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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part VI Constitutional Theory, A Constitutional Interpretation, Ch.41 Constitutional Interpretation: On Issues of Ontology and of Interlegality

Stéphane Beaulac

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

The chapter addresses, first, the ontological issue of whether the interpretation of a constitution is fundamentally different than the construction of statutes. Based on a comparison of the Supreme Court of Canada decisions in constitutional interpretation, especially Charter cases, and the contemporary approach to statutory interpretation, endorsing Driedger’s modern principle, it is argued that a convergence of methodology has occurred. Second, recent developments in the domestic use of international law—that is interlegality—also show commonality in constitutional and statutory interpretation. The hypothesis is that recent case law on the operationalization of international normativity, far from supporting the end of the international/national divide, actually reaffirms the Westphalian paradigm. The contextual argument and the presumption of conformity, as interpretative tools, allow courts to be more flexible, indeed more permissive, in resorting to international law.

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