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

Part I Constitutional History, D The British Constitutional Tradition, Ch.5 The British Legal Tradition in Canadian Constitutional Law

Mark D. Walters

From: The Oxford Handbook of the Canadian Constitution

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

This chapter examines the influence of the British legal tradition within Canadian constitutional law. The foundational text of Canada’s constitution, the British North America Act, 1867, was adopted when Canada was still a UK colony, and so it is hardly surprising that this influence would prove to be important—even after Canada emerged as an independent state. Still, the assertion in the preamble to the 1867 Act, that Canada’s constitution is ‘similar in Principle to that of the United Kingdom’, must be approached cautiously. The leading British constitutional scholar A.V. Dicey went so far as to describe this assertion as a piece of ‘official mendacity’. The analysis in Section 2 of this chapter focuses upon institutional structure and design. Here, it will be seen that Dicey was wrong. The analysis in Section 3 of the chapter is on the interpretive ethic or what Dicey called the ‘spirit’ of the constitution.

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