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The Constitutional Legacy of Chief Justice Brian Dickson

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Osgoode Hall Law Journal Volume 38 Issue 1 Volume 38, Number 1 (Spring 2000) Article 5 1-1-2000 The Constitutional Legacy of Chief Justice Brian Dickson Robert J. Sharpe Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/ohlj Part of the Constitutional Law Commons, and the Courts Commons Article This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Sharpe, Robert J.. "The Constitutional Legacy of Chief Justice Brian Dickson." Osgoode Hall Law Journal 38.1 (2000) : 189-219. https://digitalcommons.osgoode.yorku.ca/ohlj/vol38/iss1/5 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. The Constitutional Legacy of Chief Justice Brian Dickson Abstract Chief Justice Brian Dickson played a central role in the elaboration of the fundamental values of the Canadian Constitution. He took a balanced approach to federalism, favouring neither federal nor provincial claims and inviting cooperation through overlapping jurisdiction. Dickson transformed the rule of law from a background value to an operative constitutional principle. His judgments on the rights of minorities reflect a emarkabler empathy for the plight of the disadvantaged. Democracy informed all aspects of his constitutional thinking. Dickson rejected the contention that judicial review is anti- democratic, and his constitutional legacy reflects a sustained effort to harmonize all four fundament constitutional values. Keywords Dickson, R. G. Brian; Canada. Supreme Court; Constitutional law; Canada Creative Commons License This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol38/iss1/5 PIERRE GENEST MEMORIAL LECTURE THE CONSTITUTIONAL LEGACY OF CHIEF JUSTICE BRIAN DICKSON© By ROBERT J. SHARPE* Chief Justice Brian Dickson played a central role in the Le juge en chef Brian Dickson a jou6 un r6le central elaboration of the fundamental values of the Canadian dans l'61aboration des valeurs fondamentiles de la Constitution. He took a balanced approach to constitution canadienne. En adoptant une approche federalism, favouring neither federal nor provincial 6quilibrde vis-A-vis le f~dralisme, il n'a pas privil6gi6 claims and inviting cooperation through overlapping les 6nonc s f6d~raux ou provinciaux, et il a encourag6 jurisdiction. Dickson transformed the rule of law from a la cooperation A l'aide d'un chevauchement de background value to an operative constitutional comp6tences. GrAce i Dickson, la primaut6 du droit, principle. His judgments on the rights of minorities un principe A l'arriare-plan, a 6t6 transform6 en reflect a remarkable empathy for the plight of the principe constitutionnel op~rationel. Ses jugements en disadvantaged. Democracy informed all aspects of his mati~re de droits des minorit~s reflatent une constitutional thinking. Dickson rejected the remarquable facult6 de s'identifier au sort des contention that judicial review is anti-democratic, and defavorises. La d6mocratie a influenc6 tous les aspects his constitutional legacy reflects a sustained effort to de son raisonnement d'ordre constitutionnel. Dickson a harmonize all four fundament constitutional values. rejet6 les propos supposant que la rdvision judiciaire 6tait anti-ddmocratique, et son patrimoine constitutionnel refl~te un effort soutenu dans le but d'harmoniser les quatre valeurs constitutionnelles fondamentales. I. INTRODUCTION ........................................................... 190 II. THE FOUR BASIC CONSTITUTIONAL PRINCIPLES .......................... 192 A. Federalism ............................................................... 192 1. Deference and overlapping powers ........................................ 193 2. Administration of justice ................................................ 195 3. Trade and commerce ................................................... 197 4. Federalism: Conclusion ................................................. 199 B. Constitutionalismand the Rule of Law ......................................... 200 1. The rule of law ......................................................... 200 o 2000, The Hon. R. J. Sharpe. * Justice of the Court of Appeal for Ontario, Canada. This is the revised text of the Third Pierre Genest Memorial Lecture, presented at Osgoode Hall Law School of York University on 22 September 1999. OSGOODE HALL LAW JOURNAL [VOL. 38 NO. 1 2. Independence of the judiciary and judicial review ............................ 202 3. Constitutionalism and the structure of Charterinterpretation .................. 204 C. Protectionof Minorities ..................................................... 207 1. Anti-discrimination laws ................................................. 207 2. Language rights ........................................................ 209 3. Aboriginal rights ....................................................... 211 D. Democracy ............................................................... 213 III. CONCLUSION ............................................................ 219 I. INTRODUCTION The judicial career of Brian Dickson spanned a period of twenty- seven years, from his appointment as a trial judge to the Manitoba Court of Queen's Bench in 1963 to his retirement as Chief Justice of Canada in 1990.1 Those twenty-seven years, seventeen of which Dickson spent as a member of our highest court, and six as Chief Justice of Canada, were a period of significant, perhaps unprecedented, constitutional controversy. We were confronted with a seemingly endless constitutional debate and repeated calls for both renewal and reform. Canadians from all corners presented each other with competing visions of their nation, the very existence of which was put into question. The debate was intensely political, but the courts could not, and did not, escape involvement. Indeed, at critical points in our history we witnessed judicial resolution of political impasses. In the Patriation Reference2 in 1981, the Supreme Court determined that while the federal government had the legal right to request the Parliament of Westminster to amend the Constitution of Canada, convention required a substantial consensus of the provinces. The political process responded to the Court's direction. With patriation came the Canadian Charter of Rights and Freedoms3 and its enhancement of the role of the judiciary in the governance of Canada. 1 For a biographical sketch, see R. J. Sharpe, "Brian Dickson: Portrait of a Judge" (1998) 17:3 Advocates' Soc. J. 13 [hereinafter "Portrait"]. 2 Reference Re Resolution to Amend the Constitution of Canada, [1981] 1 S.C.R. 753 [hereinafter PatriationReference]. 3 Part I of the ConstitutionAct, 1982, being Schedule B to the CanadaAct 1982 (U.K.), 1982, c. 11 [hereinafter Charter]. 2000] The ConstitutionalLegacy of Brian Dickson During these tumultuous times, Brian Dickson played a central role in the elaboration of our most fundamental constitutional values. The product of his judicial work now constitutes an essential element of the Canadian Constitution. In this lecture, I will consider the essential features of his constitutional legacy. To accomplish my task in the space of a single lecture, I will, necessarily, take a broad-brush approach. To identify the essential elements of Dickson's constitutional vision, I will organize my remarks around the four basic principles of our Constitution that are immanent in his work and that were specifically identified by the Supreme Court of Canada in its monumental 1998 Secession Reference decision.4 As in the PatriationReference almost twenty years earlier, the Court was asked to bring its judicial wisdom to bear on an apparently intractable constitutional debate. To respond in a principled judicial fashion, the Court probed the most fundamental principles of our Constitution to identify what it described as "the vital unstated assumptions upon which the text is based," its "internal architecture," and its "defining principles." 5 In elaborating these fundamental constitutional principles, the Court drew heavily on the judicial work of Brian Dickson, and so, I suggest, it is appropriate for me to take those values as the organizing principles for this assessment of his legacy. The first basic principle of our Constitution is federalism-the division of legislative power between the Parliament of Canada and the provincial legislatures. The division of powers represents an attempt to identify those aspects of our political life that unite us while preserving appropriate scope to accommodate and to enhance the heterogeneous social, cultural, and economic realities of our diverse and distinctive provincial communities. Dickson's federalism jurisprudence, I will suggest, demonstrates a remarkable balance between the competing claims of federal and provincial authorities, perhaps unequalled by any of his contemporaries. The second basic principle, constitutionalism and the rule of law, is an important abstract notion fundamental to the legal order of all Western societies. During the Dickson era, the rule of law was transformed from a vague abstraction to an operative constitutional principle. As the pioneering architect of Charterjurisprudence, Dickson made a unique contribution to a
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