Title Page “Parliamentary sovereignty rests with the courts:” The Constitutional Foundations of J. G. Diefenbaker’s Canadian Bill of Rights Jordan Birenbaum Thesis submitted to the Faculty of Graduate and Postdoctoral Studies In partial fulfillment of the requirements For the PhD degree in History Department of History Faculty of Arts University of Ottawa © Jordan Birenbaum, Ottawa, Canada, 2012 Abstract The 1980s witnessed a judicial “rights revolution” in Canada characterized by the Supreme Court of Canada striking down both federal and provincial legislation which violated the rights guaranteed by the 1982 Charter of Rights. The lack of a similar judicial “rights revolution” in the wake of the 1960 Canadian Bill of Rights has largely been attributed to the structural difference between the two instruments with the latter – as a “mere” statute of the federal parliament – providing little more than a canon of construction and (unlike the Charter) not empowering the courts to engage in judicial review of legislation. Yet this view contrasts starkly with how the Bill was portrayed by the Diefenbaker government, which argued that it provided for judicial review and would “prevail” over other federal legislation. Many modern scholars have dismissed the idea that the Bill could prevail over other federal statutes as being incompatible with the doctrine of parliamentary sovereignty. That is, a bill of rights could only prevail over legislation if incorporated into the British North America Act. As such, they argue that the Diefenbaker government could not have intended the Bill of Rights to operate as anything more than a canon of construction. However, such a view ignores the turbulence in constitutional thinking on parliamentary sovereignty in the 1930s through 1960s provoked by the Statute of Westminster. This era produced the doctrine of “self-embracing” sovereignty – in contrast to traditional “Dicey” sovereignty – where parliament could limit itself through “ordinary” legislation. The effective author of the Canadian Bill of Rights, Elmer Driedger, was an adherent of this doctrine as well as an advocate of a “purposive” ii approach to statutory interpretation. Driedger, thus, drafted the Bill based upon the doctrine of self-embracing sovereignty and believed it would enjoy a “purposive” interpretation by the courts, with the Bill designed to be as effective at guaranteeing rights as the Statute of Westminster was at liberating Canada from Imperial legislation. ♦ iii Acknowledgements Most critically, thanks must be extended to my supervisor, Professor Michael Behiels. This project only came into existence because of his advice and encouragement. It began as a summer research projected financed by Dr. Behiels as part of his research into the history of the Charter and unexpectedly blossomed into my doctoral dissertation. As is clear in Chapter Two, a huge intellectual debt is owed to Professor Peter C. Oliver. Dr. Oliver was always extremely supportive of the project and provided advice at critical moments. Dr. Oliver provided crash courses covering unfamiliar legal concepts and conversations with Dr. Oliver broke a number of conceptual blockades that had stalled the project from time to time. Professor Richard Connors played a similar role in the completion of this dissertation as he did for my previous dissertation. Dr. Connors would always – quickly – answer the often random questions relating to English legal history that I frequently posed to him, sparing me much time and effort. I would also like to extend a special thanks to Professor Norman Hillmer whose revisions greatly increased the readability of the final version. As with any project of this scope, the support and encouragement of my friends and family has been indispensable. My parents and brothers cheerfully absorbed my foul moods at the moments when the project stalled, providing an outlet from a wrath that may have otherwise spoiled relationships my friends, colleagues, and academic advisors. While in Ottawa, I was blessed to have a large group of very supportive friends who provided appropriate distractions when I needed them and generally sought to boost my self-esteem in the more stressful moments. I would particularly like to thank Amy ii Gill, Patrick Fournier, and Norah Holt. Amy, as a colleague, frequently acted as a sounding board against which I could develop ideas and, as a friend, ensured that I never became too isolated from the world around me. Patrick acted as the always reliable and diligent friend; mocking my research when appropriate, chauffeuring me around when deadlines had to be met or social events attended, and a reliable life of the party that ensured those social events were always entertaining. Norah must be commended for her curious tolerance of suffering through the most incoherent moments of the projects development. She patiently listened to my random and disjointed rants on various aspects of my research and put my moments of panic into appropriate perspective. She must also be commended for her diligence and patient in editing my introduction and conclusion to make it vastly more readable – despite my attempts to resist almost every word she cut. Finally, I owe a huge debt of gratitude to the staff of the Library of the Supreme Court of Canada. Every day for a year they welcomed me to the library as I finished my research and wrote my first draft. They were always happy to answer my questions and provided me with essential research advice. Simply put, without the staff and resources of that library, I doubt whether this project could have been completed. ♦ iii Table of Contents List of Tables .................................................................................................. x Introduction .................................................................................................... 1 THE CONSTITUTIONAL FOUNDATIONS OF CANADA’S BILL OF RIGHTS.....5 HISTORIOGRAPHY: MISCONCEIVED, MISINTERPRETED, MYSTIFIED .........6 PRE-HISTORIOGRAPHY: THE 1959 CANADIAN BAR REVIEW ....................................8 MISCONCEIVED: THE 1960S ......................................................................................9 MISINTERPRETED: THE 1970S .................................................................................11 THE ‘OFFICIAL’ HISTORY: THE 1980S TO THE PRESENT .........................................14 PARLIAMENTARY SOVEREIGNTY REVISITED: THE 1990S ........................................17 A CANADIAN HUMAN RIGHTS HISTORIOGRAPHY: THE 2000S ..................................19 CONCLUSION ...........................................................................................................21 THEORY AND METHODOLOGY............................................................................23 THEORY ..................................................................................................................25 METHODOLOGY ......................................................................................................42 SOURCES .................................................................................................................43 TERMS AND DEFINITIONS ........................................................................................45 DISSERTATION OUTLINE.......................................................................................48 Chapter One – Canada and a Bill of Rights, 1919-1957 .......................... 52 GENESIS OF THE HUMAN RIGHTS MOVEMENT IN CANADA, 1919-1946 ....52 A NATIONAL BILL OF RIGHTS FOR CANADA, 1946-1951 ...............................64 CANADA AND THE INTERNATIONAL BILL OF RIGHTS ..............................................64 THE GOVERNMENT OF CANADA AND A NATIONAL BILL OF RIGHTS .......................69 FAIR PRACTICES LEGISLATION ...............................................................................74 THE DECLINE OF POPULAR SUPPORT FOR A NATIONAL BILL OF RIGHTS ....................76 THE “DECADE OF HUMAN RIGHTS:” THE 1950S ..............................................79 CONCLUSION ............................................................................................................82 Chapter Two – The Other “Newer Constitutional Law” ........................ 84 “CONSTITUTIONAL” IN CURRENT SCHOLARSHIP ..........................................84 MORAL AND TECHNICAL APPROACHES TO THE CONSTITUTION ..............................86 THE “NEWER CONSTITUTIONAL LAW” ...................................................................89 PARLIAMENTARY SOVEREIGNTY PRIOR TO 1960 ..........................................90 CONSTITUTIONAL SUPREMACY: THE “NEWER CONSTITUTIONAL LAW” .................93 “CONTINUING” SOVEREIGNTY: DICEY’S ACOLYTES ...............................................94 "SELF-EMBRACING” SOVEREIGNTY: SOVEREIGNTY FOR THE AGE OF RIGHTS .........97 iv PARLIAMENTARY SOVEREIGNTY JURISPRUDENCE ................................................101 Nairn ..............................................................................................................103 Burah..............................................................................................................107 Cooper and McCawley ...................................................................................109 Trethowan ......................................................................................................117 Dönges ...........................................................................................................120 Vauxhall