Every Tuesday, The duty offers a space to the creators of a periodical. This week, we offer you a text published in the Political History Bulletinvolume 31, number 3 (winter 2024).
The era of Prime Minister John G. Diefenbaker is a period of transition between two legal-political models.
In the post-war context, where the full extent of human rights violations were taken into account and where the Dominion was questioning its national identity and the meaning of truly Canadian citizenship, Diefenbaker proposed a political offer attempting to merge two worlds: that of the British Canada of yesterday, with its model of parliamentary sovereignty, and that of the North American Canada of the future, with its regime of constitutional protection of rights.
Diefenbaker somehow embodied these two worlds. A politician wanting to preserve British parliamentarianism, he was also a defender of civil liberties opposed to racial discrimination since 1940, and his Canadian Bill of Rights was influenced by the American Bill of Rights as well as the Universal Declaration of Human Rights. UN man of 1948.
The Canadian Declaration used the language of “human rights” and announced the legal equality of all people regardless of “race, national origin, color, religion or sex.” But it reiterated parliamentary sovereignty, confirmed by a “notwithstanding” clause, and essentially protected traditional British freedoms. This hybrid proposal helped to make acceptable the idea of the codification of “human rights”, foreign to the British tradition in Canada.
The jurisprudential “failure” of the Canadian Declaration – no modernizing and influential judgment has been produced – should not make us forget that, on a symbolic level, it contributed to placing the protection of human rights at the heart of priorities. of the Canadian state.
The Canadian Declaration introduced a new concept into the Canadian constitutional state of the Westminster type, that of “human rights”, brought to the international stage by the Universal Declaration. By institutionalizing the more encompassing concept of “human rights”, while we previously spoke of traditional British freedoms in Canada, the Canadian Declaration helped to transform the traditional, British understanding that we had at home. era in Canada of parliamentary sovereignty, judicial review and protection of rights.
The Canadian Declaration thus called into question the orthodoxy that the codification of rights was contrary to Canadian constitutionalism of British heritage. The Canadian Declaration was also pioneering, as the first charter of rights adopted in the Westminster universe.
With Diefenbaker, for the first time, a Canadian prime minister articulated a pan-Canadian nationalist vision, combining charter of rights, social justice, interprovincial solidarity and an overarching and inclusive Canadian identity. Thus, Pierre Elliott Trudeau is not the first Canadian head of government to mobilize constitutional nationalism to try to rebuild the Canadian state. Although he did not recognize his debt to Diefenbaker, Trudeau was still able to benefit from his work on consciences and institutions.
To fully appreciate the Canadian Declaration, we must take into account the symbolic dimension of the State, that is, the official speeches legitimizing a regime and its actions, and producing a common vision and standards on a territory. This perspective allows us to see in the Declaration and the debates surrounding it a major paradigm shift, compared to the British constitutional norm prevailing until then in Canada and elsewhere in the world of Westminster.
A sociohistorical approach allows us to put the rights discourses under the Diefenbaker government into context and judge them in the light of the dominant British constitutional vision of the time.
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