Compact Is Back: The Revival of the Compact Theory of Confederation by the Supreme Court
Osgoode Hall Law Journal, Vol. 53(2), 2016
27 Pages Posted: 15 May 2016 Last revised: 19 May 2016
Date Written: May 12, 2016
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: Suggested Citation