The federal government decided in 1917 to conscript young men for overseas military service. Voluntary recruitment was failing to maintain troop numbers, and Prime Minister Sir Robert Borden believed in the military value, and potential post-war influence, of a strong Canadian contribution to the war.
A Momentous Debate
The 1917 conscription debate was one of the fiercest and most divisive in Canadian political history. French-Canadians, as well as many farmers, unionized workers, non-British immigrants, and other Canadians, generally opposed the measure. English-speaking Canadians, led by Prime Minister Borden and senior members of his Cabinet, as well as British immigrants, the families of soldiers, and older Canadians, generally supported it.
The conscription debate echoed public divisions on many other contemporary issues, including language education, agriculture, religion, and the political rights of women and immigrants. It also grew into a test of one’s support for, or opposition to, the war as a whole. Charges of disloyalty, cowardice, and immorality from avid pro-conscription advocates were matched by cries of imperialism, stupidity, and bloodlust by the anti-conscription camp.
The campaign’s viciousness sometimes obscured the debate’s complexity. Many anti-conscription advocates fully supported the war, for example, while not all pro-conscription voices argued their case by using linguistic or racial smears to diminish their opponents.
The conscription debate raged through most of 1917 and into 1918. The required legislation, the Military Service Act, worked its way through Parliament during the summer to be passed in late August. It made all male citizens between the ages of 20 and 45 subject to military service, if called, for the duration of the war.
Conscription was the main issue in the federal election that followed in December, a bitter contest between Conservative / Unionist Sir Robert Borden and Liberal Sir Wilfrid Laurier. Borden, running on a ‘Unionist’ pro-conscription ticket that attracted many English-speaking Liberals, won decisively, but lost heavily in Francophone areas of Quebec.
Wartime Elections Act Changes Who Can Vote
The government had helped pave the way for electoral victory with legislation in the fall that enfranchised likely allies and disenfranchised likely opponents.
The Wartime Elections Act gave the vote to the wives, mothers, and sisters of soldiers, the first women permitted to vote in Canadian federal elections. These groups tended to favour conscription because it supported their men in the field.
The Act then denied the vote to many recent immigrants from enemy countries (“enemy aliens”), unless they had a family member in military service. At the same time, the Military Voters Act extended the vote to all military personnel and nurses, including women, regardless of their period of residence in Canada.
Borden’s margin of victory in December was greater than the votes delivered by either of these controversial measures, but each had been highly successful. More than 90 percent of military votes, for example, were Unionist.
A broadly popular but divisive measure, conscription polarized provinces, ethnic and linguistic groups, communities, and families, and had lasting political effects on the country as a whole. For many Canadians, it was an important and necessary contribution to a faltering war effort; for others, it was an oppressive act passed dishonestly by a government more British than Canadian.
Farmers sought agricultural exemptions from compulsory service until the end of the war. Borden’s government, anxious for farmers’ votes, agreed to limited exemptions, largely for farmers’ labouring sons, but broke the promise after the election. The bitterness among farmers, many of them in the West, led to the development of new federal and provincial parties.
French-speaking Canadians continued their protests as well, and young men by the tens of thousands joined others from across Canada in refusing to register for the selection process. Of those that did register, 93 percent applied for an exemption. An effort to arrest suspected draft dodgers was highly unpopular across the province and, at its worst, resulted in several days of rioting and street battles in Quebec City at Easter, 1918. The violence left four civilians dead and dozens injured, and shocked supporters on both sides.
Conscription would have minimal impact on Canada’s war effort. By the Armistice in November 1918, only 48,000 conscripts had been sent overseas, half of which ultimately served at the front. More than 50,000 more conscripts remained in Canada. These would have been required had the war continued into 1919.
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On July 17, 2009, the Supreme Court released R. v. Grant and three other companion cases, reformulating how courts ought to deal with evidence obtained in breach of the Charter. A fulsome reconsideration of this important issue has been long overdue in the wake of confusion arising from the Court's last major treatise on the subject in1997, R. v. Stillman. As the Chief Justice and Justice Charron noted in Grant, "existing jurisprudence on the...exclusion of evidence is difficult to apply and may lead to unsatisfactory results." [ 1]
In Stillman, Justice Cory, writing for the majority, held that when the accused is compelled to participate in the creation or discovery of evidence by way of a Charter breach, use of that "conscriptive" evidence by the prosecution would generally render the trial unfair, unless the Crown could prove on a balance of probabilities that the evidence was discoverable by alternate, "non-conscriptive" means. Conscriptive evidence could include a statement, but also "real" evidence discovered as a result of the statement. This sort of evidence came to be known as "derivative" evidence.
Deeply influenced by the common law cultural norm that an accused ought not to be compelled in the production of evidence against himself, Justice Cory decided that it would generally not be possible to have a fair trial based on conscriptive evidence derived from a Charter breach. Such evidence generally ought to be excluded, he wrote, without considering the other two factors under s.24(2): the seriousness of the Charter breach and the effect of the exclusion of the evidence on the administration of justice, for a conviction derived from an unfair trial would by definition bring the administration of justice into disrepute.
It is clear upon a close reading of Justice Cory's reasons that he did not mean to class evidence into categories to which rote formulae ought to be applied, but this was Stillman's unfortunate legacy. Foreshadowing the decision she was to co-author twelve years later in Grant, the Chief Justice dissented in Stillman, cautioning that an automatic exclusionary rule for evidence affecting trial fairness should be resisted. Such a rule ran contrary to the wording of 24(2), she wrote, which requires judges to balance all of the factors which may affect the repute of the administration of justice, trial fairness being but one. The correct approach was broadly contextual. Interestingly, she was also of the view that an approach which equated any non-consensual participation of the accused with trial unfairness was to raise the right against self incrimination to loftier heights than it rightfully deserved. Trial fairness was but one factor among many, she explained, and all the factors needed to be weighed, without one being a trump to the others. In light of this reasoning, the Chief Justice and Justice Charron's approach in Grant ought not to be a surprise. [ 2]
Grant, "a young black man," [ 3] was stopped by police late one fall afternoon as he walked through a Toronto neighbourhood. Four schools in the area had a recent history of student assaults, robberies and drug offences occurring over the lunch hour. The three officers who stopped Grant had been detailed to the neighbourhood because of these incidents. They spoke to Grant who, as a result of his interaction with the police, ultimately handed over a loaded revolver he was carrying in his knapsack.
While not making any findings of bad faith on the part of the police, the Court decided that Grant had been arbitrarily detained, and his right to counsel violated. The revolver, which would not have been discovered "but for" the Charter violations, was therefore derivative conscriptive evidence. On the Stillman analysis, the gun ought to have been excluded because of the purported impact of its admission on trial fairness.
However, the Court unanimously ruled that the revolver ought to be admitted on the basis of a restatement of the law on s.24(2). Closely tracking the Chief Justice's dissent in Stillman, the majority completely re-worked the test for the admission of evidence obtained in breach of the Charter, [ 4] stating that, "it is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near automatic presumption that admission of a broad class of evidence will render a trial unfair." Rather, courts ought to consider the long term impact of the admission of the evidence on the good repute of the administration of justice in light of three factors: (1) the seriousness of the Charter infringing state conduct; (2) the impact of the Charter breach on the accused; and (3) society's interest in the adjudication of the case on its merits. These three factors are to be weighed equally in light of all of the circumstances of the case.
Although in both Stillman and Grant, the Chief Justice favoured the state in the result, both decisions are deeply progressive and ought to be celebrated by those who favour civil liberties. The approach described in both cases requires a broad consideration of all of the facts of the case and soundly rejects a formulaic application of calcified legal principles. The majority is careful to note that admitting the revolver in Grant was a "close case," and cautions that similar police conduct will be less justifiable going forward. The impact of this approach found immediate expression in the companion case of Harrison where, following the new framework of analysis, the court excluded thirty-five kilograms of cocaine, finding that, "the price paid by society for an acquittal...is outweighed by the importance of maintaining Charter standards."
 R. v. Grant , 2009 SCC 32, para 3. Grant also dealt with the meaning of detention pursuant to Charter section 9, which is beyond the scope of this article. The other three cases are R. v. Harrison, 2009 SCC 34, R. v. Suberu, 2009 SCC 33 and R. v. Shepherd, 2009 SCC 35.
 R. v. Stillman,  1 S.C.R. 607, para 236-260.
 Interestingly, the Court does not note the race of the investigating officers, one of whom is also black.
 There were two concurring decisions. Justice Binnie agreed with the majority on the 24(2) analysis. Justice Deschamps disagreed with the majority's 24(2) analysis, but concurred in the result that the revolver ought to be admitted.