Mr. Diefenbaker, Parliamentary Democracy, and The Canadian Bill of Rights A Thesis Submitted to the College of Graduate Studies and Research in Partial Fulfilment of the Requirements for the Degree of Masters of Arts in the Department of Political Studies University of Saskatchewan Saskatoon By Robert M. Belliveau May 1992 The author claims copyright. Use shall not be made of the material contained herein without proper acknowledgement. UNIVERSITY OF SASKATCHEWAN PERMISSION TO USE POSTGRADUATE THESES TITLE OF THESIS Hr. Diefenbaker, Parliamentary Democracy and the Canadian Bill of Rights NAME OF AUTHOR Robert M. Belliveau DEPARTMENT OR COLLEGE Department of Political Stud; es DEGREE Master of Arts In presenting this thesis in partial fulfilment of the requirements for a postgraduate degree frol'l"l the University of Saskatchewan, I agree that the Librariesofthis University may make itfreely available for inspection. I further agree that permission for copying of this thesis in any manner, in whole or in part. for scholarly purposes may be granted by the professor orprofessors whosupervised mythesis work or, in their absence. bythe Head ofthe Oepartment or the Oean of the College in which my thesis work was done. It is understood that any coPYing or publication or use of this thesis or parts thereof for financial gain shall not be allowed without my written permission. It is also understood that due recognition shall be given to me and to the University of Saskatchewan in any scholarly use which may be made of any materia' in my thesis. SIG 2 ADDRESS P.O. Box 219 - 39 Main St. Delaware. Ontario NOL lEO DATE May 26, 1992 ACKNOWLEDGEMENTS The completion of this thesis was made possible only with the support and efforts of several people. I want especially to thank my mother, Mary K. Belliveau, and family for their unconditional support. I would like also to thank Russell Isinger whose expert knowledge of word processors made the final product presentable. The research for this study was graciously aided by the Director of The Right Honourable John G. Diefenbaker Centre, Stan Hanson, as well as the archival staff employed there, Steve Billinton and Fiona Haynes. Cheryl Avery at the Saskatchewan University Archives offerred me advice, and important contacts, helpful to my time spent at the National Archives of Canada. lowe many thanks to Phillip Bentz and David R. Stephens at the Department ofJustice who through the mail provided me with a great deal of material, gratis. I wish also to thank The Honourable E. Davie Fulton for giving me permission to view his papers in Ottawa, and Loretta Barber, the archivist responsible for those papers, for her assistance. The Messer Fund, administered by the Department of History, awarded a travel scholarship which financed two research trips to Ottawa. The College of Graduate Studies was kind enough to have given me a Graduate Scholarship. To all those mentioned, and for all financial assistance, lowe an incalculable debt. Finally, I wish to thank my advisor and thesis supervisor, David E. Smith, for his care, his infinite patience, his suggestions, his queries, and his incomparable editing. I would like also to thank my Professors at Dalhousie University, Jennifer Smith in particular, who have contributed not a little to my education. R.M.B. Saskatoon, May 1992 ABSTRACT The Canadian Bill ofRights was enacted in 1960 as an Act ofthe Parliament of Canada. Many argued then, and since, that it ought to have been legally binding, or entrenched beyond' the reach of both Parliament and the provincial legislatures. The Diefenbaker government responded with the argument that in order to entrench the Bill by way of constitutional amendment, the consent of all provincial governments was surely necessary, and, in all probability, not possible to secure. At best, it meant years of delay. This explanation has, in fact, become conventional wisdom, virtually unchallenged. On closer examination, however, there is ample evidence to argue that provincial consultation, and, by extension, a discussion on entrenchment, was deliberately avoided by the Diefenbaker administration. To put it another way, the form that the Bill eventually took was the result of careful considerations and coherent, though not always clearly known, intentions. Through an examination of the manner in which Mr. Diefenbaker, the principal champion of civil liberties, conceived of a bill of rights, it is proposed in this study that a greater understanding ofthe form his Bill assumed will result. One constant strain in Mr. Diefenbaker's political thought was the beliefthat Parliament was supreme, and, more importantly, that it was the "custodian of the nation's freedom." This study, then, is premised on the ground that an entrenched bill of rights, one which of necessity would have denied Parliament its supremacy, was unequivocally inconsistent with Diefenbaker's understanding of, and reverence for, parliamentary democracy. The bulk of this thesis is based on research of the John G. Diefenbaker Papers, opened to the public in 1991. In addition to this, use has been made of recently released governm~nt documents, Cabinet minutes and conclusions, corresponding to the period in question. ii CHAPrERONE Introduction The principles offreedom are never final. Freedom is not static. It cannot be fixed for all time. It either grows or it dies. It grows when the people of a country have it in their hearts and demand that it shall be preserved. I would be the last to contend that any document made by man, however impressive, can assure freedoms.... The ultimate assurance ofthem must always be a vigilant people, vigilant to invasions of and intrusions on their freedom; for, sir, when the spirit of freedom dies in the hearts of men no statute can preserve it. 1 On 4 August 1960, Prime Minister Diefenbaker was preparing to send his Bill of Rights off to receive royal assent, thus bringing to an end a fourteen year period in which he impressed on Parliament the importance of and need for a bill of rights. But precisely what form that bill ought to take was never made clear by him. There were several choices at his disposal, ranging from a parliamentary statute to a constitutional amendment, and while he chose the former his rhetoric often indicated that he favoured the latter. What is certain was his belief that the principles of freedom, regardless of how or if they are codified, found their permanency in a vigilant polity. In other words, freedoms remain because they are understood and accepted. As a representative, and later Prime Minister, he assumed an almost pedagogical role imparting on Canadians the need to be conscious of their liberties. Moreover, what is also certain was his reverence for, and unshakable faith in, parliamentary democracy. Combined, these considerations help to distinguish between any rhetoric and true intentions, which is the essence of this study. 1 Debates ofthe House ofCommons, 4 August 1960, pp. 7549-5~. 1 TABLE OF CONTENTS TABLE OF CONTENTS . ABSTRACT ii CHAP'rER ONE 1 Introduction ............................................ 1 CHAP'rER TWO .... 0 • • 0 • • 0 • 0 0 0 • 0 0 • 0 0 0 0 0 • 0 • • • • • 0 0 • • • • • • 0 • 0 0 0 0 15 Personality and Politics . 0 0 • 0 • 0 0 ••• .. 0" • 0 0 0 • 0 0 • 0 • • • • • 0 • 0 .0 • 0 0 15 Parliament and Civil Liberties .. 0 • • 0 • 0 • • • • 0 • • • • • • • • • 0 • 0 • • • • • o. 21 Mr. Diefenbaker, Parliament and the Rule of Law . 0 0 • • • • • • • • 0 0 • • • • • • 0 32 CHAPTER THREE 0 •••••••••••••••••••••• 0 ••••••••••••••••••• 0 42 Toward a Bill of Rights for Canada ... 0 • • • • • • 0 0 • 0 • • • • • • • 0 • • • 0 • •• 42 Federalism and the Protection of Civil Liberties . 0 ••• 0 ••• 0 •• 0 ••• 0 • 0 o. 50 Mr 0 Diefenbaker, Parliamentary Democracy and the Bill of Rights . 0 • • • • 0 • o. 66 CHAPTER FOUR 0 •••••••••• 0 •• 0 •••••••••••• 0 ••• 0 • 0 73 "I am a House of Commons man" : Diefenbaker and the Politics of Freedom . o. 73 A Bill of Rights for Canada 0 • • 0 • 0 • • • 0 0 0 0 • • • • 0 • • • 0 0 • • • • • • • 0 • •• 79 Critics and Critiques 0 • • • • • • • • • 0 • • 0 0 0 • • • • • • 0 • • 0 • • • • • 0 89 ... And the Government Response 0 0 • • • • • • • • • • • • • 0 • • • • • • • 0 0 • • • •• 97 CHAP'rER FIVE 0 •• 0 0 0 •••••••••• 0 •••••• 0 0 • • • • • • • • • • • • • • • • • •• 114 Conculsions . 0 • • • • • • • • • • • • • 0 • • • • • • • • • • • • • • 0 • • • • • • • • • • •• 114 APPENDIX . 0 ••••••••••••••••• 0 •••••••••••••••• 0 • • • • • • • • •• 119 BIBLIOGRAPHY . 0 ••••••••••••••••• 0 •••••••••••••••••• 0 • • • •• 123 2 Though certainly more declaratory and symbolic than·perhaps legally effective, Diefenbaker's Bill of Rights was, as he so often reminded Canadians, the achievement of which he was most proud.2 And others agreed. Ellen Fairclough, Minister of Citizenship and Immigration in the Diefenbaker administration (and, incidentally, the first woman ever to be appointed to cabinet), referred to the Bill as a "personal success" for Mr. oiefenbaker. "It was the crowning of a life-long ambition by Mr. Diefenbaker", Paul Martineau, Diefenbaker's parliamentary secretary, has since remarked. Even Jack Pickersgill, no admirer of Diefenbaker (or any Conservative for that matter), acknowledged that "apart from the Bill ofRights ... I could never see anything that Mr. Diefenbaker really wanted to do. "3 While Pickersgill's remarks fall short of praise, they testify to the importance Mr. ·Diefenbaker attached to the Bill of Rights. That Diefenbaker was firmly committed