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Reconciling Parliament and Rights: A. V. Dicey Reads the Canadian Charter of Rights and Freedoms*

Published online by Cambridge University Press:  10 November 2009

Janet Ajzenstat
Janet Ajzenstat
Affiliation:
McMaster University
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Abstract

In The Law of the Constitution, Dicey contends that parliamentary sovereignty guarantees rights. An absurd claim? Perhaps. But sympathetic exploration shows he is relying on assumptions central to liberal constitutionalism about the power of free speech and partisan debate to effect good laws. He expects rights guarantees to emerge from the contest among parties in the legislature. Reading Dicey today shows how deep-seated is the loss of confidence in parliamentary deliberation, and raises an awkward question: Is the very idea of parliamentary democracy in jeopardy?

Résumé

Dans The Law of the Constitution, A. V. Dicey soutient que la souveraineté parlementaire garantit les droits. S'agit-il d'une affirmation absurde? Peut-être. Mais un examen sympathique à cet énoncé démontre que Dicey se fonde sur les hypothèses centrales au constitutionnalisme libéral portant sur la puissance de la liberté d'expression et du débat partisan, tous deux nécessaires à l'adoption de bonnes lois. Il s'attendait à ce que les garanties juridiques surgissent d'une lutte entre les partis au sein de l'assemblée parlementaire. Lire Dicey aujourd'hui montre comment est profondément ancrée la perte actuelle de confiance à l'endroit de la délibération parlementaire et soulève une embarrassante question: l'idée de démocratie parlementaire est-elle menacée?

Type
Research Article
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 30 , Issue 4 , December 1997 , pp. 645 - 662
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1997

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References

1 Dicey, Albert Venn, An Introduction to the Study of the Law of the Constitution (10th ed.; London: Macmillan, 1960Google Scholar). See especially chap. 13, “Relation between Parliamentary Sovereignty and the Rule of Law.” The Law of the Constitution was first published in 1886.

2 Thus Dicey refers to “absolute legislative sovereignty,” the “despotism of the King in Parliament” and the “omnipotence” of parliament (The Law of the Constitution, 145, 183).

3 Ibid., 200ff.

4 Vipond, Robert C., Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: State University of New York Press, 1991), 133.Google Scholar

5 Dicey, The Law of the Constitution, 221.

6 Ibid., 207ff.

7 There are important exceptions. Robert Vipond discusses nineteenth-century legislative rights guarantees in Liberty and Community, 193–94. And see Knopff, Rainer and Morton, F. L., Charter Politics (Scarborough: Nelson, 1992Google Scholar), especially chap. 7, “The Oracular Courtroom.”

8 The notwithstanding clause was inserted in the Charter at the insistence of provincial premiers who were quarrelling with Prime Minister Pierre Trudeau about the status of the provinces vis-à-vis the central government. The fact that it originated as a political compromise has contributed to its lack of legitimacy.

9 Section 33 reads in part: “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 the Charter.” Section 2 includes freedom of religion, freedom of expression and freedom of assembly. Sections 7 to 14 describe Canadians’ legal rights. Section 15 enshrines the right to equality under the law.

10 Whyte, John argues for abolition of the clause in “Not Standing for Notwithstanding,” in Charlton, Mark and Barker, Paul, eds., Crosscurrents 1: Contemporary Political Issues (Scarborough: Nelson, 1991), 60–68.Google Scholar

11 Peter Russell, “Standing Up for Notwithstanding,” in Charlton and Barker, eds., Crosscurrents, 69–82.

12 Knopff and Morton, Charter Politics; Mandel, Michael, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall and Thompson, 1989Google Scholar); and Manfredi, Christopher, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993Google Scholar).

13 Romney, Paul, “From the Rule of Law to Responsible Government: Ontario Political Culture and the Origins of Canadian Statism,” Canadian Historical Association Papers (1988), 86–119, 97.Google Scholar

14 Ibid., 103, and Romney, Paul, “Very Late Loyalist Fantasies: Nostalgic Tory ‘History’ and the Rule of Law in Upper Canada,” in Pue, W. Wesley and Wright, Barry, eds., Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carleton University Press, 1988), 125–30.Google Scholar

15 Sugarman, David, “The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science,” a review of Cosgrove, Richard A., The Rule of Law: Albert Venn Dicey, Victorian Jurist (London: Macmillan, 1980Google Scholar), in The Modern Law Review 46 (1983), 102–11.

16 Sugarman, “The Legal Boundaries of Liberty,” 111. Patrick Malcolmson situates Sugarman's observations in the context of the Critical Legal Studies movement ( Malcolmson, Patrick, “Judicial Statesmanship and the Rule of Law: A Study of the Political and Legal Thought of A. V. Dicey” [unpublished Ph.D. thesis, Department of Political Science, University of Toronto, 1992Google Scholar]).

17 Foley, Michael, The Silence of Constitutions: Gaps, “Abeyances” and Political Temperament in the Maintenance of Government (London: Routledge, 1989Google Scholar).

18 Ibid., 96. Foley notes that the British came close to indulging in imprudent constitutional debate in the 1970s when the prospect of a bill of rights was on the agenda.

19 Ibid., 90–93.

20 See Thomas, David M., “Turning a Blind Eye: Constitutional Abeyances and the Canadian Experience,” International Journal of Canadian Studies 7–8 (1993), 63–79.Google Scholar

21 Reference re Alberta Statutes, [1938] 2 S.C.R. 100.

22 Dicey, The Law of the Constitution, 40ff.

23 One constitutionalist who makes this argument is Pierre Bédard (first leader of the French Canadian party in the parliament of Lower Canada). See his articles in Le Canadien; and Ajzenstat, Janet, “Canada's First Constitution: Pierre Bédard on Tolerance and Dissent,” this Journal 23 (1990), 39–57.Google Scholar

24 Dicey, The Law of the Constitution, 188–94. See the commentary in Dickerson, Mark O. and Flanagan, Thomas, Introduction to Government and Politics: A Conceptual Approach (2nd ed.; Toronto: Methuen 1986), 55–57.Google Scholar

25 I by no means wish to suggest that citizens in the constitutional regime must reject all idea of Deity and revelation. A longer exploration of this topic would begin with Rawls, John, Political Liberalism (New York: Columbia University Press, 1993Google Scholar).

26 Dicey, The Law of the Constitution, 39ff. Duff notes that “legislative power for Canada is vested in one Parliament consisting of the Sovereign, an upper house styled the Senate, and the House of Commons” (Reference re Alberta Statutes). And see the Constitution Act, 1867, especially sections 9 and 17.

27 Dicey, The Law of the Constitution, 203ff.

28 Report of the Special Committee on Reform of the House of Commons, McGrath, James A., Chairman (June 1985Google Scholar).

29 Compare Manfredi, Christopher, “On the Virtues of a Limited Constitution: Why Canadians Were Right to Reject the Charlottetown Accord,” in Peacock, Anthony A., ed., Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation and Theory (Toronto: Oxford University Press, 1996), 53ff.Google Scholar

30 For the nineteenth-century quarrel between constitutionalists and anti-constitutionalists, see Ajzenstat, Janet and Smith, Peter J., eds., Canada's Origins: Liberal, Tory, or Republican (Ottawa: Carleton University Press, 1995Google Scholar).

31 Atkinson, Michael M. and Thomas, Paul G., “Studying the Canadian Parliament,” Legislative Studies Quarterly 18 (1993), 423–51.CrossRefGoogle Scholar

32 But consider the Canadian New Democratic party's complaint that the Conservatives’ “stalker law,” could be used to curb pickets in labour disputes (“A Closer Look at the Stalker Law,” editorial, The Globe and Mail [Toronto], April 28, 1993, A22). What is interesting is that the party did not draw its definition of free speech from the Charter, but relied on experience in representing the labour constituency. See also “Is Abortion Picketing Always Harassment?” editorial, The Globe and Mail (Toronto), April 24, 1993, D6.

33 It will be objected that the limited franchise of nineteenth-century parliaments would have been able, at best, to protect only the interests and rights of the privileged few. See Dickenson, H. T., Liberty and Property: Political Ideology in Eighteenth-Century Britain (London: Weidenfeld and Nicolson, 1977Google Scholar); and Birch, A. H., Representative and Responsible Government (Toronto: University of Toronto Press, 1964Google Scholar). But nineteenth-century constitutionalists argued that even where members of parliament are drawn from a limited property class, free political speech nevertheless protects the rights of the mass of the people. Although they were often ardent advocates of the extended suffrage and reform of representation, they would have regarded it a mistake to suppose that universal suffrage and reformed representation are the crucial elements in parliament's effectiveness. The crucial element is parliament's freedom of political speech, usually said to date from 1688.

34 On the destabilizing character of macro-constitutional reform, see Bateman, Thomas J., “Section 33 of the Charter and Democratic Life in Canada,” paper presented at the annual meeting of the Canadian Political Science Association, St. Catharines, June 1996Google Scholar; Lusztig, Michael, “Constitutional Paralysis: Why Canadian Constitutional Initiatives Are Doomed to Fail,” this Journal 27 (1994), 747–71Google Scholar; Manfredi, “On the Virtues of a Limited Constitution”; and Ajzenstat, Janet, “Constitution Making: The Myth of the People,” in Cook, Curtis, ed., Canada's Constitutional Predicament (Montreal: McGill-Queen's University Press, 1994), 112–26.Google Scholar

35 See Howse, Robert, “Another Rights Revolution? The Charter and the Reform of Social Regulation in Canada,” in Grady, P., Howse, R. and Maxwell, J., Redefining Social Security (Kingston: School of Policy Studies, Queen's University, 1995Google Scholar).

36 For the term “rights talk,” see Glendon, Mary Ann, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991Google Scholar).

37 A point developed in conversation with Sam Ajzenstat.

38 A complete survey of rights guarantees in Canada prior to the Charter would go beyond discussion of legislative guarantees to include judicial review, the statu-tory bills of rights and the federal and provincial human rights codes.

39 Cheffins, R. I., The Constitutional Process in Canada (Toronto: McGraw-Hill, 1969), 45.Google Scholar And see Morton, F. L., “Judicial Review and Civil Liberties,” in Morton, F. L., ed., Law, Politics and the Judicial Process (Calgary: University of Calgary Press, 1992), 395–405.Google Scholar

40 Whyte's examples: Japanese Canadians, Hutterites, Doukhobours, Aboriginal peoples, Jehovah's Witnesses, the Acadians, Métis, Roman Catholics, communists and separatists (Whyte, “Not Standing for Notwithstanding,” 66).

41 Legislative debate did not suffice in Alberta in the 1930s (Reference re Alberta Statutes), nor in Quebec in the 1950s (Roncarelli v. Duplessis, [1959] 1 S.C.R. 121). For a comparatively recent example, consider the coalition of Liberals, Conservatives and the New Democratic party in 1983 to curb third-party advertising in elections (Janet Hiebert, “The NCC Challenges the Canada Elections Act,” in Morton, ed., Law, Politics and the Judicial Process, 255–61).

42 Malcolmson, “Judicial Statesmanship and the Rule of Law.”

43 Some typically Canadian expressions of the loss of confidence in parliament: “People feel a sense of powerlessness in the face of the existing parliamentary system.” We need “more real power for the people, even if it comes at the expense of those politicians the people have elected” ( Hanly, Ken, “Constitutional Initiatives and Referenda: Only in Switzerland, You Say? Pity!” Policy Options 13 [1992], 19Google Scholar). The minority report of the parliamentary Beaudoin-Edwards committee said that “parliamentarians have no monopoly on creativity, intelligence, or concern for the fate of the nation…. Government suggestions that they are the only proper representatives of the people's will, when the people themselves are telling us that they are not, are unacceptable manifestations of political ego” (The Process for Amending the Constitution of Canada, The Report of the Special Joint Committee of the Senate and the House of Commons, June 20, 1991, 74–75Google Scholar).

44 K. C. Wheare attributes the decline of parliament to corporatist politics, the rise of interest groups, growth of the positive state, the bureaucracy's increasing influence and advances in technology of communications ( Wheare, K. C., Legislatures [2nd ed.; New York: Oxford University Press, 1968], 196–244Google Scholar; and Meisel, John, “The Decline of Party in Canada,” in Thorburn, Hugh G., ed., Party Politics in Canada [3rd ed.; Scarborough: Prentice-Hall, 1985Google Scholar]). A factor peculiar to Canada is the practice of executive federalism.

45 Canada's obsession with constitutional reform has no parallel in the United States. Indeed, it is unparalleled among the settled Western democracies.

46 For a closely related argument, see Knopff, Rainer, “Courts and Character,” paper presented at the annual meeting of the Canadian Political Science Association, St. Catharines, June 1996.Google Scholar

47 Greschner, Donna, “Commentary,” in Smith, David E. et al., eds., After Meech Lake: Lessons for the Future (Saskatoon: Fifth House, 1991), 224.Google Scholar She continues: “what is wanted is a process that not only hears all voices but takes all experiences and aspirations into account.”

48 Valpy, Michael, “Canadians Feel They Are Not Being Governed in Accordance with Their Values,” The Globe and Mail (Toronto), June 19, 1991Google Scholar, A7. One of the most contentious denunciations of parliamentary debate was made by a former justice of the Supreme Court ( Estey, Willard Z. and Nicholson, Peter J., “Giving Power to the People,” The Globe and Mail [Toronto], April 22, 1991Google Scholar, A13).