PUBLIC DEFENDER Arthur Maloney

March 1, 1996, The Literary Review of Canada

The Life and Times of Arthur Maloney:
The Last of the Tribunes
Charles Pullen
The Osgoode Society for Canadian Legal History

Arthur Maloney was a famous criminal lawyer. In the O. J. Simpson trial a squad of famous criminal lawyers got their client an acquittal before a mass audience still largely convinced he is guilty. In the Paul Bernardo trial John Rosen became a famous criminal lawyer in the unsuccessful defence of a client whose guilt was never really in doubt. The importance of top lawyers needs critical assessment. Despite the opportunity offered by its subject this interesting book fails to provide it.

Arthur Maloney came from Renfrew County west of Ottawa. His father was a doctor and a Conservative M.P. from 1925 to 1935. After an undistinguished but agreeable time at the University of Toronto he began training as a lawyer under the old regime, mixing work in a law office with lectures at Osgoode Hall. As he was working on the side and no great scholar he had to pull strings to get called to the bar in 1943.

Fame came in 1952 when a chance elevator encounter with Chief Justice James McCruer led to his court appointment as counsel for Leonard Jackson, who with his fellow member of the bank robbing, gaol breaking Boyd gang, Steve Suchan, was charged with the murder of a police sergeant.  J. J. Robinette, already famous for his successful appeal and second trial in the Evelyn Dick case, defended Suchan. Both Jackson and Suchan were convicted and hanged. By Pullen’s account both murder convictions may have resulted from Maloney’s failure to dissuade Jackson from taking the stand in his own defence, a mistake attributable to his lacking the confidence and authority that comes with experience. The case received coverage in the relatively primitive provincial media of the early fifties comparable to the Bernardo case. There was never any doubt that Suchan shot Sergeant Tong. Maloney’s failure to save his client from the gallows was not held against him by anyone, not even his client. He was able to play the role to everyone’s satisfaction and his public reputation was established.

Maloney had a melodramatic and rhetorical sense of himself and his role as counsel. While a student he developed an interest in drama and opera. He debated and made recruiting speeches, though respiratory weaknesses kept him out of the war. He did radio commentary for Sunday masses at St. Michael’s Cathedral in Toronto. He was a great admirer of Churchill and managed to get in to a wartime press conference as a stringer for the Eganville Leader, by his account asking him a question. He had an egocentric gregariousness and from his first years in practice was the centre of a circle who drank after work at the Metropole Hotel, occasionally joined by police officers, and handy to the newspapers offices, with whose reporters he early established good relations. A long line of spirited students and juniors passed through his office and often on to distinguished careers in the law and beyond. Ontario Associate Chief Justice Patrick Lesage, who presided at the Bernardo trial, is one several times quoted in this book. Charles Pullen, Emeritus Professor of English at Queen’s University, is another.

Much of the book is based on fond recollection. Maloney was almost as celebrated as a popular fellow as for his legal or political careers. The cover photograph of Maloney smiling behind a raised glass is the image the book supports. But there is another view of him, as Pullen admits at the outset:

There is an accumulation of public, desultory memory of Maloney that is not flattering. From the beginning of this project, there has been some eye-shifting dubiety about the man. Indeed, within the Osgoode Society, and certainly within the legal profession, there are those who have a jaundiced view of him. Much of this opinion is confused, as well as vague, depending upon dim memories of newspaper reports and unsolicited word-of-mouth derision. Most of these people are innocent, unbiased spectators of the public scene who had heard enough about Maloney to presume to dislike him without much personal knowledge of the man.

None of this appears in the rest of the book. Through the warm glow of Pullen’s prose it is only possible to surmise that some who were not part of his circle may have grown weary of hearing what a great lawyer and a great fellow he was. The opportunity is passed up to try to assess just how good a lawyer Maloney was and what it would mean to the administration of justice if outstanding talent made a lot of difference to who was convicted of what and what such talent means if it does not. We do not see what drove him to make himself so popular and why with many people he failed.

Maloney was a great drinker:

...Arthur had a taste for drinking long into the night, even if he had started in the early afternoon....The later it got, as is the way of the world of alcoholic excess, the more questionable the company would become, as his legal associates withdrew, slipping away one by one....Many of his bar acquaintances were simply not fit company for a man in his position. When he was a young criminal lawyer, much of his social life in close connection with the sub-fusc [sic] side of the city was just barely acceptable, sustained by the public’s romantic ideas of how a criminal “mouthpiece” would comport himself....[Former Maloney student and eminent criminal counsel Clive] Bynoe, who had close connections with the police department..., had an arrangement with some senior detectives to keep an eye on Arthur as he roamed the clubs late at night.

Such loyalty is impressive. He was evidently not an ugly drunk. He was surely at times a boring or embarrassing drunk.

Pullen reviews in detail a few of Maloney’s cases, quoting from transcripts. The cross-examinations are skilful, but despite Pullen’s claims, unremarkable. Two jury addresses are reproduced as appendices. So far as one can judge them in cold print they are excellent. But there were and are plenty of lawyers as capable as Maloney appears from the evidence of this book. Maloney lost most of his cases as most criminal defence lawyers always have. Many cases are lost despite the most skilful defence. Many defendants are acquitted after an only a just competent defence. This is as it should be. Otherwise acquittals would depend on who could afford the best counsel or which defendants appealed most to the best counsels’ dramatic sense of themselves. The eminence of counsel depends more on their ability to impress clients and colleagues and their ability to get and get through a lot of work, than on the results they achieve. Lawyers themselves, as it sustains the prestige of the profession and provides occasion for fond and gregarious reminiscence, encourage a cult of the great advocate. The popular press to some extent supports it. Some scepticism is indicated and legal history should inform it.

Maloney’s public career outside the law was largely fruitless. He was lucky enough to be appointed at age 28 to the Ontario Parole Board, but resigned after three months, earning his first significant publicity. He argued that the board was too rigorous in considering prisoners’ records and should have dealt with them on a case by case basis. He seems never to have had the patience to work with others and bring them around to his views.

In the 1957 and 1958 he was elected the Progressive Conservative M. P. for the Toronto riding of Parkdale. He was defeated when the Tories collapsed in Toronto in 1962. He was a natural candidate, bringing name recognition, gregariousness and a readiness to make a rousing speech when that still counted for something. But his years in Ottawa seem largely to have been wasted. He was bored, found new watering holes in Ottawa and kept up a criminal practice. Apart from a predictably impassioned speech on capital punishment, he seems not to have interested himself in the work of parliament. Pullen devotes most of his chapters on this period to speculation as to whether he might have been made a minister and why he was not. It is perfectly possible that his support for Donald Fleming in the 1956 Progressive Conservative leadership convention or his drinking were factors. But in the end no definite explanation is needed. He was not so obvious a candidate for minister as Pullen supposes and there were more than enough Toronto ministrables ahead of him.

In 1966 Maloney was persuaded to run for the presidency of the national Progressive Conservative party in opposition to Dalton Camp, whose campaign to end Diefenbaker’s leadership was proceeding to its climax. It was a quixotic gesture. Maloney had never really been a Diefenbaker man. Dief’s dramatic style and high estimation of himself as a tribune of the people appealed to Maloney but they had never been close. While Maloney had continued to attend party meetings he had never held office in the party and knew nothing about political organisation. He simply lent his name to the battle to save Dief. His campaign was poorly organised, but that probably made no difference. The real question was whether Dief should go. Maloney got 43% of the votes at the party general meeting.

Maloney’s last and most notorious entry into public life was as Ontario’s first Ombudsman in 1975. It can be seen as his finest or worst hour. Pullen tries to come down somewhere in the middle. The office itself is something of an absurdity, a political fifth wheel, adopted on the basis of the once widely held belief that they do things better in Sweden. The office has no power beyond investigating and reporting. It is supposed to be a last resort for citizens who feel that they have been abused by government. Maloney, with an unqualified confidence in the goodness of his heart and ample confidence in the sharpness of his mind, wanted to establish himself as a one man alternative government. He personally stage managed an elaborate installation ceremony, insisted on handsome offices and with much publicity and to some mockery adopted a gryphon crest for the office. He quickly hired a large staff, largely young men from his circle. Pullen defends him against the charge of personal extravagance. The furniture in his own office was chosen and paid for by his wife. But Maloney’s defence against the charge of folie de grandeur, that as a matter of principle it was necessary to establish the presence and prestige of the office in order to serve its public clients, was unpersuasive.

The overwhelming majority of the Ombudsman’s clients fall into three groups: people who cannot be bothered to figure out what government office to turn to and need a citizens’ information office to steer them politely elsewhere; people who have existing rights of appeal that they are too impatient to exhaust; and people who just will not take no for an answer however fairly and patiently their complaint may have been reviewed by the responsible authorities. Maloney wanted to take on everyone, waiving the statutory requirement of a written complaint and keeping phones manned to late at night to capture the maximum business. In his first annual report he recorded 10,000 complaints, of which 90% were outside his jurisdiction.

One issue dominated Maloney’s three years as Ombudsman. The provincial government had purchased lands around Pickering for a proposed new airport. The sellers felt that the province’s land agents had misled them and driven too hard a bargain. After an informal investigation Maloney agreed and recommended substantial further payments. The government baulked at the prospect of having to pay out possibly tens of millions of dollars on the mere recommendation of Maloney and the issue became bogged down in further more formal inquiries and court proceedings before much of what Maloney recommended was done years later. It was never clear why, except for political reasons, the landowners deserved any redress. If there had been any legal wrong in the purchases they should have challenged them in the courts. A challenge to the purchases on broader, political, grounds was bound to involve a lengthy battle. Maloney was instrumental in supporting the landowners’ fight. But any idea that he could offer them a quick and simple solution was folly and his attempt to do so complicated and exacerbated the conflict.

Frustrated and tiring at the mass of mundane complaints Maloney resigned in 1978. He had managed to alienate members of the legislature’s committee on the Ombudsman of all parties, a perverse situation given that it is part of the the theory of the Ombudsman that he is the servant of the legislature. The office has continued, his successors little heard of, wasting several million dollars a year. Troubled by ill health in his last years, Maloney died in 1984 aged 65.

All of Maloney’s public career can be seen as an extension of his sense of vocation as a people’s advocate. He saw himself as a tribune of the people, hence Pullen’s subtitle. Most of his career as a criminal lawyer was before legal aid and he often took cases for nominal fees or none. Trials were much shorter then. Pullen gives some information on Maloney’s finances. His wife had money. His income ranged from under $10,000 a year in the fifties to six figures in the seventies. How this happened and how much was due to legal aid he does not explain.

Maloney defended the criminal defence lawyer’s role in conventional terms carried to the extreme: it was a privilege to gain acquittals for men he knew were guilty. He may have seen Jackson and Suchan as “feckless rogues” (Pullen’s phrase), particularly in the perspective of their poignant last days. They faced long years in prison if they had been acquitted of murder. But Maloney’s sentimental attitude to criminals evades the seriousness of public concern with crime. His practice seems a long way from the world of protracted trials, complex frauds and plea bargaining, a subject not touched on. One wonders how he might have handled the Bernardo defence and what sympathy he could have found for him. John Rosen’s efforts to arouse some sympathy for his client, “None of us are perfect.”, seemed laughable. His pronouncement in the face of legal aid cuts that “None of us work for nothing.” was not true in Maloney’s heyday.

Maloney appeared before the Supreme Court of Canada on the appeal of William Coffin, convicted of and later hanged for the murder of three American hunters in the Gaspé in 1955. He also appeared before a Royal Commission into the conviction in 1964. He believed Coffin had committed the murders. But he believed the proceedings leading to his conviction had been marked by unfairness. This is a perfectly reasonable and proper position. Whatever the rules of fairness may be they must be observed for everyone. The question that Maloney’s stance as tribune cannot answer is how far fairness must go. Criminal proceedings are not a game of cops and robbers. The only assurance of no wrong convictions is no prosecutions. Discussion of accuseds’ or suspects’ rights, even more with the Charter, becomes an abstract appeal to vaguely revered principles. Getting off on a technicality may result. The public cannot expect to be satisfied with the advocate’s claim of the privilege to achieve that result.

Pullen’s book meanders back and forth through time, giving perhaps too much family history and reminiscence of other legal stars of years past. It is often too literary and simply too long. It can be read with interest by those close enough to the law to read it critically and is a fond memorial to the man. Legal biography must play an important part in legal history. Some of the Osgoode Society’s initiatives in this have been successful: David Ricardo Williams on Duff; Patrick Boyer on McCruer. This is its first biography of a counsel. Its next legal biographies will be studies by Williams of seven eminent counsel. Biography of counsel is perhaps a more difficult undertaking than that of judges when what made counsel eminent was an often ephemeral celebrity. It is difficult to revive the interest of long forgotten trials and their interest is is usually more in the accused or the victims than in the counsel, however capable or flamboyant. But the effort, not entirely successful in this case, must be made if we are to have critical understanding of the law and its processes and keep alive the past beyond sentimental memory.

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.

***

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.

***

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.

***

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.

***

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.

***

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.

***

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 .

***

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.

***

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.