Judicial Agency and Anxiety Under the Canadian Bill of Rights: A Constitutional History of R v Drybones
Forthcoming in (2018) National Journal of Constitutional Law
18 Pages Posted: 25 Jul 2018
Date Written: July 4, 2018
The 1960 Canadian Bill of Rights and its case law appear as a footnote in Canadian constitutional history. Seen as a disappointing half measure, courts and scholars alike generally agree that the statutory Bill of Rights cases have little jurisprudential value given the ascendancy of the Canadian Charter of Rights and Freedoms. Among the cases still partially remembered, cited, and celebrated is R v Drybones, the only instance in which the Supreme Court of Canada rendered legislation inoperative under the Bill of Rights. In this retelling, Drybones is presented as a story of judicial agency and anxiety in a moment of constitutional change. Placed alongside the forgotten jurisprudence of the Bill of Rights, especially Robertson and Rosetanni, and situated within scholarly and popular receptions of the case, Drybones appears not as a dot along a pre-determined trajectory, but as a window into the combination of people and circumstance necessary to drive constitutional change. It is equally a story of discrimination, a changing north, and Canadian judges at all levels of court wrestling with competing visions of equality, judicial power, and democracy. It is, finally, a story of a remarkable and unlikely moment of profound judicial regret. Interweaving these stories, I argue that the Canadian Charter of Rights and Freedoms arrived not because the Bill of Rights failed as has so often been argued, but rather because the Bill of Rights succeeded in altering irretrievably, although not uniformly, Canada’s constitutional imagination.
Keywords: Canadian Constitutional History, Canadian Bill of Rights, Equality Rights, Drybones
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