Something to Talk About: Applying the Unwritten Principle of Democracy to Secure a Constitutional Right to Access Government Information in Canada by Vincent Clayton Kazmierski A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto 2008 ABSTRACT In this thesis, I argue that the unwritten constitutional principle of democracy provides a foundation for the recognition of a constitutional right to access government information in Canada. More specifically, I argue that the principle of democracy can be used to fill the “access gap” in the written provisions of the Constitution. I begin by synthesizing the Supreme Court of Canada’s jurisprudence and the work of a number of academics to outline guidelines for the recognition of unwritten constitutional principles. I also attempt to construct a coherent account of the content and effect of the constitutional principle of democracy. I proceed to argue that recognition of a right of access to government information as part of the principle of democracy fits within the guidelines I identify as it is supported by “strong” pragmatic, historical and structural evidence. I then demonstrate how the constitutional right of access to government information may be applied to protect access to information in at least three different ways: through statutory interpretation, through the regulation of administrative discretion, and, in exceptional circumstances, through the invalidation of legislation. I rely on the work of a number of British scholars and on aspects of David Dyzenhaus’s conception of law as a culture of justification to help bridge the divide between the Supreme Court of Canada’s approach to the application of unwritten constitutional principles and the concerns raised by critics of that approach. I argue that the application of the principle of democracy respects the primary role of democratically elected representatives of the public, while establishing that the judiciary also has an important role to play in the identification and enforcement of fundamental values. I suggest that this judicial role can be effectively constrained through the guidelines sketched by the Supreme Court and more fully articulated in this thesis. Finally, I argue that the application of the principle of democracy to invalidate legislation can also be justified in exceptional circumstances where the legislation imposes substantial impediments on fundamental aspects of the democratic process. In such cases, the principle of parliamentary supremacy is properly counterbalanced by the principle of democracy.

Something to Talk About: Applying the Unwritten Principle of Democracy to Secure a Constitutional Right to Access Government Information in Canada by Vincent Clayton Kazmierski A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto 2008 ABSTRACT In this thesis, I argue that the unwritten constitutional principle of democracy provides a foundation for the recognition of a constitutional right to access government information in Canada. More specifically, I argue that the principle of democracy can be used to fill the “access gap” in the written provisions of the Constitution. I begin by synthesizing the Supreme Court of Canada’s jurisprudence and the work of a number of academics to outline guidelines for the recognition of unwritten constitutional principles. I also attempt to construct a coherent account of the content and effect of the constitutional principle of democracy. I proceed to argue that recognition of a right of access to government information as part of the principle of democracy fits within the guidelines I identify as it is supported by “strong” pragmatic, historical and structural evidence. I then demonstrate how the constitutional right of access to government information may be applied to protect access to information in at least three different ways: through statutory interpretation, through the regulation of administrative discretion, and, in exceptional circumstances, through the invalidation of legislation. I rely on the work of a number of British scholars and on aspects of David Dyzenhaus’s conception of law as a culture of justification to help bridge the divide between the Supreme Court of Canada’s approach to the application of unwritten constitutional principles and the concerns raised by critics of that approach. I argue that the application of the principle of democracy respects the primary role of democratically elected representatives of the public, while establishing that the judiciary also has an important role to play in the identification and enforcement of fundamental values. I suggest that this judicial role can be effectively constrained through the guidelines sketched by the Supreme Court and more fully articulated in this thesis. Finally, I argue that the application of the principle of democracy to invalidate legislation can also be justified in exceptional circumstances where the legislation imposes substantial impediments on fundamental aspects of the democratic process. In such cases, the principle of parliamentary supremacy is properly counterbalanced by the principle of democracy.

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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” 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.

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” 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.

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” 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.

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” 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.

The legislative supremacy of Parliament has dominated the constitutional law of South Africa for a very long time. In the pre-constitutional era, the judiciary had no power to question the deeds of Parliament. Despite the need for the judiciary to be independent from the two other governmental branches to execute its function effectively, it was surely dependent on them. However, the creation of the Office of the Chief Justice (OCJ) as a separate governmental department by the Constitutional Seventeenth Amendment Act, read together with Superior Court Act, mandated by the requirements of a supreme Constitution (and not Parliament), changed things so that the judiciary is no longer dependent on government for its day-to-day administration. This thesis examines the independence of the OCJ and its role in promoting judicial transformation in the new South Africa. / Public, Constitutional and International Law / LL. M. (Human Rights Law)