Compact Is Back: The Revival of the Compact Theory of Confederation by the Supreme Court

Osgoode Hall Law Journal, Vol. 53(2), 2016

Osgoode Legal Studies Research Paper No. 53/2016

27 Pages Posted: 15 May 2016 Last revised: 19 May 2016

See all articles by Sébastien Grammond

Sébastien Grammond

University of Ottawa - Civil Law Section

Date Written: May 12, 2016

Abstract

The compact theory of the Canadian confederation is the idea that the constitution is the product of a political agreement (or “compact”) among the country’s constitutive parts. Although the theory has been widely criticized, this article shows how the theory has recently been used by the Supreme Court of Canada to explain the origins of certain parts of the constitution and to guide its interpretation, in particular in cases involving constitutional amendment and indigenous rights. It then discusses how the Court dealt with instances where one party’s consent to a foundational compact was vitiated or altogether lacking, and whether the Court’s use of compact theory gives rise to the objection that it is an “originalist” method of interpreting the constitution.

Keywords: Compact theory; Confederation; Constitutional law; Treaties; Federalism; Constitutional Amendment

JEL Classification: K00, K10, K19, K40

Suggested Citation

Grammond, Sébastien, Compact Is Back: The Revival of the Compact Theory of Confederation by the Supreme Court (May 12, 2016). Osgoode Hall Law Journal, Vol. 53(2), 2016; Osgoode Legal Studies Research Paper No. 53/2016. Available at SSRN: https://ssrn.com/abstract=2779168

Sébastien Grammond (Contact Author)

University of Ottawa - Civil Law Section ( email )

57 Louis Pasteur Dr
Ottawa
Canada

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