Uncovering the Judicial Role in Rights Protection Under the Legal Doctrine of Parliamentary Sovereignty

UNCOVERING THE JUDICIAL ROLE IN RIGHTS PROTECTION UNDER THE LEGAL DOCTRINE OF PARLIAMENTARY SOVEREIGNTY Gregory Eugene Clarke Master of Arts, Acadia University, 1997 Bachelor of Arts (honours), Acadia University, 1996 DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY In the Department of Political Science O Greg Clarke 2005 SIMON FRASER UNIVERSITY Summer 2005 All rights reserved. This work may not be reproduced in whole or in part, by photocopy or other means, without permission of the author. Approval Name: Gregory Eugene Clarke Degree: Doctor of Philosophy Title of Thesis: Uncovering the Judicial Role in Rights Protection Under the Legal Doctrine of Parliamentary Sovereignty Examining Committee: Graduate Chair: Dr. Tsuyoshi Kawasaki Professor, Department of Political Science Dr. Andrew Heard, Senior Supervisor Associate Professor, Department of Political Science Dr. David Laycock, Supervisor Professor, Department of Political Science Dr. Patrick Smith, Supervisor Professor, Department of Political Science Dr. Catherine Murray, Examiner Associate Professor, School of Communication Dr. Gerald Baier, External Examiner Assistant Professor, Department of Political Science, University of British Columbia Date Approved: SIMON FRASER @&&2V UNlVERSlTYli bra ry DECLARATION OF PARTIAL COPYRIGHT LICENCE The author, whose copyright is declared on the title page of this work, has granted to Simon Fraser University the right to lend this thesis, project or extended essay to users of the Simon Fraser University Library, and to make partial or single copies only for such users or in response to a request from the library of any other university, or other educational institution, on its own behalf or for one of its users. The author has further granted permission to Simon Fraser University to keep or make a digital copy for use in its circulating collection, and, without changing the content, to translate the thesislproject or extended essays, if technically possible, to any medium or format for the purpose of preservation of the digital work. The author has further agreed that permission for multiple copying of this work for scholarly purposes may be granted by either the author or the Dean of Graduate Studies. It is understood that copying or publication of this work for financial gain shall not be allowed without the author's written permission. Permission for public performance, or limited permission for private scholarly use, of any multimedia materials forming part of this work, may have been granted by the author. This information may be found on the separately catalogued multimedia material and in the signed Partial Copyright Licence. The original Partial Copyright Licence attesting to these terms, and signed by this author, may be found in the original bound copy of this work, retained in the Simon Fraser University Archive. Simon Fraser University Library Burnaby, BC, Canada iii Abstract In lgth century English constitutionalist Albert Venn Dicey's classic statement of the doctrine of parliamentary sovereignty, Parliament can make any law whatever and no person or body has the authority to invalidate an Act of Parliament. In the Charter era, this doctrine continues to be invoked by supporters and critics of contemporary judicial review to signal a pre-Charter tradition of judicial deference to parliamentary policy choices regarding the definition and protection of rights. This view of the significance of the doctrine is challenged in this dissertation through a careful and novel re-evaluation of the role Dicey assigned to judges in the doctrine. Indeed, the interpretation of Dicey offered in this dissertation shows that common law judges have long been theorized to have a central role to play in defending common law rights under the doctrine of parliamentary sovereignty. Judicial control over the application of law in particular cases facilitates a central role for the judiciary in rights protection by allowing judges to interpret statutes to minimize their detrimental effect on common law rights. This dissertation offers a significant contribution to Canadian constitutional debate by focussing attention on the fact that the judiciary neither needs a bill of rights to play a key role in protecting fundamental rights, nor is prohibited from playing such a role under the doctrine of parliamentary sovereignty. In this dissertation, contemporary interpretations of the significance of the doctrine of parliamentary sovereignty for judicial rights protection are contrasted to the arguments of Dicey and his Canadian Depression-era critics who were concerned with the policy implications of the central role Dicey assigned to the judiciary in protecting common law rights. This dissertation challenges the common view that the Charter introduced a radical change in the role played by judges in protecting fundamental rights. In fact, constitutional scholars have long praised and condemned the central role played by judges in protecting rights through judicial control over the application of the law in particular cases. This dissertation highlights the extent to which academic conflicts over the doctrine of parliamentary sovereignty are ultimately rooted in conflicts over more fundamental values. Acknowledgements I have accumulated an enormous non-monetary debt over the course of this project. The faculty and staff of the Department of Political Science at SFU have offered a stimulating and friendly working environment under the guidance of Steve McBride and Lynda Erickson. Many thanks to the department and to the Dean of Arts at SFU for financial assistance and institutional support over the years. Thank you to my dissertation committee of Drs. Gerry Baier, Catherine Murray, Paddy Smith, David Laycock and Andrew Heard who took the time to help me improve this dissertation in ways I could never have done on my own. Other professors who have gone the extra mile in helping me along the way include Drs. Dan Cohn and Michael Howlett at SFU, and Greg Pyrcz and Ian Stewart at Acadia University. To the many students, graduate and otherwise, I've known at SFU and Acadia, who have made academic life worthwhile, thank you. Particular thanks must go to Russell Williams with whom I started the doctoral program. You have been a constant source of friendship, irritation and inspiration for eight long years. To my family, Patricia Clarke and Chris Clarke, and my friends, thank you for extending your support over the course of writing this "pamphlet." To two friends and colleagues at SFU without whom I would never have finished this dissertation, 1 say a heartfelt thanks. To Andy Heard, my senior supervisor, who lends new meaning to the term the "friendly dictator," thank you for your encouragement, your high standards, your sense of humour, and all of your help in completing this project. I could not have found a better advisor or a more thoughtful student of the constitution. To David Laycock, thank you for everything you've done for me over the last eight years. You've been generous with your time, your ideas and your advice, and I really appreciate it. I've learned a lot from you. Finally, I dedicate this dissertation to Jeanette Ashe who never stopped believing I could, and should, get this dissertation done. Thanks Jeanette. Table of Contents .. Approval ..............................................................................................................11 ... Abstract ..............................................................................................................111 Acknowledgements ...........................................................................................iv Table of Contents ................................................................................................v Introduction ......................................................................................................... 1 Plan of the dissertation .................................................................................... 12 Chapter One....................................................................................................... 23 Knopff and Morton's work introduced .............................................................. 26 Knopff and Morton, the Charter revolution and constitutional interpretation ....30 Academic criticism of Knopff and Morton ........................................................ 40 Knopff and Morton on parliamentary sovereignty ............................................ 51 Conclusion ....................................................................................................... 64 Chapter Two ......................................................................................................67 Parliamentary sovereignty and majoritarian democracy .................................. 70 The Charter and the counter-majoritariandifficulty .......................................... 76 Bickel and the context of justification of judicial review.................................... 85 Weinrib. the Charter and democracy ............................................................... 92 Conclusion ..................................................................................................... 107 Chapter Three .................................................................................................. 109 Parliamentary sovereignty. legal positivism and statutory interpretation ....... 110 Legal positivism and the human element ....................................................

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