Leclair on L'évolution constitutionnelle de 1760 à 1867: progression pour les uns (Canadiens français) et regression pour les autres (peoples autochtones)

Jean Leclair, University of Montreal Faculty of Law, has published L'évolution constitutionnelle de 1760 à 1867: progression pour les uns (Canadiens français) et régression pour les autres (peuples autochtones) [Constitutional evolution from 1760 to 1867: progress for some (French Canadians) and regression for others (Aboriginal peoples)] as a University of Montreal Faculty of Law Research Paper. Here is the abstract.

French abstract: Ce texte vise à présenter à un large public, et non uniquement aux experts, un récit de l’évolution constitutionnelle du Canada, et plus précisément du Québec, avant l’avènement de la fédération canadienne. Le sort des peuples autochtones dans le territoire qui deviendra le Québec est également abordé.

 

English abstract: This manuscript aims to provide a broad audience, not just experts, with an account of the constitutional evolution of Canada, and more specifically Quebec, before the advent of the Canadian federation in 1867. The fate of the aboriginal peoples in the territory that was to become Quebec is also addressed.

Download the paper from SSRN at the link.

Kinsinger on Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774 @kkinsinger @RunnymedeSoc

Kristopher Kinsinger, Runnymede Society; Cardus, has published Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774 at 105 SCLR 2d 395 (2022). Here is the abstract.

The human rights and civil liberties guaranteed by the Canadian Charter of Rights and Freedoms did not spring into existence in 1982. Although this assertion might seem trite, the Charter has engulfed how scholars study constitutional rights and freedoms in Canada. As a result, many jurists are not fully aware of the broader history of Canadian civil liberties. This article seeks to remedy this amnesia through a study of the constitutionally significant statutes and documents enacted following the Seven Years’ War which promised varying degrees of religious freedom to British North America’s Roman Catholic population. Geopolitics played an undeniable role in shaping imperial policy regarding religious freedom in Canada. But it would be a mistake to conclude (as the Quebec Superior Court did in its 2021 ruling in Hak c. Procureur général du Québec) that these guarantees were little more than the product of a political calculus. While many colonial leaders in late 18th century Canada appeared to largely value religious freedom for its political utility, others came to articulate a decidedly aspirational vision for these guarantees. It was to the efforts of these latter individuals that the late W.P.M. Kennedy referred when he asserted that this period of history establishes “religious toleration [as] one of the corner-stones of the Canadian constitution”.

Download the article from SSRN at the link.

Kislowicz on Law, Faith, and Canada's Unwritten Constitution @HowieKislowicz @UCalgaryLaw

Howard Kislowicz, University of Calgary Faculty of Law, is publishing Law, Faith, and Canada’s Unwritten Constitution in volume 25 of the Review of Constitutional Studies (2021). Here is the abstract.

This article argues that the Canadian judicial attachment to the unwritten Constitution is faith-like. The faith-like aspects of this jurisprudence include the following explicit and implicit commitments:

 

1. The Constitution is incompletely and imperfectly stated by the constitutional text;

 

2. The Constitution is revealed through the act of interpretation in glimpses over time to authoritative interpreters;

 

3. The unwritten Constitution has provided and will provide reliable and morally good guidance for action, sometimes overtaking the written text of the Constitution; and

 

4. The precise nature and location of the Constitution eludes description, leading to reliance on metaphors and references to tradition.

 

This matters because the Canadian Constitution is often called upon, through the courts, to settle disputes surrounding religious practices. In resolving such disputes, the law must claim some form of authority over religion. I claim that the Court normatively justifies this assertion of authority by implicitly contrasting its own rationality with religion’s faith-based way of encountering the world. This claim is unstable because of the faith-like aspects of the law. This, however, is not a reason to overhaul the case law. It is instead a reason for judicial humility.

Download the article from SSRN at the link.

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.

Beaulac on Post-World War I/Quiet Revolution (1920-1970) Through the Lenses of Legal Interpretations and International Law @DroitUDM

Stephanie Beaulac, University of Montreal, Faculty of Law, is publishing Post-World War I/Quiet Revolution (1920-1970) – Through the Lenses of Legal Interpretations and International Law in Celebrating 150 Years of Caselaw in Canada (E. Mendes, ed. Toronto: LexisNexis, forthcoming). Here is the abstract.

The first theme is legal interpretation. What appears to be a mere matter of methodology in the discipline has ramifications in all areas of substantive law, through the impact of the Constitution, and by means of a generous approach to the whole corpus of law in this country. A significant case in the 1930s changed the paradigm according to which courts give meaning to the written law found in constitutional documents, and this change eventually extended to all legislative texts. The decision by the Judicial Committee of the Privy Council in Edward v. Canada (Attorney General), with what later became known as the metaphor of the “living tree”, marked the end of an era of strict legal construction and the beginning of a new model to ascertain the intention of the constituting authority in the Constitution Act, 1867, and also later in the Constitution Act, 1982 and the Canadian Charter. The second theme is interlegality, or the rules concerning the interaction between international law and domestic law, including the conclusion of treaties and the use by courts of non-national normativity. Again, it was in the 1930s when the courts of highest instance for Canada laid down the foundations for understanding the dynamic at play in this regard in the so-called Labour Conventions case. Indeed, given the principle of the separation of powers, as well as the federal structure of our country, the Privy Council had to find an equilibrium not only among the branches of governments, but also between the two levels (or orders) of constitutional authorities. In the end, this case recognized the plenitude of power of the federal government for the conclusion of international treaties, while holding that dualism meant that the (federal) Crown could make treaties, but that Parliament and the provincial legislatures needed to give legal effect to such conventions by means of statutes. The domestic implementation of treaty obligations had to be in line, rigorously, with the division of legislative powers under the Constitution. This articulation of interlegality has remained the applicable scheme to this day, although one feature has been challenged at the political level. Indeed, during the Quiet Revolution in the 1960s, the province of Quebec started to claim its own jus tractatus. Thus the second section of this chapter ends with a look at the “Gérin-Lajoie” statement. Finally, the conclusion will examine the significance of these historical developments for contemporary public law in Canada.

Download the full text of 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.

Schneiderman on Canadian Constitutional Culture: A Genealogical Account

David Schneiderman, University of Toronto Faculty of Law, is publishing Canadian Constitutional Culture: A Genealogical Account in the Oxford Handbook of the Canadian Constitution (Nathalie Des Rosiers, Patrick Macklem, and Peter Oliver eds., forthcoming).

How might one explain Canadian constitutional practices that have produced outcomes that are, within limits, heterogeneous and pluralistic? The chapter inquires into this question by tapping into constitutional culture, referring to dominant understandings of the fundamental norms that guide relations between citizens and states and between institutions of the state. Contemporary constitutional culture, it is argued, is partly the product of choices made in the past by imperial and early Canadian authorities. Taking a genealogical approach to Canadian constitutional culture, the chapter examines three episodes in Canada’s constitutional past that help to frame discussions about the constitutional present. Each illustrates the difficulty of governing those who are different; of aspiring to homogeneity while necessitating some heterogeneity in practice. They are representative samples of the waves of accommodation and assimilation that have been recurring features in Canada’s constitutional story and illustrative of the basic elements that make up Canadian constitutional culture.

Download the essay from SSRN at the link. 

McNeil on the Relativity of de Jure Sovereignty in Canada, 1600-2016/La Relativité de la Souveraineté de Jure au Canada, 1600-2016

Kent McNeil, York University, Osgoode Hall Law School, has published La Relativité de la Souveraineté de Jure au Canada, 1600-2016 (The Relativity of de Jure Sovereignty in Canada, 1600-2016) as Osgoode Legal Studies Research Paper No. 40/2016. Here is the abstract.

French Abstract: Ce texte examine les affirmations européennes de souveraineté sur le territoire aujourd’hui connu sous le nom de Canada en établissant une distinction entre les notions de souveraineté de facto et de jure. La souveraineté de fait requiert l’exercice d’une autorité effective sur un territoire, tandis que la souveraineté de jure est un concept abstrait et relatif, puisqu’il dépend en fait du choix d’appliquer un système juridique plutôt qu'un autre. Ce choix est en essence normatif, car il fait intervenir une question de légitimité. À la lumière de ce qui précède, l’auteur conclut que bien que le Canada possède aujourd’hui la souveraineté de fait sur son territoire, la souveraineté de jure qu’il prétend détenir affiche en réalité un déficit de légitimité, dans la mesure où celle-ci n’est pas reconnue au sein des systèmes juridiques autochtones.

English Abstract: This paper examines European assertions of sovereignty in what is now Canada by distinguishing between de facto and de jure sovereignty. De facto sovereignty requires actual exercise of authority in a territory, whereas de jure sovereignty is an abstract concept that depends on the application of a specific legal system. De jure sovereignty is relative because, while it may be valid in one legal system, it is not necessarily valid in other legal systems. A choice of law question is therefore involved that raises an issue of legitimacy. The paper concludes that, although Canada has de facto sovereignty over its territory today, its claim to de jure sovereignty lacks legitimacy as long as it is not acknowledged by Indigenous legal systems.

Note: Downloadable document is available in French.

Download the article from SSRN at the link.

Schneiderman on Lord Durham's Theory of the Imperial Constitution

David Schneiderman, University of Toronto Faculty of Law, is publishing Dividing Power in the First and Second British Empires: Revisiting Durham's Imperial Constitution in the Review of Constitutional Studies. Here is the abstract.

In his Report on the Affairs of British North America, Lord Durham proposed that “internal” government be placed in the hands of the colonists themselves and that a short list of subjects be reserved for Imperial control. Janet Ajzenstat maintains that Durham did not intend to formally restrict the authority of the new colonial legislature by dividing power. This paper argues otherwise: that Durham’s recommendation fell squarely within a tradition of distinguishing between the internal and external affairs of the colony. This was the imprecise but pragmatic distinction that American colonists invoked during the Stamp Act crisis as a means of curtailing imperial authority over internal taxation while maintaining their allegiance to the British Crown. It also was a division that Charles Buller relied upon in a constitution for New South Wales that he proposed prior to sailing to Canada as Durham’s principal secretary. Durham likely was drawing upon this tradition when he made his recommendation, a distinction that began to crumble away almost immediately. In the result, Canadians inherited a robust semblance of self-government, just as colonists during the Stamp Act crisis had desired, but without the need for revolution.

Download the article from SSRN at the link.