Constitutional Forum (Journal)
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Federalism and the Paramountcy Doctrine
No full textFederal systems require individuals to comply with laws enacted by more than one order of government. At times, the laws enacted by each order may overlap, and different approaches have been adopted to deal with this situation. In Canada, this is done through the paramountcy doctrine, which permits a court to render a law inoperative when faced with two valid but conflicting laws adopted by different orders of government. However, despite being a staple of constitutional law for over a century, the paramountcy doctrine has been the subject of important doctrinal fluctuations over the years. For the time being, the doctrine includes a narrow branch known as the operational conflict branch and a broader — and sometimes controversial — branch known as the federal purpose branch. In its 2015 trilogy on the subject, the Supreme Court of Canada clarified the precise parameters of the doctrine while also noting in obiter that further doctrinal change may be on the horizon
A Minimalistic Approach to Severing the British Royal Family from Canada’s Constitution
No full textIn a survey conducted prior to the Queen’s passing, 51 percent of respondents affirmed that the country “should not remain a part of the monarchy in coming generations.” While 55 percent of those surveyed supported the country continuing as a constitutional monarchy so long as the Queen reigned, only 34 percent expressed the same once Charles was to become King. Time will tell whether this general apprehension about Charles III will continue, but given the negative public standing of the new King and the monarchy in general, the question is bound to arise: how can the British royal family be removed from Canada’s constitutional architecture
The Individual is Not the Institution: The Flawed Logic of the New Brunswick Court of Queen’s Bench Decision in Acadian Society of New Brunswick v Right Honourable Prime Minister of Canada
No full textIn 2021, the Acadian Society of New Brunswick brought an application to the New Brunswick Court of Queen’s Bench seeking a declaration that the appointment of a unilingual anglophone as the Lieutenant Governor of New Brunswick was unconstitutional. Specifically, the Acadian Society claimed that the appointment of Brenda Murphy as New Brunswick’s lieutenant governor in 2019 violated the guarantees in the Canadian Charter of Rights and Freedoms of the equal status of English and French in New Brunswick. On April 14, 2022, the Chief Justice of the Court of Queen’s Bench, Tracey deWare, decided that the appointment of Ms Murphy as New Brunswick’s lieutenant governor was, indeed, in violation of the Charter. Yet, despite this conclusion, the Chief Justice also decided that it was appropriate to leave the question of what the implications of this determination should be to the executive branch of the Government of Canada
Patriation and Section 35: The Role of Allan Blakeney in Securing Indigenous Rights
No full textThis paper will attempt to do four things. First, it will review some of the background essential to understanding how Indigenous leaders were involved in the patriation process and why section 35 was adopted as part of the patriation package. Second, it will elaborate on the role of former Premier Allan Blakeney of Saskatchewan in securing the adoption of section 35. Third, it will examine some of the expectations for significant structural change to the Canadian political system that were contemplated by the non-Indigenous participants involved in the patriation negotiations and, most importantly, why those expectations were never met. Finally, the paper will attempt to answer the fundamental question: are Indigenous peoples and their rights protected by the adoption of a general section 35, or has the existence of such a general provision actually hindered progress toward a more complete reconciliation between Indigenous and non-Indigenous peoples in Canada
Is Canadian Constitutional Law Canadian?
No full textIn 2017, Anthea Roberts published an important book, Is International Law International?, in which she asked whether there was actually a unified approach to international law across international jurisdictions or whether approaches to international law differed significantly within different cultural and educational systems. She went further than asking that question but went on to amass significant evidence on educational profiles of academics in different countries, international law textbooks within different national contexts, and ultimately different and competing national traditions of international law. While I will certainly not here amass the same quantity of material in response to the question, I raise here a question inspired by hers, asking “Is Canadian Constitutional Law Canadian?”
To be clear, I ask that not in the sense of whether Canadian constitutional law is distinctive relative to the traditions of other states, such as the United Kingdom or United States, but rather whether Canadian constitutional law is unified at a pan Canadian level. Is there one patriated body of constitutional law across Canada, or are there sufficient indications as to raise questions about such a claim that would warrant further and more detailed investigation
Canada’s Bilingual Constitution: An Unfulfilled Obligation
No full textFor over 155 years, the Canadian federation has derived its legitimacy from a written constitution made up of 31 documents, the majority of which, including the foundational Constitution Act, 1867, have no legal force in the French language
Mandatory Covid-19 Vaccinations and the Charter
No full textA Leger poll taken near the beginning of the Covid-19 pandemic found that 60 percent of Canadians thought that any future vaccine should be mandatory for all citizens.1 A more recent Nanos poll completed on 2 August 2021 showed that this high level of support did not wane as 53 percent of Canadians fully supported mandatory vaccinations, while a further 21 percent “somewhat support” such a policy.2 Although neither the federal nor provincial governments have implemented a generally applicable mandatory vaccination policy, other countries are acting upon similar support. Austria’s Chancellor recently announced that vaccines will be mandatory as of 1 February 2022, making Austria the first of several European countries to adopt a mandatory vaccination policy.3
1 See “Covid-19 Tracking Survey Results” (27 April 2020) at 13, online (pdf): Leger <leger360.com/wpcontent/uploads/2020/04/tracking_covid19_13386-124_EN_week6-2.pdf> [perma.cc/Q9GB-759G].
2 See Sarah Turnbull, “Majority of Canadians support mandatory vaccinations: Nanos survey”, CTV News (5 August 2021), online: <www.ctvnews.ca/health/coronavirus/majority-of-canadians-support-mandatoryvaccinations-nanos-survey-1.5536106> [perma.cc/EFA9-69S6].
3 See Philip Olterman, “Austria plans compulsory Covid vaccination for all”. The Guardian (19 November 2021), online: <www.theguardian.com/world/2021/nov/19/austria-plans-compulsory-covid-vaccinationfor-all> [perma.cc/5JYH-LMHT]. Subsequently, Greece has required all people over the age of 60 to receive a vaccine, while Italy has voted in favour of making vaccinations mandatory for those over 50.
For a more detailed review of the policies in place in Europe, see Lauren Chadwick, “Which countries in
Europe will follow Austria and make COVID vaccines mandatory”, Euro News (1 February 2022), online:
<www.euronews.com/2022/01/06/are-countries-in-europe-are-moving-towards-mandatory-vaccination>
[perma.cc/RNQ9-NPA6].
 
Minority Language School Boards and Personal Federalism in Canada — Recent and Ongoing Developments in Quebec
No full textIn April 2021, the Superior Court of Quebec ruled on the constitutionality of the Act respecting the laicity of the State (Bill 21).1 In this awaited decision, the Court declared that the controversial ban on the wearing of religious symbols by some specifically designated public employees is consistent with the Constitution — because of the notwithstanding clause — but exempted English-language school boards from its application. Judge Marc-André Blanchard indeed concluded that Bill 21 violates section 23 of the Canadian Charter of Rights and Freedoms (Charter hereafter). According to Blanchard, section 23 grants constitutional rights to linguistic minorities in the management of their schools, as well as the right to establish policies for the hiring, retention and promotion of the personnel of their choice.2.
1 SQ 2019, c 12. 2 Hak v Procureur général du Québec, 2021 QCCS 1466 [Hak]
The Paradox of Political Questions in Canadian Aboriginal Law: Why Dickson v Vuntut Gwitchin First Nation Requires Reconsideration of the Political Questions Doctrine in Canada
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Two Roads to Guantanamo: The Canadian and United States Supreme Courts’ Approaches to the Extraterritorial Application of Fundamental Rights
No full textFollowing Catherine Kellogg’s engagement with Hannah Arendt’s question of whether there are modes of non-nationalist belonging, I begin with the recognition that the moment when the “nation-state ... will nullify itself as such” still lies far in the future, if it ever occurs at all. Real (as opposed to ideal) history happens through incremental, fragile evolutionary change, not through sudden leaps from one fundamental paradigm to another. If the ideal of the self-nullifying nation-state is an intellectual fantasy, however, it is also an ideal in the Kantian sense, one that can motivate and orient political action. Indeed, it is precisely the contingency of actual history that makes space for real-world political movements of groups and individuals that change paradigms from within