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.

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.

Zhou on The Historical and Formal Foundations of Canadian Constitutional Law @hanruzhou

Han-Ru Zhou, University of Montreal, has published The Historical and Formal Foundations of Canadian Constitutional Law in F. Chevrette and H. Marx, Constitutional Law: Fundamental Principles - Notes and Cases (Thémis), 2020. Here is the abstract.

Canadian constitutional history, since France ceded Canada to the British Crown, can be divided into five broad stages: the beginning of the British colonial regime, the establishment of “responsible government,” the establishment of the federal system, independence, and finally federal-provincial relations and patriation of the Constitution. The Constitution of Canada is made of a number of components that include certain British Acts and decrees, certain federal and provincial laws, constitutional conventions, the common law and case law, and, to a lesser extent, certain secondary sources, such as legal commentaries and literature, and federal-provincial agreements. The purpose of this chapter is twofold. On the one hand, it is to conduct a very brief review of the major periods of Canadian constitutional history and, on the other, to present the various formal components of Canada’s Constitution.

Download the chapter from SSRN at the link.

Adams on Japanese Canadians and the Canadian Constitution @ericadams99

Eric M. Adams, University of Alberta Faculty of Law, is publishing Constitutional Stories: Japanese Canadians and the Constitution of Canada  in volume 35 of Australiasian Canadian Studies. Here is the abstract.

Constitutions, and the law and culture they generate, constitute in the broad, diverse, and conflicting stories we tell about places, peoples, and nation states. Significant constitutional anniversaries have always marked an occasion for creating and challenging constitutional stories. The 150th anniversary of Confederation offers an opportunity to reflect on the stories that Canadian constitutional history has to contribute to the country’s broader constitutional narrative and self-understanding. In particular, I explore how significant moments in the constitutional history of Japanese Canadians reveal the relationship between constitutional failure and meaningful moments of constitutional resistance and change. In doing so, we see the capacity of constitutional history, often abandoned by scholars for the more immediate imperatives of contemporary constitutional concerns, as integral to a full understanding of Canadian constitutional law, culture, and politics.

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.

Adams and Stanger-Ross on The Unlawful Dispossession of Japanese-Canadians During WWII @ericadams99 @UVicHistory

Eric M. Adams, University of Alberta Faculty of Law, and Jordan Stanger-Ross, University of Victoria, are publishing Promises of Law: The Unlawful Dispossession of Japanese Canadians in volume 54 of the Osgoode Hall Law Journal. Here is the abstract.

This article is about the origins, betrayal, and litigation of a promise of law. In 1942, while it ordered the internment of 21,457 Canadians of Japanese descent, the Canadian government enacted orders-in-council authorizing the Custodian of Enemy Property to seize all real and personal property owned by Japanese Canadians living within coastal British Columbia. Demands from the Japanese Canadian community and concern from within the corridors of government resulted in amendments to those orders which made clear that the Custodian held that property as a “protective” trust, and would return it to Japanese Canadians at the conclusion of the war. That is not what happened. In January 1943, a new order-in-council authorized the sale of all seized Japanese-Canadian-owned property. The trust abandoned, a promise broken, the Custodian sold everything it had taken. This article traces the promise to protect property from its origins in the federal bureaucracy and demands on the streets to its demise in Nakashima v Canada, the Exchequer Court decision holding that the legal promise carried no legal consequence. We argue that the failure of the promise should not obscure its history as a product of multi-vocal processes, community activism, conflicting wartime pressures, and competing conceptions of citizenship, legality, and justice. Drawing from a rich array of archival research, our article places the legacy of the property loss of Japanese Canadians at the disjuncture between law as a blunt instrument capable of gross injustice and its role as a social institution of good faith.

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. 

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.

Bakht and Collins on Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada

Natasha Bakht and Lynda Margaret Collins, both of the University of Ottawa, Common Law Section, have published The Earth is Our Mother: Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada as Ottawa Faculty of Law Working Paper No. 2016-24. Here is the abstract.

For centuries, the Canadian state engaged in systematic religious persecution of Aboriginal peoples through legal prohibitions, coercive residential schooling and the dispossession and destruction of sacred sites. Though the Canadian government has abandoned the criminalization of Aboriginal religious practices, and is beginning to come to grips with the devastating legacy of residential schools, it continues to permit the destruction and desecration of Aboriginal sacred sites. Sacred sites play a crucial role in most Aboriginal cosmologies and communities; they are as necessary to Aboriginal religions as human-made places of worship are to other religious traditions. The ongoing case of Ktunaxa Nation v BC represents the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion under section 2(a) of the Charter. Building on the ground-breaking work of John Borrows and others, we will argue that Aboriginal spiritual traditions have a home in this provision and merit a level of protection equal to that enjoyed by other faith groups in Canada. In general, section 2(a) will be infringed by non-trivial state (or state-sponsored) interference with an Aboriginal sacred site. Moreover, the approval of commercial or industrial development on an Aboriginal sacred site without consent and compensation will generally be unjustifiable under section 1.

Download the article from SSRN at the link.

"You Have the Right To Remain Silent": In the U.S. and Canada

Allan Levine discusses the history of Miranda v. Arizona, the difference between such constitutional rights in the U.S. and Canada, and (briefly) how Canadian viewers of U.S. law and order shows might take away the wrong message about their rights. Here, for the National Post.

Schneiderman on Multiculturalism in Canadian Constitutional Culture

David Schneiderman, University of Toronto Faculty of Law, has published Multiculturalism in Canadian Constitutional Culture: Domesticating Difference. Here is the abstract.

If neither magic nor gods govern the public sphere, how should disagreement over fundamental values be mediated in secular states? Canada often is touted as a model for others to emulate in solving the problem of living together in divided societies, partly by reason of its policy on multiculturalism. This paper is a reflection on the origins and limits of this element of Canadian constitutional culture. Though Canadian constitutional culture accommodates difference rather well, it has discernible limits. By relying principally on liberal rights like freedom of religion, the Canadian model aims to domesticate difference. Multiculturalism, this paper argues, poses no real threat to dominant cultural values. Its aim, instead, is to tame and assimilate difference, a policy traceable to Canada’s origins in the eighteenth century.

Download the article from SSRN at the link.

DesBaillets on Magna Carta and Contemporary Canadian Law

David DesBaillets, University of Quebec at Montreal (UQAM), Faculty of Law; University of Ottawa, Faculty of Law, has published Symbolism and Significance: The Place of Magna Carta in Contemporary Canadian Law. Here is the abstract.

When the e-mail arrived in my inbox inviting me to view the Magna Carta I was, as I imagine any law student would be, utterly thrilled. The event was part of the international celebration of the 800th anniversary of the ancient Latin legal document from the 13th century BCE that would see a handful of surviving copies tour the world, including a Canadian sojourn, and be given the sort of red carpet treatment normally reserved for rock stars and foreign heads of State.

Download the article from SSRN at the link.

Muniz-Fraticelli and David on Religious Institutionalism and the Canadian Charter of Rights and Freedoms

Victor M. Muniz-Fraticelli, McGill University Faculty of Law and Department of Political Science, and Lawrence David, McGill University Faculty of Law, are publishing Religious Institutionalism in a Canadian Context in the Osgoode Hall Law Journal. Here is the abstract.

Does freedom of religion protect religious institutions, or does it only protect the individual religious conscience? Canadian jurisprudence after the Charter of Rights and Freedoms takes a decidedly individualist turn, deliberately avoiding the question of the rights of religious institutions. This individualist focus neglects the historical trajectory of religious freedom, the social understanding of religious faith by religious adherents themselves, and the institutional structures in which religion emerges and develops, and through which it is ultimately protected. An institutional account of religious liberty can complement the individualist account, as it better explains the legal order, better reflects actual religious practice, and better preserves both institutional and individual religious liberty. Recent decisions of the Supreme Court of Canada go some way towards correcting this individualist bias, but balk at resolving the legal status of religious institutions. This persistent ambiguity will prove problematic in controversies over religious autonomy already making their way through the courts.

Download the article from SSRN at the link.

How Should Courts Evaluate Religious Sincerity?

Anna Su, University of Toronto Faculty of Law, has published Judging Religious Sincerity. Here is the abstract.

Religion in law is notoriously hard to define. And yet because religion is legally protected and enshrined in national constitutions and international law as part of the liberal commitment to freedom of religion, courts in various jurisdictions are left with the essential task of determining what religion is for the purpose of protecting it. One way courts have addressed the uneasy relationship between religion and secular law is to abstain from any involvement in the resolution of religious questions. Thus when confronted with accommodation claims from otherwise generally applicable laws or regulations on religious grounds, courts have largely focused instead on the sincerity of the believer as the primary factor of whether to grant the claim. In this paper, I look at three judicial settings: the U.S. Supreme Court, the Supreme Court of Canada and the European Court of Human Rights and consider their respective approaches to sincerity in accommodation claims. I argue that we must go beyond this uncritical embrace of the sincerity requirement, and consider the problems and costs associated with it.

Download the article from SSRN at the link.

Creeping Americanization: Canadian Constitutional Practice and the Influence From South of the Border

David Schneiderman, University of Toronto Faculty of Law, has published ‘Introduction’ to Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture in Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture (University of Toronto Press, 2015). Here is the abstract.

Situated between two different constitutional traditions, those of the United Kingdom and the United States, Canada has maintained a distinctive third way: federal, parliamentary, and flexible. Yet in recent years it seems that Canadian constitutional culture has been moving increasingly in an American direction. Through the prorogation crises of 2008 and 2009, its senate reform proposals, and the appointment process for Supreme Court judges, Stephen Harper’s Conservative government has repeatedly shown a tendency to push Canada further into the US constitutional orbit. Red, White, and Kind of Blue is a comparative legal analysis of this creeping Americanization, as well as a probing examination of the costs and benefits that come with it. Comparing British, Canadian, and American constitutional traditions, David Schneiderman offers a critical perspective on the Americanization of Canadian constitutional practice and a timely warning about its unexamined consequences.

Download the Introduction from SSRN at the link.

Constitutional History and National Identity In Canada

Eric M. Adams, University of Alberta Faculty of Law, is publishing Canadian Constitutional Identities in volume 38 of the Dalhousie Law Journal. Here is the abstract.

Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada…Desire…a Constitution similar in Principle to that of the United Kingdom,” most of Canada’s constitutional history can be understood as the search for a distinctly Canadian constitutional identity. Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada’s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and voices, this article argues that the powerful yearning for identity operated as a driving force in Canadian constitutional law, politics, and culture in an era before the catalytic arrival of the Canadian Charter of Rights and Freedoms.

Download the text of the article from SSRN at the link.

Canadian Journal of Women and the Law/Special Issue: After Equality

Now available via Project MUSE

Canadian Journal of Women and the Law/Revue Femmes et Droit

Volume 27, Number 1, April 2015 

Special Issue: After Equality / Après l'égalité

http://bit.ly/cjwl271pm

Introduction: After Equality

Robert Leckey, Régine Tremblay              

Introduction : Après l'égalité

Robert Leckey, Régine Tremblay              

D'un mythe à l'autre : de l'ignorance des lois à la présomption du choix éclairé chez les conjoints en union libre

Hélène Belleau

Nouvelles normativités de la famille : la garde partagée au Québec, en France et en Belgique

Denyse Côté, Florina Gaborean

Vulnerability, Equality, and Animals

Maneesha Deckha         

Comprendre le besoin de reconnaissance légale en matière de pluriparentalité : pistes de réflexion à partir des coparentalités gaies et lesbiennes

Cathy Herbrand               

Surrogates in Quebec: The Good, the Bad, and the Foreigner

Régine Tremblay             

Cohabitation Reform in England and Wales: Equality or Equity

Simone Wong   

               

Book Reviews / Chroniques bibliographiques

Elizabeth A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women's Activism, reviewed by Doris Buss and Jennifer Koshan

Robert Leckey, ed., After Legal Equality: Family, Sex, Kinship, reviewed by Darren Rosenblum

Submission Information

The CJWL/RFD is Canada's oldest feminist legal periodical. Since it began in 1985, the journal has provided a forum in which feminist writers from diverse backgrounds, speaking from a wide range of experience, can exchange ideas and information about legal issues that affect women. We are looking to build on this tradition and remain committed to reflecting a diversity of political, social, cultural, and economic thinking, unified by a shared interest in law reform.

We invite submissions from people who are engaged in feminist analysis of socio-legal issues that reflect a range of approaches, including multidisciplinary, action-focused, theoretical, and historical, and that reflect linguistic and regional differences in Canada. We particularly encourage submissions authored by women from different backgrounds, disciplines and jurisdictions who are doing new feminist work.

The CJWL/RFD is seeking papers for publication in the following sections of the CJWL/RFD: articles, review essays, commentaries, case comments, research notes, book reviews, and notes on Canadian and International events of interest to our readers. Comments on previously published materials are also welcome. The journal is a refereed publication.

Canadian Journal of Women and the Law/Revue Femmes et Droit is available online at:

CJWL Online - http:// bit.ly/cjwlonline

Project MUSE - http:// bit.ly/cjwl_pm

Interpretative Rules and the Canadian Charter

Benjamin J. Oliphant, University of Toronto, is publishing Taking Purposes Seriously: The Purposive Scope and Textual Bounds of Interpretation Under the Canadian Charter of Rights and Freedoms in a slightly altered form in the University of Toronto Law Journal. Here is the abstract.

In order for judicial review under the constitution to be compatible (sic) the rule of law, there must be some tangible constraints on judicial interpretation. The author puts forward an account of interpretation under the Charter of Rights and Freedoms that views both the text and purposes underlying it as meaningful constraints on the range of meanings available to interpreters. In particular, the author seeks to demonstrate that ‘purposivism’ as a method of interpretation can, and frequently has in the Canadian context, operated to narrow the scope of vague and under-determinate constitutional guarantees. The author criticizes more expansive forms of purposivism, which seek not only to inform the meaning of the words included in the Charter, but also to give those purposes said to animate the guarantees independent legal force. This point is illustrated with particular reference to the Supreme Court of Canada’s right to vote jurisprudence. The author concludes that these more aggressive approaches to purposivism risk elevating judicially-ascertained purposes to the same legal status as the language enacted into law, and undermine the defence frequently offered in support of the legitimacy of judicial review under the Charter – that it stems from the deliberate choices of the people. 

Download the draft of the article from SSRN at the link.