Canada in the World: Comparative Perspectives on the Canadian Constitution

Canada in the World: Comparative Perspectives on the Canadian Constitution
Contents
List of Contributors
Acknowledgements
Introduction: The Values of Canadian Constitutionalism
	A constitutional model for the world?
	Three Canadian values
	Identifying constitutional values
	Democracy in constitutional amendment
	Federalism in constitutional amendment
	Difference and diversity in constitutional amendment
	A land of many peoples
	A missed democratic moment?
	Unity in dissimilarity
	Constitution as noun and action
	Three themes
	The risk and reward of anniversary specials
Part I: Federalism and Pluralism in Canadian Constitutionalism
1 Diversity and the Rule of Law: A Canadian Perspective
	Introduction
	Respectful accommodation
	The value of comparative law
	The constitution and changing realities
	Conclusion
2 Misconceiving Federalism: Canada and the Federal Idea
	Introduction: Canada and the federal idea
	Federalism: an exercise in constitutional theory
	Origins
	Purposes
	Subjects
	Design
	Dynamics
	Concluding remarks
3 Political Dynamics in Quebec: Charting Concepts and Imagining Political Avenues
	Charting political spaces through the use of concepts
		Face 1: Political Nationality
		Face 2: The Two-Nations View
		Face 3: Distinct Society
		Face 4: Province State
		Face 5: Multinational Democracy
	Quebec in a comparative context
	By way of conclusion
4 Indigenous Peoples and the Canadian State: The Prospects of a Postcolonial Constitutional Pluralism
5 Legality, Legitimacy and Constitutional Amendment in Canada
	Introduction
	Legality, legitimacy and constitutionalism
	Statutory legality: 1867 to 1982
	Constitutional legality: patriation and the accords
	Legality, legitimacy and amendment rigidity
6 Constituting Citizens: Oaths, Gender, Religious Attire
	Citizenship-by-naturalization
	Constituting citizens through “words that bind”: a brief comparative journey
	Canada’s multiculturalism
	Context and membership matters
	Troubles in paradise: when diversity and equality collide
	Women, citizenship, and the franchise
Part II: The Court in Canadian Constitutionalism
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
	Introduction
	Law as a language game, judicial versus ordinary politics and the dialectic between the constitutionalization of politics and the politicization of the constitution
	The constitutionalization of politics through case law: Canadian secession, South African death penalty and Israeli basic laws
		The Canadian Case: Reference Re Secession of Quebec
		The South African Death Penalty Case
		The Israeli Basic Laws Case
	Judicial politics and the legitimate bounds of the constitutionalization of politics
	Conclusion
8 Originalism in Australia and Canada: Why the Divergence?
	Introduction
	Constitutional interpretation until the 1980s
		Inherited British Principles of Statutory Interpretation
		Application of These Principles in Canada
		Application of These Principles in Australia
	Developments from the 1980s
		Canada: The Advent of the Canadian Charter of Rights and Freedoms
		Australian Developments
	Some consequences of Canada’s rejection of originalism
	Conclusion
9 Rights Inflation in Canada and the United States
	Introduction
	Two types of rights inflation
	Why be concerned about rights inflation? A politico-cultural account
	Rights inflation: a doctrinal account
	The United States: rights-characterization as a threshold question
	Canada: rights inflation and proportionality
	Conclusion
10 Substantive Equality Past and Future: The Canadian Charter Experience
11 Canadian Constitutional Law of Freedom of Expression
	Freedom of expression values
		Preliminaries
		The Canadian Concept of Expression
		Limits on Freedom of Expression: The Hate Speech and Pornography Cases
			Equality
			Multiculturalism
		A Qualification and an Additional Point
	The methodology of the Canadian constitutional law of freedom of expression
	Insights into freedom of expression?
	Conclusion
12 The Judicial, Legislative and Executive Roles in Enforcing the Constitution: Three Manitoba Stories
	Introduction
	The context: the Manitoba Act, 1870
	The Manitoba schools crisis and questions of remedial choice and dialogue
	Sir John a hides behind the courts
	Off to court: round one
	The Privy Council’s first decision
	Back to court: round two
	Remedial legislation and legislative blockage
	The 1896 election and the “sunny ways” of compromise
	Summary: comparing executive, legislative and judicial performance
	Contrasting Canadian and American approaches to remedial legislation
	The Manitoba language crisis and remedial resistance
	Appeals to executive discretion to reserve or disallow laws
	The executive hiding behind the courts
	Successful but ignored court challenges
	Rights without remedies
	The Manitoba legislature’s use of coordinate construction to dilute French language rights
	Legislative blockages and the failed constitutional amendment
	Back to court and the vindication of minority language rights
	The invention of the suspended declaration of invalidity
	The growth of suspended declarations of invalidity
	The export of the suspended declaration of invalidity
	Continued Canadian remedial activism?
	Summary: comparing executive, legislative and judicial performance
	The Manitoba métis land grant litigation
	Litigation in aid of extra-judicial settlements
	Round one
	Round two
	Are general declarations sufficient? The unfinished declaratory remedy
	Summary: comparing executive, legislative and judicial performance
	Conclusions
Part III: The Global Impact of Canadian Constitutionalism
13 Going Global? Canada as Importer and Exporter of Constitutional Thought
	Canada as “exporter” of constitutional thought
	Canada as a constitutional “taker”
	The limits of selective engagement
14 Exporting Dialogue: Critical Reflections on Canada’s “Commonwealth” Model of Human Rights Protections
	Blame Canada?
	A new model?
	A strong, constitutional protection of rights in all but name?
	A plethora of theories?
	Rediscovering dialogue
	Constitutional collaboration and constitutional counter-balancing
	Application to Canada and the UK
	Conclusion
15 The European Court of Human Rights and the Canadian Case Law
	Globalization and human rights
	Human rights and judicial dialogue
	The “foreign law” in the European Court of Human Rights
	The Canadian case law: more than one of the foreign laws?
	The assisted suicide cases
	The prisoners’ voting rights cases
	Beyond Rodriguez and Sauvé: a few examples
	Conclusion
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
	Introduction
	Hong Kong’s Court of Final Appeal referencing to Canadian charter case laws
		References by Judges
		References by Litigant Parties
	Taiwan’s Constitutional Court referencing to Canadian charter case laws
		References by Judges
		References by Litigant Parties
	Analyses of HKCFA’s and TCC’s referencing to Canadian charter case laws
		Legal Family v. Recognition of the Court
		Judge-Initiated v. Litigant-Initiated References
		Openness v. Reticence
		Protecting Rights v. Limiting Rights
	Conclusion
17 The Canadian Charter, South Africa and the Paths of Constitutional Influence
	Introduction
	Canadian influences
	Uses of foreign jurisprudence in the Constitutional Court
	Is there a special role for Canadian constitutionalism?
	Conclusion: Canadian jurisprudence as a special case
Conclusion: The Court and Constitution in the World
Index