The Role of Theory in Canadian Constitutional Law
Forthcoming in N. Des Rosiers, P. Macklem & P. Oliver, eds The Oxford Handbook of Canadian Constitutional Law (Oxford: Oxford University Press, 2017)
20 Pages Posted: 6 Mar 2017 Last revised: 18 Jul 2017
Date Written: March 1, 2017
Constitutional theory has been institutionalized in distinctive ways in Canada. The Constitution Act, 1867 (formerly the British North America Act, 1867) created unique opportunities and imperatives for political leaders, advocates, judges, scholars, law students and others to articulate their understanding of Confederation. And even while the country chose a parliamentary form of government very different from American republicanism, Confederation generated a set of entrenched rules defining the powers of the federal and provincial governments, which would give judges a hand in the law of the Constitution that judges had not had in the United Kingdom. Moreover, Canadian federalism generated an extraordinary statutory provision for references (i.e., requests for advisory opinions) to the Supreme Court of Canada on matters of law and fact, including (as it would turn out) matters of convention. The judges’ reasons for decision involve them in the theoretical task of articulating the basis of the Constitution. The Constitution Act, 1982 further enhanced the judges’ role as theorists of the Constitution, through their role in the interpretation and elaboration of the Charter of Rights and Freedoms. We aim to illustrate ways in which both express theorizing and inarticulate theoretical assumptions have shaped Canadian constitutional law, and we argue that good theorizing is essential for the sound development of the law and practice of the Constitution.
Keywords: Canadian Constitution, constitutional theory, parliamentary government, federalism
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