Canada’s Surprising Constitution

Unexpected Interpretations of the Constitution Act, 1982

Edited by Howard Kislowicz, Richard J. Moon, and Kerri Anne Froc

SERIES: Law and Society

UBC Press

Constitutions are meant to endure, providing both stability and adaptability. Their public legitimacy depends on the ability of the courts and other interpreters to get this balance right. Why, then, has Canada’s constitution – only four decades old – produced so many surprises?

Canada’s Surprising Constitution investigates unexpected interpretations of the Constitution Act, 1982 by the courts. In this illuminating collection of essays, leading scholars reflect on these surprising interpretations, focusing on fundamental freedoms; equality, Aboriginal, and language rights; structural features of the Charter; as well as the courts’ approach to the interpretation of the Constitution.

The public legitimacy of the Constitution requires that it be seen as both relevant, as circumstances change, but also true to the values it embodies. The responsibility for getting this balance right lies not only with judges but also with legislatures, executives, scholars, advocates, and public interest organizations. The thoughtful work of this volume is crucial in identifying, accounting for, and – looking ahead – anticipating potential surprises. Its thorough analysis also offers a view of the Constitution in action.

This wide-ranging collection will appeal to legal scholars and is essential reading for constituional experts. It will also find an audience amoung academics in political science and Canadian history.

RELATED TOPICS: Constitutional Law, Law, Political Science

Canada’s Surprising Constitution explores a range of contemporary constitutional matters that will inform those keen to stay abreast of developments in the field. Eric M. Adams, Professor, Faculty of Law, University of Alberta

Howard Kislowicz is an associate professor of law at the University of Calgary. His work has been widely published in leading law journals. Richard Moon is a distinguished university professor and a professor of law at the University of Windsor. His books include The Life and Death of Freedom of Expression, Putting Faith in Hate: When Religion Is the Source or Target of Hate Speech, Freedom of Conscience and Religion, and The Constitutional Protection of Freedom of Expression. Kerri A. Froc is an associate professor of law at the University of New Brunswick. Prior to academia, she was a civil litigator and a staff lawyer for the Canadian Bar Association.

Introduction: The Surprising Constitution / Howard Kislowicz, Richard Moon, and Kerri A. Froc

Part 1: Surprises of Underdevelopment

1 The “Supremacy of God” Clause: A Surprisingly Empty Political Theory / Howard Kislowicz

2 Peaceful Assembly’s Surprising Underdevelopment: Contributing Factors and Resulting Issues / Basil S. Alexander

3 A Law in Rupture: Section 28, Equal Rights, and the Constitutionality of Quebec’s Bill 21 / Kerri A. Froc

4 Language Rights in Canada’s Constitutional Tapestry: An Unfinished Quilt / Caroline Magnan

5 The Right to Vote: Section 3 at Forty / Michael Pal

6 Much Ado about Ford? Section 33 and the Laicity Act / Louis-Philippe Lampron

Part 2: Unexpected Uses of Constitutional Provisions

7 Freedom of Expression: The Constitutional Eclipse? / Benjamin Oliphant

8 The “Stiff-Necked Parson” and the “Stiff-Necked” State: Religious Freedom and the Protection of State Power and Authority / Ashleigh Keall

9 Limits on Rights: The Myth of Balancing / Richard Moon

Part 3: Disappointments in Women’s Equality, Fundamental Justice, and Indigenous Rights

10 Women’s Charter Equality at the Supreme Court of Canada: Surprising Losses or Anticipated Failures? / Jennifer Koshan and Jonnette Watson Hamilton

11 Wizened Stump or Living Tree? Section 7 Principles of Fundamental Justice / Martha Jackman

12 Recognition and Affirmation of Treaty and Aboriginal Rights under Section 35: An Intrusion on Indigenous Identity, Treaties, and Lands in Canada / Aimée Craft

Part 4: Expansions in Multiculturalism, Freedom of Association, and Legislative Choice

13 A Surprisingly Positive Impact: Section 27 and the Preservation of Equality within Diversity / Natasha Bakht

14 Taking a Mulligan: Freedom of Association / Fay Faraday

15 Enduring Wisdom: The Purposive Approach to Charter Interpretation / Vanessa MacDonnell

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