Canada in the World: Comparative Perspectives on the Canadian Constitution
Richard Albert & David R Cameron
Cambridge: Cambridge University Press, 2018
The Sesquicentennial of Confederation in Canada provides an opportunity to reflect on, and perhaps even celebrate, Canada's unique constitutional heritage. In a volume intended to mark the event, the editors, Richard Albert and David Cameron, have assembled leading scholars and jurists together to do just that. At Yale Law School in 2016, these authors gathered to present their papers at a conference organized under the theme "Comparative Perspectives on the Constitution of Canada". These papers, noted to have been revised and refined, were then organized into the chapters that make up this volume.
Purposely marking the anniversary of the creation of Canada's Constitution will inevitably give rise to a type of tension familiar to constitutional law scholars. By this action, one implies that the Constitution is a finished product and is something in which Canadians should have pride. However, these conclusions seem to run contrary to reoccurring themes in the volume. In the United States, it is an idea described with allusions to the nation still being an imperfect union or, as represented by the unfinished pyramid on its seal, an unfinished nation. (1) As discussed in chapters throughout, in Canada, this same idea is captured by the metaphor of a "living tree capable of growth and expansion". The constitutional project is not one that is capable of completion and remains a work-in-progress. Further, in Canada, constitutional growth is still required to remedy its obvious deficiencies. Notably, the failure to fully integrate Indigenous groups into Canada's constitutional structure and to reconcile Quebec with the Constitution after its estrangement during the repatriation process.
Richard Albert realizes that "[t]here is a risk in a project like ours". He notes that this same tension caused Thurgood Marshall J, of the Supreme Court of the United States, to decline an invitation to participate in celebrations of the US Constitution in its Bicentennial year. However, the editors and authors proved capable of relieving this tension. Indeed, while celebrating the praiseworthy aspects of the Constitution, they do not shy away from the challenges faced by the country and stress where its constitutional promises remain unfulfilled.
Undoubtedly, the achievements of our Constitution should be celebrated and highlighted for Canadians and non-Canadians alike. In the first chapter, Beverley McLachlin CJC (as she then was), who opened the conference, observed that Canada is a multicultural nation--a cultural mosaic. Three central tenets of Canadian constitutionalism have allowed it to manage diversity: (1) the ethic of accommodation of difference; (2) the value of comparative law; and (3) the view of the constitution as a living tree, capable of growth and expansion. These tenets are explored in her chapter but resurface in chapters throughout the volume.
Stephen Tierney, in his chapter, explores federalism as a constitutional idea, using Canada as a case study. Federalism, a feature of constitutional structures around the world, is a model often used to address territorial diversity. However, Canadian federalism is described as something exceptional. It was one of the first federal systems in the world and was modelled not just to account for territorial diversity, but also to respect and accommodate cultural and linguistic diversity. A defining feature of the new Dominion was the initial incorporation of Quebec, including the maintenance of the religion and language of the French-Catholic population, into the constitutional order. Further, resisting the trend seen in the US, the provinces actually gained power over time, which only enhanced minority protections.
A chapter on constitutional pluralism is provided by Patrick Macklem. He notes that, when compared to the Quebec example, a less familiar commitment to legal pluralism lies in the constitutional relationship between Indigenous peoples and the Canadian state. Macklem points to constitutional developments such as the enactment of section 35(1) in the Constitution Act, 1982 (2) that have the possibility "to restart animating relations between Indigenous peoples and Canada". Indeed, beyond providing for the constitutional status of treaties, section 35(1) also caused Aboriginal title to shed its common-law status and assume the form of constitutional right.
In her chapter, Catharine MacKinnon observes that the Supreme Court of Canada has provided a pioneering jurisprudential theory of substantive equality under section 15 of the Canadian Charter of Rights and Freedoms. (3) The Court's first equality decision in 1989 marked the first time that the Aristotelian formal equality approach was explicitly rejected in law. (4)...