Mois : septembre 2017

Les 25 et 26 octobre prochains, j’aurai le privilège de prendre part au Symposium de la Cour suprême du Canada, qui sera tenu à Ottawa. C’est à cette occasion, et plus précisément dans le but d’aider à la préparation d’une des séances du symposium, que m’a été posée ainsi qu’aux autres participants la question suivante : « Quel est le plus important défi auquel fera face la Cour suprême du Canada au cours des prochaines décennies, et comment pourrait-elle relever ce défi? Ma réponse est que le plus important défi auquel fait déjà face la Cour suprême du Canada est le risque de sa politisation. Continuer à lire … « Le principal défi pour la Cour suprême du Canada ? Contrer le risque de sa politisation »

By Maxime St-Hilaire, Patrick F. Baud, and Éléna S. Drouin

This last post of our series aims to clarify how one can better define the procedure that allows the amendment of the supreme law of Canada, a procedure that, as we submitted in our previous posts, represents the best criterion to determine whether or not a provision is part of this very supreme law.

The Canadian constitutional amendment procedure: a new, thought-economical, account

Canada’s threefold constitutional amendment procedure is mostly set out in Part V of the Constitution Act, 1982 (CA 1982). It is asymmetrical, composed of a default, or “normal” procedure and two specific, or “exceptional” ones. We will start with the two exceptions. Continuer à lire … « 150 Years On: What is the Constitution of Canada?–Part 3 of 3–A New Presentation of the Procedure that Enables its Identification »

By Maxime St-Hilaire, Patrick F. Baud, and Éléna S. Drouin

In Canadian constitutional law, it is not tautological to say, as we did in our previous post, that, as provided for by subsection 52(3) of the Constitution Act, 1982 (CA 1982), the supreme law of Canada is composed of all provisions that may be only amended in accordance with it. This is precisely what makes the difference between (formally) ordinary and (formally) constitutional “written” laws—an ordinary law cannot definitively determine how it is to be amended. While it is true that we do not know the exact substantive extent of the supreme law of Canada, we do know that the constituency competency (which again, must not be mistaken for the idea of “constituent power”), which was transferred to Canada in 1982 through an amendment “formula”, is meant to be exhaustive, or as Richard Albert puts it, a “complete code”. This is what the “patriation of the constitution”—effected by the Canada Act 1982 and its Schedule B, the CA 1982—was chiefly about. This means, as the Supreme Court explained in its 1982 opinion rejecting Quebec’s claim that it possessed a conventional veto over constitutional amendments, the “new procedure for amending the Constitution of Canada…entirely replaces the old one in its legal as well as in its conventional aspects”. It is through subsection 52(3), which we propose to use as the criterion for defining the supreme law of Canada that allows us to conceive of the non-recognition by, or “irrelevance” for, Canadian law, of the hypothetical repeal by the Parliamentary of the United Kingdom of section 2 of the Canada Act 1982, which reads: “[n]o Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law”.

Any provision elsewhere in the supreme law related to constitutional amendment procedure is implied to have been repealed by Part V of the CA 1982. We are aware of five such provisions: section 3 of the Constitution Act, 1871, which allowed the federal parliament to alter a province’s boundaries only with the authorization of the affected province’s legislature; and the provisions in each of the agreements, made between the Federal executive and those of Alberta, British Columbia, Manitoba, and Saskatchewan; concerning public lands and natural resources of these four provinces; and constitutionalized by the British/imperial Constitution Act, 1930, which reproduced them in schedules, that allow those agreements to be “varied by agreement confirmed by concurrent statutes of the Parliament of Canada and the Legislature of the Province”. Continuer à lire … « 150 Years On: What is the Constitution of Canada?–Part 2 of 3–Amending the Supreme Law »

By Maxime St-Hilaire, Patrick F. Baud, and Éléna S. Drouin

Canada’s constitution was for many decades perhaps best known for combining British-style constitutional monarchy and parliamentary democracy with American-inspired federalism, albeit in a colonial form. Such a mixed constitution would have been considered improbable by the constitutional scholars of that age, such as A.V. Dicey (chap. III).

The Canadian federation’s constitution, which was initially set out in Canada’s Constitution Act, 1867 (CA 1867) served as a model for the Commonwealth of Australia Constitution Act in 1901. Over three decades ago, the Canada Act 1982 and its Schedule B, the English and French versions of the Constitution Act, 1982 (CA 1982), transferred full and exclusive constituent competency to Canada. This final step in Canada’s peaceful transition from British colony to independent country continues to serve as a model throughout the Commonwealth. Yet the constitutional reforms brought about in 1982 continue to raise the following essential, theoretical question: how, absent a revolution, can the full constituent competency be truly transferred rather than simply delegated to the former colony by the imperial legislator?

A basic question with no clear answer (yet)

The CA 1982 also brought major reforms to Canada’s constitution. In the past 35 years, Canada has become renown for its Charter of Rights and Freedoms, which served as one of the models for South Africa’s Bill of Rights, as well as the recognition and affirmation of Aboriginal and treaty rights in section 35 of the CA 1982, section that currently informs ongoing Australian debates on the constitutional recognition of Aboriginal and Torres Strait Islander peoples. But these oft-debated features of Canada’s constitution mask a more fundamental problem facing Canadian constitutionalists—they cannot answer what should be a simple question: what is the supreme law of Canada composed of? This question is one without a clear answer in Canadian law. For one, there exists no reliable list of the supreme law’s components and no such list could be established. Rather, it seems that the supreme law of Canada includes any possible provision that, based on the nature of its contents, falls under one of the (real) constitutional amendment procedures that the supreme law provides in certain of its key components. However, one of the amendment procedures does not specify which contents it applies to, yet it presents itself as the “normal,” that is to say, residual or default procedure. This draws a vicious circle. In our view, this problem is one that should be of interest not only to Canadian constitutionalists. This problem also particularly highlights the issues that can arise from perfectible constitutional drafting and the interaction among the constitutional amendment procedure and the rest of a constitution, notably a federative one. Continuer à lire … « 150 Years On: What is the Constitution of Canada?–Part 1 of 3–The Problem of Identification »