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View translated passages only
Oxford Law Citator
Contents
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Preliminary Material
Contents
Contributors
Main Text
Ch.1 Introduction
1 Distinctive Features of the Canadian Constitution
2 Interest in the Canadian Constitution
Select Bibliography
Part I Constitutional History
A Indigenous Legal Systems and Governance
Ch.2 Indigenous Constitutionalism: Pre-existing Legal Genealogies in Canada
1 Introduction
2 Inuit: Arctic Law
3 Métis Law: The Red River Example
4 Mikmaq Constitutionalism
5 Haudenosaunee Constitutionalism
6 Anishinaabe Constitutionalism
7 Cree Constitutionalism
8 First Nations Constitutionalism in British Columbia
9 Secwepemc Constitutionalism
10 Gitksan Constitutionalism
11 Conclusion
Bibliography
B French-Canadians and the Constitution
Ch.3 Constitutional Debates in French Canada, 1764–1774
1 Introduction
2 Constitutional Debates in France, Great-Britain, and the British Empire, 1764–1774
A The Contestation of Royal Authority in France
B The Consolidation of Constitutional Rights in Great Britain
C The Quest for Constitutional Autonomy in the British Colonies
3 The Assimilation of British Constitutional Principles in Quebec
A Discovering British Constitutional Law in the Gazette
B Invoking the Rights of British Subjects
4 Conclusion
Select Bibliography
C 1867: Confederation
Ch.4 1867: Confederation
1 Introduction
2 Constitutional Ambivalence
3 Design Failures: Sovereignty and Indigenous Peoples
4 Conclusion
Bibliography
D The British Constitutional Tradition
Ch.5 The British Legal Tradition in Canadian Constitutional Law
1 Introduction
2 Similarity in Institutional Structure
3 Similarity in Constitutional Spirit?
Bibliography
Part II Institutions and Constitutional Change
A The Crown and the Executive
Ch.6 The Crown in Canada
1 Introduction
2 Symbolic and Ceremonial Functions
3 Institutional Function
A The Crown(s) in Canada
(i) European Crowns Vie for Control of North America
B British Crown: From Colony to Independence
4 The Powers of the Crown: Statutory, Prerogative, and Reserve
A Statutory Powers
B Prerogative Powers
C Reserve Powers
(i) Reserve Power Controversies
5 The Crown and Canadian Federalism: Lieutenant-Governors
6 Conclusion
A A Republican Future for Canada?
Bibliography
Ch.7 The Executive, the Royal Prerogative, and the Constitution
1 Introduction
2 The Starting Point: Parliament’s Jurisdictional Supremacy
3 Constitutionalized Sources of Executive Power
4 Delegated Sources of Executive Power
5 The Prerogative Source of Executive Power
A The Trouble with Prerogative Powers
B Displacing the Prerogative
6 The Content of the Royal Prerogative
A Overview
B The Royal Prerogative of Defence
(i) Military Deployments
(ii) Aid of the Civil Power Deployments
(iii) Other Defence-Related Prerogative Powers
C The Royal Prerogative over Foreign Affairs
7 Judicial Review of Prerogative Powers
8 Conclusion
Bibliogaphy
B The Parliamentary System
Ch.8 Political Institutions in Canada in a New Era
1 Introduction
2 Campaign 2015: The Liberal Government’s Parliamentary Reform Agenda
A A Gender-Equal Cabinet
B Committee Reform
C Prorogation
D Free Votes and Omnibus Bills
E Senate Appointments
F Supreme Court of Canada Appointments
3 Conclusion
Bibliography
Ch.9 Parliamentary Sovereignty in Canada
1 Introduction—Canada’s Version of Parliamentary Sovereignty
2 Sovereign within Their Jurisdiction
A More Diceyan than Dicey
B Did Everything Change in 1982?
C Traveling along Two Paths
3 The Right to Unmake Any Law—Statutory Entrenchment
4 Who Can Decide That a Statute Is Invalid?
5 Conclusion
Bibliography
C The Courts
Ch.10 The Supreme Court of Canada and Appointment of Judges in Canada
1 The Supreme Court of Canada
A General
B Judges
C Jurisdiction, Caseload, and Procedure
D Constitutional Status of the Supreme Court
2 The Appointment of Supreme Court of Canada Justices
3 The Appointment of Other Judges in Canada
A Overview
B Federal Judicial Appointments
C Democracy
D Diversity
E Postscript
Bibliography
Ch.11 Courts, Administrative Agencies, and the Constitution
1 Introduction
2 Courts and the Constitution
A Constitution Act, 1867
B Constitution Act, 1982
C Unwritten Constitutional Principles
(i) Judicial Independence
(ii) Access to Justice
(iii) The Rule of Law
D Quasi-constitutional Statutes
E Inherent Powers and the Common Law Constitution
3 Constitutional Foundations of Administrative Agencies
4 Separation of Powers
(i) Indigenous Adjudication and the Constitution
5 Conclusion
Bibliography
D Constitutional Amendment
Ch.12 Amending the Constitution of Canada
1 Introduction
2 History
A Pre-patriation
B Post-patriation
3 Legal and Political Frameworks
A Legal Framework
B Political Framework
4 Paraconstitutional Adaptation: Alternative Approaches to the Formal Amendment Procedure
A Constitutional Interpretation
B Federal Spending Power
C Administrative Agreements
D Infraconstitutional Political Declarations
E Future Possibilities for Constitutional Reform
5 Conclusion
Bibliography
Part III Indigenous Peoples and the Canadian Constitution
A Indigenous Sovereignty
Ch.13 Contending Sovereignties
1 Introduction
2 Indigenous Sovereignty and Self-Government in the Canadian Constitution
A Indigenous Sovereignty and Self-Government in Constitutional Reform
B Sovereignty and Self-Government in the Judicial Interpretation of Section 35
C Agonistic Constitutionalism
3 The Interplay of Canada’s Contending Sovereignties
A Sovereignty 1: The Final Power of Decision
B Sovereignty 2: Status as a State in International Law
C Sovereignty 3: The Originating Source of Law
D Sovereignty 4: A Unified and Rationalized Order of Law
E Sovereignty 5: The Unified Representation of Political Community
4 Conclusion
Bibliography
B Treaties
Ch.14 Treaties as Constitutional Agreements
1 Historic Treaties
A Indigenous Treaty-Making
B Peace and Friendship Treaties
C Land Treaties
D The Numbered Treaties
2 Modern Treaties
A Extinguishment Clauses
B Land Regime and Co-management
C Self-Government
D Challenges of Implementation
3 Treaty Law
A Scope of the Concept: What Counts as a Treaty?
B Interpretation
C Statutory and Constitutional Protection
Bibliography
C Indigenous Peoples and the Constitution Act, 1982
Ch.15 The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation
1 Introduction
2 Law and Colonialism
3 Constitutional Recognition of Aboriginal Rights
4 Constitutional Recognition of Indigenous Law
5 Reconciliation and Rights-Definition
6 Reconciliation and Rights-Limitation
7 Conclusion
Bibliography
Ch.16 The Section 35 Duty to Consult
1 Introduction
2 Purposes and Origins of the Duty
3 Developing International Norms on Consultation and Consent
4 The Scope of Decisions Subject to Consultation
5 The Duty to Consult and Administrative Law Dimensions
6 Future Prospects
Bibliography
Ch.17 Métis Constitutional Law Issues
1 Introduction
2 The Imposition of Judicially Constructed Métis Identity
3 Métis as “Indians” within Section 91(24) of the Constitution Act, 1982
4 Métis as Ancestry: An Imprudent Definition of Indian
5 Conclusion
Bibliography
Part IV Federalism
A Federalism in Canada
Ch.18 From Dualism to Cooperative Federalism and Back?: Evolving and Competing Conceptions of Canadian Federalism
1 Introduction
2 Canada’s Fundamentally Dualist Federal Architecture
A Distinguishing between “Dualist” and “Integrated/Cooperative” Federations
B Dualist Components of the Canadian Federation
3 The Rich Practice of Intergovernmental Relations in the Canadian Federal System
4 The Evolution of Interpretive Doctrines and the Rise of Cooperative Federalism
5 The Few Splendours and Many Miseries of Cooperative Federalism as a Normative Principle
6 Conclusion
Bibliography
Ch.19 Key Doctrines in Canadian Legal Federalism
1 Introduction
2 Principles Used in the Interpretation of Legislative Powers
3 The Key Doctrines
A The Pith and Substance Doctrine
B The Interjurisdictional Immunity Doctrine
C The Federal Paramountcy Doctrine
4 Conclusion
Select Bibliography
Ch.20 The Spending Power in Canada
Introduction
Part I What Is the Problem?
Part II Constitutional Interpretation, Text, and Doctrine
A The Constitution Act, 1867
B Case Law
Part III Against the Gift Theory and for Section 36(1) Limits On Federal Spending
A Section 36(1)’s Limitations on the Federal Spending Power
B Answering Objections
Conclusion
Bibliography
B Federalism in Context
Ch.21 Federalism and Health Care in Canada: A Troubled Romance?
1 Introduction
2 Exercises of Provincial Jurisdiction in Health Care
3 Exercises of Federal Power in Health Care: Successes, Failures, and Works-in-Progress
A The Federal Spending Power and the Foundations of Medicare
(i) How the Spending Power Is Applied to Health Care
(ii) Constitutional Challenges to the Implied Spending Power
B The Canada Health Act (CHA) and Challenges to It
C Other Uses of the Spending Power: Existing and Potential
D First Nations and Inuit People
(i) Historical Perspective on First Nations Health
(ii) Current Division of Powers Problem Negatively Affects First Nations’ Health
E Criminal Law Power
F Peace, Order, and Good Government
4 Conclusion
Bibliography
Ch.22 Criminal Law in the Federal Context
1 Introduction: The Intricate Division of Legislative Powers Relating to Criminal Law
2 Parliament’s Plenary Jurisdiction over Criminal Law
3 The Formal Characteristics of Criminal Laws
4 The Substantive Characteristics of Criminal Laws
A Narrow and Broad Definitions
B Renewed Interest in Judicial Review of the Purposes of Criminal Law
5 Provincial Offences
6 The Administration of Criminal Justice
7 Conclusion
Bibliography
Ch.23 The Environment, Federalism, and the Charter
1 The Constitutional Contours of Canadian Environmental Law and Policy
2 The Constitutional Division of Powers
A Sources of Federal Authority
B Sources of Provincial Authority Regarding the Environment
C Inherent Jurisdiction of Indigenous Peoples
3 Case Study: Kashechewan First Nation Water Crisis
4 Cooperative Federalism
5 Case Study: Climate Change Mitigation in Canada
6 Getting Past the Division-of-Powers Problem
A The Canadian Charter of Rights and Freedoms
B A Constitutional Right to a Healthy Environment?
7 Conclusion
Bibliography
Ch.24 Constitutional Aspects of Commercial Law
1 Introduction
2 Division of Powers
3 Settled Areas of Commercial Law
A Bankruptcy and Insolvency Law
B Banks and Financial Institutions
C Corporate Law
4 Securities Law: An Unsettled Area of Commercial Law
5 Conclusion
Bibliography
Ch.25 The Exploitation of Natural Resources in the Federation
1 Introduction
2 Provincial Struggle for Ownership
3 Legislative Tug of War
4 The 1970s
5 The Resource Amendment
6 The Rise of Environmental Protection
7 Profit versus Environment: The Future?
Bibliography
Ch.26 Minority Languages, Education, and the Constitution
1 Introduction
2 Defining Official Languages and Minority Languages
3 Minority Language Rights, Asymmetry, and the Constitution
4 Minority Language Education Rights
5 Minority Language Education Rights, Federalism and the Courts
6 Conclusion
Bibliography
Ch.27 Marriage, Family, and Federal Concerns
1 Introduction
2 History, Background, and Constitutional Texts
3 Centralizing/Unifying Forces
A Federal Jurisdiction
B The Charter
C Best Interests of the Child
4 Decentralizing/Disharmonizing Forces
A Provincial Jurisdiction
B Legal Pluralism/Multiple Legal Traditions
5 Conclusion
Bibliography
Ch.28 International Treaty-Making and Treaty Implementation
1 Introduction
2 Entering Into Treaties
A Background and the Current Modus Vivendi of Federal-Provincial Collaboration
B Executive and Legislative Powers: Parliament and the Democratic Deficit
(i) Moving Forward: The 2008 Treaty Policy
C The Division of Powers: Federal and Provincial Treaty-Making Powers
(i) Federal Powers
(ii) Provincial Powers: Background
(iii) Provincial Powers: The Case for Jurisdiction over Treaty-Making
3 Treaty Implementation in the Canadian Federation
A Treaty Implementation Requiring Changes to Domestic Law
B Treaty Implementation: Canadian Practice
4 Conclusion
Bibliography
Part V Rights and Freedoms
A Litigating and Interpreting the Charter
Ch.29 Interpreting the Charter
1 Introduction
2 National Considerations
3 Interpretive Aids within the Charter
4 Interpretive Techniques
A Progressive Interpretation
B Purposive Interpretation
C Generous Interpretation
D Contextual Interpretation
5 External Aids to Interpretation
6 Charter Interpretation and the Role for the Courts
7 Conclusion
Bibliography
Ch.30 Access to Charter Justice
1 Standing
A Direct Standing
B Public Interest Standing
2 Intervention
3 Costs
A Judicial Discretion
B Government Innovation
4 Reference Opinions
Bibliography
Ch.31 The Justification of Rights Violations: Section 1 of the Charter
1 Introduction
2 Genesis
3 Interpretation
A Proportionality
(i) Good Ends
(ii) Proportional Means/Effects
(a) Rational Connection
(b) Minimal Impairment
(c) General Proportionality
B Taking Rights More or Less Seriously
4 Discussion
A Form and Substance
B Putting Rights in Their Place
C Institutional Self-Awareness
5 Conclusion
Bibliography
Ch.32 Charter Remedies
1 Introduction
A Outline
2 Remedies for Laws That Violate the Charter: The Qualified Supremacy Clause
A The Rise of Interpretative Remedies
B Remedies and Dialogue between Courts and Legislatures
C The Rise of the Suspended Declaration of Invalidity
D Suspended Declarations of Invalidity under Stress
E Reform of Suspended Declarations of Invalidity
3 Remedies for Acts That Violate the Charter: How Remedies Affect Rights
A The Remedial Tail and Its Influence on Rights
B The Under-Enforcement of Legal Rights?
4 The Choice between Declaratory and Injunctive Relief
5 Conclusion
Bibliography
Ch.33 The Notwithstanding Clause: Why Non-use Does Not Necessarily Equate with Abiding by Judicial Norms
1 Origins of the Notwithstanding Clause and Its Uses
A Political Protest of the 1982 Constitutional Changes
B Risk Aversion because of Constitutional Uncertainty about the Scope of Protected Rights
C Risk Aversion because of Uncertainty about How Section 1 Arguments Would Be Interpreted
D Political Disagreement about Judicial Interpretations of the Charter
(i) Potential Use of the Notwithstanding Clause
2 The Influence of the Notwithstanding Clause Elsewhere
3 Impact of Public Disdain for the Notwithstanding Clause on Government Strategies
4 Conclusion
Bibliography
B Rights and Freedoms under the Charter
Ch.34 Democratic Rights
1 Introduction
2 Sources of Democratic Rights
3 The Right to Vote
A Voter Qualifications
B Voter Identification Requirements
C Residency Rules
D Scope of Application
E The Entitlement to Vote
F The Right to Run for Office
4 Beyond Voting: The Supreme Court’s Regulation of the Political Process
A The Right to Vote as a Bundle of Rights
B Electoral Redistricting
C Political Parties
D Money and Politics: Regulating Campaign Finance
E The Dissemination of Information prior to an Election
5 Current Challenges and Future Developments
A Judicial Deference and Democratic Rights
B Partisan Self-Entrenchment
6 Conclusion
Bibliography
Ch.35 The Right to Protest, Freedom of Expression, and Freedom of Association
1 Introduction
2 Freedom and Limits under Section 2(b) of the Charter
3 Protest and Dissent under Section 2(b)
4 Toward a Conception of Meaningful Freedom under Section 2
5 Labour Unions and Associational Freedom
6 Conclusion
Bibliography
Ch.36 Freedom of Religion
1 Religion and Canadian Constitutional Life
2 Interpreting Religious Freedom and Defining Religion
3 Constitutional Themes in Freedom of Religion
A The Instability of the Public/Private Divide
B The Individual and the Collective
C Neutrality and the Normative Character of the Liberal State
4 Conclusion
Bibliography
Ch.37 Section 7: The Right to Life, Liberty, and Security of the Person
1 Introduction
2 Section 7: The Text and Test
3 The Three Rights: An Evolving Scope
A Life, Liberty, Security of the Person
B Liberty
C Security of the Person
4 The Taming of Section 7: Liberal Legalism and Rights
5 Economic Interests: The Push to Positive Obligation
6 Complex Harm: Causation Concerns
7 The Principles of Fundamental Justice
8 Conclusion
Select Bibliography
Ch.38 The Charter and Criminal Justice
1 Basic Principles
A Structure of Charter
B Purposive Interpretation
2 The Impact of Legal Rights on the Criminal Justice System
A Substantive Law
B Police Powers
(i) Charter Limits on Police Powers to Search, Stop, Arrest, and Detain
(ii) Remedy of Exclusion of Evidence under Section 24(2)
(iii) Few Charter Limits on Police Interrogation
(iv) Trial Fairness
C Victims’ Rights
D Sentencing
3 Conclusion
Bibliography
Ch.39 Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15
1 Doctrinal Developments
A Substantive Equality, Analytic Silos
B The Workable Solution Proves Somewhat Unworkable
2 A Right Apart: Unique Features of Section 15
3 Law-Making as Line Drawing and the Problem of Normative Mismatch
4 Three Cases of “Justified Discrimination”
A Lavoie
B Newfoundland (Treasury Board) v Newfoundland and Labrador Association of Public and Private Employees
C Quebec v A.
5 Conclusion
Bibliography
Ch.40 Social and Economic Rights
1 Introduction
A Historical Context and Legislative History of the Charter
2 The International Human Rights Framework
3 Sections 7 and 15 as a Source of Protection for Socio-economic Rights
4 Positive and Negative Duties in Relation to Socio-economic Rights
5 Recent Socio-economic Rights Litigation in the Areas of Health and Housing
6 Conclusion
Bibliography
Part VI Constitutional Theory
A Constitutional Interpretation
Ch.41 Constitutional Interpretation: On Issues of Ontology and of Interlegality
1 Ontology: No Exceptionalism in Canada’s Constitutional Interpretation
2 Interlegality: The Enduring Normative Divide of the Westphalian Paradigm
3 Conclusion
Bibliography
Ch.42 The Living Tree
1 Edwards
2 The Patriation Reference
3 Skapinker
4 Big M Drug Mart
5 B.C. Motor Vehicle Act
6 Living Tree Constitutionalism?
7 Originalism
8 Conclusion
Bibliography
B Constitutional Pluralism
Ch.43 Canadian Constitutional Culture: A Genealogical Account
1 Powers ‘Most Ample and Transcendent’
2 ‘As Far as the Laws of Great Britain Permit’
3 ‘Ancient Laws’ of Conquered Kingdoms
4 Enfranchising the ‘Former Lords of the Soil’
5 Conclusion
Bibliography
C Key Debates in Constitutional Theory
Ch.44 The Role of Theory in Canadian Constitutional Law
1 Introduction
2 Theoretical Questions and Theoretical Assumptions
3 Early Theoretical Influences: ‘A Constitution Similar in Principle to That of the United Kingdom’
4 Parliamentary Sovereignty and the Constitution
5 Federalism
6 Constitutional Interpretation
7 Constitutional Theory at and after Patriation: Principles and Politics
8 Principles Untrammeled
9 The Living Tree, Principles and the Nature of Law
10 Conclusion: Constitutional Law in Context
Bibliography
Ch.45 Feminist Constitutionalism in Canada
1 Introduction
2 Feminist Constitutionalism
A Women and Constitutional Agency
B Women and Constitutional Rights
C Women and Constitutionally Structured Diversity
D Women and Constitutional Equality Doctrine
E Constitutionalizing Women’s Reproductive Rights and Sexual Autonomy
F Women’s Rights, Care, and the Constitutional Definition of the Family
G Women’s Socioeconomic Development and Democratic Rights in the Constitution
3 Feminist Constitutionalism and the Canadian Construction of Women
A Constitutional Agency: As Lobbyists
B Constitutional Agency: As Litigators
4 Conclusion
Select Bibliography
Ch.46 The Politics of Constitutional Law: A Critical Approach
1 The Critical Challenge
2 And the Debate Goes On
3 A Critical Proposal
4 A Radical Intervention
5 Conclusion
Bibliography
D The Role of Constitutional Principles in Canadian Constitutional Law
Ch.47 Constitutional Principles in the Secession Reference
1 Monistic and Absolutist Understandings of Identities, Constitutional Law, and Democracy
2 The Supreme Court’s Non-positivist Perspective on Law and Its Rejection of Monistic Depictions of Identity
Bibliography
Ch.48 The Rule of Law, the Separation of Powers and Judicial Independence in Canada
1 The Rule of Law
2 The Separation of Powers
3 Judicial Independence
Select Bibliography
E Dialogue Theory and the Canadian Charter of Rights and Freedoms
Ch.49 Understanding Dialogue Theory
1 Introduction
2 What Is Charter Dialogue?
A Origins of the Theory
B Revisiting the Theory
3 What Makes Charter Dialogue Possible in Canada?
A Section 1 of the Charter
B Qualified Charter Rights
C Section 15(1) of the Charter
D Section 33 of the Charter
4 What Are Its Limitations?
A Cases Where There Is No Scope for “Reasonable Limits” on Rights or Legislative Override of a Decision
B Cases Where the Objective of a Law Is Unconstitutional
C Cases Where Political Forces Preclude Subsequent Action
5 How Have Courts Applied Charter Dialogue Theory?
A Using the Suspended Declaration of Invalidity
B Determining How to Act in “Second Look” Cases
C Deciding Whether to “Read Down” Statutes or Leave It to the Competent Legislature to Fix Them
D Justifying the Practice of Judicial Review
6 How Does the Remedial Action Taken by a Court Impact Charter Dialogue?
A Cases Where a Judicial Decision Elicits Limited or No Response from the Legislature
B Cases Where a Judicial Decision Dictates a Specific Response from the Legislature
C Cases Where a Judicial Decision Guides the Shape of the Legislative Response
7 How Important Will Charter Dialogue Be Going Forward?
8 Conclusion
Bibliography
F The Canadian Constitution in a Comparative Law Perspective
Ch.50 The Canadian Constitution and the World
1 Introduction
2 Dialogue Theory and the Canadian Alternative to Judicial Supremacy
3 The Canadian Model of Plurinational Federalism
4 Rights Protection in a Plurinational Federation
5 Conclusion
Bibliography
Further Material
Table of Cases
Index
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Table of Cases
Peter Oliver, Patrick Macklem, Nathalie Des Rosiers
From:
The Oxford Handbook of the Canadian Constitution
Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers
Content type:
Book content
Product:
Oxford Constitutions of the World [OCW]
Series:
Oxford Handbooks
Published in print:
19 October 2017
ISBN:
9780190664817
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