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Diefenbaker's Bill of Rights and the “Counter-Majoritarian Difficulty”

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Diefenbaker's Bill of Rights and the “Counter-Majoritarian Difficulty” Diefenbaker’s Bill of Rights and the “Counter-Majoritarian Difficulty”: The Notwithstanding Clause and Fundamental Justice as Touchstones for the Charter Debate Mark Carter* I. INTRODUCTION: THE CLASS OF 1919 In April 1919 the University of Saskatchewan students’ paper, The Sheaf, published pictures of that year’s graduating class from the College of Law. One graduate’s biographer describes that 2019 CanLIIDocs 2717 edition of The Sheaf: On facing pages...Emmett Hall and John Diefenbaker peer out keenly at the world...[Hall] portrays an angular and bony type of solidity...From the opposite page a young man already calling himself John G. Diefenbaker at age twenty- three, stares unflinchingly from beneath layers of dark, wavy hair. It is said that each wrote the other’s biographical sketch for the yearbook…Hall…conclud[ed] with a prediction that Diefenbaker’s career at the bar will be one of honor and success.1 Saskatchewan’s relatively small legal community has always prided itself on “punching above its weight” in relation to matters of national significance.2 The College of Law’s graduating class of 1919 certainly did its bit. One of the seven graduates—Hall—became known as the father of Canada’s Medicare system and a Supreme Court of Canada Justice. Diefenbaker became the * College of Law, University of Saskatchewan. 1 Dennis Gruending, Emmett Hall: Establishment Radical (Toronto: Macmillan, 1985) at 12. 2 For example, in discussing the Saskatchewan Government’s contribution to the debates and inter- governmental negotiations leading to the patriation of the Constitution in 1982, Thomson Irvine writes “[a]s usual, Saskatchewan punched above its weight and made crucial contributions to the great debates on how to bring the Constitution home” (“Saskatchewan, the Patriation of the Constitution and the Enactment of the Charter: Looking Back and Looking Forward,” (2015) 4:2 Can J Human Rights 259 at 265). leader of the national Progressive Conservative party and the thirteenth Prime Minister of Canada. A sense of the singular characters of these remarkable individuals, one a jurist, the other a statesman, is captured by the titles of their biographies. Hall is the Establishment Radical.3 Diefenbaker is the Rogue Tory4 and the Renegade in Power.5 On the centenary of the class of 1919’s graduation, this article considers Hall’s prediction of Diefenbaker’s success by concentrating on some particular aspects of the legacy of Prime Minister Diefenbaker’s proudest accomplishment, the statutory Canadian Bill of Rights.6 Passed 2019 CanLIIDocs 2717 in 1960, it may be the fate of the Bill of Rights to live forever in the shadow of the constitutionally entrenched Canadian Charter of Rights and Freedoms7 which was brought “home” to Canada as part of the Constitution Act, 1982. While the Bill of Rights pre-dated by twenty-two years the Charter’s recognition of fundamental freedoms, equality, and legal rights, with a few exceptions, judicial decisions concerning the Bill of Rights have been “mostly forgotten.”8 By contrast, the Charter and the case law that applies it are regularly “mined for inspiration by lawyers worldwide.”9 As an example of Diefenbaker’s success, therefore, the Bill of Rights is at best generally considered a necessary prelude to the Charter or, at worst, a noble 3 Gruending, supra note 1. 4 Denis Smith, Rogue Tory: The Life and Legend of John D. Diefenbaker (Toronto: MacFarlane, Walter & Ross, 1995). 5 Peter Newman, Renegade in Power: the Diefenbaker Years (Toronto: McClelland & Stewart Limited, 1963). 6 SC 1960, c 44 [Bill of Rights]. 7 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 8 Eric M Adams, “Judicial Agency and Anxiety Under the Canadian Bill of Rights: A Constitutional History of R. v. Drybones” (2019) 39:1 NJCL 63 at 65. Adams himself, however, makes an excellent case in relation to how some judicial treatment of the Bill of Rights prefigured important approaches under the Charter and how the Bill of Rights should be understood to have altered Canada’s “constitutional imagination” (ibid at 69). The Bill of Rights has also had significant international impact. See also Paul Rishworth, “The Inevitability of Judicial Review under ‘Interpretive’ Bills of Rights: Canada’s Legacy to New Zealand and Commonwealth Constitutionalism?” in Grant Huscroft & Ian Brodie, eds, Constitutionalism in the Charter Era (Toronto: Buttersworth, 2004) 233. 9 Rishworth, ibid at 233. See also Mark Tushnet, “The Charter’s Influence Around the World” (2013) 50:3 Osgoode Hall LJ 527. 2 but failed experiment. If the Bill of Rights itself has been left to languish, this article emphasizes how two concepts that were imported from it into the Charter live on as touchstones for the most important issue for democratic constitutional orders, such as our own, that contain entrenched bills of rights and freedoms. Famously termed “the counter-majoritarian difficulty” by Alexander M. Bickel,10 the debate concerns whether strong rights-based judicial review of the activity of the other branches of government can be reconciled with democratic principles or whether this kind 2019 CanLIIDocs 2717 of judicial review must be considered a “deviant institution.”11 The “notwithstanding” clause in the Bill of Rights12 finds its correlate in s. 33 of the Charter13 which establishes an outpost of legislative supremacy—and, arguably, majoritarian redress—against powers of strong judicial review. On the other hand, a “poster child” for strong judicial review under the Charter has been the application by the courts of the concept of “fundamental justice” in s. 7 of the Charter,14 a term that is also a transplant from the Bill of Rights.15 In the Charter context, fundamental justice has been central to recent important Supreme Court of Canada decisions such as those finding 10 The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merill, 1962) at 16 [Bickel, Least Dangerous Branch]. 11 Ibid at 18. 12 Supra note 6, s 2: Every law of Canada shall, unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared…. 13 Supra note 7, s 33(1): Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. 14 Ibid, s 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 15 Supra note 6, s 2: [N]o law of Canada shall be construed or applied so as to…(e) deprive a person of the right to a fair hearing in accordance to the principles of fundamental justice for the determination of his rights and obligations. 3 that prohibitions on prostitution-related activity16 and assisted suicide17 are unconstitutional. Nowhere in Canada is this debate between majoritarianism and strong judicial review more focused than in Diefenbaker’s home province18 —not to mention at his legal alma mater—where legislators are both applauded for their intention to invoke the override clause19 and cautioned against doing so.20 Accordingly, while this may not be the legacy that he would have wished or expected for his cherished Bill of Rights, a century after he graduated from the University of Saskatchewan’s 2019 CanLIIDocs 2717 College of Law, ideas and concepts that John Diefenbaker introduced into the Canadian political and legal consciousness continue to influence—and provide some of the most significant touchstones for—the national discussion about how best to respect rights and freedoms. “The Chief”21 would doubtless be pleased. II. THE CANADIAN BILL OF RIGHTS A. CONTEXT AND STRUCTURE In Canada’s Rights Revolution,22 Dominique Clément notes the “paradigm shift” of interest in 16 Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 [Bedford]. 17 Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 [Carter]. 18 Diefenbaker was born in Neustadt, Ontario, in 1895. His family moved to Saskatchewan in 1903. See Smith, supra note 4 at 1. 19 Dwight Newman, “Premier Wall’s decision to override a messy court decision is completely proper”, National Post (9 May 2017), online: <http://nationalpost.com/opinion/dwight-newman-premier-walls- decision-to-override-a-messy-court-ruling-is-completely-proper>, archived: <https://perma.cc/C8SG- 34B5>. 20 Ken Norman quoted in “‘Troubling overreaction’: Sask. law prof. questions use of notwithstanding clause for Catholic school ruling”, CBC News (2 May 2017), online: <https://www.cbc.ca/news/canada/saskatoon/law-prof-questions-notwithstanding-sask-catholic- 1.4096011>, archived: <https://perma.cc/U8JY-2Y4J>. 21 Diefenbaker’s nickname and the title of Thomas Van Dusen’s recollections of his time as a reporter covering Diefenbaker in the Parliamentary Press Gallery and as a ministerial assistant to the Diefenbaker government: see Thomas Van Dusen, The Chief (Toronto: McGraw-Hill, 1968). 22 Dominique Clément, Canada’s Rights Revolution: Social Movements and Social Change, 1937-82 4 human rights after the Second World War.23 Internationally, the tone was set by the United Nations’ passage of the Universal Declaration of Human Rights24 in 1948, an instrument that was, however, preceded by a year by the introduction of The Saskatchewan Bill of Rights Act, 194725 by Tommy Douglas’s Co-operative Commonwealth Federation (“CCF”) government.
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