Uncovering the judicial role in rights protection under the legal doctrine of parliamentary sovereignty

In 19th century English constitutionalist Albert Venn Dicey's classic statement of the doctrine of parliamentary sovereignty, Parliament can make any law whatever and no person or body has the authority to invalidate an Act of Parliament. In the Charter era, this doctrine continues to be invoked by supporters and critics of contemporary judicial review to signal a pre-Charter tradition of judicial deference to parliamentary policy choices regarding the definition and protection of rights. This view of the significance of the doctrine is challenged in this dissertation through a careful and novel re-evaluation of the role Dicey assigned to judges in the doctrine. Indeed, the interpretation of Dicey offered in this dissertation shows that common law judges have long been theorized to have a central role to play in defending common law rights under the doctrine of parliamentary sovereignty. Judicial control over the application of law in particular cases facilitates a central role for the judiciary in rights protection by allowing judges to interpret statutes to minimize their detrimental effect on common law rights. This dissertation offers a significant contribution to Canadian constitutional debate by focussing attention on the fact that the judiciary neither needs a bill of rights to play a key role in protecting fundamental rights, nor is prohibited from playing such a role under the doctrine of parliamentary sovereignty. In this dissertation, contemporary interpretations of the significance of the doctrine of parliamentary sovereignty for judicial rights protection are contrasted to the arguments of Dicey and his Canadian Depression-era critics who were concerned with the policy implications of the central role Dicey assigned to the judiciary in protecting common law rights. This dissertation challenges the common view that the Charter introduced a radical change in the role played by judges in protecting fundamental rights. In fact, constitutional scholars have long praised and condemned the central role played by judges in protecting rights through judicial control over the application of the law in particular cases. This dissertation highlights the extent to which academic conflicts over the doctrine of parliamentary sovereignty are ultimately rooted in conflicts over more fundamental values.