The Constitution of Canada: A Contextual Analysis

by Jeremy Webber, Andrew Harding (Editor), Benjamin L Berger (Editor), Heinz Klug (Editor), Peter Leyland (Editor)

Overview

The first edition of this text quickly established itself as the classic introduction to the Canadian constitution. Setting it in its historical context, noting especially the complex interaction of national and regional societies, it shows how the constitution continues to morph and shape itself.

These changes are explored through key constitutional themes: democracy; parliamentarism; the rule of law; federalism; human rights; and Indigenous rights, and describes the country that has resulted from the interplay of these themes.

Clarity of expression and explanation, which never veers into simplicity, combined with the author's expertise, makes this the ideal starting point for the student or comparative lawyer keen to gain a strong understanding of how Canadian democracy and government works.

Product Details

ISBN-13:	9781509947171
Publisher:	Bloomsbury Academic
Publication date:	11/04/2021
Series:	Constitutional Systems of the World
Edition description:	2nd ed.
Pages:	296
Product dimensions:	5.50(w) x 8.50(h) x 0.62(d)

About the Author

Jeremy Webber is Professor of Law, University of Victoria, British Columbia, Canada.

Table of Contents

Acknowledgements vii

Table of Cases xiii

Table of Legislation xxiii

1 Introduction 1

2 The Making of the Canadian Constitution 9

I Pre-confederation Canada 10

A Founding of British North America 10

B Conflict, Rebellion, and Responsible Government 14

II Post-confederation Canada 20

A Territorial Extension 20

B From Colony to Nation 25

C Canada's Economic Evolution 28

D Provincialism, Regionalism, and Canadian Nationhood 29

E Federalism and the French Canadians 33

F Multicultural Canada 37

G Indigenous Rights 38

III The Contemporary Canadian Constitution: Patriation and its Aftermath 40

A Constitution Act 1982 40

B Negotiations after Patriation 45

C 1995 Referendum on Quebec Sovereignty and the Secession Reference 49

D 'Administrative Measures' 51

IV Conclusion 52

Selected Reading 53

3 The Legislative Power 54

I Parliamentary Sovereignty 55

A Principle 55

B Internal Limitations on Parliamentary Sovereignty 56

C Limitation (or Abandonment?) of Parliamentary Sovereignty 58

II Canadian Parliaments 59

A Parliament of Canada 59

B Provincial Legislatures 63

C Other Legislative Bodies 63

III The Legislative Process 66

IV Parliamentary Office-holders 70

V Parliamentary Privileges and Immunities 71

VI Public Participation in the Legislative Process 72

VII Elections 76

VIII Reform of the Legislative Process 79

IX Conclusion 81

Selected Reading 82

4 The Executive Power 83

I Responsible Government 84

A Principle 84

B Formation of Governments 84

C Responsible Government as a Constitutional Convention 88

II Structure of the Executive 90

A Governor General and Lieutenant Governors 90

B Prime Minister and Cabinet 91

C Ministers and their Departments 92

D Government Agencies, Crown Corporations, and Administrative Tribunals 94

III The Rule of Law 95

A Legal Foundations of Executive Authority 95

B Executive Privileges and Immunities 97

C Institutionalization of the Rule of Law 98

IV Conclusion 100

Selected Reading 100

5 The Judiciary 102

I Court Structure 102

A Superior Courts 102

B Federal Court 104

C Provincial Courts 106

D Administrative Tribunals 108

E Supreme Court of Canada 109

II Judicial Independence 112

A Constitution Act 1867, Sections 99 and 100 113

B Constitution Act 1982, Section 11(d) 114

C Implied Principle of Judicial Independence 114

III Supreme Court of Canada as a Constitutional Court 115

A References and Justiciability 116

B Parties, Intervenors, Representation, and Evidence 117

C Constitutional Remedies and Stare Decisis 118

IV Conclusion 120

Selected Reading 121

6 Federalism 122

I Visions of the Canadian Federation 123

A Canada as a Quasi-Federation 123

B Compact versus Statute? 125

C Quebec's Distinct Society versus the Equality of the Provinces 126

D Comparisons to the European Union 128

E Conclusion 129

II Principles of Interpretation of the Division of Powers 129

III Federal and Provincial Powers 134

A Peace, Order, and Good Government 134

B 'Property and Civil Rights' and 'Matters of a Merely Local or Private Nature' 138

C Federal Economic Powers 139

D Criminal Law Power 145

E Social Legislation 148

F Citizenship, International Affairs, and Defence 149

G Provincial Authority Over Public Lands 151

H Fiscal Relations, Taxation, Equalization, and the Spending Power 153

IV Interprovincial Conflicts 155

V Cooperative Federalism 159

VI Conclusion 160

Selected Reading 161

7 Rights and Freedoms 162

I The Universe of Rights Protections in Canada 165

A Legislative Support of Rights 166

B Courts and Rights before the Charter 168

C Executive Enforcement of Rights 169

II Canadian Charter of Rights and Freedoms 170

A Application and Structure 171

B Substance of Rights and Freedoms under the Charter 178

III Conclusion 203

Selected Reading 208

8 Indigenous Peoples 209

I Constitution Act 1982, Section 35 214

A Adoption of Section 35 214

B Indigenous Rights to Land and Resources 216

C Effect of Section 35 219

D Haida and the Turn Towards Interim Measures 224

II Federal/Provincial Authority, Fiduciary Obligations, and the Honour of the Crown 226

A Constitutional Authority with Respect to Indigenous Peoples 226

B Fiduciary Duties and the Honour of the Crown 228

III Treaties 229

IV Self-government 233

V Resurgence of Indigenous Jurisdictions 234

VI Conclusion 237

Selected Reading 239

9 Conclusion 241

Selected Reading 247

Index 249

Editorial Reviews

Jeremy Webber has given us a rich, contextual account of Canada's constitution. Webber moves beyond the confines of constitutional texts and judicial decisions and grounds his account in the circumstances of the country's history. Only such an account can capture the deep diversity that is the hallmark of Canada's constitutional culture.

The Constitution of Canada is a masterpiece - an outstanding and original study of the Canadian constitutional experience by one of Canada's leading legal scholars. Webber explains the history, characteristics and resourcefulness of the living constitution in non-technical and illuminating language. He also shows how the constitution is shaped by the engagement and interaction of the diverse people of Canada, who are simultaneously subjects and active citizens of it - a dynamic he calls "agonistic constitutionalism."

This book is an umbrella of fundamental principles, covering flexibility, accommodation and negotiation necessary to enable members of a constitutional community who may disagree on issues but who want to remain bound together within a country and society. Impressive!
Journal of Parliamentary and Political Law

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