Endicott and Oliver on The Role of Theory in Canadian Constitutional Law @OxfordLawFac @PeterCOliver @OxUniPress

Timothy A. O. Endicott, University of Oxford Faculty of Law, and Peter C. Oliver, University of Ottawa, Common Law Section, are publishing The Role of Theory in Canadian Constitutional Law in The Oxford Handbook of Canadian Constitutional Law (N. Des Rosiers, P. Macklem, and P. Oliver, eds., Oxford University Press, 2017). Here is the abstract.

Constitutional theory has been institutionalized in distinctive ways in Canada. The Constitution Act, 1867 (formerly the British North America Act, 1867) created unique opportunities and imperatives for political leaders, advocates, judges, scholars, law students and others to articulate their understanding of Confederation. And even while the country chose a parliamentary form of government very different from American republicanism, Confederation generated a set of entrenched rules defining the powers of the federal and provincial governments, which would give judges a hand in the law of the Constitution that judges had not had in the United Kingdom. Moreover, Canadian federalism generated an extraordinary statutory provision for references (i.e., requests for advisory opinions) to the Supreme Court of Canada on matters of law and fact, including (as it would turn out) matters of convention. The judges’ reasons for decision involve them in the theoretical task of articulating the basis of the Constitution. The Constitution Act, 1982 further enhanced the judges’ role as theorists of the Constitution, through their role in the interpretation and elaboration of the Charter of Rights and Freedoms. We aim to illustrate ways in which both express theorizing and inarticulate theoretical assumptions have shaped Canadian constitutional law, and we argue that good theorizing is essential for the sound development of the law and practice of the Constitution.

Download the essay from SSRN at the link.

DesBaillets on Magna Carta in Canada at 800: Happy Birthday or Identity Crisis? @DDesBaillets

David DesBaillets, University of Quebec at Montreal (UQAM), Faculty of Law, has published Magna Carta in Canada at 800: Happy Birthday or Identity Crisis? Here is the abstract.

When Canada celebrated the 800th anniversary of the Magna Carta in 2015, it did so in grand fashion. This event was marked by a nationwide tour, essay writing contests and countless speeches made by politicians, jurists and academics on its central place in the legal foundation of Canadian human rights, Constitutionalism, judiciary and representative democracy. As has been said enthusiastically by any number of Canadian legal historians “the Magna Carta…informs the legal system in English Canada, and the Canadian Charter of Rights and Freedoms.” However, a more critical lens is needed in order to better understand this document and the way in which it has shaped and continues to influence law, proceduralism and constitutionalism in Canada’s modern legal institutions. Starting from the premise that the ways in which justice is represented is often a reflection of the values that legal institutions aspire to represent, this paper demonstrates the power of Magna Carta as a legal symbol to legitimize and create a rights based discourse that portrays our current human rights paradigm as originating in an ancient historical and mystical common law past. In the first half, it looks at the semiotic, historical, anthropological and metaphorical uses of Magna Carta as well as in present day legal institutions and provides an overview of its specific relevance to the modern human rights narrative in Canada’s judiciary. The second half of this paper will re-examine these symbols with a critical lens in order to demonstrate the reality of Magna Carta as a human rights instrument without formal legal status. The significance of a foreign statute which has no direct bearing on Canadian human rights will be scrutinized in its, human rights law, criminal law, indigenous law and administrative law contexts. The primary sources of legal doctrine, jurisprudence, and constitutional interpretations involving Magna Carta as well, secondary sources of critical analysis will be used in attempt to demonstrate that the influence of Magna Carta, both historically and in contemporary discourses on human rights, can be seen as both positive and negative. Finally the paper will describe the paradox of the Magna Carta as both a source of proceduralism, on the one hand, and substantive rights and civil liberties, on the other, in the contentious Canadian debate between these two interrelated conceptions of human rights law as it relates to contemporary anti-terror legislation.

Download the article from SSRN at the link.

Cameron on Dialogue in Charter Interpretation

Jamie Cameron, Osgoode Hall Law School, has published Collateral Thoughts on Dialogue's Legacy as Metaphor and Theory: A Favourite from Canada as Osgoode Legal Studies Research Paper No. 66/2016. Here is the abstract.

“Collateral Thoughts” is part of a special issue edited by Professor James Allan, who invited and challenged a group of scholars to select and discuss a favourite law review article. I chose “The Charter Dialogue Between Courts and Legislatures” because it is the most influential article to date in the Charter of Rights and Freedom’s relatively short history (since 1982). I call this reflection “Collateral Thoughts” because my interest is less in the merits of dialogue theory than in its remarkable impact, at home in Canada as well as abroad, in the broader reaches of comparative constitutionalism and constitutional theory. In the main, this reflection asks how and why “dialogue” became a runaway concept, and considers what that tells us about the nature and formation of constitutional theory. It shows that Dialogue was fundamentally connected to Canada’s catharsis of rights, in 1982 and in the early years of Charter interpretation. That is why its claim that the legitimacy battles which define American judicial review are irrelevant – because Canada’s system of rights protection is based on “dialogue” – was so explosive. Not only did this article command attention in Canada, the concept of dialogue would be “reified”, castigated and deeply analyzed by scholars and Commonwealth jurisdictions who wondered whether weaker or weak-form judicial review was institutionally possible. Much like other theories in the US constitutional tradition, Dialogue responded to controversy by theorizing and attempting to legitimize review. Despite failing in its objective to eliminate legitimacy concerns about review, Dialogue catalyzed a national and international movement in constitutional thought.

Download the essay from SSRN at the link.