Celebrating Canada’s sesquicentennial: Lessons from and for the world

“I would not look to the US constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. . . . Much more recent than the US constitution—Canada has a Charter of Rights and Freedoms. It dates from 1982.”1 Speaking on Egyptian TV in 2012, US Supreme Court Justice Ruth Bader Ginsburg made this statement recognizing the increasing influence of constitutional systems beyond the United States, including Canada’s. This remark attracted criticism at home, especially from conservative commentators who were quick to misinterpret it, but it was buttressed by academic scholarship and empirical findings. For example, a study published that same year lent support to the idea that Canada has been a “constitutional trendsetter among common law countries.”2 As the title of this review essay suggests, the interaction between Canada and other constitutional systems has been bidirectional. Indeed, if the Canadian constitutional paradigm has been influential around the world, this influence may also stem from comparative law being embedded into the country’s DNA.3 Therefore, the publication of two volumes on Canadian constitutional law, coinciding fittingly with the celebration of Canada’s sesquicentennial, is very timely. The Oxford Handbook of the Canadian Constitution (Oxford Handbook) and Canada in the World: Comparative Perspectives on the Canadian Constitution (Canada in the World) provide excellent resources to consider the role of different legal traditions in the development of the Canadian constitutional system and, conversely, Canada’s increasing influence around the world. Running at 1,168 pages, the Oxford Handbook provides a comprehensive and authoritative account of key features of the Canadian Constitution. Following the tradition of the Oxford Handbook series, leading authors have contributed concise chapters presenting the state of the field in their areas of expertise. These chapters are structured around six main themes: constitutional history; institutions and constitutional change; Indigenous Peoples and the Canadian Constitution; federalism; rights and freedoms; and constitutional theory. This excellent volume will serve as a useful reference point for any scholar seeking a general albeit nuanced scholarly overview of the subject. The handbook strikes an effective balance between breadth (fifty chapters) and depth of analysis, which is supported by the successful thematic structure and the expertise of its contributors. There is a commendable emphasis on constitutional structure, with six chapters covering the three branches of government and eleven chapters addressing both general federalism theory and specific subject matters from a federalism perspective, ranging from health care to marriage and from commercial law to environmental law and minority language rights. With respect to structural questions, some additional emphasis on administrative law in connection with the background constitutional structure would have been helpful in a volume of this scope and ambition, although Lorne Sossin’s contribution, “Courts, Administrative Agencies, and the Constitution” (Oxford Handbook at 231), introduces this area very effectively and there are other chapters that touch on administrative law questions (e.g., Dwight Newman’s chapter on the section 35 duty to consult Indigenous Peoples (Oxford Handbook at 349)).4 Overall, consistent with the aims of this volume, the focus in the Oxford Handbook is on domestic constitutional law, with particular emphasis on three important themes: the formula for constitutional amendment in Part V of the Constitution Act, 1982; the Charter of Rights and Freedoms; and constitutional protections for Indigenous Peoples (Oxford Handbook at 4). However, there are also references to foreign jurisdictions throughout several chapters and comparative engagement is the focal point of specific contributions. For instance, Mark Walters’s fascinating chapter explores the role of the British legal tradition in Canadian constitutional law, critiques A. V. Dicey’s view that the Canadian Constitution was closer to the US rather than the UK Constitution, and concludes that one of the distinctively Canadian contributions to constitutionalism is viewing “parliamentary sovereignty and the rule of law as complementary not opposing ideals” (Oxford Handbook at 122). This contribution is in interesting conversation with John Lovell’s chapter on parliamentary sovereignty (Oxford Handbook at 189) and Timothy Endicott’s and Peter Oliver’s chapter on the role of theory in Canadian constitutional law (Oxford Handbook at 937). Furthermore, the last chapter, Sujit Choudry’s “The Canadian Constitution and the World,” explores the global influence of the Canadian constitutional model, with a particular emphasis on “dialogue theory” and the constitutional accommodation of minority nationalism (Oxford Handbook at 1075). This concluding chapter is a good segue to the second book, Canada in the World, in which a comparative focus is more salient. The scope of coverage in this book is less extensive, which is understandable in a volume half the length of the Oxford Handbook (482 pages). Instead, the emphasis is on three main areas: the accommodation of diversity through the lens of federalism and constitutional pluralism (Part I); the role of the Supreme Court of Canada (Part II); and the growing global influence of Canadian constitutionalism (Part III). Leading comparative public law scholars have contributed chapters, including on freedom of expression (Adrienne Stone), equality (Catharine MacKinnon), dialogue theory (Alison Young), and proportionality and “rights inflation” (Mark Tushnet). There is a heavier emphasis on rights rather than structural features of the Canadian Constitution. This focus is, as Ran Hirschl notes in this very volume, reflective of the less extensive Canadian engagement with foreign constitutional experience regarding structural questions (Canada in the World at 320–321). However, certain structural questions are addressed in Canada in the World, for example, in Stephen Tierney’s chapter on federalism (at 34) and Jamie Cameron’s chapter on constitutional amendment procedures (at 98). Therefore, the two books complement each other and, in tandem, provide a rich account both of external influences on the development of the Canadian constitutional model and the influence that this model has had overseas. A single review essay cannot do justice to the fifty chapters of the Oxford Handbook and the nineteen chapters of Canada in the World. Instead, my aim is to identify certain key themes that emerge from the two books, which in turn highlight distinctive features of the Canadian system on which comparative scholars can draw. It will probably come as little surprise that the exploration of key themes in the two books begins with the Charter of Rights and Freedoms as the national expression of Canada’s fundamental values (e.g., Oxford Handbook at 621, 1017). Multiple contributions in the Oxford Handbook cover general issues about the Charter—e.g., Joanna Harrington’s chapter on interpreting the Charter (at 621), Carissima Mathen’s chapter on access to courts in constitutional cases (at 639), and Kent Roach’s chapter on Charter remedies (at 673)—while others cover specific rights. Interestingly, and appropriately, several authors situate the discussion of rights within a broader institutional framework. For instance, Yasmin Dawood demonstrates how the Canadian Supreme Court has interpreted the right to vote under section 3 of the Charter as encompassing “a bundle of democratic rights, thus enabling it to regulate a wider array of democratic institutions and processes” (Oxford Handbook at 717). Benjamin Berger analyzes freedom of religion within the broader context of the structure of Canadian constitutionalism, noting for example “the instability of the public/private divide as a means of analysing constitutional problems” (Oxford Handbook at 758). In her chapter on equality and anti-discrimination, Sonia Lawrence argues that the judiciary’s “preoccupation” with avoiding “institutional competence conflicts with legislatures” has resulted in the doctrinal choice to resolve many questions inside section 15 through a formalist and narrow conception of equality (Oxford Handbook at 816). In celebrating the Charter, it is also important to keep in mind the limits in the scope of protection that the interpretation of the Charter has afforded. A series of contributions sheds light on such limits. For example, Margot Young explains how liberal liberalism has curtailed the “transformative deployment” of the rights to life, liberty, and security of the person under section 7 of the Charter to advance social justice ambitions, e.g., by obligating the state to provide health care and adequate social assistance (Oxford Handbook at 777). Martha Jackman and Bruce Porter continue this important conversation by tracing two opposing paradigms of constitutional rights in socio-economic rights litigation: the first paradigm refuses to interpret the Charter as imposing positive obligations on governments while the second paradigm interprets broadly framed Charter provisions to “include, rather than exclude, human rights violations experienced by disadvantaged individuals and groups” (Oxford Handbook at 843). In a similar vein, Catharine MacKinnon suggests that the judicial approach to section 15 equality claims has sidelined “material hierarchy,” thus limiting the scope of the equality guarantee (Canada in the World at 227). Allan Hutchinson is particularly critical of this line of cases as reflecting a view “that individual entitlements are much more important than social responsibilities, that negative liberty is to be promoted at the expense of positive liberty” (Oxford Handbook at 1001–1002). Throughout the discussion of the Charter, the Supreme Court of Canada occupies a central place. Indeed, as already noted, one of the three main sections of Canada in the World is dedicated to this institution and the Oxford Handbook covers both the jurisprudence of the Court across a variety of areas as well as the constitutional status of the Court and judicial appointments (e.g., the contribution of Adam Dodek and Rosemary Cairns Way, Oxford Handbook at 211). Comparative public law scholars will be particularly interested in the Court’s progressive approach to interpreting the constitution, captured by the “living tree” metaphor. The metaphor originates in the famous Edwards case, in which the Judicial Committee of the Privy Council, at the time the final court of appeal for Canada, described the constitution as a “living tree capable of growth and expansion within its natural limits”5 and was endorsed by the Supreme Court in post-Charter cases. It is also of interest that two contributions in the two volumes aim to demonstrate that the gap between the “living tree” approach and moderate versions of originalism is not significant.6 Central as the position of the Supreme Court of Canada may be, it is also important to situate the Court within a broader framework of institutional multiplicity.7 Indeed, one of Canada’s distinctive, and well-known, contributions to constitutionalism and influential exports has been “dialogue theory.” This is the idea that the judiciary and the legislature are in a dialogic relationship, whereby the judiciary may not have the final word and the legislature may respond to judicial decisions by amending its enactments (Oxford Handbook at 1053–1054). Peter Hogg and Ravi Amarnath describe the four features of the Charter that facilitate Charter dialogue. First, section 1 of the Charter, the “limitations clause,” invites this dialogue when courts, under the “minimal impairment” prong of the analysis, suggest less restrictive measures that the legislature can adopt.8 Second, qualified Charter rights facilitate dialogue under a similar mechanism to the general limitations clause. Third, the equality guarantee (section 15 of the Charter) can promote dialogue when a group is unconstitutionally excluded from a legislative scheme and the government responds to a judicial ruling by extending the scheme to groups that had been previously impermissibly excluded. Fourth, the notwithstanding clause (section 33 of the Charter) allows Parliament and provincial legislatures to re-enact a law on a temporary but renewable basis, notwithstanding that this law is found to be in violation of a right in section 2 or sections 7 to 15 of the Charter. Both the political cost and the temporal limits of invoking section 33 point to the limitations of the notwithstanding clause. However, as Janet Hiebert (Oxford Handbook at 695) and Alison Young (Canada in the World at 324) explain, this clause has been influential in other systems such as Australia, New Zealand, and the United Kingdom, namely, systems representing what Stephen Gardbaum has described as the “new Commonwealth model of constitutionalism.”9 A detailed examination of the merits and demerits of this model is beyond the scope of this review. The main point to highlight here is that the emphasis on the Canadian Supreme Court should be combined with examining the broader institutional environment in which Canada’s top court operates and how it interacts with other institutions. Kent Roach’s contribution (Canada in the World at 264) helpfully turns the spotlight on such interactions by examining another “Canadian constitutional export”—the suspended declaration of invalidity, whereby the effect of a judicial ruling of unconstitutionality is suspended to give the legislature time to enact Charter-compliant legislation. Roach argues that this remedy contemplates “a partnership or dialogue between courts and legislatures” and provides space to the latter “to select among a variety of constitutional options and to devise complex and multi-faceted remedies that the courts could not devise” (Canada in the World at 290). He concludes that “we cannot simply rely on independent and even heroic judges to deliver effective remedies. Remedies are deeply dialogic in requiring good faith and prompt cooperation from the executive, the legislature and the larger society to be truly effective” (Canada in the World, at 291). Finally, to this multiplicity of actors outside the courts we should add administrative agencies (Oxford Handbook at 238–241). In 1996, Canadian Supreme Court Justice Beverley McLachlin (as she then was) captured this eloquently in a dissenting judgment which has since been endorsed by the Court: The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals.10 The role of constitutional actors beyond the Supreme Court is only one manifestation of constitutional pluralism in Canada. Indeed, as Richard Albert notes perceptively in the introduction to Canada in the World, the need and will to accommodate diversity is rooted deeply in the history of the country (Canada in the World at 8). He adds that Canada has been engaged in a long process of trying to reconcile “not only its external British and American influences but also a more complex interaction of internal forces that simultaneously pull and push Canada toward the particularistic political commitments of Confederation and the universalist aspirations of the Charter” (Canada in the World, at 3). In a similar vein, David Schneiderman’s chapter on constitutional culture demonstrates at imposing a the Canadian constitutional has been (Oxford Handbook at to the to the of in the Charter (Canada in the World at Both volumes with Canada’s to around two and the between Indigenous Peoples and the Canadian Both volumes also that Canadian government has not at accommodation but rather it to Stephen how Canada’s and resulted in Canada a more political and constitutional time (Canada in the World at In this “the that the of the is the of its as well as that of the individual citizens of the (Canada in the World at He then concludes that the to the of provincial equality the of provincial but may not account of Canada’s (Canada in the World, at the from federalism to “a less to legal that is, the constitutional between Indigenous Peoples and the Canadian state (Canada in the World at He notes that “the of constitutional pluralism in between Indigenous and to Instead, a of the constitutional and the with Indigenous Peoples to (Canada in the World at section 35 of the Constitution Act, which and “the and rights of the rights a constitutional status and the of constitutional (Canada in the World at to judicial decisions that at an of constitutional when to sovereignty with However, these do not the between Indigenous Peoples and Canada For this to Indigenous governments would need to be as within their of capable of and to their and provincial (Canada in the World at The of sovereignty in this process of is in chapter on (Oxford Handbook at The focus of Indigenous suggests, is on a of sovereignty the of political and the of A political such as Canada, must to this These be in their different traditions and different (Oxford Handbook at John rich account of of Indigenous constitutionalism sheds light on this constitutional pluralism (Oxford Handbook at This constitutional experience Canada a interesting as it, constitutional cannot be for Indigenous constitutionalism across the (Oxford Handbook at The discussion of federalism and Indigenous constitutionalism a broader are in Canada’s constitutional and how can this process in the experience of The contributions in Part of the Oxford Handbook could be to respond to this with respect to Indigenous Furthermore, Beverley and Ruth the role of in the of constitutional in their chapter on constitutionalism in Canada (Oxford Handbook at This review essay key themes that the of Canada’s constitutional and areas for comparative The last area of comparative interest is the role of comparative engagement in Canadian constitutional Justice Beverley McLachlin provides an “Canadian are comparative Canadian judges are comparative not a of simply the we the history has made (Canada in the World at As was the influence between the Canadian and foreign legal systems is a to Ran Canada is both and of constitutional (Canada in the World at The influence of different legal traditions was embedded in the Canadian system from its and has important As Peter and in their introduction to the Oxford the Canadian legal system two one and by the other and by common law (Oxford Handbook at 3). The of the Constitution Act, to “a Constitution similar in to that of the United the same the of a constitutional the common law more the of a of rights in the of the Canadian Charter of Rights and and among other also made Canada’s to the an Indeed, an empirical study found that the Canadian Supreme Court foreign in its constitutional cases the first of the Charter of these were to US and to UK Furthermore, the of Canada’s pluralism is by the diversity of its Indigenous legal even as the of constitutional has not with respect to Indigenous as Ran Hirschl constitutional has been one of Canada’s main exports (Canada in the World at Richard Albert that the Canadian constitution has the of the South of the the New of and the of Rights (Canada in the World at chapters in the volume this of For instance, the example of the limitations clause (section 1 of the Charter) to how Canadian constitutional experience was in the process of drafting and interpreting the South constitution (Canada in the World at adds that Canada’s contribution is in the jurisprudence of the South that Canadian law has been “the of foreign law in the Court between and if even only of the United (Canada in the World at to an example of an notes that the Court of Rights the Supreme Court of Canada more than any other foreign including the US Supreme Court and the Court of He explains that references to Canadian are on cases the UK UK courts have Canadian cases at the of domestic two in which the engaged with the of the Canadian Supreme Court in cases and rights (Canada in the World at Finally, it should be while chapters the influence of Canadian constitutional law in other a to the limits of the Canadian Supreme Court’s influence in on the of a common law Court of and a law Court (Canada in the World at As the two volumes here the celebration of Canada’s sesquicentennial, it is probably to with a on Canada’s constitutional In this Richard Albert the and of the Canadian constitution, which to the rather than a single He adds that “the Canadian to the constitution the political that the Constitution is both an and an of . . . This state invites both and (Canada in the World at 8). contributions the idea of (Oxford Handbook at and namely, a of constitutionalism that the of fundamental political and diversity and constitutional development that must by not through the of a of or their Comparative public law scholars can to these domestic on a long tradition of comparative engagement within Canada. Canada has and will continue to serve as a of constitutional for comparative public not in common law For both of these comparative and for scholars both inside and outside Canada, the Oxford Handbook of the Canadian Constitution and Canada in the World will to be

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