WHAT'S THE EVIDENCE? The Use the Supreme Court of Canada Makes of Evidence in Charter Cases

January 1, 1996,  Rethinking the Constitution  Oxford University Press

The coming into force of the Charter of Rights and Freedoms in 1982 launched a mass of speculation on what it might mean. It was suggested immediately that the courts would have to rely on evidence in deciding whether legislation should be struck down under the Charter.

While not unprecedented in Canada1, the use of evidence in constitutional cases is an American practice and speculation drew on American precedents. The Brandeis brief, long revered in law schools, was always referred to. Louis Brandeis, several years before his appointment to the United States Supreme Court, had filed government studies and other material to support the constitutionality of employment standards legislation specifically protecting women2. The practice became common in American constitutional practice, and with its apparent promise of litigating political issues was attractive to law professors and their more impressionable students.

Also rehearsed was a distinction between adjudicative facts, the ordinary facts in litigation of who did what to whom and where and with what effects, proved by conventional evidence and tested by cross-examination, and legislative facts, general social facts on which it might be thought legislatures should rely in making laws, to be established to the Court’s satisfaction in Charter cases by different kinds of evidence subject, if only for practical reasons, to less rigorous testing3. One of the grounds of this distinction was the suggestion that with legislative facts all that was necessary was to establish a reasonable basis for legislative action. For that purpose more laxed standards of admissibility and less rigorous testing of the evidence might be indicated. If the purpose of leading evidence was simply to show what the legislature was trying to do, and thus to explain away any apparent infringement of rights, the scrutiny of the evidence and the role assumed by the Court would be limited.

The early years of speculation have been superseded by more than ten years experience with Charter litigation. Evidence has been used to explain what the Charter’s rights and freedoms must mean and whether they have been infringed and what remedies there may be4. But the consideration of whether impugned legislation can be, in the words of section 1 of the Charter:
such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
has been the commonest and key use of evidence.

An examination of the more significant cases in the Supreme Court of Canada in which evidence was, or might have been, introduced to help the Court pass judgment on the work of the legislatures does not reveal settled principles or practice. But three uses of evidence for the Court are apparent. The Court has effectively used a call for and the availability of evidence to enhance and protect its authority and power. Firstly, calling on evidence has helped to protect the Court from blatantly imposing its political opinions on the legislatures. Secondly, by insisting that it decides, on evidence, whether legislation can be justified, rather than simply satisfying itself that there was a reasonable basis for the legislation and deferring to the institutionally competent and democratically accountable legislatures, the Court reserves for itself unrestricted power. Finally, by purporting to base its decisions on findings on the evidence in particular cases it has reserved to itself the freedom to revisit every political issue.

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The first significant reference in a Supreme Court of Canada judgment to evidence in Charter cases came in 1984 in Skapinker5. Skapinker, a South African citizen at the time he was to be called to the Ontario bar, objected to the requirement in paragraph 28(c) of the Law Society Act that persons called to the bar be Canadian citizens or British subjects. Estey J., having decided that Skapinker’s rights had not been violated, nonetheless commented on the case that the Law Society would have had to make to justify the citizenship requirement if the Court had decided that it did violate Skapinker’s rights. He characterised the material that the Law Society would have relied on as minimal. It consisted of reports of government studies of professional organisations and a survey of the requirements in other jurisdictions. He insisted that more would be expected in the future:
As experience accumulates, the law profession and the courts will develop standards and practices which will enable the parties to demonstrate their position under s. 1 and the courts to decide issues arising under that provision. May it only be said here, in the cause of being helpful to those who come forward in similar proceedings, that the record on the s. 1 issue was indeed minimal, and without more, would have made it difficult for a court to determine the issue as to whether a reasonable limit on a prescribed right had been demonstrably justified. (D.L.R. 182; S.C.R. 384)
In light of what has been looked at in later cases it must be understood that it was the bulk rather than the character of the evidence that seemed deficient to Estey. Moreover, the deficiency would not have prevented the Court from deciding whether a reasonable limit had been justified, as Estey seems to say, but simply from deciding in the limit’s favour, something he appeared inclined to do, but wanted evidentiary cover for.

Almost a year later Wilson J. in Singh6 expressed disappointment at “the limited scope of the factual material brought forward by the respondent in support of the proposition that the Immigration Act’s provisions constitute a “reasonable limit” on the appellant’s rights.” and quoted Estey from Skapinker. (D.L.R. 467/8; S.C.R. 217) The appellant refugee claimants argued successfully that the act in denying them an appeal to the Immigration Appeal Board unless it was of the opinion on the basis of written material that the Minister’s determination not to grant refugee status could likely be overturned denied them security of the person without regard for the principles of fundamental justice contrary to section 7 of the Charter. It was contended for the Minister of Immigration that the U. N. High Commissioner for Refugees had approved Canada’s procedures, that Commonwealth and Western European countries offered no right of appeal and that the Immigration Appeal Board, already under strain, would be unreasonably burdened by a requirement of an oral hearing in every case. What exact factual material would have been satisfactory is unclear as Wilson doubted that “utilitarian” considerations could be allowed to prevail over the Charter rights that she held had been infringed. (D.L.R. 469; S.C.R. 718) She placed more reliance on a task force report and an Appeal Board chairman’s speech, which contained merely political comment more to her taste. The utilitarian results of the Court’s decision were a huge backlog of refugee claims, tens of thousands of claimants in welfare limbo, a raft of new patronage appointments, public lack of confidence in the refugee programme and a legal aid crisis.

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The exact evidentiary character of the material needed to justify a limit under section 1 of the Charter remained vague. But the celebrated R. v. Oakes7, in which Chief Justice Dickson attempted to codify the requirements for a section 1 justification, seemed to call for something like evidence in the received sense. Before outlining the requirements of “pressing and substantial concerns”, “rational connection”, “minimal impairment” and “proportionality” on which a whole scholastic industry has since been built, the Chief Justice held that the onus of proving justification is on the party seeking to uphold the limitation and that the civil standard of proof by a “preponderance of probability” applies.

By speaking of onus and a standard of proof, concepts of the law of evidence, the Chief Justice called on evidence as the principal basis for the justification of limits to Charter rights. It was not surprising that he should do so. But it was not necessary. Justification could have been left a matter of argument, with legislative history and some evidence of political or economic context as an adjunct of legal argument. Reading the Court’s reasons this is often all that seems involved. But the Chief Justice said “cogent and persuasive” evidence would generally be necessary and, whether or not it has been cogent and persuasive, his wish to have evidence has generally been granted.

Dickson’s consideration of evidence in Oakes does not much help to show how evidence should be used. Oakes challenged section 8 of the Narcotic Control Act, which put the onus of showing that possession, once proved by the Crown, was not for the purpose of trafficking, on the accused. The Court held that this reverse onus was contrary to the presumption of innocence required by paragraph 11(d) of the Charter. The Crown argued that any infringement of the right to be presumed innocent was justifiable under section 1.

Dickson was satisfied that Parliament’s concern to fight drug trafficking was substantial and pressing on the basis of government reports from the fifties and seventies, international conventions and legislation in other countries. Reasonable people might judge that a recent leading article from The Economist was as good evidence, and more cogent and persuasive, to the contrary.

Having satisfied himself of Parliament’s pressing and substantial concern on doubtful evidence, the Chief Justice then struck down the reverse onus provision without further examination of evidence by holding that there was no rational connection between possession of a narcotic and possession for the purpose of trafficking. The implicit characterisation of the legislation as irrational seems unfair to its framers. The provision did not simply deem possession possession for the purpose of trafficking, which might arguably be irrational. It placed an onus on anyone proved to have been in possession of a narcotic to prove, on the balance of probabilities, that it was not for the purpose of trafficking. The question was not therefore whether “the possession of a small quantity of narcotics does not support the inference of trafficking.” but whether the reverse onus would help the fight against drug trafficking. On this specific point, which the Court does not even seem to have grasped, no evidence was considered and its absence or insufficiency went unremarked.

After the elaborate analysis and solemn talk of cogent and persuasive evidence the determinative finding comes too easily. The case could have been decided on brief reasons without the encouragements to Charter scholasticism and an inflation of constitutional evidence. The consideration of evidence in Oakes demonstrates that the use of evidence will be strongly determined by the context of the specific case and the positions taken by the parties. The Court purports to endorse parliament’s concern with drug trafficking on the basis of doubtful evidence when it was never seriously in issue. It then rejects the instrument by which parliament attempted to address its concern by reasoning without evidence, no attempt being made to consider how the instrument might work.

References to legislation in other countries and international conventions have been common since the earliest attempts to justify legislation under section 1. It is argued that if legislation like that impugned under the Charter is tolerated in other nice countries it must be a reasonable limit demonstrably justified in a free and democratic society. The references in Oakes were only intended to show that the object of the impugned legislation was “substantial and pressing” and not to justify the specific impugned legislation. The logic of attempts to justify impugned Canadian legislation by showing similar legislation in other putatively free and democratic countries is doubtful. But they present little problem of getting evidence as the foreign legislation can generally simply be filed without controversy. The analysis in Oakes indicates that, as always seemed likely, justification by foreign legislation alone will not work. But as Oakes itself demonstrates, foreign legislation can still puzzlingly be accepted as evidence to satisfy one or another of the Oakes criteria for justification.8

As Oakes illustrates, the use made of evidence by the Court in Charter cases will be determined by the judges’ preconceptions. In ordinary trials the judge has no preconceptions about the facts and must rely entirely on the evidence to decide where the cars were at the time of the accident, who shot whom, where the money went or why the machine would not work. In Charter cases judges appear to invoke evidence or pass it by depending on how it suits their arguments. It is often difficult to determine from the Court’s logorrhoeic reasons exactly what evidence they considered and what they made of it. Ordinary cases often turn entirely on the facts and judges’ reasons review the evidence in detail and make findings expressly based on it, particularly of credibility. The credibility of the reports and studies relied on in Charter cases is never made an issue.

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Oakes implied a readiness to weigh up the merits of legislation in light of political findings based on evidence. A few months before, in Operation Dismantle9, Dickson J. (who became Chief Justice between the argument of the case in February 1984 and judgment in May 1985) firmly refused to be drawn into political judgments, dismissing them as matters of speculation. The appellants alleged in their statement of claim that cruise missile testing would violate the section 7 right to security of the person and life because,inter alia:
verification of the extent of this nuclear weapons system [would be] impossible;
with the impossibility of verification, the future of nuclear weapons control... [would be] completely undetermined as any such agreements become practically unenforceable;
the testing...would result in making Canada more likely to be the target of nuclear attack;
a “Launch on Warning” system would be necessary in order to respond to the cruise missile...increasing the likelihood of either a preemptive strike or an accidental firing;
the cruise missile [would] have the effect of a needless and dangerous escalation of the arms race, thus endangering the lives and security of all people. (D.L.R. 485/6; S.C.R. 448)

The usual approach in deciding whether to strike out a statement of claim, the issue in Operation Dismantle, is to assume that the allegations in the statement of claim are true and decide whether they could support any claim at law. Dickson decided the case on the novel basis that the allegations made by the appellants simply could not be proven:
Since the foreign policy decisions of independent and sovereign nations are not capable of prediction, on the basis of evidence, to any degree of probability, the nature of such reactions can only be a matter of speculation; the causal link between the decision of Canada to permit the testing of the cruise and the results that the appellants allege could not be proven. (D.L.R. 488; S.C.R. 452)
In later cases the Court has been ready to hear and make findings on evidence no less intractable than what might have been led by Operation Dismantle and on issues no less speculative than those raised by it. While the dismissal of its claim came as relief to sensible people, the reasoning was unsatisfactory. Had the Court chosen to impose some limits to the imperial and despotic powers plausible and prevailing interpretations of the Charter give it, on the grounds that the Court simply cannot properly deal with certain kinds of issues, it would have been a healthy development.10 But in deciding the case on a kind of finding of fact, for which no evidence was considered necessary, or even possible, the Court showed that it was not prepared to set any limits to its powers beyond its energy and interests.

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By 1986 what evidence could be lead to justify a limit under section 1 of the Charter remained a matter of speculation and lobbying. While seized with Operation Dismantle, Chief Justice Dickson, addressing a Bar Association meeting in Edmonton in February 1985, had invited counsel to:
become more imaginative in their presentation of factual material in constitutional litigation....While I cannot pre-judge the evidence the Court will deem relevant and admissible in a particular case, I urge all counsel in constitutional litigation to offer the Court, as evidence, any material they deem useful to the questions at hand. [emphasis added]11

With this encouragement it might have been expected that some Charter litigation would have degenerated into a battle of the social scientists, like the battles of psychiatrists in criminal cases or social workers in custody cases. But generally a mass of dull paper has been dumped on the Court without controversy and become matter for argument between counsel and been picked over by the judges.

In Thomsen12, Hufsky13 and Ladouceur14 the respective accused drivers argued successfully that their right not to be arbitrarily detained under section 9 of the Charter had been infringed. But the Court accepted in justification several volumes filed by the Crown as evidence of the seriousness of impaired driving and unlicensed and uninsured driving and the need for breathalyser tests and random checks to deal with them. Though these considerations may justify the attacked legislation and go some way beyond judicial notice, the show of bringing an open mind to be persuaded by evidence strains credibility. The Court was making political judgments. On such issues lack of existing opinion is improbable. Judging by the questions asked by Sopinka J. in Ladouceur, the evidence, for the assembly of which the case had been adjourned for a year in the Ontario Court of Appeal, did not itself compel the Court’s conclusion:
Although the statistics are voluminous, there is no evidence as to whether during the relevant period police officers were actually exercising the “roving random stop” power. For example, was the percentage of accidents involving unlicensed drivers realized notwithstanding the fact that police officers were employing this method of enforcement? If it was, presumably it is only since s. 189a(1) was enacted in 1981. What were the percentages before this method was used? How many motorists who were perfectly law-abiding were stopped for every one that was committing some violation? On the other hand, if the police have not been using this method and this case is an isolated incident, what is the evidence that police officers consider that this power is essential to effective enforcement? (C.C.C. 27/8; S.C.R. 1265)

Some other questions might be asked. Did the legislature do wrong in giving police the power being challenged without exhaustive evidence to satisfy Sopinka? Sopinka, in a minority of four, held that the “roving random stops” in question in Ladouceur could not be justified. Was Sopinka asking the questions because of a principled requirement for evidence or because he did not like police having the power and just wanted to strike down this particular bit of legislation? In later cases Sopinka was prepared to be much less demanding of the evidence.

In the cases dealing with Quebec’s language legislation at the end of 198815 the Court accepted material simply attached to the Quebec attorney general’s factum in the Court of Appeal. It ranged
in nature from the general theory of language policy and planning to statistical analysis of the position of the French language in Quebec and Canada. (Ford D.L.R. 626; S.C.R. 777)
Excusing the irregular way in which it had been submitted the Court commented that:
...the parties did not appear to be taken by surprise..., but showed themselves fully prepared to argue the merits of the material.... The material is of the kind that has been invited and considered by the Court in other cases involving the application of s. 1 of the Charter, without having been subjected to the evidentiary testing of the adversary process. It is material that is treated similarly to treatises and articles in other judicial contexts. (Ford D.L.R. 626; S.C.R. 776/7)

The printer Singer, in Devine, attacked some of the material as biased or misleading and submitted other statistical analysis and the Court said “due regard” should be given to this. But what is remarkable in the cases is the readiness of the Court to accept the whole of Quebec’s linguistic national policy “without [its] having been subjected to the evidentiary testing of the adversary process”. Because the Court struck down the outright ban on English signs and Quebec reacted strongly and invoked the notwithstanding clause the public saw the Court as condemning Quebec linguistic nationalism. In fact it endorsed it, only balking at the outright ban on languages other than French on signs, holding that it failed to meet the proportionality test in Oakes.

The French language decisions illustrate the artificiality and evasiveness of the Charter evidence practice. In accepting Quebec’s language policy the Court had not only to accept the statistics it submitted “without [their] having been subjected to the evidentiary testing of the adversary process”. It had also to accept Quebec’s “general theory of language policy and planning” and the value placed on Quebec’s language and culture as against other affected values. By discussing the issues in terms of “materials” or “evidence” the Court obscures the fact that it must and does make political judgments beyond anything determined by the general language of the Charter itself.

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In the Irwin Toy16 case, a toy manufacturer argued that Quebec’s ban on advertising directed to children was a denial of freedom of expression. Having already forced itself to accept that argument by its inclusion of “commercial expression” within freedom of expression in Ford and Devine, the Court was ready to consider social science evidence justifying the ban. Irwin Toy argued that studies done after the legislation was enacted could not be relied on to justify it. It seemed to contend that legislation should be reviewed like an administrative decision, only what was before the legislature when it enacted the legislation, an extended legislative history, being considered. The Court would only go so far as to look for some justifiable intention at the time of the enactment. While it wondered:
why the Attorney-General did not tender in evidence certain reports and studies that were used by the government both in enacting the legislation and subsequently in reviewing its operation. (D.L.R. 619; S.C.R. 985)
it was content “to assess the constitutionality of the legislation on the basis of the material that was filed.” including “studies post-dating the enactment of the [legislation] and upon which the government did not rely in adopting [it].”
In showing that the legislation pursues a pressing and substantial objective, it is not open to the government to assert post facto a purpose which did not animate the legislation in the first place (see R. v. Big M Drug Mart [(D.L.R. 352/3; S.C.R. 335)]:17  However, in proving that the original objective remains pressing and substantial, the government surely can and should draw upon the best evidence currently available. The same is true as regards proof that the measure is proportional to its objective: see R. v. Edwards Books & Art Ltd. (1986), 35 D.L.R. (4th) 1 at p. 41...[1986] 2 S.C.R. 713 [ at p. 769]. It is equally possible that a purpose which was not demonstrably pressing and substantial at the time of the legislative enactment becomes demonstrably pressing and substantial with the passing of time and the changing of circumstances. (D.L.R. 618; S.C.R. 984)

The result seems to be that the legislation must have had an objective when it was passed that can be justified when the matter comes before the Court, but that it does not matter whether that objective could be justified when the legislation was passed. Legislation may come to be justified some time after it is passed as its objective becomes pressing and substantial or the proportion between the objective and the measure shifts. It should also follow that legislation once justifiable may in time cease to be18.

The implication of these principles is that the Court may be asked to revisit any issue on the grounds that circumstances have changed since it last upheld or struck down any particular legislation. Indeed, it should not be necessary to argue that circumstances have changed. As the Court claims to decide the issues on evidence, it should be enough to say that there is evidence the that Court has not previously considered. While Irwin Toy has had its chance to rebut the Crown’s evidence any other toy maker, or children’s advocate, who wants to challenge the Quebec legislation should be free to do so.

On this analysis the claim to decide section 1 issues on evidence must largely preclude any final settlement of constitutional jurisprudence as the Court pushes its way through the first wave of Charter cases. Cases decided on evidence are generally only binding between the immediate parties.

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By 1989 the Court’s appetite for evidence in Charter cases seemed to have become an addiction. In MacKay v. Manitoba19 MacKay challenged provisions of the Manitoba Election Finances Act for the subsidisation of candidates elections expenses. He contended that the use of tax monies, to which he was obliged to contribute, to support candidates with whose opinions he disagreed and the 10% of votes requirement for the subsidy as a barrier to small or new parties infringed his freedom of expression. The case was apparently pursued with more enthusiasm than thought and no facts were put before the Court beyond the legislation itself. The government of Manitoba was content that it should proceed on that basis and the judge at first instance and the Manitoba Court of Appeal held that there was no infringement of freedom of speech.

Before the Supreme Court of Canada the attorneys general of Canada and Ontario intervened and took the position that there was no factual basis for dealing with the appeal. Cory J. agreed and delivered a homily on the need for evidence in Charter cases:
In light of the importance and impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts.
Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. (D.L.R. 388; S.C.R. 361)
For a Court that dismissed Operation Dismantle on the basis that its allegations about international politics could simply never be proved the readiness to be persuaded of the future impact of impugned legislation and the result of possible decisions is remarkable. Also remarkable is the contrast between the demand for the careful preparation and presentation of a mass of factual material and wide eyed acceptance of any social science and expert opinion without “the evidentiary testing of the adversarial process”.

MacKay’s counsel argued that Neo-Nazis might get 10% of the vote and be entitled to public funding. Cory would have none of this without evidence. But it is not clear what help evidence would be. Did Cory mean that only when a Neo-Nazi actually had 10% of the vote and was about to receive public funds would freedom of expression be in danger? Or would some specific probability of a Neo-Nazi getting 10% of the vote testified to by some dubious political scientist have decided the case?

MacKay’s case was simple enough. Even Cory dealt with large part of it as presented:
    The appellants also argued an issue that does not require a factual foundation. It was said
that the statutory funding of candidates could, whenever a losing candidate or candidates received 10% of the vote, force a taxpayer to support a candidate whose views are fundamentally opposed to that of the taxpayer. This enforced support of a contrary view was said to infringe the taxpayer’s right to freedom of expression. I cannot accept that contention. The Act does not prohibit a taxpayer or anyone else from holding or expressing any position or their belief in any position. Rather, the Act seems to foster and encourage the dissemination and expression of a wide range of views and positions. In this way it enhances public knowledge of diverse views and facilitates public discussion of those views. (D.L.R. 392; S.C.R. 366/7)
But by 1989 the Court had become so used to buffering its decisions in masses of evidence that it would not fully deal with MacKay .

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In 1990 and 1991 the Court became more and more confident and ambitious in dealing with political issues, upholding mandatory retirement provisions in universities20 and hospitals21, but striking down a provisions of the Unemployment Insurance Act that restricted benefits for people over 6522, upholding hate propaganda bans in the Canadian Human Rights Act23, but striking down limits on political activity by public servants24. In all of these cases quantities of evidence were before the Court, but it is hard to tell from its reasons how much an of it was relied on.

Merv Lavigne’s unsuccessful attempt to have the requirement that he pay dues to the Ontario Public Service Employees Union in order to keep his job teaching at a community college25 demonstrated how far politics cloaked in evidence could go. Lavigne objected that his dues were being used to support the New Democratic Party, disarmament campaigns and other causes. None of the judges thought Lavigne’s right to freedom of expression had been infringed by his being forced to contribute funds to support causes he disagreed with. Wilson J. relied on MacKay . Only three of the judges thought Lavigne’s right to freedom of association had been infringed. But all of the judges held that whatever rights or freedoms might have been infringed, it could be justified under section 1. LaForest J., who had held that Lavigne’s freedom of association was infringed, nevertheless insisted that he could not even be allowed an opt out for dues not spent strictly on collective bargaining, having evidently been persuaded by the evidence of the following:
...there is evidence to support the view that the cause of unionism has been advanced by the NDP. The respondents referred to the role that the party played in the establishment of medicare, pensions, and unemployment insurance, and of what unions would have had to give up in the way of demands in other areas in order to get medical coverage from employers, private unemployment insurance coverage, and so on. In the light of the foregoing, it is inconceivable that support of the NDP could be considered irrelevant to the union’s obligation to represent those who pay dues to it. But the important point is that if individuals can “opt out” of supporting the NDP, the unions will have much fewer dollars to support it. (D.L.R. 638; S.C.R. 337)

It was never in the cards that the Supreme Court of Canada would take on the unions over the use of compulsory dues for political purposes, something that people with more political nous than the Citizens Coalition, which backed Lavigne’s case, would have known. This was all the more so after the Court had repeatedly held in 1987 that freedom of association did not include a right to strike despite alarming dissents by Dickson and Wilson. But the readiness to find political facts on which to base its decision shows a Court acknowledging no bounds to its political competence.

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In more recent cases there have been comments that might be read as indicating that the Court had developed a more modest conception of its competence and might be ready to defer slightly to the legislatures. They might even be read as saying that the Court would be satisfied with a “reasonable basis” for impugned legislation. In Dickason26, yet another lengthy and inconclusive treatment of the issue of mandatory retirement, Sopinka J. (dissenting) says:
The first question in this appeal is the meaning to be ascribed to the phrase “reasonable and justifiable”. I agree with the board of inquiry, the courts below and my colleagues that the jurisprudence developed with respect to s. 1 of the Charter is a useful guide in applying s 11.1 of the I.R.P.A. There is also substantial agreement that in determining whether the proportionality factor has been met, the Court should not defer to the decision of an employer in the same way as in the case of a governmental actor. The rationale for this approach in the latter case is that in dealing with governmental actors, it is often difficult, if not impossible, to prove in the ordinary way whether a particular measure will in fact achieve its objective. Accordingly, if Parliament...had a reasonable basis for concluding that the measure would achieve its objective, that is ordinarily a basis for concluding that there is a rational connection between the measure and the governmental objective. Accordingly, although the government could not prove that advertising toys on television had a manipulative effect on children, nor that hate propaganda actually promoted hatred against an identifiable group, nor that pornography caused harm to women, the fact that there was sufficient evidence to provide a reasonable basis for the legislature to adopt the impugned legislation in aid of its objective was sufficient to save it. (D.L.R. 482/3; S.C.R. 1195/6)
There is no reason to see this as indicating that the Court will not, as it has readily for ten years, put itself in the place of the legislature. The point in Irwin where the Court would not second guess the legislature was the age limit of 13 for ban on advertising. It was following Edwards27, a Sunday shopping case, in which Chief Justice Dickson accepted the exception for stores with seven employees or less saying:
...I do not believe that there is any magic in the number seven as distinct from, say, 5, 10, or 15 employees as a cut-off point for eligibility for the exemption. In balancing the interests of retail employees to a holiday in common with their family and friends against the s. 2(a) interests of those affected the legislature engaged in the process envisaged by s. 1 of the Charter. A “reasonable limit” is one which, having regard to the principles enunciated in Oakes, was reasonable for the legislature to impose. The courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw the line. (D.L.R. 51; S.C.R. 781/2)

Clearly in these cases the Court had no different idea of its own on where to draw the lines and might as likely as not have done so at 13 years and seven employees. It was not so much deferring to the legislatures as condescending to them, leaving them the details to work out. Contrary to the implication of Sopinka’s comments in Dickason, the Court seemed satisfied in Irwin that advertising toys on television did have a manipulative effect in children. It was only unsure at what age this ceased to be a pressing and substantial concern.

In Keegstra28 the Alberta school teacher was charged with wilfully promoting hatred against an identifiable group under subsection 319(2) of the Criminal Code and argued that the provision infringed his freedom of expression and, in putting the onus on him to prove truth, his right to be presumed innocent. There was a real difference of opinion between the majority and the minority in the Court over whether the hate propaganda provisions of the criminal code would be effective to combat racial hatred, an objective all agreed was pressing and substantial. The minority was persuaded by the argument that the prosecution of hate propagandists can give their views free publicity and encourage a public suspicion that there may be something to what they say because it is suppressed. Though a newspaper report of Ernst Zundel’s relishing his Court battle was referred to, this does not appear to be an argument for which evidence was considered necessary. The minority was also impressed with the argument that the use of an anti-hate law in pre-Hitler Germany did no good. “Historical evidence” was relied on for this argument. But Chief Justice Dickson, writing for the majority, simply brushed aside this argument, most pertinently observing that post-war Germany had enacted new anti-hate legislation. Typically, Keegstra is a rambling political discussion given an air of detachment by the Oakes jargon of “minimal impairment” etc. and the citation of many authors putatively learned in the law and other subjects. It is clear, however, that in the end the Court is deciding whether it likes the legislation, without any deference to the legislature. Contrary to Sopinka’s claim in Dickason that the case did not depend on the government proving “that hate propaganda actually promoted hatred against an identifiable group” Dickson held:
...it would be difficult to deny that the suppression of hate propaganda reduces the harm such expression does to individuals who belong to identifiable groups and to relations between various cultural and religious groups in Canadian society. (C.C.C. 52; S.C.R.  767)

Keegstra contained a statement by Dickson of a common recent theme of flexibility in the use of the Oakes criteria:
The analytical framework of Oakes has been continually reaffirmed by this Court, yet it is dangerously misleading to conceive of s. 1 as a rigid and technical provision, offering nothing more than a last chance for the state to justify incursions into the realm of fundamental rights. From a crudely practical standpoint, Charter litigants sometimes may perceive s. 1 in this manner, but in the body our our nation’s constitutional law it plays and immeasurably richer role, one of great magnitude and sophistication. (C.C.C. 28; S.C.R. 735)
This typically vain and self-serving comment on the Court’s chief source of power cannot be read as indicating a readiness to defer to the legislatures. Rather it is an announcement of the Court’s refusal to be bound by the straight jacket it might have fashioned for itself in Oakes. A rigid application of Oakes might have obliged the Court to strike down legislation it liked when the evidence it called for was not forthcoming.

In Butler29, in which a Winnipeg adult video store owner challenged the obscenity provisions of the Criminal Code, Sopinka J. did find that the government could not prove that pornography caused harm to women. He referred to the conflicting conclusions of reports in Canada and the United States. Notwithstanding, he was prepared to uphold freshly interpreted obscenity legislation on the basis of the possibility of harm. But again there is no basis for the suggestion, encouraged by his own comment in Dickason, that he was deferring to parliament. Clearly he thought that the evidence of the possibility of harm was enough and that the obscenity law as he reinterpreted it was worth having to guard against the possibility of harm and he would not have deferred to parliament if he had not thought so. If he had taken the trouble to follow Oakes closely enough to speak of standard of proof, perhaps he would have been prepared to find that, on the balance of probability, pornography does cause harm.

The Supreme Court of Canada’s call for and acceptance of a mass of doubtful political evidence and its casual use of it has simply illustrated the incapacity of any Court satisfactorily to exercise the power that the Court so complacently holds. A proper use of evidence would limit its quantity and limit its use to showing that the legislature was reasonably addressing a problem and not simply contemptuous of rights and freedoms. It would see the Court expressly relying on evidence in its reasons or expressly rejecting it as unhelpful and unwanted. It would subsume evidence within an extended legislative history and allow the Court to speak once on the validity of legislation rather than leaving it open for fresh evidence or changed circumstances. Most importantly it would require the Court expressly to limit its own absolute power.

JOHN T. PEPALL

OCTOBER 22, 1994

1 P. W. Hogg, “Proof of Facts in Constitutional Cases”, 26 U.T.L.J. 386 (1976)
2 Muller v. State of Oregon (1908), 208 U.S. 412
3 K. C. Davis, “An Approach to the Problems of Evidence in the Administrative Process” (1942) 55 Harvard Law Review 364
4 Carl Baar, “Criminal Court Delay and the Charter: The Use and Misuse of Social Facts in Judicial Policy Making”, (1993) 72 C. B. R. 305 is an interesting discussion of the use and abuse of evidence in the Askov  fiasco, although biased by Baar’s interest as a part-time researcher in the field of Court delays and the source of much of the evidence.
5 Law Society of Upper Canada v. Skapinker (1984), 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357
6 Re Singh and Minister of Employment & Immigration (1985), 17 D.L.R. (4th) 422, [1985] 1 S.C.R. 177
7 R. v. Oakes (1986) 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200, [1986] 1 S.C.R. 103
8 Even more doubtful is the logic of appeals to international conventions [see Keegstra and Butler footnotes 28 and 29 infra ], but as these may be considered part of the law of Canada they may be left out of a consideration of the role of evidence.
9 Operation Dismantle v. The Queen (1985), 18 D.L.R. (4th) 481, [1985] 1 S.C.R. 441
10 Uncharacteristically Wilson J. seemed ready to accept a presumptive limit on the Court’s power to review “governmental action which concerns the relations of the state with other states...” (D.L.R. 490; S.C.R. 518)
11 Quoted by Brian G. Morgan in “Proof of Facts in Constitutional Litigation”, notes for an address at the University of Toronto Faculty of Law Constitutional Litigation Programme on February 26, 1986. The papers were revised and published as Robert J. Sharpe (ed.) Charter Litigation (Toronto, 1987). Morgan drops the quotation from Dickson but Katherine Swinton cites it in “What do the Courts Want from the Social Sciences”. Swinton and Morgan’s chapters and John Hagan’s “Can Social Science Save Us? The Problems and Prospects of Social Science Evidence in Constitutional Litigation” are a good representation of the state of knowledge and speculation in 1986. For the practitioner no more is known now.
12 R. v. Thomsen (1988), 40 C.C.C. (3d) 411, [1988] 1 S.C.R. 640
13 R. v. Hufsky (1988), 40 C.C.C. (3d) 398, [1988] 1 S.C.R. 621
14 R. v. Ladouceur (1988), 56 C.C.C. (3d) 22, [1990] 1 S.C.R. 1257
15 Ford v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 577, [1988] 2 S.C.R. 712 and Devine v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 641, [1988] 2 S.C.R. 790
16 Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), D.L.R. (4th) 577, [1989] 1 S.C.R. 927
17 This is not exactly what Big M  (1985), 16 D.L.R. (4th) 321, [1985] 1 S.C.R. 295 says. There Ottawa only had legislative jurisdiction to pass the Lord’s Day Act if it was criminal law enforcing a religious observance. If it was that, according to the Court, it offended the religious freedom provision in paragraph 2(a) of the Charter. If the Lord’s Day Act only established a secular day of rest, the basis on which Ottawa tried to justify it, it was not within Ottawa’s legislative jurisdiction.
18 In Butler footnote 29 infra and R. v. Zundel  (1992) 95 D.L.R. (4th) 202, [1992] 2 S.C.R. 357 added confusion and argued with itself over whether there could be a shift in emphasis giving new constitutional life to legislation without the shift in purpose rejected in Big M. A shift in emphasis allowed obscenity legislation for the protection of women in Butler, but the argument that section 181 of the Criminal Code could now be considered anti-hate legislation was rejected.
19 (1989), 61 D.L.R. (4th) 385, [1989] 2 S.C.R. 357
20 McKinney v. University of Guelph (1990), 76 D.L.R. (4th) 545, [1990] 3 S.C.R. 292 and Harrison v. University of British Columbia (1990), 77 D.L.R. (4th) 55, [1990] 3 S.C.R.451
21 Stoffman v. Vancouver General Hospital (1990) 76 D.L.R. (4th) 700, [1990] 3 S.C.R. 483
22 Tétrault-Gadoury v. Canada( Employment & Immigration Commission) (19910 (4th) 81 D.L.R. 358, [1991] 2 S.C.R. 22
23 Canada (Canadian Human Rights Commission) v. Taylor (1990), 75 D.L.R. (4th) 577, [1990 3 S.C.R. 892
24 Osborne v. Canada (Treasury Board) (1991) 82 D.L.R. (4th) 321, [1991] 3 S.C.R. 69
25 Lavigne v. Ontario Public Service Employees Union (1991), 81 D.L.R. (4th) 545, [1991] 3 S.C.R. 211
26 Dickason v. University of Alberta  (1992), 95 D.L.R. (4th) 439, [1992] 2 S.C.R. 1103. Dickason is not a Charter case, but the Court proceeded on the basis that the “reasonable and justifiable” defence provided for in the Alberta Individual’s Rights Protection Act was equivalent to section 1 of the Charter and embarked on an Oakes analysis.
27 R. v. Edwards Books and Art Ltd. (1986), 35 D.L.R. (4th) 1, [1986] 2 S.C.R. 713
28 R. v. Keegstra (1990) 61 C.C.C. (3d) 1, [1990] 3 S.C.R. 697
29 R. V. Butler (1992) 89 D.L.R. (4th) 449, [1992] 1 S.C.R. 452

LAST TANGO WITH DIEF Denis Smith and others on John Diefenbake

Books in Canada

Rogue Tory:
The Life and Legend of John G. Diefenbaker
Denis Smith
Macfarlane Walter & Ross
ISBN 0-921912-92-7

Trumpets and Drums:
John Diefenbaker on the Campaign Trail
Dick Spencer
Douglas & McIntyre
ISBN 1-55054-462-4

Saturday's Child:
Memoirs of Canada's First Female Cabinet Minister
Ellen Loucks Fairclough
University of Toronto Press
ISBN 0-8020-0736-8

In 1969 and 1970 Dennis Smith tried to work with John Diefenbaker on the preparation of his memoirs. His efforts were frustrated. The three volumes of Diefenbaker's banal and unreliable One Canada came out with the assistance of a different amanuensis from 1975 to 1977. The quarter century that has passed since Smith abandoned his first effort to set down the Diefenbaker record has allowed the writing of an altogether different class of book. Coming out shortly after Diefenbaker's one hundredth birthday, Rogue Tory is finely written, thoroughly researched, superbly organised and scrupulously fair. It rivals Donald Creighton on Sir John A. Macdonald as the best biography of a Canadian Prime Minister.

Smith came to Diefenbaker as something of an academic Red Tory and nationalist. After giving up on him, he published three other books. Bleeding Hearts.Bleeding Country (1971) is an impassioned attack on Trudeau's handling of the October Crisis, and more broadly on Trudeau's anti-nationalism, which, Smith argues, led to the invocation and abuse of the War Measures Act. At the time, he was one of the many English Canadian intellectuals who expected Quebec to become independent within a decade. Gentle Patriot (1973) is a very sympathetic study of an alternative nationalist hero and a distinct failure, Walter Gordon, who co-operated fully with Smith, making his papers and draft memoirs available (before publishing the memoirs himself in 1977). In Diplomacy of Fear (1988), Smith looked in early Cold War diplomacy for the roots of Canada's dependence on the United States. But as a careful and honest scholar, he could only find Canada playing a creditable role as a bridge between Europe and America in the founding of NATO.

By the time he returned to Diefenbaker, the national issues on which his government foundered could be seen in a long historical perspective. Smith writes without bias and his account of Diefenbaker is clear and balanced.

And yet the paradoxes of Diefenbaker's career remain. By some measures he was an enormously successful politician. His 1958 sweep will likely remain the greatest general election victory in Canadian history. He was the first Conservative leader since Macdonald to lead his party to victory in three general elections. Even after the collapse of his government in 1963, he was able to win a plurality of seats in English Canada and keep the Liberals from a majority in two more general elections. But by any measure he was an unsuccessful prime minister, letting his government drift from the easy generosity of his first minority government in 1957 until its melodramatic defeat in the House of Commons in 1963. He was resentful, paranoid, a cultivator of enemies and had a low regard for the truth. Despite his failure, and his real nastiness, he was never hated by Canadians as several of his predecessors and at least two of his successors have been. His memory has been fading, but it has generally been affectionate. Smith tries to resolve the paradoxes by distinguishing between the man and the legend: the man a disappointed failure, the legend a triumphant underdog. But the man and the legend were one. It was because he saw himself as an underdog and determined early on the triumph that he was capable of such bitterness and destined to fail.

Diefenbaker had a rootless childhood, his family occupying at least nine different homes in Ontario and Saskatchewan before he was fifteen. His father seems to have had an undistinguished career as a teacher and was an unsuccessful homesteader. Diefenbaker described his mother as "the much more determined personality". Smith suggests that she was "dour, intimidating, prejudiced, ignorant and wilful". Smith is circumspect about psychological speculation. With the best of sources it is a dubious resort. For much of Diefenbaker's childhood and youth he has to rely on Diefenbaker's own account, something he does perhaps too readily in light of the unreliability he demonstrates when alternative sources become available. But such an unsettled childhood would naturally set him out on life as an outsider. His only early bond was with his ne'er-do-well younger brother Elmer, to whom he remained loyal and who fully, if ineffectually, repaid his loyalty until Elmer died. Diefenbaker's sense of himself as an outsider remained with him throughout his life and was at the root of his ambition. He seems also to have conceived a resentment of those more fortunate than himself from earliest childhood. He and Smith see in this the root of his populism and such sense of social justice as he had, but it seems to have been an largely negative sentiment.

Smith demonstrates that Diefenbaker's story of being invalided from the army as a result of an injury from a trenching tool while training in England was a lie. He speculates sympathetically that he suffered from a psychosomatic illness. He had enlisted for officer training in April 1916 and sailed for England in October. He seems to have had plenty of time for sightseeing and going to the theatre in London before returning to Canada in February 1917.

Called to the bar in 1919 Diefenbaker set up practice in the village of Wakaw, midway between Saskatoon and Prince Albert. He was able to make a decent living, buying the first of a series of smart new cars in 1920, and, more importantly, making a name for himself. He moved his practice to Prince Albert in 1924. He was not a brilliant lawyer. But in the prairie world of the twenties lawyers were held in respect and any substantial trial gained some public attention.

Diefenbaker's father was a Liberal. How he became a Conservative is unclear. The Liberals were apparently interested in recruiting him as a candidate as late as March of 1925. But by August 1925 he was the Conservative candidate for Prince Albert for the general election expected in the Fall. Conservative prospects in Saskatchewan were poor, as Diefenbaker's five political defeats before his election to the House of Commons in 1940 confirmed. Chance and personal contacts perhaps made him a Conservative. He never liked being called a Tory. Both parts of the title of Smith's book would annoy him. Perhaps he sensed that his long term prospects in the weaker party would be better. This proved true. As a Liberal he might have made it no further than the provincial cabinet. He was never a party man and beyond his rhetorical populism had no discernible political convictions. When he finally ran successfully in Prince Albert in 1953, it was practically as the candidate of the Diefenbaker Clubs, though he was officially the Progressive Conservative candidate. He demanded unreserved lifetime loyalty as the party leader. But he was a loner in the caucus before he became leader and secretly relished Tory failure when he was no longer leader.

What Diefenbaker loved in politics was the rhetorical combat in campaigning and the House of Commons and the recognition exemplified in main-streeting. His career is full of tales of rousing campaign speeches and devastating attacks in the House of Commons. Even as Prime Minister his successes in the House of Commons were attacks on the opposition. Election campaigns revived his spirits after the crisis of 1963 and after two years of fractious opposition in 1965. The legend says that he was a great orator. But there is no Diefenbaker speech worth reading. He was incapable of the substance, eloquence and force of Meighen, whose speeches collected in Unrevised and Unrepented are still eminently readable. His most important speeches were often put together from scraps from his staff and his own jottings. He was not well read. An old fashioned education and a few good books at home were enough to give him a sense of the grand style. Trial advocacy developed a kind of theatrical talent. He had a sense of his audience and was quick witted and shameless. This was enough to equip him to capture audiences when the public still went to political meetings in the hope of being given a good show. By the sixties and seventies he was an anachronism and even a figure of fun, but he could still entertain.

Diefenbaker's long record of defeats might have discouraged someone less determined and more interested in government than campaigning. But he was still relatively young and established himself in both local and national Conservative circles. Perhaps his most bitter defeat was as the forlorn leader of the provincial Conservatives in the Saskatchewan general election of 1938. He could only field candidates in 23 of 50 ridings and the party took only 12% of the popular vote, coming fourth behind the Liberals, the CCF and the Socreds. He complained at the lack of support from the national party and Eastern Canadian business; an odd complaint as transfers from national parties and out of province contributions are now illegal in most provinces.

In the small Conservative caucus from 1940 to 1956 and by running for the leadership in 1942 and 1948 Diefenbaker was able to make himself into a national figure. He was, despite widespread reservations in the party, the natural successor to George Drew when he resigned in 1956. How far he was necessary to defeat the Liberals in 1957 it is difficult from this distance to judge. Their defeat was not expected, but after twenty-two years in power, under an aging Prime Minister and under the impact of the Pipeline Debate, the time might seem to have come. What cannot be doubted is that the triumph of 1958 was Diefenbaker's. The extraordinary enthusiasm whipped up by his campaign - people swarming to touch him and breaking down the doors of halls to hear him - was all for Diefenbaker.

Having won the highest prize in the game to which he had given his life Diefenbaker had no idea what to do with it. He was a telling example of the general problem of democratic politics: that the contest by which our leaders are chosen neither attracts nor produces leaders. He enjoyed his foreign trips and greeting foreign visitors. He made countless speeches and collected dozens of honorary degrees and various other honours. When it came to the real work of government he wanted to do good but had little idea what to do. He simply drifted along when he was not distracted by prejudice and suspicion or paralysed by conflicting opinions.

Diefenbaker's interest in "the Vision of a New Canada of the North" went little beyond its rhetorical usefulness in the 1958 election campaign. In the minds of his young economics adviser Merrill Menzies and his Northern Affairs Minister Alvin Hamilton it promised an active big spending government investing in the infrastructure of the North. Some roads were built to resources. But for good perhaps rather than ill, Diefenbaker was not interested in supporting the vision against the advice of a fiscally conservative cabinet. Piecemeal, politically pragmatic free handedness and a recession left him with little margin for spending on the vision.

Diefenbaker was characteristically proudest of his introduction of the Canadian Bill of Rights. It was more a piece of rhetoric than legislation. Had it not been superseded by the Charter, the ambitious and increasingly ingenious and disingenuous courts might have made something of it. Its status as simply one statute of Canada among many meant that it could never have had an important impact. Diefenbaker was not interested in the political complications of trying to make it a constitutional enactment. Bora Laskin and F. R. Scott suggested that it could be added to the British North America Act by Westminster on the request of the Parliament of Canada, thus making it binding on the national government and parliament, but even this relatively simple proposal was ignored. Whether or not some vague regard for the sovereignty of parliament made Diefenbaker reluctant to subject parliament to the the supervision of the courts, on which Laskin would soon sit, we cannot know. He does not seem to have thought about such issues. Tens of thousands of copies with his corny "I am a Canadian" pledge over his signature, were distributed across the country and he was content.

Diefenbaker was reputed to be a great man for rights. As a criminal defence lawyer rights were tools of his trade, though not so much as they have become since the Charter. Beyond that rights were for him little more than rhetoric. He accepted with complacency the R. C. M. P.'s arbitrary purges of the civil service on security grounds. In his attacks on the King government's use of orders-in-council to deport Japanese Canadians and in the Gouzenko affair his concern was as much for the rights of Parliament as for the rights of individuals. The constitutional, legal and, still more, the philosophical issues through which rights have developed were simply beyond his interests.

Nor was he interested in economics. A big deficit was a political embarrassment, though not as much as a tax increase, but he was always vulnerable to political pressure for spending, particularly from farmers. The chief economic controversy during his time as Prime Minister was most significant politically. Nearing the end of his term, the Liberal appointed Governor of the Bank of Canada gave a series of speeches vaguely outlining a comprehensive and mildly nationalist economic policy implicitly critical of the government. It is usually supposed that James Coyne and the government were at odds over monetary policy. But while some ministers wanted easier money, as some always do, Diefenbaker and his Finance Minister, Donald Fleming, never did quarrel with Coyne's monetary policy. As Coyne's speeches became a political embarrassment, however, the cabinet resolved, with less than a year left in his seven year term, to get rid of him. It fixed on his pension arrangements as a ground for his dismissal implying that he had taken advantage of his position for personal gain. A one sentence bill was introduced in the House of Commons declaring the governorship vacant. The debate in the House, lead by Diefenbaker, was vitriolic, with Coyne from the sidelines demanding a public hearing and describing Diefenbaker as the evil genius behind the affair. Blunderingly refusing to have Coyne before a Commons committee, where a Conservative majority could have grilled him, the government left him the chance to appear before the Liberal dominated Senate Banking and Finance Committee like a victim of persecution. The whole Senate defeated the bill and Coyne immediately resigned claiming vindication. The government suffered severe political damage. Diefenbaker's suspicion of Liberals and vindictiveness contributed to turning an embarrassment into a disaster.

Some embarrassment over his German name made Diefenbaker a genuine advocate of unhyphenated Canadianism in One Canada. Those who would be loyal to him, of whatever sort or condition, were his friends. Those who would not were his enemies. He had no other discrimination. This was the best of him. His ultimate success opened up Canadian politics. But his legacy has been largely subverted by multiculturalism. Hyphenated Canadianism is now practically required by law.

Diefenbaker had one prejudice, against what he would call Bay Street Tories, a mixture of his personal resentments and Western alienation. The myth of the Bay Street Tories was largely a Liberal creation when Bay Street, being nothing if not opportunist, was largely Liberal. Diefenbaker's prejudice would not allow him to see the variety and popular appeal of Ontario Conservatism, denying him support when he was struggling to the top and when times were tough.

Diefenbaker still has a reputation as a nationalist done in by the continentalist Liberals with help from Washington. As such he figures as the hero of George Grant's Lament for a Nation. Smith effectively demolishes the myth. Diefenbaker had a real attachment to the Crown and the Commonwealth and other un-American traditions. He could not make much of these and raged against their decline in the flag debate. He was not paranoid about creeping republicanism. It was a conscious policy as Pearson admits in his Memoirs. But Diefenbaker was not naturally anti-American and as a staunch anti-communist accepted American leadership of the Western alliances. Within days of taking office his government had approved the extension of an agreement allowing U. S. aircraft to carry air to air nuclear armed missiles while flying over Canada. Within weeks it had approved a joint operational air defence command in NORAD making Canada the junior partner in the joint defence of its air space.

The crisis that lead to the defeat of his government in 1963 did not result from a refusal of Diefenbaker to countenance nuclear weapons on Canadian soil. That was a position he only affected in the rhetoric of the 1963 election campaign. It was his failure to decide, his inability to lead when the cabinet was divided over whether to take the nuclear warheads to which the purchase of the BOMARC missile had already committed Canada that lead to his fall. Any decision he might have taken would have lost him a couple of ministers. Any decision could have been defended. Indecision left him vulnerable. Though Leader, he could not lead.

Diefenbaker liked and admired Eisenhower. He was a certified great man, the sort Diefenbaker thought should be his friend. Kennedy was just a successful American politician and everything was against their getting on: on the one side age, insecurity and a humble upbringing; on the other youth, self-assurance and a background of wealth and power. To make matters worse, by 1963 Canadians preferred Kennedy's style to Diefenbaker's. The anti-Americanism of his 1963 campaign was badly timed.

Diefenbaker's successes in holding the Liberals to a minority in 1963 and 1965, when his predecessors as Conservative leader never won more than sixty-seven seats in the general elections from 1935 to 1953, helped him cling to the leadership. They were campaign triumphs as each time the Progressive Conservative vote on election day was more than 10% above the polls when the elections were called. But Diefenbaker was helped by Pearson, who was a lousy campaigner and a weak Prime Minister. He handled that scandals that tarnished his government in its first years poorly. Diefenbaker got to Pearson and the frantic ex-diplomat allowed the descent of the House of Commons into partisan slanging in which Diefenbaker and his close supporters were more than a match for the Liberals.

Diefenbaker seems never to have seriously considered resigning as leader. He floated the idea of resigning in the wild meetings of February 1963 as a means of embarrassing his opponents. However obvious the necessity of his retirement was after his 1963 defeat, he could not bear the thought of leaving the stage. Political drama had become his life. He would give it up when he died. The nastiness of the fight to get rid of him he brought on himself. The wonder is he could have had so many supporters to the end. That a seventy-one year old twice defeated leader should have thought he had the right to continue indefinitely as leader was absurd, as even the teenage Sean O'Sullivan should have seen. All parties have taken care to provide for leadership review in their constitutions to avoid another Diefenbaker trauma.

What brought Diefenbaker down was his loss of Quebec. His fifty seats in Quebec in 1958 gave him a golden opportunity to restore the Conservatives in the province to a position they had not held since Macdonald's death. But Diefenbaker thought introducing simultaneous translation in Parliament and nominating a French-Canadian Governor-General showed ample understanding of Quebec. He chose few and undistinguished ministers from Quebec and gave them minor portfolios. In choosing ministers outside of Quebec he had little choice but to include those who had risen to prominence before he became leader. As he put it to Ellen Fairclough: "it looks as if I shall have to form [the cabinet] largely of my enemies." He took his "enemies" from Quebec, Leon Balcer and Pierre Sevigny, but he never took the trouble to get to know his Quebec caucus and bring on its very considerable talent.

Dick Spencer met Diefenbaker first in 1963 when he was a young Prince Albert alderman and school teacher. He worked with him in the Prince Albert campaigns from then until his last campaign in 1979 and served as riding association president from 1965. Trumpets and Drums is partly a political biography of the mature Diefenbaker and partly an account of the local Prince Albert campaigns from Diefenbaker's first return to the riding in 1953. The sources are not always clear, but it is in part Spencer's own political memoirs and is used as a source by Smith for Diefenbaker's last years. Spencer writes well enough in a casual, rather pleased with itself style. The accounts of the local campaigns, the bulk of the book, are almost comically tedious. The campaign itineraries are run through again and again: Torch River, Codette, Nipawin, etc., etc., etc.: the numbers at the meetings are recounted; the banal ritual of main-streeting is repeated: "Hi, John, remember me?" "Hello, hello, good to see you.". We are told a lot about food: here date loaf and cheddar cheese, there buns with egg or salmon salad, always more ice-cream. The names of scores of campaign workers are recalled and they were all great characters.

What interest the book has is in the latter part when the collapse of his government and his ejection from the leadership brought out the worst in Diefenbaker. It was all betrayal and deceit and the diabolical Dalton Camp. This is the time when Spencer knew Diefenbaker. He became a young crony. He saw the worst of his idol, acknowledging that he wanted to hurt the party after his loss of the leadership and recounting his glee at Conservative losses in the 1968 general election. Even looking back fifteen years after Diefenbaker's death Spencer cannot get beyond the emotional extremes of the divided party in the sixties. His opponents were nasty, yelping, young hyenas, cowards and fools. Among prime ministers Macdonald, Laurier, King and Diefenbaker were in a class by themselves and Diefenbaker was the greatest of the four. Spencer asks us to take Diefenbaker as his own fantastic evaluation. With the whole sad band of uncritical loyalists, the only people who could long escape his enmity, Spencer encouraged his faults.

Ellen Fairclough's account of her year's in Ottawa takes up little more than a third of her memoirs. Though her place in history is as Canada's first woman cabinet minister, her account of her life as Saturday's Child, "who works hard for a living", in modest, provincial Hamilton is as interesting as her account of her years in Ottawa. She was a secretary, accountant, businesswoman and municipal politician before her election to the House of Commons at 45 in a by-election in 1950.

Her life as a minister seems to have been largely travel (a quarter of a million miles, mostly by train), speechmaking and campaigning. Perhaps this is what she remembers best, forgetting the tedious days of office work. But like most of her male colleagues she does not seem to have done much, partly because of the inertia of government and partly because there was nothing in particular she wanted to do. She served as Secretary of State, the closest thing then to a minister of culture, with responsibility among other things for the Dominion Carilloneur and instituted July 1 ceremonies on Parliament Hill. She was Minister of Immigration for four years during which immigration levels fell as Europe became more prosperous relative to Canada and the government moved slowly to make education and skills the chief criteria for immigration. She became fairly cynical about the political pressures for and against immigration and would have preferred not to have the power to make exceptions to the rules at Diefenbaker's insistence or on the importuning of immigrants. She was Postmaster General for less than a year before the government fell.

Fairclough's experience of Diefenbaker was typical. She had been at odds with George Drew early in her political career, but they became good friends. She agreed with the other woman Tory M.P., Margaret Aitken, not to support any leadership hopeful in 1956. Diefenbaker accused her of supporting Fleming and classed her among his enemies. He demanded her loyalty and got it. But she seems never to have been taken in by him. She was on the sidelines for the nuclear weapons debate in cabinet, prepared to go along with whatever consensus emerged. Shortly before the government fell her brightest idea was for a Royal Commission on the Great National Purpose.

Diefenbaker's funeral was the grandest in Canadian history and was planned by him to confirm his place among the greats, not just of Canada but of the world. The Diefenbaker Centre in Saskatoon, next to which he is buried, is a unique effort in Canada to preserve a politician's memory and reputation. The supposedly anti-American Diefenbaker is the only Canadian to have something like a presidential library. But Diefenbaker's memory is already fading. There is no ill will and some affection for him among those who first became aware of Canadian politics when he was waging his battles. He sense of drama at least made politics entertaining. He could be funny.

Smith's book will not be superseded. No significant sources have escaped his attention. He makes good use of the British and American diplomatic sources, which are insightful and generally fair. All the drama of his rise and fall is revived. The impression left in the end is of a rather shallow life and democratic politics reduced to posturing. The man is dead. The legend is fading. Dennis Smith had found Diefenbaker's place in history.

THE MYTHS OF UPPER CANADA COLLEGE Old Boys: The Powerful Legacy of Upper Canada College

February 1, 1995,  The Literary Review of Canada

Old Boys:
The Powerful Legacy of Upper Canada College
compiled and edited by James FitzGerald
Macfarlane Walter & Ross


I went to Upper Canada College from 1956-1967. I was never caned, never bullied (and never bullied anyone), never fought (except for tame little boxing matches), was uninterested in and hopeless at sports and got a good education. James FitzGerald was a year behind me for nine years. I struggle to remember him. Had he interviewed me for this book he would not have used the interview. My unexceptional experience would not have suited his agenda or his publishers. Maclean's entertainment writer Brian Johnson in a kind reference in the book calls me an eccentric. That is putting it a bit strong, but I do not think my contentment was unusual for either conventional or eccentric boys.

Old Boys is a compilation of edited transcripts of interviews. FitzGerald interviewed three hundred old boys of Upper Canada College and chose seventy one to include in the book. He chose whom to interview. The interviews are presented as monologues varying from about a page to about eleven pages in length. They have obviously been heavily cut. We are not told what questions were asked. Interview subjects did not approve the entries as printed; though at least one was actually submitted in writing. In a brief introduction FitzGerald traces his ancestors at the school back to the 1830's and recites clichés about the school's importance and character and briefly describes how he compiled the book. He does not explain why he undertook the massive labour.

The book has an obvious market in eight thousand living old boys, nine hundred present boys, present, past and prospective parents, staff and past staff, friends of old boys wondering what their experiences were, people interested in celebrities like Conrad Black and Robertson Davies, social critics and gossips. But shelves could be filled with warm recollections of proud and loyal old boys, if anyone could be bothered to compile them. Even to attract the interest of its ready made market this book required both celebrities and hints of scandal. As reward for his labours FitzGerald is able to offer on the dust jacket, Black and Davies, Ted Rogers and Michael Snow and a boy who endured violent sexual abuse and is now a gay priest dying of AIDS, a bisexual student working as a part-time male stripper while at the school and football played while high on LSD. The book has been widely and rather melodramatically reviewed. The Globe & Mail gave it two reviews. John Allemang, evidently a loyal and highly prejudiced old boy of University of Toronto Schools, proclaimed it a "masterful oral history" and claimed that "anger, fear, humiliation and despair" filled the book. As U. T. S. faces full independence and the loss of its three million dollar a year provincial subsidy it may hope that its lower profile will spare it the attentions of a James FitzGerald amongst its old boys, or, since the 1970's, girls. Two weeks before Allemang's review Robert Fulford devoted his Globe column to Old Boys characterising it as "a kind of Little Book of Horror, a 369 page scream of pain".

Allemang and Fulford's reaction may be a common one and must be largely what FitzGerald intended. Many tales of canings and incompetent, sarcastic or uncomprehending teachers and bullying, delinquent or unhappy students support it. If FitzGerald had interviewed himself his story would likely have confirmed the impression, though even taking the book at face value it is false. But FitzGerald's labours on the book mark an ambivalent obsession. He had already written an unpublished book on his experience of the school. Ambivalence is reflected in many of what may be read as the most critical entries.

The last entry, from Daniel Borins (at the school from 1984 to 1993), complains of injustices but ends:

I think I got an excellent education at UCC. I was allowed to excel in anything that interested me. There were almost limitless possibilities. But paradoxically, at some point, you always had to give in and conform to the ideology of the school. All the time I was there, it was like, I hate this school, but I love it. I want to stay, because I want to see if it can change.

Avi Lewis, son of former Ontario NDP leader Stephen Lewis and Michele Landsberg, whose sending him to the Prep in 1976 led to their being predictably teased, shows a more self-conscious ambivalence. His entry ends:

I learned a lot about the world in my three and a half years at UCC - a world which I lament, and which I will spend my life trying to change.

Good socialist dynast, he sounds like one of his mother's columns describing

a place where there was an absolute intolerance for any variation from a norm which is mythological and destructive in the extreme.

But he went to the school because his public school seemed so inadequate that he "was going slowly insane". And the move was successful.

Academically, the school was an absolute flowering for me. The teachers were, with only a couple of exceptions, committed, creative, and supportive. They were joyful about learning and communicated it without barriers. It was really a revolution for me to be in a place where intellectual achievement and commitment were praised, regarded, and encouraged.

He made the politic decision to go to Jarvis Collegiate for high school.

My learning more or less stopped after UCC and resumed at university. Jarvis has a good reputation, but there's just no comparison with UCC.

II.

About half the entries are on balance critical; perhaps ten have nothing good to say about the school. One or two simply simply tell a story like Alan "Monk" Marr's highly successful prank of turning up at the premiere of Richard Burton's Hamlet in 1964 as a "famous satirist and rock singer from New York". For the most part the entries from the most prominent old boys are complimentary. Conrad Black (1951-1959), who was expelled for stealing and selling exam papers in 1959 is a predictable exception. But he is not as hard on the school as he was in his autobiography A Life in Progress: "I think it's a good school and I wish it well." He develops such a careful and detailed special pleading in extenuation of his theft that despite his disclaimers it for the first time occurred to me that he regrets having had to leave. But such a precocious ego would not likely have been happy at any school.

Much criticism simply reflects the left wing or politically correct ideologies of some old boys demonstrating the varied and unpredictable intellectual development of boys who pass through the school. A few years after leaving the school in 1963 Wally Seccombe took a "classic New Left" turning becoming at one stage a comrade of the young Judy Rebick in a revolutionary Marxist group. I remember reading at the time his formulaic article on "Housework under Capitalism" in the January/February 1974 number of the New Left Review. I decided me not to renew my subscription. Now a sociology professor at the Ontario Institute for Studies in Education, Seccombe gives the school a standard post-Marxist treatment. But he too is ambivalent. Going back very reluctantly for a twenty five year reunion in 1988 he was effusively greeted by retired principal, Patrick Johnson, who died in December 1994: "The school was meant to produce more Wally Seccombes. We have produced too many stockbrokers". His entry ends:

It is a cliché that we repress painful and unpleasant experiences. But I was amazed to discover at the reunion how deeply I had forgotten, repressed or excluded the warm, deep, friend-for-life boyhood experiences that I had at UCC because of my own hardening ideological opposition to the school and all that it stood for. I had repressed the very best of what Upper Canada College meant to me. I had become so vigorous in my opposition to the school as a ruling-class institution that I had completely forgotten how happy I was there.

A lot of the criticism comes from old boys who had family troubles that would have made their childhoods unhappy in any event. FitzGerald would be among them. The first critic, the third old boy in the book, is Guy Purser (1919-1927). An only child, his mother "ran away with another man" when he was two. His father abandoned him to go to war in 1914 when he was six. Engagingly he says: "My father was a nut and my mother was a nut. You're looking at the son of a nut." His maternal grandfather paid to send him to Upper Canada. The ambition of the school to be "A Family Writ Large", the title of 1950's principal Cedric Sowby's memoirs, gives it a responsibility to boys from unhappy families, particularly when it takes them into boarding, and on much of the evidence of this book it often failed. But equally often it is blamed for unhappiness no school could have overcome.

Some of the more recent boys seem to have had altogether too good a time. Lincoln Caylor (1980-1987) claims to have spent much of his time drinking with a set that included John Turner's son David.

I was sleeping through half my classes. It didn't matter because I seemed always to get about 65 per cent in my sleep. It bothered my dad that I wasn't putting out any effort, but we were having so much damn fun.

As he says "UCC wasn't that strict in my time."

The entries regularly contradict each other. Tom Godwin, a British Columbia (1947-1955) cardiologist, says "I was better than the French teacher, I. K. Shearer, in French. That's how crappy his French was." Conrad Black, who should be a better judge of French, says "Shearer was an amusing guy in a way and he certainly knew French well." On issues like whether or not the school was repressive or authoritarian their are conflicting accounts. Chris Gilmour and his brother David, the novelist and CBC arts commentator, seem to be at odds on this. Chris (1957-1965) says "My basic grievance about the place is that it socialized me against my will as opposed to just letting me develop into whatever I am." David Gilmour, who was three years behind his brother, in FitzGerald's year as it happens, ran away from boarding, but after two months "wanted to go back to Upper Canada so badly that I could taste it..." He was let back and despite further delinquencies was allowed to finish his year. In his experience the school was "not afraid to endorse rebellious behaviour".

III.

Who knows what to believe? FitzGerald makes a preemptive comment at the end of his introduction:

The highly subjective nature of this book is based on the belief that human memory is fallible yet indispensable to understanding ourselves. My modus operandi rests on the premise that because an interview subject has chosen to remember an event in a certain way, the recollection is the truth for him. The fact that, ten years later, he may choose to remember it differently, or fail to remember it at all, is an unalterable fact of human psychology. While it was obviously impossible to verify the objective truth of every vignette or anecdote related in this book, every effort has been made to verify the authenticity of the salient historical events.

As the truth of most of what is said is generally known, if at all, only to the interview subjects, it could not be checked. But some errors that could have been checked and corrected have not been. Harry Wilson (1919-1922), father of Michael Wilson (1949-1955) and chairman of the board of governors of the school from 1962 to 1967, thinks his "awful portrait" by Alan Collier does not hang at the school. His grandson Geoffrey (1984-1986) says is does. It does. I checked. It's quite a good portrait. Guy Purser is recorded talking of studying piano with Ernest "Sykes". Could that be Seitz? Shortly afterwards Purser complains that Toronto Symphony ladies thought Ravel was a detergent. Peter B. Gooderham, before rambling on about how much money his grandfather gave away and how he was his favourite grandson, talks of a rifle company inspection by the governor general, Lord Beaverbrook. It was presumably Bessborough.

Accepted as a limited, subjective and biased presentation of school experience Old Boys has some value. That many people have been persuaded to talk so candidly is interesting. It is sometimes difficult to gauge the exact spirit in which they talk. Some entries read like prepared remarks. Other are more like something overheard in a bar. The entries are often rambling, confused and tedious and must seem particularly so to readers who do not know the people who are talking or who they are talking about.

As a basis for assessing the school and the experience of those who went there, however, the book is inadequate. There is no argument or, rather, there are dozens of contradictory and undeveloped arguments. As a measure of customer satisfaction it is highly misleading, though not so negative as reviewers claim, if read thoughtfully. In my second year at Trent University, Paul Weinzweig, a sociology lecturer, had his office next to my room at Champlain College. He was working on his Toronto doctoral thesis on Upper Canada. In January 1968 he was able to administer a 144 question survey to the whole upper (high) school. Five of the interview subjects in Old Boys and FitzGerald himself were there at the time and presumably answered the questionnaire. Of 462 responses 70% said Upper Canada was a "very good school for me", 25% said it was "a fairly good school for me" and 5% said it was "not the school for me".

Assessments may change with experience of life after school. But thousands of old boys have given money to the school. In 1994 1403 old boys gave the school $357,274. Thousands have sent their sons to the school. More would if they could afford it or their sons could get in. The common theory that being an old boy with money guarantees places for your sons at the school has never been true when competition for places was strong, as it has been now for decades. In any event, old boys rich and powerful enough to have influence to exert do not need the school to establish their sons.

A large block of old boys is simply indifferent to the school. The resentful, whom FitzGerald sought out, are a decided minority. Their experience cannot be dismissed, but it has to be placed in context. The majority who do not share their resentment cannot be dismissed on the basis that only unenlightened, incomplete human beings could have been content, a common implication in Old Boys.

Old Boys was only possible because the size, distinctiveness, independence and history of Upper Canada College make it a sufficiently definite community that people can attempt to talk about it at all. Public schools without corporate independence, with shorter histories, much larger and often more fluid student bodies and larger staff and administration are too amorphous to get the kind of treatment Upper Canada gets in Old Boys. Many people have hated their high schools and found incompetent or nasty teachers and unjust administration there. Corporal punishment survived longer in some public systems than it did at Upper Canada. Private school education is so marginal in Canada that anyone unhappy in it is always conscious that there is an alternative in a public high school and can blame his private school for his unhappiness. Anyone unhappy in a public high school is more likely to blame "the system" and react in a generalised generational rebellion in which his school is not specifically targeted. Many of the critics in Old Boys, whether because of family problems or simple adolescence would likely have been unhappy wherever they had gone to school. But they blame the school because that was the one thing that could have been changed. They had to have a family, for good or ill, they had to be young, they had to go to school, but they did not have to go to Upper Canada College.

IV.

Upper Canada's fame makes it a target, but its being a target adds to its fame. It it not quite a case of "any publicity is good publicity", but Old Boys and its reviews flatter the importance of the school and will add to its mystique. Upper Canada is not "Canada's most prestigious academic institution" as the dust jacket ludicrously claims. It does not produce the leaders of Canada. From two ministers in Mulroney's cabinet it is down to one M. P., John Godfrey, who defeated fellow old boy John Bosley. In 1957 John Porter in work for The Vertical Mosaic found twenty nine (sometimes misquoted as 29%) of the six hundred and eleven members of his Canadian born economic elite were old boys. Under 5 % is not, however, an overwhelming presence and in the larger and more fluid business world of the 1990's Upper Canada's representation is probably down to about 2%.

More interesting but more difficult to assess are the cultural or intellectual leaders. Other Losses author James Bacque (1936-1947) says "Certainly Upper Canada has produced a number of writers and artists out of all proportion to the general population. On the other hand, there are fewer than one might expect, given the advantages." The comments of such figures are as mixed as the whole book but on balance more complimentary. Robertson Davies (1928-1932) is a "whole hearted supporter of the UCC system." The communist historian Stanley Ryerson (1919-29), though naturally critical of such an establishment institution in itself, was a happy boarder. He traces his development into a communist to friends at the school and a French master, Owen Classey, who had been H. G. Wells' childrens' tutor and "conveyed an element of the Fabian socialist approach which questioned the old established fiats." Michael Snow (1942-1948) was not happy at the school but does not blame it. He won the art prize and went to the Ontario College of Art because of it. It might have happened at any school. But it did happen at Upper Canada College, sometimes condemned as philistine.

Upper Canada has not played a major role in national life. It is no Eton. Canada has no aristocracy and consequently no school for them. Upper Canada always was and remains a school for affluent middle class Toronto. When that constituted a community Upper Canada had the virtue of being a community school when there was some consensus on common values. Today middle class Toronto is much bigger than it was and the school's natural community has broken down. It draws its boys from a much wider and more diverse market.

The school has always had to compete with the free public schools and other fee paying schools and the number of the latter has increased with the widespread disenchantment with public education. It has been through serious drops in enrolment. By 1916, under the unsatisfactory principalship of H. W. Auden, upper school enrolment had sunk to 113. Under W. L. Grant's historic principalship beginning in 1919 enrolment soared to over 400. Day boy fees could be raised from $120 to $200. When Sowby became principal in 1949 there were eighty vacancies out of 465 places in the upper school. When he left in 1965 there were over 500 in the upper school with strong competition for places and fees had risen from $400 to $1100 on their way to $12,500 now. The slumps were also periods of academic decline when admission standards all but disappeared and good teachers were hard to pay and keep. Entries for old boys from the 1940's reflect such a decline.

V.

In the last twenty years the widening of its market, the intrusion of parents, and relentless fundraising have in complex relation changed the school. Fundraising was intermittent through most of the school's history. A few munificent gifts from the Massey Foundation and rich old boys came without organised effort. The "emergency" in 1958 when the 1891 building was condemned and had to be evacuated overnight changed all that. A campaign was organised and the three million dollars required for a new building successfully raised. Most old boys were then asked for money for the first time since they had left the school. The structure then established was continued for a modest programme of annual giving but fundraising gradually became fully professionalised and relentless. In 1992 the school managed to raise a further fifteen million dollars for various additions.

Historically the school had often paid its teachers less than public schools. Its grounds had always been extensive and its buildings imposing but by the 1960's it risked falling behind the lavishly outfitted public high schools of a time when government deficits were not a problem. The reaction of the school was to make itself the best school money could by. Fees continued their escalation to an historic high in constant dollars. Fundraising became an essential part of what is now a fourteen million dollar a year business. Gradually the idea developed that in addition to selling its education for whatever the market could bear and drawing on the good will of old boys the prestige of the school could be sold to parents. From negligible amounts, giving by parents rose from the late 1970's until it now exceeds giving by old boys. In 1994 320 parents gave $535,749 and 192 past parents $76,547. Even a few grandparents have started giving money to the school. To encourage the others the names of parents who give are listed by grade in the school's annual reports.

Parallel with their generosity the parents have been involving themselves more and more in the school. Parents' attendance at the school used to be confined to entrance interviews, parents nights, attendance at plays, concerts and games and occasions of trouble. Now there is a parents' organisation busy with sales and volunteer work (by mothers) in the libraries and elsewhere. Their most telling initiative has been the preparation of class directories for parents "to facilitate contact between parents of boys in the same grade". These have facilitated "social parent network evenings" organised by grade. In the past parents would only hope that their sons would benefit from an Upper Canada education. Now the networks and prestige of the school are available to parents. Much of this must be of no interest to parents who only wanted to buy their sons a good education or who are old boys anyway. It complicates the work of the school, which is always trying to satisfy parents looking for very different things.

Some parents are looking for standards and discipline they fear are lacking in the public schools. Others are more interested in the prestige or the standards without the discipline or tradition. Some parents would want a strict dress code, even a uniform. Other object to such requirements as there are, brooking no interference by the school with their sons' affectations. It is a common misconception that the school requires a uniform. While boys are required to have blazers for special occasions, it is a very long time since they regularly wore a uniform. A jacket and school tie has been all that has been required for most of the time covered by Old Boys and there is constant friction over issues like shoes, socks and hair length. Boys dress down at the end of each day, ostensibly for safety reasons, though private school girls and boys from the newer private schools in uniform can be seen all around town. Boys are now more indulged, not to say spoilt, by parents more likely to be rich than just affluent. Boys are more likely to be under pressure to get ahead, to seek admission to an American university, where a quarter of graduates now go.

The book will not hurt the school. It will hurt some of those living who are mentioned. It may hurt some of the interview subjects who may never be so public again and may live to regret their participation. They are caught forever like the subjects of Michael Apted's Seven Up film series. Most of the people who will actually read the book will be able to set their own experience and knowledge of the personalities against what they read and will only have their impressions of the school confirmed. People who only know the school as a big name will from reviews and seeking out the more exciting bits have their prejudices confirmed or merely be diverted. If some potential parents attracted by the school's prestige are put off, there will be no harm to the school or their boys from that. The book cannot change much at the school. Much that was objected to, caning, boxing and the cadet battalion, are now long gone. The arguments for coeducation are stale and inconclusive. The out of town private schools have generally turned to it as the tradition of sending sons to board died out and enrolments declined. For Upper Canada the question must remain closed for the moment because of the impact it would have on the private girls schools. Separate education for girls still has considerable support. For the rest the criticisms are too confused or contradictory to provide agenda. Judgement of Upper Canada is finally a political question. If elites and class must be destroyed institutions like Upper Canada must go down with them. If any cultural hegemony must be dissolved, so Upper Canada as it has been must disappear, even if there are to be multicultural, meritocratic elites.

Weinzweig assessed Upper Canada, by the techniques of conventional 1950's American sociology, for its effectiveness in socialising an existing elite and transmitting what he rather romantically called aristocratic values. He found that it was highly effective. But he identified two trends that might threaten its effectiveness. One was generational alienation, which, writing at the end of the sixties, he saw as having the potential to undermine all educational institutions. Twenty five years on that threat seems remote, though echoes of the sixties can be picked up in comments of some of the most recent old boys. The other trend he called "the strengthening of democratic sentiment". The effects of this could be complex and he detected "a move to a more meritocratic ideology" in moves to improve academic facilities and raise formal teaching credentials. He wondered whether "increments in technical and specialized facilities [would] erode the aristocratic values of elitism, tradition and humanistic education." He noted the irony that general democratic concern with standards of education had broadened awareness of the option of private education and led to "increasing numbers of applications from middle and lower middle class families".

There have always been families that made sacrifices to afford an Upper Canada education for their sons and there are probably more now than ever. Scholarships are too little to facilitate many admissions. On the other hand, the Upper Canada brand name, in an era when luxury brand names have had their strongest appeal, attracted an increasing number of boys from families that had little in common with the traditional private school constituency except money. To some extent these families may have been seeking integration into a traditional elite. But many will have bought an Upper Canada education much as they bought BMW's as the fruit and sign of their material success. The school has been prepared to deal with them in those terms. Disparities of wealth may remain or even increase. But the stable, bourgeois communities that Upper Canada and the other private schools served have been broken up in the more fluid and culturally various world of recent decades. Notwithstanding, Upper Canada's freedom to select its students and staff and relative freedom to control its curriculum make it possible for it to provide a traditional liberal education to the highest standards, to instil classic values and pass on Anglo-Canadian culture and to be a community in a way that most schools cannot. There is a demand for what the school can do and, with greater or lesser success from time to time, has done. But Upper Canada cannot appeal to everyone who can afford to pay and still be an effective integrating community. If it is not to become simply a posh educational supermarket, it will have to find its market niche. Such a strategy would involve some retrenchment. By now the momentum of the business may prevent such a repositioning.