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The Idea of Constitutional Rights and the Transformation of Canadian Constitutional Law, 1930-1960

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The Idea of Constitutional Rights and the Transformation of Canadian Constitutional Law, 1930-1960 The Idea of Constitutional Rights and the Transformation of Canadian Constitutional Law, 1930-1960 by Eric M. Adams A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Graduate Department of Law University of Toronto © Copyright by Eric M. Adams 2009 The Idea of Constitutional Rights and the Transformation of Canadian Constitutional Law, 1930-1960 Eric M. Adams SJD 2009 Graduate Department of Law, University of Toronto ABSTRACT This dissertation argues that the idea of constitutional rights transformed Canadian constitutional law well before the entrenchment of the Canadian Charter of Rights and Freedoms. Specifically, it locates the origins of Canada’s twentieth-century rights revolution in the constitutional thinking of scholars, lawyers, judges, and politicians at mid-century (1930-1960). Drawing on archival documents, personal papers, government reports, parliamentary debates, case law, and legal scholarship, this work traces the constitutional thought and culture that first propelled human rights and fundamental freedoms to the forefront of the Canadian legal imagination. As a work of legal history, it also seeks to revive the dormant spirit of constitutional history that once pervaded the discipline of Canadian constitutional law. The Introduction situates the chapters that follow within the emerging Canadian historiography of rights. Chapter Two traces the origins of Frank Scott’s advocacy for constitutional rights to the newer constitutional law, an approach to constitutional scholarship sparked by the social and political upheavals of the Depression, and the influence of Roscoe Pound’s sociological ii jurisprudence. Chapter Three explores the varied dimensions of the Second World War’s influence on the nascent idea of Canadian constitutional rights. In particular, the rapid rise of the wartime administrative state produced a rights discourse that tended to reflect the interests of property while ignoring the civil liberties of unpopular minorities. Chapter Four examines the rise of a politics and scholarship of rights in the years immediately following the war. In response to international rights ideals and continuing domestic rights controversies, scholars and lawyers sought to produce a theory of Canadian constitutional law that could accommodate the addition of judicially-enforced individual rights. If not entirely successful, their efforts nonetheless further reoriented the fundamental tenets of Canadian constitutional law. Chapter Five reveals the influence of Canada’s emerging constitutional culture of rights on the jurisprudence of the Supreme Court of Canada, particularly Justice Ivan Rand and his conception of an implied bill of rights. Together, these chapters demonstrate the confluence of ideology, circumstance, and personality – the constitutional history – that altered the future of Canadian constitutional law. iii Acknowledgements As an inveterate reader of acknowledgements, I approach the task of writing my own with more than a little trepidation. My debts in these endeavours run broad and deep. From the outset David Schneiderman has provided wise counsel, assiduous criticism, and well-timed encouragement. His scholarly rigour and intellectual curiosity influenced this dissertation at every stage of its gestation. An unsubstantiated or underdeveloped thought rarely escaped his keen eye. At the same time, he prodded me to develop and articulate my own views of the evidence and curve of the argument. In short, he has been everything in a doctoral supervisor that I could have hoped for. Lorraine Weinrib has also been an attentive and generous reader throughout the process – her enthusiasm for the topic of constitutional rights is infectious. I feel lucky as well to have a mentor in Jim Phillips – not only did he read and constructively comment on much of the dissertation, the Toronto Legal History Group he organizes proved an invaluable forum to workshop my ideas. I was immeasurably pleased when Jim agreed to participate at the dissertation’s defence. At the last minute, and interrupting his retirement, R.C.B. Risk graciously agreed to join my supervisory committee. Given the subject matter, there was not a more appropriate academic in the world for the job. Finally, I could not have asked for a better external examiner than Wes Pue from the University of British Columbia. His insightful challenging and reading of the dissertation provided an apposite and satisfying conclusion to this journey. iv At the University of Toronto, Faculty of Law, I want to thank David Dyzenhaus and Julia Hall for their efforts in running a superb graduate programme. I would also be remiss if I did not mention the inspiring support I received from my fellow students, three of whom deserve special mention. How wonderful to have been able to meet Jillian Boyd and Rayner Thwaites as we discovered together the delights of mingling graduate study and parenting. Robert Leckey, for his part, read nearly every word in this dissertation and his friendship and capacious legal abilities have been invaluable. Many others have cast their eyes over various chapters at various stages. I thank Russell Brown, William Kaplan, Philip Girard, Greg Clarke, Martha Peden, and Joshua Fraese for their helpful comments. I am also grateful to the two legal communities that have book ended my graduate career – the lawyers at Paliare Roland LLP and my new colleagues at the University of Alberta, Faculty of Law. In addition, I was fortunate to have presented portions of this work at many conferences and seminars. I thank audiences at the University of Alberta, Faculty of Law, University of British Columbia, Faculty of Law, University of Toronto, Faculty of Law, and the Canadian Law and Society Association, and the funding I received from an Ontario Graduate Scholarship and the Social Sciences and Humanities Research Council of Canada. My research has also benefited from the kindly assistance of many librarians and archivists at the University of Toronto libraries, Library and Archives Canada, the Queen’s University Archives, the Ontario Archives, and the Supreme Court of Canada. Searching those archives has called on me to rely heavily on the couches and spare beds of many friends and family members. I v thank Matthew House, Daphne Dumbrille, Adrienne Phillips, Rich Stein, Jonathan Feasby, Tanis Robinson, Robert Zsigo, Deanna Morash, Lisa Taylor, Matthew Adams, and Allison MacKaskill for putting up with me. For other forms of much needed encouragement I thank my family (we of the many last names): Robert and Pauline McCrum, Barbara Adams and Bill McCready, Michael and Lenore Adams, Jeremy Adams and Laura Erdman, Dave Wright and Gail Wylie, Larry Krotz and Stephanie Leontowitsch, Michael and Brian Pettitt, and Kate and Fraser Scott. In the special category of friends who feel like family, let me add Jordan and Ilana Stanger-Ross. How lucky for me that I live with Sarah Krotz. Not only is she a creative scholar, challenging critic, and comma splice finder, she is my best friend, cherished wife, and co-parent extraordinaire. Whenever this dissertation made me sad, I thought of her. As for Timothy Copeland Krotz Adams, his sense of adventure and passion for words helped with this dissertation more than he will ever know. vi Table of Contents Introduction..……………………………………………………………………………………………1 Canada’s Newer Constitutional Law…………………………………………………….20 Constitutional Scholarship in the Early Twentieth Century: The “Older Constitutional Law……………..…………………………………………...25 The Newer Constitutional Law…………………………………………….................30 First Challenges……………………………………………………….................30 A New Nationalism………………………………………..............................34 Roscoe Pound and Sociological Jurisprudence in Canada..................…………………………………………41 The Politics of Constitutional Law……………………………………………46 Civil Liberties and Constitutional Law…..………………………………….59 A Constitutional Bill of Rights for Canada…………………………………………..65 Fighting for Freedom.……………………………………………………………………………76 “This is war!”……………………………………………………………………………………79 The Defence of Canada Regulations………………………………………..80 “The Rationing of Liberty” Wartime Jurisprudence……………………87 “No Japanese from the Rockies to the Sea”……………………………….93 Dictatorship of Democracy? Competing Conceptions Of Constitutional Liberty…………………………………………………………………..97 “The Devious Workings of Bureaucracy”: R.M.W. Chitty and the Fortnightly Law Journal……………………….97 “The Wisdom of the Past”: the Canadian Bar Association and Civil Liberties……………………………………………….107 “The Tide of Popular Rights”: John Willis Defends the Administrative State…………………………………………………………112 Constitutional Scholars in Wartime…………………………………………118 “Constitutional Revolutions”: Frank Scott’s Wartime Constitutional Thought…………………………………………….127 Constituting Rights and Freedoms..............................................................137 A Politics of Constitutional Rights…………………………………………………….139 Parliament’s Freedom: The Japanese Deportation……………………144 “Safety First in all Things Always”: The Gouzenko Affair……………………………………………………………..152 The Joint Committee on Human Rights and Fundamental Freedoms…………………………………………………..161 Reactions Against Rights……………………………………………………….168 A Scholarship of Rights……………………………………………………………………175 vii “Constitutional Conceptions of a Different Order”……………………………196 Reference re Alberta Legislation and the Newer Constitutional Law………………………………………………………….200 American Influences: Justice Ivan C. Rand and the Implied Bill
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