Starting with the Reference re Alberta Statutes,  SCR 100, but mostly in the 1950s, the Supreme Court of Canada issued a series of decisions which came to be known as upholding an “implied bill of rights” in the Canada. The actual holdings of these decisions were often relatively narrow ― they held, for example, that provinces could not outlaw political or religious ideas, because doing so was part of Parliament’s criminal law power. Yet both the obiter comments of some judges and the general trend of these cases seemed to give a fairly clear indication that the Supreme Court would, to some extent at least, resist the arbitrary exercise of both legislative and executive power in Canada, and protect civil liberties.
Understandably less well-known are the decisions of the lower courts that tended to the same effect. In Morin v Ryan,  Que QB 296 (CA), for instance, the Québec Court of Appeal awarded damages to a plaintiff it founded to have been defamed by being characterized as a “militant communist” ― a decision F.R. Scott described as “a healthy check on incipient McCarthysm”. Another such decision, which I have recently come across, is Chabot v School Commissioners of Lamorandière, (1957) 12 DLR (2d) 796. Like many of the “implied bill of rights decisions” it concerned the religious freedom of Jehovah’s Witnesses ― in this instance, in the context of a school system organized along religious lines.
The applicant’s children were attending a Catholic public school ― the only kind there was in their rural municipality. After the family joined the Witnesses, the parents wrote to the school to request that the children not be required to take part in the daily prayers and to study religion-related content. What we would now call a “reasonable accommodation” seems to have worked well enough for a while, but eventually ― perhaps after some trivial misbehaviour by the children, though many of the judges seem quite skeptical of this ― the arrangement broke down. The children were expelled, and the school authorities made it clear that they would only re-admit them on condition that they take part in the full programme of religious activities. The father sought a writ of mandamus to compel the school to admit his children with the condition that they be exempted from religious exercises.
At the Court of Appeal, the case was heard by a bench of seven judges ― testament, I take it, to its special importance. Six sided with the father. Justice Rinfret, as he then was (Édouard Rinfret, that is, not to be confused with his father Thibodeau Rinfret, the Chief Justice of Canada), dissented, protesting that
no one wants to place any obstacles in the way of the religious liberty of the appellant or his children, no one aspires to force him to send his children to the school of the commissioners; if he does it, it is of his own volition, because he wanted to; but if it is his wish and if he insists on sending them there, he is obliged to … follow the regulations [as to religious exercises and studies] established by competent authority. (826)
The law, after all, allowed religious “dissentients” to establish their own schools. If the Chabot family was one of the few or even the only one in its small town, that was not Catholic, the law paid no heed to that; they should still set up their own school, or comply with the rules of the Catholic majority.
But the court’s majority did not see it this way. For them, the issue was one of religious liberty ― and indeed of natural rights. On its face, to be sure, the case was about interpreting the applicable legislation and regulations, and deciding whether they were ultra vires the province, notably in light of some of the already-decided “implied bill of rights” cases. Justice Casey, for instance, starts by putting the case before the court in this context:
During the past few years our Courts have been called upon to consider those fundamental rights commonly called freedoms of speech and of religion, and while differences have arisen in solving specific problems, never has the existence of these rights been put in doubt. (805)
But, more than in those cases, the judges who decided Chabot were explicit in their references to implicit rights prior to positive law, which guided their interpretation and application of that law. Thus Justice Pratte says that “it appears useful to recall that the right to give one’s children the religious education of one’s choice, like freedom of conscience, is anterior to positive law”. (802) Having quoted a couple of English decisions to this effect, and a passage from Aquinas cited in one of them, Justice Pratte writes that
if one considers natural law, first of all our laws, it is necessary to conclude that children who attend a school are not obliged to follow a religious teaching to which their father is opposed. (802)
Similarly, Justice Casey was of the view that “[w]hat concerns us now is the denial of appellant’s right of inviolability of conscience [and] interference with his right to control the religious education of his children”, which rights “find their source in natural law”. (807). Justice Hyde (with whom Justice Martineau agreed), also took the position that the school authorities’ position amounted to an assertion that they could
force upon [non-Catholic children attending Catholic schools] the teaching of the Roman Catholic Church and oblige them to go through forms of worship in accordance with that faith. It requires no text of law to demonstrate that this cannot be so. (813; paragraph break removed.)
Justice Taschereau (that is André Taschereau, not to be confused with his cousin Robert Taschereau, then judge on the Supreme Court and later Chief Justice of Canada), sounded a perhaps slightly more Dworkinian note:
It would … be contrary to natural law as well as to the most elementary principles of our democratic institutions that a father could not exercise the right or fulfil his obligation to instruct his children without renouncing his religious faith (834; emphasis added.)
Of the majority judges, only Justice Owen was more cautious, saying that “[t]here are differences of opinion as to the nature of [religious freedom], whether it is a civil right
or a political or public right”, although he too had no difficulty in concluding that it “is a right which is recognized and protected in Canada”, while pointing to limited legislative, and no constitutional, authority.
Now, it is not entirely clear quite what relationship between positive and natural law the judges envisioned. Certainly they were prepared to let natural law guide their choice between plausible interpretations of ambiguous legislative provisions, and either to read down or to declare ultra vires regulatory provisions inconsistent with their chosen interpretation and thus with natural law. But would they go further and actually invalidate positive law for inconsistency with natural law? None of them finds it necessary to do so, but there is at least a hint that they might. Justice Hyde seems to suggest that compliance with natural law might be a constitutional requirement, saying that the school authorities’ power to determine the curriculum
cannot be construed to override [a] basic principle of natural law. It would require very specific provisions in the Act to that effect to justify any such interpretation and then, of course, the constitutionality of such provisions would be a matter for consideration. (813)
Justice Casey might be going further still, stating that rights which
find their existence in the very nature of man … cannot be taken away and they must prevail should they conflict with the provisions of positive law. Consequently if the regulations under which, rightly or wrongly, this school is being operated make it mandatory that non-Catholic pupils submit to the religious instructions and practices enacted by the Catholic Committee then these regulations are ultra vires … and invalid. (807; emphasis added)
That said, the same Justice Casey cautions that
while in principle no one should be coerced into the practice of a religion, or subjected to compulsion in following outwardly the dictates of conscience, or prevented from practising as he sees fit the religion of his own choice, this immunity disappears if what he does or omits is harmful or opposed to the common good or in direct violation of the equal rights of others. (805)
Meanwhile, Justice Pratte suggests that Québec’s education system was designed so as to “take into account the rights of the family in the matter of education.” (800) His and his colleagues’ decision, then, might only rely on natural law the better to advance the positive legislator’s objectives, as well as to protect natural rights.
The majority’s overt invocation of natural law reads like something of a curiosity sixty years later. The rights it sought to uphold have, more or less, been subsumed in the positive protections of the Canadian Charter of Rights and Freedoms ― and, perhaps even more so, in Québec’s Charter of Human Rights and Liberties. Nevertheless, the questions the Court addresses are also very modern. The issue as stated by Justice Taschereau ― whether a parent “[c]an … be obliged to renounce his religious beliefs as a condition to the admission of his children to a public school of the school municipality where he lives?” (832) ― is exactly the same as that which faced the Supreme Court in Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6,  1 SCR 256, the kirpan case. The answer the Supreme Court gave was not as novel as its critics keep on pretending it was, nor did it have to hinge on constitutional provisions which some of them affect to find illegitimate. Half a century before Multani, Québec’s highest court came to similar conclusions, on the basis of what it ― rightly in my view ― saw as truths antecedent to, and more permanent than, any constitution.