Canadian Constitutional Law Research Articles

Bordering the Constitution, Constituting the Border

It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site in which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS) – a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation – I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border in two fundamentally different ways. On one hand, it conceives of the border as a multiple, moving barrier that can be selectively positioned outside Canada’s territorial boundaries to expand state power outward. On the other hand, and at the same time, it conceives of the border as a singular and static barrier positioned at the edge of territory, and asserts this as the “actual” border. By simultaneously conceiving of the border in these two conflicting ways – and maintaining the fiction that Canada’s extraterritorial borders are not its “actual” borders – the MBS frustrates a basic principle of Canadian constitutional law. It not only deprives refugees of constitutional protection, but also more fundamentally, of legal and constitutional recognition. To illuminate the legal and conceptual violence of the MBS, I turn to the work of Hannah Arendt on the “right to have rights”. By reference to the Arendt’s work, I argue that the MBS not only re-charts Canada’s national boundary, but also alters the juridical relationships produced by that boundary, and the rights and duties they prescribe. I conclude by advocating for better alignment between Canada’s constitutional commitments and its border laws and policies. I argue that to give meaning to the “right to have rights” within Canada’s constitutional framework, and to ensure that those subject to the force of Canadian law may also benefit from its protection, Canada must ensure that wherever its legal borders go, the constitution follows.

Has the Supreme Court of Canada Rejected 'Originalism'?

The notion that “originalism” is fundamentally incompatible with Canadian constitutional law has achieved the status of dogma, both in the courts and the Canadian legal academy. However, this understanding tends to be premised upon the rejection of early and undertheorized conceptions of originalism that have been largely left behind. Originalism has evolved considerably over the past few decades, as scholars from across the political spectrum have developed more nuanced and defensible approaches to constitutional interpretation, which by no means freeze constitutional law in the era of constitutional enactment. In fact, the two core propositions upon which Canada’s anti-originalist myth is based – that constitutional law must evolve to meet new social realities, and that the framers intentions may be relevant, but not binding – have been largely embraced by modern originalist scholarship. Drawing upon the vast diversity of originalist thought in the United States, the authors reconsider the cases most frequently cited for the belief that originalism is fundamentally incompatible with Canadian constitutional thought, and show how many fit rather easily within the new originalist paradigm. The authors conclude that once the frequent compatibility between various forms of originalism and living constitutionalism are appreciated, there is no reason to conclude that originalist thinking is inconsistent with Canadian constitutional law and practice, and no basis for relying on outdated assumptions or caricatures for its rejection.

The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today

What ultimately counts as law and as the legitimate processes of its generation, adjustment, and destruction are both empowered and constrained by the constitutional order from which they derive life. A constitutional framework, in turn, reflects unique understandings about what there is and how one can know: a lifeworld. Reflecting on his own experience, the author emphasizes how legal education harms when it fails to acknowledge and to begin to articulate the lifeworld beneath any system of law it aims to impart. There are serious questions to be taken up in considering whether we may move law between constitutional contexts without subjugating the law of one community to the lifeworld of another. The author asserts this is particularly important with respect to Canadian law schools’ recent interest in teaching Indigenous peoples’ own systems of law. He argues that Canadian (liberal) and Indigenous (what he calls “rooted”) constitutionalisms are not only different, but different in kind. As such, efforts to articulate Indigenous law within the forms of liberal constitutionalism ignore or trivialize the ongoing significance of Indigenous lifeworlds to governance of Indigenous lives today. Many Indigenous legal scholars are adverting to this tension, moving on from simply making space for Indigenous law in the academy to asking whether and how this may be done. The author briefly canvasses Indigenous theorists (students, professors, lawyers, and elders) whose works present Indigenous systems of law within their own lifeworlds. Tracking the lifeworld-law relationship, he proposes three reforms to legal education in Canada: (1) teach that all law is storied; (2) teach that Canadian constitutional law is a species of liberal constitutionalism; (3) require students to enrol in a prerequisite on an Indigenous people’s constitutional order before enrolling in a course on their law. By way of example, he concludes with the syllabus for an intensive course he designed and taught on Anishinaabe constitutionalism.

The Aboriginal Charter of Rights: The Royal Proclamation of 1763 and the Constitution of Canada

Since the nineteenth century, the Royal Proclamation of 1763 has been described as the “Charter” of rights for Aboriginal peoples in Canada. In 1982, the Proclamation was explicitly mentioned in the Canadian Charter of Rights and Freedoms. Yet the legal and constitutional status of the Proclamation remains something of a puzzle in Canadian law today. It is celebrated politically as a landmark instrument in the recognition of Aboriginal rights, and yet judges have read the Proclamation narrowly in terms of the rights it protects and the areas within Canada to which it applies. The author considers the evolving legal status of this historic document within Canadian constitutional law, concluding that as a source of positive law it is more or less a dead letter, but as a source of unwritten legal principle that continues to shape the Crown-Aboriginal relationship in Canada, the Proclamation is still very much alive over 250 years after it was issued.

Succession to the Throne and the Architecture of the Constitution of Canada

In 2013, the United Kingdom Parliament amended the law governing succession to the throne, eliminating certain rules that discriminated on the basis of gender and religion. These changes were agreed to politically by all sixteen ‘Commonwealth realms’, including Canada, that recognize the Queen as their head of state or government. But what steps must be taken legally for the laws of each realm to align with the new rules of royal succession in the United Kingdom? The author considers this question in relation to Canada. It has been argued that Canada must formally amend its Constitution to ensure that the identity of the Crown in Canada matches that of the Crown in the United Kingdom. The government of Canada, however, has assumed that no change to Canadian law is needed. The author considers the competing arguments on this point and concludes that, in light of the basic structure or ‘architecture’ of the Constitution of Canada, no formal amendment to Canadian constitutional law is required in response to the new rules of royal succession adopted in the United Kingdom.

Cooperative Federalism in Search of a Normative Justification: Considering the Principle of Federal Loyalty

At first sight, federal loyalty does not mean much in Canadian constitutional law, if it means anything at all. However, as we will see in this paper, there are already some aspects of Canadian constitutional law which can be said to enshrine obligations pertaining to federal loyalty. Ultimately, what federal loyalty can bring to the debate in Commissioner of Firearms is a springboard from which to reflect on how and when the principle of cooperative federalism could be brought to bear in a consistent manner in division of powers cases.

Redefining the Practice of Medicine: Euthanasia in Quebec

An Act Respecting End-of-Life Care (ARELC) is intended to legalize euthanasia by physicians in the province of Quebec, a legally contentious project because of Canadian constitutional law. This paper does not take a position on the desirability of euthanasia or assisted suicide, but reviews ARELC in detail from the perspective of physicians who do not wish to be involved with such procedures for reasons of conscience. The Table of Contents following this summary outlines the paper, which consists of nine parts and three appendices. Each part opens with an abstract.Part 1 offers an overview of ARELC and closes with a review of the long term prospects for the implementation of the law. Part 2 discusses the law in detail, including definitions of key terms and procedural requirements. It also explains how a revision of the original text authorizes two different kinds of euthanasia: a regulated process for competent patients, and an unregulated process for incompetent patients. This aspect of the new law has not received attention.The issue of slippery slopes is addressed in Part 3, with particular reference to the guidelines provided in the law. Part 4 considers the tension among health care workers generated by the killing of patients, and closes with an overview of the institutional and legal mechanisms available to implement the law. Appendices A and B provide detailed information about these mechanisms.Most physicians do not personally kill patients even in jurisdictions where euthanasia or assisted suicide are legal. This fact collides with ARELC’s declaration that access to euthanasia is a right. Part 5 discusses the implications of this collision in Quebec. Appendix C provides statistics on physician participation in euthanasia and assisted suicide.Since most physicians will not actually kill patients, and most euthanasia proponents do not insist that objecting physicians should do so, attacks on freedom of conscience are more likely to take the form of demands that physicians facilitate the procedure by referral or other means. Accordingly, Part 6 uses the criminal law and examples of capital punishment, torture and female genital mutilation to explore the concept of morally significant participation in what is believed to be wrong.Physicians may have reasons other than conscientious objection for refusing to kill a patient. The various reasons for refusal and ARELC’s provision for conscientious objection are noted in Part 7, including the continuing criminal prohibition of euthanasia by Canadian criminal law. Of particular interest is the extent of immunity from prosecution being sought by physicians, and the degree of immunity that the government is actually willing to grant.ARELC exempts palliative care hospices from the requirement to provide euthanasia, but the exemption has been challenged and hospice administrators are concerned that the legalization of the procedure will eventually compromise their operations. Part 8 offers an overview of the challenges and their concerns.As a general rule, it fundamentally unjust and offensive to human dignity to require people to support, facilitate or participate in what they perceive to be wrongful acts; the more serious the wrongdoing, the graver the injustice and offence. Thus, it was a serious error to include this a requirement in Code of Ethics for Quebec physicians and pharmacists. Part 9 uses the concept of examined emotions to demonstrate that this error became intuitively obvious to the College des medecins and College of Pharmacists when the subject shifted from facilitating access to birth control to facilitating the killing of patients.

Republicanism and the division of powers in Canada

Republicanism has emerged as an important school of thought in political theory and has exerted a strong influence on Anglo-American legal scholarship. Republicanism has, however, been largely absent from Canadian constitutional law scholarship and this absence is particularly noticeable in the legal literature on federalism. In this article, I intend to show that a particular version of republicanism, which stresses the norm of non-domination, provides a promising normative framework for analysing the multinational elements of Canadian federalism. The argument seeks to achieve two main goals. First, it aims to build on Philip Pettit’s suggestive analyses of minority rights and federalism in order to arrive at a robust republican conception of multinational federations. Second, the argument aims to demonstrate that republican theory can benefit from a close contextual analysis of a particular set of political institutions and that Pettit’s version of republicanism is amenable to this kind of attention to context.

The Duty to Consult in Administrative and Constitutional Law

The paper explores the development of consultative duties in Canadian constitutional law by the Supreme Court of Canada. While a duty of consultation is most familiar in aboriginal law matters, the Court has recognized similar duties in the areas of judicial compensation and of freedom of association and collective bargaining. In each area, the boundary between substantiive and procedural rights has been at issue, as has the degree to which principles of procedural justice in administrative law are applicable. The paper compares and contrasts these and other themes in the different areas in which the Court has found consultation to be an appropriate resolution to a constitutional dilemma.

The Legal Structure of Freedom of Association

This essay seeks to set out a clear view of the legal structure of freedom of association in Canada. It takes the ideas of legality and legal grammar seriously and argues that current Canadian constitutional labour law is in a state of legal disarray because our leading cases fail to do so. In a series of very important decisions, the most recent of which is Fraser v Ontario, the Supreme Court of Canada has set about articulating a new interpretation of s 2(d) – the constitutional guarantee of freedom of association. But its effort to create a new and richer narrative of s 2(d) has been undermined by its failure to attend to the legal grammar necessary to articulate it in legal terms. As a result, our account of freedom of association is now incoherent and fails to live up to our constitutional commitments. Clearer thinking about legal grammar will not construct our new interpretation of s 2(d) for us – but it will remove one very real and present barrier to our progress toward that goal. This essay tries to clear that now obstructed path.

Envisaging Constitutional Space for Aboriginal Governments

When the Supreme Court decided Sparrow, it could have interpreted s. 35 of the Constitution to give Aboriginal peoples absolute power over Aboriginal and treaty rights, a power which neither Parliament nor the Provinces could trump. Instead, the Court interpreted s. 35 to mean that Parliament could still infringe Aboriginal rights if the infringement could be justified by a strict test. Professor McNeil suggests that this interpretation does not originate in the constitutional text so much as in the British constitutional concepts of Parliamentary sovereignty and the rule of law. He argues that the Court maintained Parliament's power to regulate Aboriginal rights because it combined these constitutional concepts with an assumption that these rights are not effectively regulated by Aboriginal governments and laws. The Court's unarticulated fear was that an intolerable legal vacuum would be created if s. 35 was interpreted as excluding all federal regulatory power. The author argues, however, that to decolonize Canadian constitutional law, we must redefine Parliamentary sovereignty and the rule of law to include Aboriginal governments and laws, which could fill the constitutional space that s. 35 provided and avoid the vacuum that the Court feared.

The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law

The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law

Living on the Edge of Queer Theory and Canada’s Uncanny Pluralism: Queer Religious Bodies as Constitutional Strangers

AbstractThis paper investigates alternative critical insights into the conflict of religion and queerness in Canadian constitutional law, through the tools offered by Queer Theories. In Canada, this implies the adoption of a critical phenomenology of pluralism as the object of Queer Theory. Adjudicating pluralism becomes a sovereign performance, and publicness a zone of national intimacy. The conflict of rights produces a typology of queer religious bodies as constitutional strangers through a range of capacities that a body can or cannot do. Will be argued that the norm of religious citizenship is heteronormativity, and the norm of queer citizenship deciphers the ascendency of male whiteness.

Canadian Constitutional Law: Presentation to the Annual Conference of International Association of Law Libraries

When I was asked to give this talk it occurred to me that it might be interesting to think aloud about some of the changes in constitutional law—and in writing about constitutional law—that have occurred since I came to Canada. I am a New Zealander by birth, but I was teaching at the Faculty of Law of Monash University in Melbourne, Australia, when I came to the Osgoode Hall Law School on a one-year visit in the summer of 1970. During that visiting year, the faculty decided to offer me a permanent appointment. This was done over the objection of one of my colleagues, R. J. Gray, who claimed that my lectures would require simultaneous translation, and that I would not meet the height requirements for Canadian citizenship. Anyway I was persuaded to stay (and three years later I became a Canadian citizen).

Administrative enforcement, judicial review and fundamental rights in EU competition law: A comparative contextual-functionalist perspective

This article examines whether the current institutional framework for the enforcement of EU competition law under Regulation 1/2003 is compatible with the principle of effective judicial protection. This question is answered by developing a test which takes into account, in a structured way, all the contextual factors of the case in the light of the objective pursued by the Legislature in enacting a given enforcement system. Comparative analysis of United States and Canadian constitutional law provides key insights for the development of such a test. This article concludes that the current system under Regulation 1/2003 is unconstitutional insofar as judicial review of Commission decisions by the EU courts is deferential. However, while the current trend is to move to a correctness standard of review across the board, a system in which a competition authority with sufficient safeguards of independence and impartiality of the decision-maker is subject to deferential judicial review in appropriately defined matters is more in line with the institutional balance between the European Commission and the EU courts envisaged by the EU Treaties and Regulation 1/2003, has advantages as a matter of policy over a system in which a court has the duty to review the merits of a first instance administrative decision, and would be compatible with the constitutional standards in force in leading common law systems such as the United States and Canada.

'The Question Calls for an Answer, and I Propose to Answer it': The Patriation Reference as Constitutional Method

The 30th anniversary of the Reference Resolution to Amend the Constitution is an opportunity to reflect on Canada’s constitutional tradition. The Reference is of course most famous for articulating a constitutional convention requiring substantial provincial consent for amendments affecting provincial powers; and only slightly less famous for considering a question about conventions at all. Many have criticized it as a political manoeuvre that is neither supportable nor particularly subtle. In this paper I propose to examine the Reference as a paradigmatic example of the reference function. In this way, I hope to evaluate its broader impact on Canadian constitutional law. The paper proceeds as follows. First, the Patriation Reference is situated in context. While the reference power has an English pedigree, it quickly came to embody very Canadian characteristics. Next, I consider how some of these factors played out in the Court’s opinion. In the final section, I consider questions of legacy. I argue that the Patriation Reference presaged the modern approach to constitutional interpretation. In my view the Reference was highly predictive of broad patterns in constitutional litigation and jurisprudence. In short, the Patriation Reference was a harbinger of the modern constitutional method.

Implementing International Trade Agreements in Federal Systems: A Look at the Canada-EU CETA’s Intellectual Property Issues

This article examines the negotiations towards a Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union (EU) as an example of some challenges and solutions for implementing international trade agreements in multilevel federal systems. It briefly describes Canadian constitutional law governing the domestic implementation of international treaties and then canvasses three specific examples of current challenges related to the regulation of intellectual property. While the constitutional validity of federal regulations addressing pharmaceutical data protection, digital rights management (DRM), and geographic indications is far from guaranteed, legislators and courts have used several legal means to support implementation of Canada's international obligations in these fields.

The Effect of Alcohol on the Canadian Constitution ... Seriously

Alcohol has exerted a staggering influence on the Canadian constitution. It was a prominent feature of daily life in the young Dominion, much to both the delight and chagrin of many. The temperance movement exerted its own influence on both the federal and provincial legislatures. Without “alcohol” as a head of power, the legislatures claimed control over this seeming, social evil sometimes under “Peace, Order and Good Government”, “criminal law”, or “Trade and Commerce”; at other times under “Property and Civil Rights”, “Local Matters”, and so forth. Court challenges abounded; the result was, in part, the judiciary’s failure to walk a straight line toward a clear division of powers between the federal and provincial governments. But the result was also many of the doctrines of division of powers that still form part of Canadian constitutional law. Beyond its impact on the division of powers, alcohol was also at the root of Canada’s most important decision on the rule of law: Roncarelli—a decision argued and won by the late F. R. Scott.

Welfare Rights in Canadian and German Constitutional Law

According to liberal political theorists, such as John Locke and Adam Smith, liberty and equality are competing values. In Canadian constitutional law, the commitment to liberal individualism has pushed questions of socio-economic rights from the constitutional sphere into the political one.

The Substance and Scope of Aboriginal Rights in Canadian Constitutional Law

After some preliminary comments about the contemporaneous situation of Aboriginal peoples in Canada and about their fate under Canadian law prior to the enshrinement of their “aboriginal and treaty rights” in the Constitution Act of 1982, this paper addresses two features of the difficult task now foisted upon Canadian courts, i.e. the problem of demarcating the scope not only of the rights themselves, but also of the limits to which they can be subjected by the Federal and Provincial governments.