular lever. Instead, they seem to have relied upon Christianity, humanitarianism (a forerunner of the notion of human rights),[18] and democracy. But national self-interest trumped democracy and humanitarianism, while references to “Christian charity” (which probably appealed most strongly to Wilson) were double-edged. As Davies and Nefsky have pointed out, although Christianity, especially in the form of the Social Gospel, suggested a more generous immigration policy, Jews could be seen either as human beings worthy of “Christian” treatment, or they could be seen as “the other,” less important than Christians, and valuable primarily as fodder for religious conversion. In any case, there was always the bromide “Charity begins at home.”[19]

As a result, what Senator Wilson and the CNCR needed (aside from a less prejudiced public and government) was a more cosmopolitan argument than “British liberties,” a perspective that extended the moral imagination and expanded the circle of human empathy to include Jews.[20] Unfortunately for the Jewish refugees, an alternative discourse only started to influence Canadians in 1945 with the creation of the UN, for the preamble of its founding Charter referred to “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.”

Canada’s shift from British liberties to human rights was gradual. To be sure, the 1945 human rights coalition known as the CCJC (Cooperative Committee on Japanese Canadians), resisting the post-war deportation of many Japanese Canadians, produced a lobbying brief that emphasized human rights rather than British liberties. But as Dominique Clément and others have noted, there was almost no reference to human rights in the debates surrounding the largely concurrent Gouzenko spy crisis.[21]

The concept was nevertheless starting to catch on. We can see this in a land-mark 1947 Ontario Supreme Court decision (Drummond Wren) that struck down an anti-Semitic restrictive covenant. The Globe and Mail enthusiastically supported the decision, referring both to “the humane tradition of British justice,” and the emergent principle of human rights.[22] Nevertheless, the notion that human rights should be protected by antidiscrimination legislation seemed to violate the classical liberal commitment to freedom from excessive governmental intervention in either the marketplace or the private lives of citizens. The shift from British liberties to human rights required an ideological transformation from classical liberalism to reform liberalism – the notion that the state should sometimes intervene to ensure that all people would have the freedom to participate as full citizens. While classical liberals applauded the removal of Canada’s very illiberal anti-Asian voting restrictions in the immediate postwar period, they were more dubious about arguments by reform liberals, social democrats, and socialists that Canada needed to expand the freedom of its religious and ethnic minorities by prohibiting the worst forms of discrimination by businesses, trade unions, and other public sector institutions.[23]

One of the most influential of post-war classical liberals was B.K. Sandwell, editor of Saturday Night Magazine, and a major force in the Toronto civil liberties movement. At first he resisted anti-discrimination legislation but he changed his mind when, in 1951, Ontario Conservative Premier Leslie Frost proposed a fair employment practices act. The preamble of the legislation stated that it was now ‘contrary to public policy’ to discriminate on the basis of “race, creed, colour, nationality, ancestry or place of origin,” adding that legislation prohibiting such discrimination was “in accord with the 1948 Universal Declaration of Human Rights.” Sandwell warmly endorsed Frost’s initiative, claiming that “the new law will place Ontario in the forefront of the Canadian provinces in the effective adoption of a principle which is a basic concept of the United Nations organizations, a prime doctrine of modern humanitarianism, and a most important step towards the unification of the human race.” Such an endorsement from a classical liberal indicated a major shift in thinking, a recognition that state interference with property rights and freedom of commerce could be justified.[24]

Legislation was necessary because racism and religious prejudice was “common sense” for most Canadian employers. Consequently, many hotels, restaurants, and other services routinely refused service to Blacks, Jews, Asians, and Aboriginals. Hill’s employer, Kalmen Kaplansky, had set up labour committees across Canada to tackle just such discrimination. (Eliminating gender discrimination was largely ignored in this pre-feminist era.)[25] Partly in light of the problems faced earlier by Senator Wilson and the CNCR, Kaplansky endorsed a broad struggle for human rights to attract a wide spectrum of Canadians. His Toronto human rights interest group lobbied for the 1951 fair employment practices legislation, and by 1953 (when Hill was hired) demanded a fair accommodation practices act.[26]

Ontario created Canada’s first Fair Accommodation Practices Act in 1954 but legislation was only a first step; effective enforcement and successful defences against court challenges were required. The Toronto rights committee and its allies therefore demanded the proper application of the law in the test case of a restaurant that continued to refuse service to blacks in Dresden. But by that time, a pregnant Donna Hill had resigned, despite entreaties from Kaplansky to stay.[27]  She later put her expertise to work in other ways, acting as the secretary-treasurer of her husband’s human rights consulting firm in the 1970s, editing Harry Gairy’s memoirs, A Black Man’s Toronto, and serving as an editorial consultant and researcher for her husband’s pamphlet, Human Rights in Canada.[28]

As noted, Canada did not honour the UN Convention on Refugees until 1969. By that time the move from British liberties to human rights was well underway, although not until 1976 did it accede to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.[29] At the end of the 1960s anti-discrimination legislation existed in most provinces, as well as federally, although second wave feminism had yet to stake much claim, and only British Columbia had listed “sex” as a prohibited form of discrimination in human rights legislation.[30] At this point Canada had not yet progressed from the partly effective Diefenbaker Bill of Rights (1961) to Trudeau’s paradigm-shifting Charter of Rights and Freedoms (1982). But although the names of past Prime Ministers are one sign-post to human rights developments, our move into the age of human rights involved the efforts of many, many social activists, some better known than others. Both Cairine Wilson and Donna Hill were part of that powerful force.

 

Notes:


[2] Valerie Knowles, First Person: Canada’s First Woman Senator (Toronto: Dundurn, 1988); Franca Iacovetta, “‘A Respectable Feminist’: The Political Career of Senator Cairine Wilson, 1921-1962” in Linda Kealey and Joan Sangster, eds., Beyond the Vote: Canadian Women and Politics (Toronto: University of Toronto Press: 1989). See also: A. Rosanne Way, “From Time to Time in the Queen’s Name: The Story of the Honourable Cairine Reay Mackay Wilson, Canada’s First Woman Senator,” M.A. Thesis, Carleton University, 1983.

[3] Most of my information about Donna Hill’s life comes from the book by her younger son, the well-known novelist Lawrence Hill, Black Berry, Sweet Juice: On Being Black and White in Canada (HarperCollins, Canada, 2001), especially pages 42-50). I also interviewed Donna Hill on June 8, 1996, and have received some written comments on an earlier draft of this article (cited as Hill to Lambertson, February 7, 2014). One of her comments emphasizes that the only reason she moved to Canada was to follow her husband, who was returning to pursue his academic studies at the University of Toronto. As to the proper “racial” designation of her husband, consider Lawrence Hill’s remarks at page 197: “Over the past 30 or so years, the terms used to describe black people have evolved from ‘colored people’ to ‘Negro,’ ‘black,’ ‘Afro-Canadian,’ ‘African-Canadian,’ and even, for some, ‘people of color.’ These days, I just use black, but only because nothing better seems to be kicking around.” Other information comes from Donna Hill’s elder son, the successful vocalist and song-writer Dan Hill, I Am My Father’s Son: A Memoir of Love and Forgiveness (Toronto: HarperCollins, 2009).

[4] The idea of racism as “common sense” during these years is argued in Chapter 1 of James W.St.G. Walker, Race,” Rights and the Law in the Supreme Court of Canada: Historical Case Studies (Toronto: Osgoode Society for Canadian Legal History, 1997).

[5] “I myself have never been able to find out what feminism is; I only know that people call me a feminist whenever I express sentiments that differentiate me from a doormat or a prostitute.” Rebecca West, “Mr. Chesterton in Hysterics,” in Jane Marcus, ed., Young Rebecca: Writings of Rebecca West, 1911-17 (Indiana University Press, 1989), 219.

[6] According to one source, the couple’s plans to marry “… had caused shock waves among some circles of friends and families. Both blacks and whites objected to the news of their engagement, but Daniel and Donna held firm. Donna was loved and supported in her decision by her twin sister, Dorothy, but even Dorothy said to her sister wryly: “And where are you going to live? Sweden?” Hill, Black Berry, Sweet Juice, 42-50; “Daniel Grafton Hill III 1923-2003,” Ontario Archives online.

[7] Lawrence Hill, Black Berry, Sweet Juice; Dan Hill, I Am My Father’s Son; Ross Lambertson, Repression and Resistance: Canadian Human Rights Activists, 1930-1960 (Toronto: University of Toronto Press, 2005), 292-4. The Toronto organization was originally called the Toronto Joint Labour Committee to Combat Racial Intolerance, but on first meeting her employers in 1953 Hill recommended changing its name (Hill to Lambertson, February 7, 2014).

[8] Knowles, First Person, 44.

[9] For a brief discussion of how this “polite racism” made it difficult for the couple to rent an apartment in Toronto, see Hill, I Am My Father’s Son, 160. Hill’s family did achieve some measure of “respectability” when her husband became the founding director, and later chairman, of the pioneering Ontario Human Rights Commission, and in later years was appointed as Ontario’s Ombudsman.

[10] Knowles, First Person, 67; Franca Iacovetta, “‘A Respectable Feminist,’” 65.

[11] Hill, I Am My Father’s Son, 62-3.

[12] Irving Abella and Harold Troper, None Is Too Many: Canada and the Jews of Europe 1933-1948 (Toronto: Lester & Orpen Dennys, 1983), xxii, 66 [listing reasons why the CNCR failed]. This is not to say, however, that the CNCR was a complete failure. As Knowles points out, “Ultimately it did not succeed in bringing about a dramatic change in government immigration policy in the pre-war and Second World War years, but it did perform valuable work in helping to settle individuals and families in Canada; and raising public awareness of the refugee question; in prodding the government into admitting refugees from the Iberian Peninsula in 1944; and in assisting anti-Nazi Germans, Italians, and Austrians, transported from Britain to Canada in the summer of 1940 and then interned in Canadian prison camps.” Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-1997 (Toronto: Dundurn, 1997), 148.

[13] Lambertson, Repression and Resistance, 19, 376. Also, using the Globe and Mail’s digitalized newspaper archival system (in April 2007), a search for the phrase “human rights” in the editorials revealed no references from 1900 to 1935, then eight references from 1935 to 1940, twenty-two from 1940 to 1945, and sixty for the period from 1945 to 1950. During the period between 1950 and 1955 the number went down to twenty-six, but from 1955 to 1960 the score went up to sixty-eight, from 1960 to 1965 it was two hundred and ten, and it leaped to three hundred and twenty for the period from 1965 to 1970.

[14] Lambertson, Repression and Resistance, 27, 126. For an excellent discussion of “British Liberties” before the war, see Suzanne Skebo, “Liberty and Authority: Civil Liberties in Toronto, 1929-1935,” MA thesis, UBC, 1968.

[15] For example, the concept of equality was generally understood to mean only “equality before the law.” Legal discrimination on the basis of race, religion, gender or most other criteria was perfectly acceptable, and in 1940 the Supreme Court of Canada had held, in the case of Christie v. York, that the British common law principle of “freedom of commerce” reigned supreme over a black man’s claim to equal treatment by a private business offering a public service. Consequently, although there did exist some early civil liberties groups, they tended to focus primarily on defending liberty rather than equality, issues of freedom of speech and association rather than freedom from discrimination.

[16] It is worth noting that Martin Luther King Jr. started to realize, in the 1960s, that the American ideal of “civil rights” was limited in its scope and should be replaced by the principle of “human rights.” His opposition to the Viet Nam war was in part premised on his belief that it violated the human rights of the Vietnamese, and he also argued that systemic poverty violated the human rights of American blacks in ways that could not be confronted simply by giving them the same civil rights as white Americans. Stewart Burns, To the Mountaintop: Martin Luther King Jr.’s Sacred Mission to Save America, 1955-1968 (New York: HarperCollins, 2004), 299, 322-4.

[17] “Czech Refugees,” by C.A. Wartman, Waterford, Ontario, The Financial Post, 19 November 1938, quoted in Heather M. Metcalfe, “It’s All About War: Canadian Opinion and the Canadian Approach to International Relations, 1935-1939,” Ph.D. dissertation, University of Toronto, 2009.

[18] Note how a constructivist international relations scholar discusses the way changing norms in the post-colonial twentieth century underpinned the concept of international humanitarian intervention: “Particularly prominent among these changing norms are the norms of decolonization and self-determination, which involved a redefinition and universalization of ‘humanity’ for Europeans that changed the evolution of sovereignty and of the humanitarian discourse…. Thus mutually reinforcing and consistent norms appear to strengthen each other; success in one area (such as decolonization) strengthens and legitimates claims in logically and morally related norms (such as human rights and humanitarian intervention).” Martha Finnemore, “Constructing Norms of Humanitarian Intervention,” in The Culture of National Security: Norms and Identity in World Politics, Peter J Katzenstein, ed. (New York: Columbia University Press, 1996), 153-185, at 170.

[19] Alan Davies and Marilyn F. Nefsky, How Silent Were the Churches?Canadian Protestantism

 and the Jewish Plight During the Nazi Era (Waterloo: Wilfrid Laurier University Press, 1997),

60, 66, 104; Abella and Troper, None Is Too Many, 64.

[20] On the importance of the “moral imagination” in the expansion of liberal values from the Reformation to the modern notion of human rights, see A. C. Grayling, Towards the Light: the Story of the Struggles for Liberty and Rights That Made the Modern West (London: Bloomsbury, 2008), especially at page 245. On the idea of a “circle of empathy,” one that even goes beyond humans, see Peter Singer, The Expanding Circle: Ethics and Sociobiology (New York: Farrar, Straus and Giroux), 1981.

[21] Dominique Clément, Will Silver, Daniel Trottier, The Evolution of Human Rights in Canada, (Ottawa: Canadian Human Rights Commission, Minister of Public Works and Government Services, 2012), available online at http://www.chrc-ccdp.ca/sites/default/files/ehrc_edpc-eng.pdf.

[22] “Blow to Prejudice,” Globe and Mail, 2 November 1945.

[23] Moreover, the British liberties discourse tended to assume that minorities were adequately protected by Parliament and that there was no need of special legislative protection. This supported skepticism about anti-discrimination laws, and also (later) skepticism about a national bill of rights.

[24] “Ontario Leads the Way,” Saturday Night, 13 February, 1951; Lambertson, Repression and Resistance, 239. Apparently, however, the battle is not yet over. Some modern-day Canadian conservatives are still using the ideas of classical liberalism to attack the “statist” status quo. See, for example, Tasha Kheiriddin and Adam Daifallah, Rescuing Canada’s Right: Blueprint for a Conservative Revolution (Toronto: John Wiley, 2008). See also Ezra Levant, Shakedown: How Our Government Is Undermining Democracy in the Name of Human Rights (Toronto: McClelland and Stewart, 2009).

[25] Largely ignored, but not completely. For example, see: Shirley Tillotson, “Human Rights Law as Prism: Women’s Organizations, Unions, and Ontario’s Female Employees Fair Remuneration Act, 1951,” Canadian Historical Review 72 (no. 4, 1991): 532-557; Ruth A. Frager, Sweatshop Strife: Class, Ethnicity, and Gender in the Jewish Labour Movement of Toronto, 1900-1939 (Toronto: University of Toronto Press, 1992), 507-23.

[26] Lambertson, Repression and Resistance, 293-4.

[27] Lambertson, Repression and Resistance, 294, 304, 306. See also Lambertson, “‘The Dresden Story’: Racism, Human Rights, and the Jewish Labour Committee of Canada,” Labour/Le Travail 47 (Spring 2001): 43-82, at 86.

[28] Hill, I Am My Father’s Son, 193; Donna Hill, ed., A Black Man’s Toronto, 1914-1980: The reminiscences of Harry Gairey (Toronto: The Multicultural History Society of Ontario, 1981); Daniel G. Hill, Marvin Schiff, Human Rights in Canada: A Focus on Racism (Ottawa: Canadian Labour Congress and Human Rights Research and Education Centre, University of Ottawa, 1988).

[30] See in general, Walter Surma Tarnopolsky, Discrimination and the Law in Canada (Toronto: Richard De Boo, 1982). The reference to “sex” as a prohibited form of discrimination is on page 254. As Tarnopolsky also points out at page 30, beginning with Ontario in 1962 the various jurisdictions were increasingly developing human rights commissions with wide-ranging powers.

Lambertson, Ross

Lambertson, Ross

Lambertson, Ross

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