Constitutional Crossroads
Constitutional Crossroads
Reflections on Charter Rights, Reconciliation, and Change
Four decades have passed since the adoption of the Constitution Act, 1982. Now it is time to assess its legacy. As Constitutional Crossroads makes clear, the 1982 constitutional package raises a host of questions about a number of important issues, including sovereignty, identity and pluralism, the scope and limits of rights, competing constitutional visions, the relationship between the state and Indigenous peoples, and the nature and methods of constitutional change.
The patriation of the Constitution and the entrenchment of a new bill of rights, Aboriginal and treaty rights, and a homegrown amending formula have had considerable consequences for Canadian governance, public policy, and the evolution of the Constitution. Constitutional Crossroads brings together established and rising stars of political science and law not only to develop a robust account of the 1982 constitutional reform but to analyze the ensuing scholarship that has shaped our understanding of the Constitution. Contributors bypass historical description to offer reflective analyses of different aspects of Canada’s constitution as it is understood in the twenty-first century.
With a focus on the themes of rights, reconciliation, and constitutional change, Constitutional Crossroads provides profound insights into institutional relationships, public policy, and the state of the fields of law and politics.
Legal scholars and legal practitioners, political scientists, students, government decision makers, and journalists will all make this their go-to reference for matters constitutional.
This is one of the most novel and thought-provoking books on the Charter in recent years. This superb collection is fresh, interesting, and provocative.
Constitutional Crossroads brings together a diverse set of contributors whose perspectives on four decades of life under the Charter enrich our understanding of politics, law, and institutional dynamics. The blend of senior and emerging scholars is a notable achievement of the collection. Readers will come away from Constitutional Crossroads with answers to many important questions and, perhaps more importantly, with a sense of the questions that still need to be answered. It is a book that highly rewards the reader’s time.
Kate Puddister is an associate professor of political science at the University of Guelph and the author of Seeking the Court’s Advice: The Politics of the Canadian Reference Power. Emmett Macfarlane is an associate professor of political science at the University of Waterloo. Among his publications are Constitutional Amendment in Canada; Policy Change, Courts, and the Canadian Constitution; and Constitutional Pariah: Reference re Senate Reform and the Future of Parliament.
Contributors: Richard Albert, Gerald Baier, Stéphanie Chouinard, Brenda Cossman, Erin Crandall, Minh Do, Kerri A. Froc, Dave Guénette, Mark S. Harding, Lori Hausegger, Matthew Hennigar, Ran Hirschl, James B. Kelly, Kiera Ladner, Philippe Lagassé, Samuel V. LaSelva, Andrea Lawlor, Rebecca Major, Félix Mathieu, Andrew McDougall, Danielle McNabb, Eleni Nicolaides, Jeremy Patzer, Troy Riddell, Kent Roach, Peter H. Russell, Joshua Sealy-Harrington, Tamara A. Small, Dave Snow, Cynthia Stirbys, Mark Tushnet
Introduction: Complex Legacies: The Promise, Challenges, and Impact of the Constitution Act, 1982 / Emmett Macfarlane and Kate Puddister
Part 1: Institutional Relationships
1 The Political Purposes of the Charter: Four Decades Later / Mark S. Harding
2 Revisiting Judicial Activism / Emmett Macfarlane
3 Revisiting the Charter Centralization Thesis / Gerald Baier
4 Autochthony and Influence: The Charter’s Place in Transnational Constitutional Discourse / Mark Tushnet
5 It Works in Practice, but Does It Work in Theory? Accepting the Canadian Charter of Rights and Freedoms as a National Symbol / Andrew McDougall
6 Charter Talk: How Canadian Media Cover Rights and Politics / Erin Crandall, Andrea Lawlor, and Kate Puddister
7 Notwithstanding the Media: Section 33 of the Charter after Toronto v Ontario / Dave Snow and Eleni Nicolaides
Part 2: Charter Rights
8 Policing Partisan Self-Interest? The Charter and Election Law in Canada / Tamara A. Small
9 The Most Important Charter Right? The Rise and Future of Section 7 / Matthew Hennigar
10 Sex Work, Abjection, and the Constitution / Brenda Cossman
11 Carter Compliance: Litigating for Access to Medical Assistance in Dying in Canada / Eleni Nicolaides
12 The Charter and the RCMP / Kent Roach
13 The Charter of Whites: Systemic Racism and Critical Race Equality in Canada / Joshua Sealy-Harrington
14 Canada’s Sex Problem: Section 15 and Women’s Rights / Kerri A. Froc
15 Quebec and the “Sign Law” Thirty Years after Ford and Devine: Ford Construit Solide / James B. Kelly
16 Language Rights and the Charter: Forging the Next Forty Years / Stéphanie Chouinard
17 The Provincial Courts of Appeal and Section 24(2) of the Charter / Lori Hausegger, Danielle McNabb, and Troy Riddell
Part 3: Reconciliation
18 Canadians’ Homeland Has Changed since Patriation Brought the Constitution Home / Peter H. Russell
19 Indigenous Rights and the Constitution Act, 1982: Forty Years On and Still Fishing for Rights / Jeremy Patzer and Kiera Ladner
20 Using the Master’s Institutional Instruments to Dismantle the Master’s Goal of Indigenous-Rights Certainty / Rebecca Major and Cynthia Stirbys
21 Beyond Consultation: A Research Agenda to Investigate Partnerships and Comanagement in Land Governance / Minh Do
22 Indigenous Sovereignty, Canadian Constitutionalism, and Citizens Plus: The Unended Quest of Canada’s Original Hedgefox / Samuel V. LaSelva
Part 4: Constitutional Change
23 The Invisible Transformation of Canada’s Constitutional Amendment Rules / Richard Albert
24 Still Not Cheering: Understanding Quebec’s Perspective on 1982 / Félix Mathieu and Dave Guénette
25 Cracks in the Foundation: The Crown and Canada’s Constitutional Architecture / Philippe Lagassé
26 The Urban Gap / Ran Hirschl
Index
Contested Constitutionalism
Reflections on the Canadian Charter of Rights and Freedoms
Edited by James B. Kelly and Christopher P. Manfredi
Unions in Court
Organized Labour and the Charter of Rights and Freedoms
By Larry Savage and Charles W. Smith
Privacy in Peril
Hunter v Southam and the Drift from Reasonable Search Protections
By Richard Jochelson and David Ireland
Canada’s Surprising Constitution
Unexpected Interpretations of the Constitution Act, 1982
Edited by Howard Kislowicz, Richard J. Moon, and Kerri Anne Froc
