scholarly journals Constitutional Theory and The Quebec Secession Reference

2000 ◽  
Vol 13 (2) ◽  
pp. 143-169 ◽  
Author(s):  
Sujit Choudhry ◽  
Robert Howse
Keyword(s):  
Supreme Court ◽  
Legal Framework ◽  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
Political Consequences ◽  
Constitutional Order ◽  
Law And Politics ◽  
The Supreme Court ◽  
The Relationship ◽  
Explicit Process

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion.

Part VI Constitutional Theory, D The Role of Constitutional Principles in Canadian Constitutional Law, Ch.47 Constitutional Principles in the Secession Reference

2017 ◽  
Author(s):  
Leclair Jean
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Over Time ◽  
Constitutional Changes ◽  
Political Compromises

In Reference Re Secession of Quebec, 1998, the Supreme Court of Canada concluded that the unwritten constitutional principles of federalism and democracy dictated that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province gave rise to a reciprocal obligation on all parties to the federation to negotiate constitutional changes to respond to that desire. To understand this astonishing decision, the author first examines how, over time, in Canada and Quebec, issues of identity(ies), constitutional law, and democracy came to be formulated in absolutist terms, making political compromises next to impossible. Only then does he analyse the Supreme Court’s decision and attempts to explain why the latter chose to decide as it did.

scholarly journals Politics and constitutional jurisgenesis: A cautionary note on political constitutionalism

2018 ◽  
Vol 7 (1) ◽  
pp. 75-111
Author(s):  
MING-SUNG KUO
Keyword(s):  
Popular Sovereignty ◽  
Constitutional Theory ◽  
Constitutional Politics ◽  
Constitutional Order ◽  
Law And Politics ◽  
The People ◽  
Robust Version ◽  
Judicial Supremacy ◽  
The Relationship

Abstract:This article aims to provide an alternative account of political constitutionalism by situating it in a broader process of constitutional politics than the traditional court vs parliament debate has suggested. Drawing upon Robert Cover’s distinction between the jurispathic and the jurisgenerative constitution, I argue that parliamentary decision-making is not necessarily more congenial to a jurisgenerative constitutional order than judicial review as political constitutionalists contend. I trace the jurispathic character of current scholarship on political constitutionalism to the presupposition of institutional sovereignty in a narrow understanding of constitutional politics, which its defenders share in common with the supporters of judicial supremacy. To move towards a robust version of non-court-centred jurisgenerative constitutionalism, which I call constitutional jurisgenesis, we need to rethink the place of politics in a constitutional order. From Cover’s idea of constitutionalnomosI take two further lessons for this new understanding of constitutional politics. First, constitutional theory should reconsider the role of institutional sovereignty in the relationship between law and politics in constitutional orders. Second, to engage the people in constitutional politics, we need to shift attention from the popular sovereignty-centred debate to constitutional narratives, which are oriented towardsnomos-building.

scholarly journals Constitutional Judges and Secession. Lessons from Canada … twenty years later

2017 ◽  
Vol 9 (3) ◽  
pp. E-105-E-132
Author(s):  
Irene Spigno
Keyword(s):  
Supreme Court ◽  
Minority Groups ◽  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
Constitutional Jurisprudence

Abstract In constitutional theory, the referendum is an instrument that allows for the expression of the popular will in government decisions and through which people are asked to vote directly on an issue or policy. Over the last decades, the referendum has been the instrument used by minority groups to claim their independence supported by popular will. This paper examines trends in constitutional jurisprudence on the issue of independence referendums. The birth of this constitutional trend can be found in the 1998 decision by the Supreme Court of Canada in the Reference Re Secession of Quebec. The principles developed therein have been further explored in two recent cases, issued by the Italian Constitutional), and by the Spanish Constitutional Tribunal in the latest decision of the Catalonia saga (Judgment no. 114/2017).

Part V Rights and Freedoms, B Rights and Freedoms under the Charter, Ch.39 Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15

2017 ◽  
Author(s):  
Lawrence Sonia
Keyword(s):  
Supreme Court ◽  
Complete Separation ◽  
Supreme Court Of Canada ◽  
Government Action ◽  
Canadian Charter ◽  
Doctrinal Development ◽  
Substantive Equality ◽  
The Supreme Court ◽  
The Relationship

This chapter considers the effect of section 1, the “justification” section of the Canadian Charter, on the doctrinal development of section 15, the equality section. It begins by describing the development of the section 15 substantive equality analysis, including the claim of a conceptually complete separation from the section 1 analysis of state justification. The chapter then identifies some features of section 15 which suggest that this separation is less than complete, including the existence of section 15(2), and anxieties over constraining government action. The chapter then turns to three post-2001 cases in which the Supreme Court of Canada found discrimination under the Charter but then held that discrimination was “justified” through section 1, and asks what these cases might reveal about the symbolic significance of a finding of discrimination and the Court’s struggle with institutional competence concerns in equality claims.

The Constrained Court

2011 ◽  
Author(s):  
Michael A. Bailey ◽  
Forrest Maltzman
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Policy Preferences ◽  
Political Factors ◽  
Unique Role ◽  
Political Actors ◽  
Constitutional Order ◽  
Law And Politics ◽  
The Supreme Court ◽  
American Law

How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? This book combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. The book shows how two types of constraints have influenced the decision making of the modern Court. First, the book documents that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The book finds considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, it shows that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. This book shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.

Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1999

2001 ◽  
Vol 34 (2) ◽  
pp. 321-355 ◽  
Author(s):  
James B. Kelly
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
Administration Of Justice ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Relationship ◽  
Provincial Autonomy

This article considers the relationship between rights and federalism in the Supreme Court of Canada's review of cases invoking the Canadian Charter of Rights and Freedoms. It considers whether the Supreme Court of Canada has compromised provincial autonomy by establishing Canada-wide standards in provincial areas of jurisdiction. It suggests that the centralization thesis associated with judicial review on Charter grounds is inconclusive, and combining several processes under the rubric of centralization, it misrepresents the Charter's effect on Canadian federalism and provincial autonomy. Further, the centralization thesis has lost much momentum during the course of Charter review, and, as a result, is a limited approach to understanding the relationship between rights and federalism in Canada. Specifically, the Supreme Court of Canada has demonstrated sensitivity to federalism in its Charter jurisprudence, most evident in a complex jurisprudence that has served to offset the centralization thesis and its implications for provincial autonomy. This threepart federalism jurisprudence is federalism as gatekeeper, an explicit federalism jurisprudence and an implicit federalism jurisprudence, which is most evident in the relationship between criminal rights and provincial responsibility for the administration of justice. This article demonstrates that the Court's approach to Charter review has seen a reconciliation between rights and federalism, most evident in the declining importance of the centralization thesis and the growing importance of the three-part federalism jurisprudence during Charter review. This sensitivity to federalism has existed since the beginning of the Court's Charter jurisprudence but has largely been overshadowed by the dominance of the centralization thesis in the Charter debate.

Part VI Constitutional Theory, F The Canadian Constitution in a Comparative Law Perspective, Ch.50 The Canadian Constitution and the World

2017 ◽  
Author(s):  
Choudhry Sujit
Keyword(s):  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Complex Interplay ◽  
Constitutional Politics ◽  
Judicial Supremacy ◽  
The Supreme Court ◽  
Dialogue Theory ◽  
The Relationship

This chapter examines the influence of elements of Canada’s constitutional model abroad, in three areas: (1) the Canadian Charter of Rights and Freedoms as an innovative way to institutionalize the relationship among legislatures, executives, and courts with respect to the enforcement of a constitutional bill of rights, as justified by “dialogue theory”, that contrasts starkly with its leading alternatives, the American and German systems of judicial supremacy; (2) Canada’s plurinational federalism as a strategy to accommodate minority nationalism and dampen the demand for secession and independence within the context of a single state, by divorcing the equation of state and nation; and (3) the complex interplay between a constitutional bill of rights and minority nation-building, as reflected in the constitutional politics surrounding the recognition of Quebec’s distinctiveness, and the role of the Supreme Court of Canada in adjudicating constitutional conflicts over official language policy arising out of Quebec.

scholarly journals Instrumental Rationality and General Deterrence

2019 ◽  
pp. 53
Author(s):  
Colton Fehr
Keyword(s):  
Supreme Court ◽  
Instrumental Rationality ◽  
Supreme Court Of Canada ◽  
General Deterrence ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Rationally Connected ◽  
The Relationship

The Supreme Court of Canada concluded in R. v. Nur that the use of general deterrence in sentencing is not “rationally connected”to its objective of lowering crime levels. Although this conclusion was drawn in the Charter section 1 context, its logic applies with equal force at the section 7 stage of analysis. As a law bearing no rational connection to its purpose is arbitrary, the author contends that judicial reliance on general deterrence in sentencing runs afoul of section 7 of the Canadian Charter of Rights and Freedoms. This conclusion is significant not only because it would forestall judicial use of general deterrence, but also for what it reveals about the relationship between the instrumental rationality principles. Commentators maintain that the Supreme Court’s “individualistic” approach to instrumental rationality resulted in the arbitrariness principle becoming subsumed by overbreadth. Yet, challenging the general deterrence provisions with overbreadth is not possible given the discretion given to judges to avoid its unnecessary application. The fact that a law can be arbitrary but not overbroad provides support for the Supreme Court’s insistence upon keeping the principles distinct. It also, however, requires that the Supreme Court adjust its position with respect to its method for proving arbitrariness.

scholarly journals Madam Justice Bertha Wilson: A Different Voice in the Supreme Court of Canada

1996 ◽  
Vol 35 (1) ◽  
pp. 242 ◽  
Author(s):  
Elizabeth Halka
Keyword(s):  
Supreme Court ◽  
Detailed Examination ◽  
Legal Framework ◽  
Supreme Court Of Canada ◽  
Holistic View ◽  
The Supreme Court ◽  
Principles Of Justice ◽  
Normative Standard ◽  
The One ◽  
The Impact

This article discusses the impact of the appointment of Madam Justice Wilson, the first woman judge, to the Supreme Court of Canada. The author explores the thesis that Justice Wilson provided a "different voice" to the highest court of Canada with an analysis of two opposing forces underlying her work. On the one hand. Justice Wilson adhered to the restraints of judicial decision-making regarding principles of law and community morality. On the other hand, with the influence of psychologist Carol Gilligan, Justice Wilson aspired to infuse Canadian jurisprudence with a "feminine morality" comprised of a contextual humanist approach to justice. The author applies this analysis to the jurisprudence of Madam Justice Wilson. With a detailed examination of R. v. Morgentaler and R. v. Lavallee, the author demonstrates Justice Wilson's ability to look beyond traditional abstract principles of justice and its normative standard. Justice Wilson constructed a legal framework, based on a contextual justice, that took a subjective and holistic view of the issues of the court. This article concludes with an outlook of the manner in which Madam Justice Wilson's mode of analysis will impact Canadian jurisprudence.

The Expanded Role of the Judiciary: The Supreme Court and the Charter

Federalism-E ◽  
1969 ◽  
Vol 15 (1) ◽  
pp. 65-77
Author(s):  
Jeremy Cavan
Keyword(s):  
Supreme Court ◽  
Legal Framework ◽  
Supreme Court Of Canada ◽  
House Of Commons ◽  
Supreme Court Ruling ◽  
Stare Decisis ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
Policy Measures

The introduction of the Charter of Rights and Freedoms and the Constitution Act, 1982 marked a decisive moment for Canadian federalism. In particular, it greatly expanded the role of the judiciary and the Supreme Court of Canada. The Charter created a legal framework of rights which changed the role of the courts in the Canadian political landscape. As a result, governments have been dissuaded from policy measures which might invoke legal action as a potential Supreme Court ruling is considered stare decisis 170 and could be potentially damaging to the confidence of the House of Commons and its popular support.[...]

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