This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation by governments. Furthermore, changes in practice initiated by Canadian subnational actors have produced changes in the allocation of national and subnational authority that are plausibly characterized as constitutional in magnitude. The paper concludes that the design of the Canadian federal system may inadvertently undermine its capacity to stabilize itself at any particular point of constitutional evolution, making it ‘permanently provisional.’
This paper starts with a general contextualisation of how Canadian constitutional law acquired an important role in global constitutional conversations in recent decades. It then considers, in particular, the well-known Canadian Living tree doctrine as a model of evolutionary constitutional interpretation, and argues that it is a relevant case study for our purposes since it is able to precisely link the ‘history, evolution, influence and reform’ of constitutional law in a comprehensive doctrine. The doctrine's comparative influence will be analysed in particular: the Living tree is especially relevant, since its comparative influence is traceable both in the work of courts that are historical participants in transnational judicial conversations, and courts that are new players in the game.
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).
The Canadian constitution is to some extent characterised by its focus on equality, and in particular gender equality. This development of women’s rights in Canada and the greater engagement of women as political actors is often presented as a steady linear process, moving forwards from post-enlightenment modernity. This article seeks to disturb this ‘discourse of the continuous,’ by using an analysis of the pre-confederation history of suffrage in Canada to both refute a simplistic linear view of women’s rights development and to argue for recognition of the Indigenous contribution to the history of women’s rights in Canada.
The gain of franchise and suffrage movements in Canada in the late nineteenth and early twentieth century are, rightly, the focus of considerable study (Pauker 2015), This article takes an alternative perspective. Instead, it examines the exercise of earlier franchises in pre-confederation Canada. In particular it analyses why franchise was exercised more widely in Lower Canada and relates this to the context of the removal of franchises from women prior to confederation.
The paper focuses on Canadian Provinces’ role in migrant selection. After an asymmetric approach, that benefited only Quebec, the federal government granted devolutionary powers in migrant selection to the other Provinces as well, moving towards de facto asymmetry. This process has proved to be successful over the years, but recently the federal government has reacted, recentralizing some aspects of immigration policy. This does not apply to Quebec.
This policy change may suggest that, although immigration federalism may be grounded on reasons other than the need to accommodate linguistic or ethnic claims, it remains the case that the former are “weaker” than the latter, and are more subject to pressure from the central government.
This is also confirmed by looking at the mechanisms through which intergovernmental agreements have been translated into law. Unlike the Quebec case, immigration’s devolution in relation to the other Provinces has occurred through administrative delegation of powers from the federal government. This permits the federal government to exercise some form of political pressure in order to realign the Provinces’ discretionary choices.
Giuseppe Martinico, Richard Albert, Antonia Baraggia and Cristina Fasone
Canada is and will for the foreseeable future be a peaceful and prosperous liberal democracy whose Constitution Act, 1867, now 150 years old as of 2017, has become a model for the modern world. The Constitution of Canada has exerted considerable influence on other countries, particularly since the coming into force of its Constitution Act, 1982, which included the celebrated Canadian Charter of Rights and Freedoms. Just as Canada drew from foreign and international experiences in drafting its Charter, the world has learned a great deal from Canada, not only as to rights protections but also as to the separation of powers, the judicial function, and the structure of government.
In light of these impressive achievements, an international symposium on the Canadian Constitution was held in Pisa at the Scuola Sant’Anna under the auspices of the Sant’Anna Legal Studies project and with the support of the DIRPOLIS (Law, Politics and Development) Institute at the Scuola Sant’Anna, the Canadian Embassy in Italy, and the International Association of Constitutional Law. This special issue collects some of the papers presented on that occasion.
Constitutional scholarship in Canada since Confederation has been characterized by two primary narratives. The dualist narrative, which characterized constitutional scholarship between the late-nineteenth and mid-twentieth centuries, focussed on the parallel developments of provincial and federal constitutions. The monist narrative, which has become the dominant model of interpretation since the mid-twentieth century, focusses on the federal constitution as a singular foundation of constitutionalism in Canada. As a result of the shift from dualism to monism, provincial constitutions have become largely ignored in Canada and subsumed by the “mega-constitutional” politics of the federal constitution. This paper examines provincial constitutions to highlight the significant reorientation of constitutional scholarship in Canada over the past 150 years, which has become primarily focussed on post-Confederation constitutional history and written constitutionalism.
Since it was passed, the Clarity Act has been at the core of any secessionist debate in Canada and abroad. Although contested at home, the Clarity Act has earned worldwide prestige as the democratic standard that must be observed when a secessionist debate arises. In the last fifteen years Spain has experienced successive debates about the need to establish a mechanism of popular consultation to address secessionist claims in the Basque Country and Catalonia. Most political actors in favour of such consultations have expressed their will to import the Canadian Clarity Act as a tool to settle disputes on how to conduct a referendum. However, this deification of the Canadian example is, for the most part, based on a misreading of the Secession Reference, only taking into account certain passages while ignoring others. The emphasis tends to be made on the quantitative clear majority test, disregarding other factors. Hence, the aim of this paper is to study the causes of this deification of the Clarity Act in Spain, and its influence on the treatment of secessionist claims that the country is currently experiencing.
After a discussion of the impact of the principle of equality, entrenched in the Charters approved in Canada since the 1867 British North American Act, this essay then focuses on the related Supreme Court’s adjudications. A brief analysis of the case-law concerning gender equality is followed by the discussion of cases of Aboriginal and Muslim women with the aim of assessing whether intersectionality represents for these groups of women a source of double discrimination. Brief concluding remarks discuss the challenges deriving from the different options for accommodating the principle of equality with cultural rights.