Canadian Constitutional Law Research Articles

Constitutional Law around the globe: judicial review in Canada and the “leave to appeal” to the Supreme Court

This paper exploring the leave to appeal in Canadian Constitutional Law is the third of the series “Constitutional Law Around the Globe”. This section of the series focuses on “Judicial Review and the Filters to Access Supreme and Constitutional Courts”. The first paper in the row, published in the year 2019, analyzed the Constitutionality Priority Question (Question Prioritaire de Constitutionnalité – QPC) in France. In a second paper, we analyzed the writ of certiorari of the U.S. Supreme Court. In this third text, we approach the process according to which the Supreme Court of Canada picks cases from hundreds that reach it every year and the strategies that the Court adopts to select these cases. The paper focuses specifically on Section 41(1) of the Supreme Court Act (amended in 1975), the leave to appeal and their operation in practice.

Is Canadian Constitutional Law Canadian?

In 2017, Anthea Roberts published an important book, Is International Law International?, in which she asked whether there was actually a unified approach to international law across international jurisdictions or whether approaches to international law differed significantly within different cultural and educational systems. She went further than asking that question but went on to amass significant evidence on educational profiles of academics in different countries, international law textbooks within different national contexts, and ultimately different and competing national traditions of international law. While I will certainly not here amass the same quantity of material in response to the question, I raise here a question inspired by hers, asking “Is Canadian Constitutional Law Canadian?”
 To be clear, I ask that not in the sense of whether Canadian constitutional law is distinctive relative to the traditions of other states, such as the United Kingdom or United States, but rather whether Canadian constitutional law is unified at a pan Canadian level. Is there one patriated body of constitutional law across Canada, or are there sufficient indications as to raise questions about such a claim that would warrant further and more detailed investigation?

Reflections on ‘Equality, Equity, and Algorithms: Learning from Justice Rosalie Abella’

This article responds to Martha Minow’s article ‘Equality, Equity, and Algorithms: Learning from Justice Rosalie Abella,’ from the perspective of a Canadian labour lawyer, equality rights litigator, and quondam academic. The article considers Minow’s concerns about whether algorithmic decisions are justiciable against the backdrop of Abella J’s superb synthesis of Canadian constitutional equality law in Fraser v Canada. It also comments on the extent to which the Supreme Court of Canada’s subsequent decision in R v Sharma has undermined that synthesis.

Constitutional Law Around the Globe: Selection of Justices for the Supreme Court of Canada

This paper exploring the Selection of Supreme Court Justices in Canada is part of the series “Constitutional Law Around the Globe”. This topic of the series focuses on the “selection of justices in Supreme and Constitutional Courts” in contemporary democracies. First in the row, this paper analyzes the selection of Supreme Court Justices in Canadian Constitutional Law and how transparent and accountable is the process. A final paper will approach the legal systems composing the series in a comparative perspective.

On the breach: Identifying infringements of section 35 rights

Section 35 of the Constitution Act, 1982, the Supreme Court of Canada has said, protects existing Aboriginal and treaty rights from unjustified infringement at the hands of federal and provincial legislatures and governments. To give meaningful effect to section 35’s protection, we need, therefore, to understand what counts as infringement of such rights and why. The Supreme Court’s own jurisprudence to date on this question, alas, disappoints; it does not withstand close critical scrutiny. This article calls attention to several shortcomings and inconsistencies in that jurisprudence and proposes for initial consideration a more inclusive approach to infringement identification, one that draws a sharper distinction between the infringement and justification inquiries. Adoption of such an approach, however, could have unwelcome substitution effects, prompting cautious courts to be more selective when asked to authenticate future claims of Aboriginal right, more penurious when construing the constitutionally protected scope of particular treaty or Aboriginal rights and/or more generous to governments during the justification inquiry. If the goal is to optimize the protection that Canadian constitutional law affords to treaty and Aboriginal rights, we shall need to be mindful of the interdependence among the authentication, infringement, and justification inquiries, and we shall need to understand much more clearly than we currently do just where the outer limits are beyond which mainstream Canadian law cannot, or will not, countenance Indigenous ways and why.

Climate Disruption in Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act

Abstract This analysis considers the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, in which a majority of the Court upheld as constitutional national carbon pricing legislation. The decision presents an excellent illustration of the legally-disruptive nature of climate change. Illustrating that nothing is static in a climate disrupted world—including constitutional law—this article identifies three shifts the Court makes in relation to climate disruption. First, the decision represents a shift away from climate denialism towards a judicial willingness to confront the environmental, social and legal implications of climate change for Canada. Second, the majority embraces and perhaps strengthens a ‘culture of justification’ in climate decision-making. Third—and more tentatively—the majority moves beyond the erasure of Indigenous peoples from Canadian federalism but still yet fails to engage with Indigenous laws and jurisdiction as part of Canada’s constitutional response to climate change.

Making Sense of a Complex Notion: Debates on State Religious Neutrality in Canada — A View from Quebec

Abstract Under Canadian constitutional law, state neutrality acts as an implicit organizing principle for the relations between the state and religions. Neutrality, however, is a polysemic word: conceptions of neutrality vary. Competing versions of neutrality feature in the decisions of Canadian courts. This is starkly evident in decisions that originate from Quebec, where judges have harboured divergent views of neutrality on matters such as the reciting of prayers in town hall meetings or the teaching of religious diversity in schools. This article analyses how the Canadian Supreme Court has manoeuvred through competing conceptions of state religious neutrality. Initially divided, the Court seems to have eventually opted for a type of neutrality that allows the state to recognize the existence of religions in laws and policies, but that also prevents it from indoctrination and from arbitrating between competing viewpoints within religions. This view of neutrality, I argue, is consistent with the principle of multiculturalism and with the Court’s characterization of a ‘free and democratic society’, as this notion is understood in Canada.

Climate Disruption in Canadian Constitutional Law: References re Greenhouse Gas Pollution Pricing Act

This analysis considers the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, in which a majority of the Court upheld as constitutional national carbon pricing legislation. The decision presents an excellent illustration of the legally-disruptive nature of climate change. Illustrating that nothing is static in a climate disrupted world—including constitutional law—this article identifies three shifts the Court makes in relation to climate disruption. First, the decision represents a shift away from climate denialism toward a judicial willingness to confront the environmental, social and legal implications of climate change for Canada. Second, the majority embraces and perhaps strengthens a “culture of justification” in climate decision-making. Third—and more tentatively—the majority moves beyond the erasure of Indigenous peoples from Canadian federalism but still yet fails to engage with Indigenous laws and jurisdiction as part of Canada’s constitutional response to climate change.

CANADIAN LIVING TREE DOCTRINE OF CONSTITUTIONAL INTERPRETATION

This paper aims to tackle the issue of constraints to constitutional interpretation in light of the Living Tree metaphor from the Canadian Constitutional Law. It further scrutinizes this doctrine in contrast to the Originalism and the Living Constitution doctrines developed in the United States. As a conclusion, the article acknowledges that the Living Tree metaphor has the merit for proposing a reconciliation between fixidity and flexibility in interpretation of the constitution. Nevertheless, in order to convey more objectivity and constraints to interpretation, it should be associated with consideration to precedents and incrementalism.

Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Emissions Legislation on Provincial Jurisdiction

Federal regulation of greenhouse gas (GHG) emissions presents a difficult challenge for Canadian constitutional law. The federal government’s legislation to implement a national minimum standard of GHG emissions pricing, the Greenhouse Gas Pollution Pricing Act (GGPPA), and the trio of reference cases launched by Saskatchewan, Ontario, and Alberta questioning its constitutional validity, have brought the law and politics of GHG emissions pricing to the forefront of Canadian federalism. In the two appellate court decisions delivered to date, the legislation has been sustained as a valid exercise of Parliament’s power to legislate for the Peace, Order, and Good Government (POGG) of Canada. In each case, however, judges have expressed significant concern with respect to the impact of the legislation on provincial jurisdiction.
 We draw on recent and historic jurisprudence to characterize conceptual errors that have bedevilled POGG, specifically in the tendency to overestimate its impact on provincial jurisdiction. We then examine the existing interpretive principles that limit POGG’s ability to upend the critical balance inherent in the division of powers. Finally, we discuss how a properly empowered, calibrated, and constrained POGG relates to the GGPPA. We argue that the reduction of national GHG emissions constitutes a valid federal subject under the national concern branch of POGG, and that the GGPPA is a valid exercise of federal jurisdiction. We see no reason under the double aspect doctrine and cooperative federalism why provinces would lose any existing provincial jurisdiction as a result of the implementation of the GGPPA. Rather, a restrained approach to paramountcy, and the mechanics of the GGPPA itself suggest that provincial and federal legislation will work concurrently on GHGs. That seems entirely appropriate given the nature of the climate change crisis before us. In the legislative challenge of our time, we believe Canada’s Constitution is up to the task.

Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Gas Emissions Legislation on Provincial Jurisdiction

Federal regulation of greenhouse gas (GHG) emissions presents a difficult challenge for Canadian constitutional law. The federal government’s legislation to implement a national minimum standard of GHG emissions pricing, the Greenhouse Gas Pollution Pricing Act (GGPPA), and the trio of reference cases launched by Saskatchewan, Ontario, and Alberta questioning its constitutional validity, have brought the law and politics of GHG emissions pricing to the forefront of Canadian federalism. In the two appellate court decisions delivered to date, the legislation has been sustained as a valid exercise of Parliament’s power to legislation for the Peace, Order, and Good Government (POGG) of Canada. In each case, however, the Courts have expressed significant concern with respect to the impact of the legislation on provincial jurisdiction. We draw on recent and historic jurisprudence to characterize conceptual errors that have bedevilled POGG, specifically in the tendency to overestimate its impact on provincial jurisdiction. We then examine the existing interpretive principles that limit POGG’s ability to upend the critical balance inherent in the division of powers. Finally, we discuss how a properly empowered, calibrated, and constrained POGG relates to the GGPPA. We argue that the reduction of national GHG emissions constitutes a valid federal subject under the national concern branch of POGG, and that the GGPPA is a valid exercise of federal jurisdiction. We see no reason under the double aspect doctrine and cooperative federalism why provinces would lose any existing provincial jurisdiction as a result of the implementation of the GGPPA. Rather, a restrained approach to paramountcy, and the mechanics of the GGPPA itself suggest that provincial and federal legislation will work concurrently on GHGs. That seems to us entirely appropriate given the nature of the climate change crisis before us. In the legislative challenge of our time, we believe Canada’s Constitution is up to the task.

‘A Constitution Similar in Principle to that of the United Kingdom’: The Preamble, Constitutional Principles, and a Sustainable Jurisprudence

In recent years, unwritten constitutional principles often find their place in Canadian constitutional law via their supposed foothold in the part of the preamble to the Constitution Act, 1867 that refers to “a Constitution similar in Principle to that of the United Kingdom”. Principles such as judicial independence, democracy, federalism, constitutionalism and the rule of law, and protection of minorities have been derived from the preamble. This article looks through over a hundred years of Supreme Court of Canada case law in order to determine what that preambular phrase has meant over time. It turns out that in the years immediately after 1867, it referred to what we now call political constitutionalism. A hundred or so years later, this same passage came to be associated with legal constitutionalism, though the Court has more recently backed away from the fullest implications of that approach. This article proposes a reading of the preamble and constitutional principles that is consistent with recent Supreme Court of Canada case law and defensible given current jurisprudential trends. That reading gives due regard to the traditional meaning of the rule of law all the while acknowledging that there are genuinely hard cases (particularly prevalent at the Supreme Court level) where neither rules nor principles provide clear answers. In those circumstances, respect for the rule of law requires as much wisdom and judgement as it does application of more prosaic legal skills. This article therefore recommends what is here referred to as a “sustainable jurisprudence” that offers an essential bridge between by now orthodox Dworkinian principle-based reasoning and contextual studies more commonly found in socio-legal, feminist, and other critical literature.

The Historical and Formal Foundations of Canadian Constitutional Law

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.

From Dualism to Cooperative Federalism and Back? : Evolving and Competing Conceptions of Canadian Federalism

This chapter documents the evolution from a dualist - “watertight compartments” - conception of Canadian federalism, to one that must acknowledge an increased number of intergovernmental cooperative ventures. It first examines Canada’s fundamentally dualist federal architecture before looking at the empirical reality of cooperative federalism which frequently challenges this structural dualism. It then considers how the rise of cooperative federalism influenced the evolution of the interpretive doctrines underpinning the law of Canadian federalism. Finally, it analyses the normative strength and scope of cooperative federalism, concluding that the impact of cooperative federalism in Canadian constitutional law remains tamed by the dualist conception of federalism that still underlies the Supreme Court of Canada’s federalism case law.

The Constitutional Status of the Administrative State

This paper considers the constitutional status of the administrative state. It argues that, after decades of growth in size, reach, and power, the administrative state can now be understood as an architectural feature of the Canadian constitution. To make this argument, the paper first provides an account of the concept of architecture in Canadian constitutional law and the analytical framework it offers for thinking through the status question. It then looks to developments in Canadian public law that shed light on the status of the administrative state. The analysis focuses on three such developments: the expansion of the role of administrative decision-makers to exercise constitutional jurisdiction and duties; the narrow limits on administrative jurisdiction and design, as facilitated through judicial interpretation of section 96 of the Constitution Act, 1867; and the well-established judicial posture of deference to administrative decision-makers. These developments not only reflect the essential role that administrative decision-makers have come to play in contemporary Canadian government, but also the impact of the administrative state on the constitutional position and responsibilities of the judiciary, the executive, and the legislature. With implications across regulatory sectors and branches of government, and in order to better understand the flattening structure of Canadian constitutionalism, this paper ultimately calls for a shift out of the paradigm of growth that has anchored much administrative law discourse and into a paradigm shaped by an interest in the status of the administrative state in the public order.

“A Constitution Similar in Principle to That of the United Kingdom”: The Preamble, Constitutional Principles, and a Sustainable Jurisprudence

In recent years, unwritten constitutional principles often find their place in Canadian constitutional law via their supposed foothold in the part of the preamble to the Constitution Act, 1867 that refers to “a Constitution similar in Principle to that of the United Kingdom”. Principles such as judicial independence, democracy, federalism, constitutionalism and the rule of law, and protection of minorities have been derived from the preamble. This article looks through over a hundred years of Supreme Court of Canada case law in order to determine what that preambular phrase has meant over time. It turns out that in the years immediately after 1867, it referred to what we now call political constitutionalism. A hundred or so years later, this same passage came to be associated with legal constitutionalism, though the Court has more recently backed away from the fullest implications of that approach. This article proposes a reading of the preamble and constitutional principles that is consistent with recent Supreme Court of Canada case law and defensible given current jurisprudential trends. That reading gives due regard to the traditional meaning of the rule of law all the while acknowledging that there are genuinely hard cases (particularly prevalent at the Supreme Court level) where neither rules nor principles provide clear answers. In those circumstances, respect for the rule of law requires as much wisdom and judgement as it does application of more prosaic legal skills. This article therefore recommends what is here referred to as a “sustainable jurisprudence” that offers an essential bridge between by now orthodox Dworkinian principle-based reasoning and contextual studies more commonly found in socio-legal, feminist, and other critical literature.

A Tale of Two Metaphors: A Narrative Take on the Canadian Constitution

This article sheds light on the fundamental role that narratives and metaphors play in shaping how we think, talk, and argue about the Canadian Constitution. More specifically, the article makes the case that two competing types of metaphors—dynamic and static—largely fashion Canadian constitutional law. The influential metaphors of the “living tree” and “constitutional architecture” represent prime examples of these central conceptual categories. This article argues that each of these categories stands for different views of the Constitution and, as such, influences the types of stories we tell about it. The case studies undertaken here show that each metaphor sustains dominant narratives about the Constitution, narratives whose structure mostly correspond to the archetypal “birth” and “rescue” stories. As narratives and metaphors influence our cognition and help us reason about abstract concepts and ideas (a large part of our work as jurists) we would be wise to pay closer attention to them. This article is a call, in short, for greater narrative awareness.

Federalism and fragmentation: Addressing the possibilities of a food policy for Canada

Canadian federalism poses unique challenges for the development of a national food policy. Under the Constitution Act, 1867, the federal government and the provinces are granted powers to govern exclusively in certain areas and to share jurisdiction in others. Where one level of government has exclusive jurisdiction, the other level of government is not permitted to interfere. However, good food system governance requires addressing policy coherence and coordination horizontally, across sectors such as agriculture, trade, health, finance, environment, immigration, fisheries, social protection, and vertically between the federal government, the provinces, and international and transnational actors. The development of a national food policy for Canada offers an opportunity to harmonize law and policymaking, and clarify the key roles that all levels of government play in the development and governance of food systems. This will require identifying sites of conflict and overlap, but also spaces for collaboration, coordination, and innovation. A national food policy will necessarily have to work within the constraints of Canadian constitutional law, but federalism and the division of powers can be harnessed to create a more just, equitable, democratic and sustainable food system.

The Unbroken Supremacy of the Canadian Constitution

This article revives the awareness of the heritage and inheritance of section 52(1) of the Constitution Act, 1982. It exposes the pre-1982 legal basis for constitutional judicial review in Canada and the mechanics of the transition in 1982 to an express supremacy clause. This article also challenges two popular notions in Canadian constitutional law today. The first is that the addition of section 52(1) in 1982 transformed Canada from a state governed by parliamentary supremacy into a state governed by constitutional supremacy. The second is that the Canadian judiciary became the guardian of the Canadian Constitution in 1982. Contrary to conventional wisdom, 1982 was, with respect to the supremacy of the Canadian Constitution, a moment of continuity rather than a break with the past.

The Canadian Living Tree Doctrine as a Comparative Model of Evolutionary Constitutional Interpretation

Abstract This paper starts with a general contextualisation of how Canadian constitutional law acquired an important role in global constitutional conversations in recent decades. It then considers, in particular, the well-known Canadian Living tree doctrine as a model of evolutionary constitutional interpretation, and argues that it is a relevant case study for our purposes since it is able to precisely link the ‘history, evolution, influence and reform’ of constitutional law in a comprehensive doctrine. The doctrine's comparative influence will be analysed in particular: the Living tree is especially relevant, since its comparative influence is traceable both in the work of courts that are historical participants in transnational judicial conversations, and courts that are new players in the game.