Canada in the World: Comparative Perspectives on the Canadian Constitution (Comparative Constitutional Law and Policy)

Présentation de l'éditeur : "In this volume marking the Sesquicentennial of Confederation in Canada, leading scholars and jurists discuss the evolution of the Canadian Constitution since the British North America Act 1867; the role of the Supreme Court in interpreting the Constitution as a 'living tree' capable of application to new legal issues; and the growing influence of both the Constitution, with its entrenched Charter of Rights and Freedoms, and the decisions of the Court on other constitutional courts dealing with a wide range of issues pertaining to human rights and democratic government. The contributors assess how the Canadian Constitution accommodates the cultural diversity of the country's territories and peoples while ensuring the universal applicability of its provisions; the role of the Court in interpreting and applying the Constitution; and the growing global influence of the Constitution and decisions of the Court on legislatures and courts in other countries." Canada in the World: Comparative Perspectives on the Canadian Constitution 6 Contents 8 List of Contributors 10 Acknowledgements 12 Introduction: The Values of Canadian Constitutionalism 14 A constitutional model for the world? 14 Three Canadian values 15 Identifying constitutional values 17 Democracy in constitutional amendment 18 Federalism in constitutional amendment 19 Difference and diversity in constitutional amendment 20 A land of many peoples 21 A missed democratic moment? 24 Unity in dissimilarity 25 Constitution as noun and action 28 Three themes 29 The risk and reward of anniversary specials 35 Part I: Federalism and Pluralism in Canadian Constitutionalism 38 1 Diversity and the Rule of Law: A Canadian Perspective 40 Introduction 40 Respectful accommodation 42 The value of comparative law 43 The constitution and changing realities 44 Conclusion 45 2 Misconceiving Federalism: Canada and the Federal Idea 47 Introduction: Canada and the federal idea 47 Federalism: an exercise in constitutional theory 49 Origins 50 Purposes 57 Subjects 62 Design 63 Dynamics 66 Concluding remarks 71 3 Political Dynamics in Quebec: Charting Concepts and Imagining Political Avenues 72 Charting political spaces through the use of concepts 73 Face 1: Political Nationality 74 Face 2: The Two-Nations View 76 Face 3: Distinct Society 80 Face 4: Province State 82 Face 5: Multinational Democracy 87 Quebec in a comparative context 89 By way of conclusion 92 4 Indigenous Peoples and the Canadian State: The Prospects of a Postcolonial Constitutional Pluralism 94 5 Legality, Legitimacy and Constitutional Amendment in Canada 111 Introduction 111 Legality, legitimacy and constitutionalism 115 Statutory legality: 1867 to 1982 119 Constitutional legality: patriation and the accords 126 Legality, legitimacy and amendment rigidity 133 6 Constituting Citizens: Oaths, Gender, Religious Attire 136 Citizenship-by-naturalization 137 Constituting citizens through “words that bind”: a brief comparative journey 143 Canada’s multiculturalism 149 Context and membership matters 155 Troubles in paradise: when diversity and equality collide 158 Women, citizenship, and the franchise 163 Part II: The Court in Canadian Constitutionalism 166 7 The Judicial Constitutionalization of Politics in Canada and Other Contemporary Democracies: Comparing the Canadian Secession Case to South Africa’s Death Penalty Case and Israel’s Landmark Migdal Constitutional Case 168 Introduction 168 Law as a language game, judicial versus ordinary politics and the dialectic between the constitutionalization of politics and the politicization of the constitution 170 The constitutionalization of politics through case law: Canadian secession, South African death penalty and Israeli basic laws 175 The Canadian Case: Reference Re Secession of Quebec 176 The South African Death Penalty Case 180 The Israeli Basic Laws Case 184 Judicial politics and the legitimate bounds of the constitutionalization of politics 187 Conclusion 194 8 Originalism in Australia and Canada: Why the Divergence? 196 Introduction 196 Constitutional interpretation until the 1980s 197 Inherited British Principles of Statutory Interpretation 197 Application of These Principles in Canada 199 Application of These Principles in Australia 203 Developments from the 1980s 205 Canada: The Advent of the Canadian Charter of Rights and Freedoms 205 Australian Developments 213 Some consequences of Canada’s rejection of originalism 218 Conclusion 220 9 Rights Inflation in Canada and the United States 222 Introduction 222 Two types of rights inflation 224 Why be concerned about rights inflation? A politico-cultural account 226 Rights inflation: a doctrinal account 228 The United States: rights-characterization as a threshold question 230 Canada: rights inflation and proportionality 234 Conclusion 238 10 Substantive Equality Past and Future: The Canadian Charter Experience 240 11 Canadian Constitutional Law of Freedom of Expression 258 Freedom of expression values 259 Preliminaries 259 The Canadian Concept of Expression 260 Limits on Freedom of Expression: The Hate Speech and Pornography Cases 261 Equality 262 Multiculturalism 264 A Qualification and an Additional Point 265 The methodology of the Canadian constitutional law of freedom of expression 270 Insights into freedom of expression? 273 Conclusion 275 12 The Judicial, Legislative and Executive Roles in Enforcing the Constitution: Three Manitoba Stories 277 Introduction 277 The context: the Manitoba Act, 1870 280 The Manitoba schools crisis and questions of remedial choice and dialogue 284 Sir John a hides behind the courts 284 Off to court: round one 285 The Privy Council’s first decision 286 Back to court: round two 287 Remedial legislation and legislative blockage 289 The 1896 election and the “sunny ways” of compromise 289 Summary: comparing executive, legislative and judicial performance 290 Contrasting Canadian and American approaches to remedial legislation 291 The Manitoba language crisis and remedial resistance 293 Appeals to executive discretion to reserve or disallow laws 293 The executive hiding behind the courts 294 Successful but ignored court challenges 294 Rights without remedies 295 The Manitoba legislature’s use of coordinate construction to dilute French language rights 296 Legislative blockages and the failed constitutional amendment 298 Back to court and the vindication of minority language rights 300 The invention of the suspended declaration of invalidity 301 The growth of suspended declarations of invalidity 303 The export of the suspended declaration of invalidity 303 Continued Canadian remedial activism? 304 Summary: comparing executive, legislative and judicial performance 305 The Manitoba métis land grant litigation 307 Litigation in aid of extra-judicial settlements 308 Round one 308 Round two 309 Are general declarations sufficient? The unfinished declaratory remedy 311 Summary: comparing executive, legislative and judicial performance 312 Conclusions 313 Part III: The Global Impact of Canadian Constitutionalism 316 13 Going Global? Canada as Importer and Exporter of Constitutional Thought 318 Canada as “exporter” of constitutional thought 319 Canada as a constitutional “taker” 326 The limits of selective engagement 333 14 Exporting Dialogue: Critical Reflections on Canada’s “Commonwealth” Model of Human Rights Protections 337 Blame Canada? 340 A new model? 342 A strong, constitutional protection of rights in all but name? 344 A plethora of theories? 348 Rediscovering dialogue 350 Constitutional collaboration and constitutional counter-balancing 351 Application to Canada and the UK 352 Conclusion 357 15 The European Court of Human Rights and the Canadian Case Law 361 Globalization and human rights 361 Human rights and judicial dialogue 363 The “foreign law” in the European Court of Human Rights 367 The Canadian case law: more than one of the foreign laws? 369 The assisted suicide cases 371 The prisoners’ voting rights cases 374 Beyond Rodriguez and Sauvé: a few examples 378 Conclusion 382 16 Canadian Rights Discourse Travels to the East: Referencing to Canadian Charter Case Laws by Hong Kong’s Court of Final Appeal and Taiwan’s Constitutional Court 384 Introduction 384 Hong Kong’s Court of Final Appeal referencing to Canadian charter case laws 385 References by Judges 386 References by Litigant Parties 391 Taiwan’s Constitutional Court referencing to Canadian charter case laws 398 References by Judges 399 References by Litigant Parties 402 Analyses of HKCFA’s and TCC’s referencing to Canadian charter case laws 403 Legal Family v. Recognition of the Court 403 Judge-Initiated v. Litigant-Initiated References 404 Openness v. Reticence 406 Protecting Rights v. Limiting Rights 407 Conclusion 408 17 The Canadian Charter, South Africa and the Paths of Constitutional Influence 410 Introduction 410 Canadian influences 411 Uses of foreign jurisprudence in the Constitutional Court 419 Is there a special role for Canadian constitutionalism? 422 Conclusion: Canadian jurisprudence as a special case 429 Conclusion: The Court and Constitution in the World 431 Index 464 In This Volume Marking The Sesquicentennial Of Confederation In Canada, Leading Scholars And Jurists Discuss The Evolution Of The Canadian Constitution Since The British North America Act 1867; The Role Of The Supreme Court In Interpreting The Constitution As A 'living Tree' Capable Of Application To New Legal Issues; And The Growing Influence Of Both The Constitution, With Its Entrenched Charter Of Rights And Freedoms, And The Decisions Of The Court On Other Constitutional Courts Dealing With A Wide Range Of Issues Pertaining To Human Rights And Democratic Government. Diversity And The Rule Of Law : A Canadian Perspective / Rt. Hon. Beverley Mclachlin, P.c. -- Misconceiving Federalism : Canadian And The Federal Idea / Stephen Tierney -- Political Dynamics In Quebec : Charting Concepts And Imagining Political Avenues / Alain-g. Gagnon -- Indigenous Peoples And The Canadian State : The Prospects Of A Postcolonial Constitutional Pluralism / Patrick Macklem -- Legality, Legitimacy, And Constitutional Amendment In Canada / Jamie Cameron -- Constitutional Citizens : Oaths, Gender, Religious Attire / Ayelet Shachar -- The Judicial Constitutionalization Of Politics In Canada And Other Contemporary Democracies : Comparing The Canadian Secession Case To South Africa's Death Penalty Case And Israel's Landmark Migdal Constitutional Case / Michel Rosenfeld -- Originalism In Australia And Canada : Why The Divergence? / Jeffrey Goldsworthy And Grant Huscroft -- Rights Inflation In Canada And The United States / Mark Tushnet -- Substantive Equality Past And Future : The Canadian Charter Experience / Catharine A. Mackinnon -- Canadian Constitutional Law Of Freedom Of Expression / Adrienne Stone -- The Judicial, Legislative, And Executive Roles In Enforcing Hte Constitution : Three Manitoba Stories / Kent Roach -- Going Global? Canada As Importer And Exporter Of Constitutional Thought / Ran Hirschl -- Exporting Dialogue : Critical Reflections On Canada's Commonwelath Model Of Human Rights Protections / Alison Young -- The European Court Of Human Rights And The Canadian Case-law / Lech Garlicki -- Canadian Rights Discourse Travels To The East : Referencing To Canadian Charter Case Laws By Hong Kong's Court Of Final Appeal And Taiwan's Constitutional Court / Wen-chen Chang -- The Canadian Charter, South Africa, And The Paths Of Constitutional Influence / Heinz Klug -- The Court And The Constitution In The World / David R. Cameron. Edited By Richard Albert, Boston College Law School; David R. Cameron, Yale University. Includes Bibliographical References And Index. Présentation de l'éditeur : "In this volume marking the Sesquicentennial of Confederation in Canada, leading scholars and jurists discuss the evolution of the Canadian Constitution since the British North America Act 1867; the role of the Supreme Court in interpreting the Constitution as a 'living tree' capable of application to new legal issues; and the growing influence of both the Constitution, with its entrenched Charter of Rights and Freedoms, and the decisions of the Court on other constitutional courts dealing with a wide range of issues pertaining to human rights and democratic government. The contributors assess how the Canadian Constitution accommodates the cultural diversity of the country's territories and peoples while ensuring the universal applicability of its provisions; the role of the Court in interpreting and applying the Constitution; and the growing global influence of the Constitution and decisions of the Court on legislatures and courts in other countries."