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.
Table of Contents:
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
About the Author :
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.
