Constitutional Reasoning in the Supreme Court of Canada
Hugo Cyr & Monica Popescu, "The Supreme Court of Canada" in András Jakab, Arthur Dyevre & Giulio Itzcovich (eds) Comparative Constitutional Reasoning (Cambridge: Cambridge University Press, 2017) 154-198
43 Pages Posted: 5 Aug 2014 Last revised: 2 Aug 2017
Date Written: August 3, 2014
This article presents the modes of constitutional reasoning of the Supreme Court of Canada. The first part of this article presents the overall context in which constitutional reasoning is conducted by the Supreme Court of Canada. We thus (1) address the historical context and political culture in which constitutional review is exercised, (2) we describe the nature of constitutional review in Canada (e.g. a priori or a posteriori processes? In concreto or in abstracto analysis? Who can litigate? What kind of remedies are available? What is the caseload? Etc.), (3) we discuss the composition of the Supreme Court, and (4) we say a few words about its interactions with academia. The second part the article focuses on an analysis of the arguments used by the Supreme Court of Canada in constitutional cases. We examine (1) the structure of its constitutional arguments, (2) the types of arguments the Court uses when (a) trying to establish the existence of an applicable constitutional norm (e.g. filling gaps through analogies), or (b) when interpreting such norms (e.g. wording and “ordinary meaning”, “harmonising” arguments, precedents, doctrinal analysis (Verfassungsdogmatik), arguments from silence, teleological arguments referring to the text, teleological argument referring to the constitution-makers, moral, sociological or economic arguments, references to scholarly works, references to foreign or international law, etc.) and (3) the respective weight given to each type of arguments. To shed more light on the Supreme Court’s constitutional activity, (4) we explain how the Court’s rhetoric has evolved since it no longer sees itself as a mere Court of error, but assumes the role of “Guardian of the Constitution." The picture is completed with a discussion of (5) the length of opinions and the use of dissenting and concurring opinions, (6) an explanation of how most constitutional issues are framed and (7) presentation of some key concepts of Canadian constitutional law that should be of interest to comparative constitutional law scholars concerned with constitutional reasoning. While this article aims at giving an overall account of the Supreme Court’s constitutional reasoning, special attention was given to a particular set of cases. Indeed, our report benefited from a close analysis of what we considered to be the 40 canonical constitutional cases decided by the Supreme Court of Canada (as of June 2013). The cases included in this separate, but complementary study, are those that are normally taught in constitutional law classes, and are expected to be known by all constitutional law experts. Those may be the leading cases, they may have been heavily nuanced, or may even have been overturned; what ultimately matters is that they are considered most significant within the constitutional tradition. A decision could thus be part of the “canon” despite the fact that it is now universally considered a bad decision. This would be the case when, for example, a decision is now taken as a prime example of bad constitutional reasoning, or when serious political, social or economic consequences are thought to have been triggered by such decision. Five independent experts were asked to review our list to evaluate the level of canonicity of our proposed list. Prof. Adam Dodek, Prof. Peter Hogg, Prof. Jean Leclair, Prof. Dwight Newman and Prof. Maxime St-Hilaire reviewed our proposed canon. Each was asked to provide his alternative list. The first appendix to this report contains the list of the 40 Supreme Court cases that we considered canonical, as well as the list proposed by each of the reviewers. We used 36 distinct variables to qualify each of the 40 cases in our proposed canon. The second appendix to this report contains our dataset. This paper is a country report prepared for CONREASON – an international research project on comparative constitutional reasoning hosted by the Max Planck Institute for Comparative Public Law and International Law, and by the Institute for Legal Studies of the Centre for Social Sciences at the Hungarian Academy of Sciences, and lead by András Jakab, Arthur Dyevre and Giulio Itzcovich. CONREASON country reports and appendices will be published at Cambridge University Press.
Keywords: Constitutional Review, Constitutional Reasoning, Supreme Court of Canada, Comparative Constitutional Reasoning
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