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The Globalization of the Canadian Constitution

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Abstract

It has been argued that the constitution of a country is the embodiment of, or a response to, its particular history, political values, culture, and, indeed, its very identity. But in the last two decades, we have witnessed a dramatic resurgence in the study of comparative constitutional law. How should we understand the relationship between the widely held view that constitutions are the quintessential national documents and the increasing migration of constitutional ideas across the globe? In my Trudeau Lecture, I examine the importance of comparative engagement in the drafting of the Canadian Charter of Rights and Freedoms, and the rise of the “Canadian model” for managing secessionist conflict in the 1990s. I also reflect on the way in which my immigrant identity—itself the product of globalization—has shaped my scholarship on the Canadian constitution.
Sujit Choudhry
2010 Trudeau Fellow
New York University
biography
Sujit Choudhry is the Cecelia Goetz Professor of Law and Faculty
Director of the Center for Constitutional Transitions (www.
constitutionaltransitions.org) at the New York University School of
Law. He holds law degrees from the universities of Oxford, Toronto,
and Harvard, was a Rhodes Scholar, and served as law clerk to Chief
Justice Antonio Lamer of the Supreme Court of Canada. Professor
Choudhry is one of Canada’s leading constitutional scholars and an
internationally recognized authority on comparative constitutional
law. He has published over 60 articles, book chapters, and reports.
Professor Choudhry is the editor of Constitutional Design for Divided
Societies: Integration or Accommodation (Oxford University Press,
2008), The Migration of Constitutional Ideas (Cambridge University
Press, 2007) and Dilemmas of Solidarity: Rethinking Redistribution
in the Canadian Federation (University of Toronto Press, 2006), sits
on the board of editors of the International Journal of Constitutional
Law, is a member of the editorial board of the Constitutional Court
Review, and is on the board of advisers for Cambridge Studies in
Constitutional Law. Professor Choudhry is extensively involved
in public policy development. Internationally, he is a member of
the United Nations Mediation Roster, has been a consultant to the
World Bank Institute at the World Bank, has worked as a foreign
constitutional expert in support of constitutional transitions in
Egypt, Jordan, Libya and Tunisia (with the International Institute
for Democracy and Electoral Assistance), Nepal (with the United
Nations Development Program and the Nepal Bar Association), and
Sri Lanka (with the Forum of Federations and the Center for Policy
the trudeau foundation papers90
Alternatives). In Canada, Professor Choudhry was a member of the
Governing Toronto Advisory Panel, which proposed major reforms
to the structure of municipal government in Toronto, and sat on the
Board of Directors of Legal Aid Ontario, one of the largest publicly
funded legal assistance programs in the world. He was counsel of
record before the Supreme Court of Canada in Charkaoui (security
certificates), and inKhadr 1 and Khadr 2 (Guantanamo detainees). He
was named a Trudeau fellow in 2010 and he was named Practitioner
of the Year by the South Asian Bar Association of Toronto in 2011.
abstract
It has been argued that the constitution of a country is the embodi-
ment of, or a response to, its particular history, political values,
culture, and, indeed, its very identity. But in the last two decades,
we have witnessed a dramatic resurgence in the study of compara-
tive constitutional law. How should we understand the relationship
between the widely held view that constitutions are the quintessential
national documents and the increasing migration of constitutional
ideas across the globe? Sujit Choudhry examines the importance of
comparative engagement in the drafting of the Charter, and the rise
of the “Canadian model” for managing secessionist conflict in the
1990s. He also reflects on the way in which his immigrant identity—
itself the product of globalization—has shaped his scholarship on
the Canadian constitution.
lecture
“The Globalization
of the Canadian Constitution”
University of Alberta
april 11, 2012
I once passed Pierre Trudeau while walking on Pine Avenue in
Montreal on a wintry day in December 1991, and muttered good day.
As fate would have it, he was very much on my mind. Canada was in
the midst of one of its recurrent moments of constitutional intro-
spection. The public engagement with these issues was particularly
intense in Quebec. The Meech Lake Accord had failed in June 1990.
The constitutional negotiations around the doomed Charlottetown
Accord were underway.
I had arrived at McGill University in 1988 to study biology, set
on a career in medical research. But being a student at McGill in the
late 1980s and early 1990s was tantamount to taking a second degree
in Canadian constitutional politics. We debated the finer points of
the federal spending power, the technicalities of Senate reform, and
the impact of the distinct society clause on the Canadian Charter of
Rights and Freedoms (the Charter). The protests over the adoption of
Quebec’s language legislation (Bill 178) closed downtown Montreal,
and fuelled a heated debate on campus on the notwithstanding clause.
A few weeks before running into Trudeau, I spent a long evening
poring over Federalism and the French Canadians.1 I still remember
1. Pierre E. Trudeau, Federalism and the French Canadians (Toronto:
Macmillan, 1968).
sujit choudhry92
my wonder at its erudition, confidence, range, and eerie pre-
science. But what was particularly striking was how Trudeau placed
Canadian constitutional politics in a broader global perspective. One
chapter, “New Treason of the Intellectuals,” approached the constitu-
tional politics of Quebec nationalism within the broader historical
framework of state-directed projects of nation-building, the rise of
minority nationalisms as defensive responses to these nation build-
ing projects, and constitutional politics as a product of these com-
peting nationalisms. It was littered with illustrative examples from
the new nations of Asia and Africa. The sense was that the Canadian
dilemma was not just a Canadian issue.
This essay, and Trudeau’s life, raise a question. Trudeau famously
left Canada to study abroad in the 1940s—at Harvard, Paris, and the
London School of Economics—and then travelled around the world
before returning in 1949. He described himself as a “citizen of the
world,” a term that connotes a kind of rootless cosmopolitanism. But
this stance is the antithesis of the dominant way in which constitu-
tions are understood—as emerging from, and reflecting, a nation’s
distinct history, culture, and identity. And indeed, Trudeau was at
the very centre of our constitutional politics for a quarter-century.
So if I were to meet Trudeau today, I would ask him this ques-
tion: is there a way to marry global constitutional engagement with
a commitment to national constitutional distinctiveness? What
motivates this question is my own academic career. I am a student
of the Canadian constitution. But I am also a scholar of compara-
tive constitutional law. The two main issues that have fascinated
me are the role of comparative materials in constitutional drafting
and interpretation, and the constitutional politics of nationalism
and secession. I have tried to show that comparative engagement is
helpful to better understand both phenomena, within Canada and
beyond. Trudeau’s own life illustrates this point. The precursor to
“New Treason of the Intellectuals” was a presentation Trudeau gave
The Globalization of the Canadian Constitution 93
at the École Normale in Paris in 1947.2 I strongly suspect that being
outside Canada, in a radically different political and constitutional
context, made it easier for Trudeau to grasp the logic of Canada’s
multinational federalism.
In this lecture, I want to reflect on these two themes as well as
a third. I am the child of immigrants who cannot trace their ances-
try to any one of Canada’s founding nations. I want to suggest that
immigration, coupled with accelerating urbanization, is creating a
host of new constitutional issues that will define Canada’s constitu-
tional agenda in the 21st century. The link with the overall theme for
my lecture is that immigration is a manifestation of globalization,
and will become another way to understand the globalization of the
Canadian constitution.
The Migration of Constitutional Ideas
I became a scholar of comparative constitutional law by accident. At
the same time that I decided to forsake a future in medical research
for a career in the law, I won a Rhodes Scholarship to Oxford. I
decided to begin my legal education there. I eventually ended up
collecting law degrees from the United Kingdom, Canada, and the
United States. In addition, I spent a summer as a student working on
constitutional issues related to the South African transition. At each
juncture in this journey, I naturally brought my constitutional train-
ing with me from my previous education and drew on it to better
understand the problem at hand.
In microcosm my life reflected an important shift in constitu-
tional practice. Political scientists conventionally argue that democ-
ratization has occurred in three waves. The first commenced in the
1800s in the United States and ended in 1926; the second ran from
just prior to the Allied Victory in Europe and proceeded through
2. As revealed by Max and Monique Nemni in Trudeau Transformed: The
Shaping of a Statesman, 19441965 (Toronto: McLelland and Stewart, 2011).
sujit choudhry94
the postwar period with decolonization until the mid-1960s; and
the third began in the mid-1970s with the overthrow of Portugal’s
dictatorship, continued with the end of military dictatorships in
Spain, Greece, and Latin America, reached the communist countries
of Eastern and Central Europe, moved on to South Africa, and later
spread to Asia and Africa. The Arab Spring may harken the begin-
ning of the fourth wave of democratization, but it is far too early to
tell.
Democratic transitions are usually accompanied by the adop-
tion of new constitutions, and this process of constitution building
is now thoroughly globalized. The globalization of contemporary
constitutional practice means the reliance on comparative materials
at all stages in the life cycle of modern constitutions—for example,
during constitutional interpretation and the process of constitu-
tional drafting.
The problem plaguing the field when I began to work in it is
that students of comparative constitutional law had largely failed to
ask the basic questions of what the point of comparative inquiry is,
and how that enterprise is to be undertaken. There were two stan-
dard positions: particularism and universalism.
To particularists, the globalization of modern constitutional
practice is wrong, because it contradicts the notion that a consti-
tution of a nation emerges from, embodies, and aspires to sustain
or respond to a nation’s particular national circumstances. To par-
ticipate in a national constitutional conversation is to engage in a
particular and local political practice about this place, about who
and what we are and want to become. Proponents of this view hold
that constitutions should be framed and interpreted only by refer-
ence to sources internal to a nation’s history and political traditions.
Comparative engagement is a curiosity of no practical relevance, or
even worse, is a form of legal imperialism.
At the other end of the spectrum are universalists, who posit that
constitutional guarantees are cut from a universal cloth. An emerging
The Globalization of the Canadian Constitution 95
consensus among foreign legal systems is proof of a particular consti-
tutional provision’s truth or rightness. They exhort courts to regard
themselves as interpreting constitutional texts that protect rights
that transcend national boundaries. All constitutional courts are
part of an interpretive community engaged in effecting the same set
of principles.
This remains a surprisingly polarized debate, especially in the
United States, where it has become yet another issue that divides
conservatives and liberals. Conservatives accuse liberals of pro-
moting a project of constitutional convergence that undermines
American sovereignty. Liberals fuel these fears by viewing compara-
tive engagement as a way of affirming America’s membership in the
community of liberal democracies. There is a transparently obvious
politics to this.
This debate has become deadlocked, futile, and sterile. It also
bears little connection to the real world. Over several years, I have
closely examined how constitutional actors themselves—constitu-
tional drafters, courts, and legal counsel—engage with comparative
materials, and I have identified the reasons they give for comparative
constitutional argumentation.3 I have pursued this line of research
3. See Sujit Choudhry, “Globalization in Search of Justification: Toward
a Theory of Comparative Constitutional Interpretation,Indiana Law
Journal 74 (1999), 819-92; S. Choudhry, “The Lochner Era and Comparative
Constitutionalism,International Journal of Constitutional Law 2 (2004), 1-55;
S. Choudhry, “Worse Than Lochner?,” in Access to Care, Access to Justice: The
Legal Debate over Private Health Insurance in Canada, eds. C.M. Flood, K.
Roach, and L. Sossin (Toronto: University of Toronto Press, 2005), 75-100;
S. Choudhry, “Migration as a New Metaphor in Comparative Constitutional
Law,” in The Migration of Constitutional Ideas, ed. S. Choudhry (New
York: Cambridge University Press, 2006), 1-36; S. Choudhry, “How to Do
Comparative Constitutional Law in India: Naz Foundation, Same Sex
Rights, and Dialogical Interpretation,” in Comparative Constitutionalism in
South Asia, eds. S. Khilnani, V. Raghavanm, and A. Thiruvengadam (Oxford
University Press: New Delhi, forthcoming).
sujit choudhry96
with materials from Canada, India, South Africa, and the United
States. What emerges is a third method of comparative engagement,
which I term the dialogical model. The starting point is that a claim
to constitutional distinctiveness of the kind the particularist would
make is inherently relative; a constitution and its interpretation
are only unique by comparison with other constitutions and inter-
pretations. Comparative materials are interpretive foils, tools for
constitutional self-reflection that help to identify what is special or
distinctive about a constitutional order. If we engage comparatively
and ask why a foreign constitution has been drafted and interpreted
in a certain way, this better enables us to ask ourselves why we reason
the way we do.
Constitutional actors may conclude that domestic and foreign
assumptions are sufficiently similar to one another to warrant fol-
lowing a foreign model. However, constitutional actors follow that
model not because they are bound by it, but because they are per-
suaded by it, in part because it coheres with national constitutional
assumptions. Conversely, constitutional actors may conclude that
comparative materials emerged from a fundamentally different
constitutional order. A keener awareness and a better understand-
ing of difference can be achieved through a process of comparison.
Learning across jurisdictions does not simply mean transplanting
positive constitutional models. Comparative constitutional experi-
ence can identify models of constitutional failure to be avoided.
I developed this framework in large part through a careful study
of the history of the drafting of section 7 of the Charter. That provi-
sion guarantees everyone the right not to be deprived of life, liberty,
and security of the person except in accordance with the principles
of fundamental justice. Over the course of nearly a decade and a half,
what eventually became section 7 went through countless revisions.
The constitutional experience of the United States loomed large to
the Canadian drafters of the Charter, but in two very different ways.
The Globalization of the Canadian Constitution 97
The American analogues to section 7 are the due process
clauses of the 5th and 14th amendments of the United States
Constitution. They differ from section 7 by protecting property
but not security of the person, and by subjecting deprivations of
those interests to due process, not to the principles of fundamen-
tal justice. The United States Supreme Court has interpreted due
process to encompass substantive restraints, but there are two lines
of substantive due process cases: those that protect economic lib-
erty from government regulation, and those that protect decisional
autonomy over issues such as reproduction and child-rearing from
government intrusion.
Canada experienced two competing sets of proposals, each of
which took a different view of which parts of the American consti-
tutional experience were to be avoided. One set of proposals argued
that the Charter should avoid both the substantive protection of
economic liberty and decisional autonomy, to deny the courts an
open-ended power to second-guess legislative public policy judg-
ments. The second—originally proposed by Trudeau—focused
more narrowly on the potential danger posed by the Charter to
economic regulation. Ultimately, the Charter is a composite of these
proposals, and contains ambiguities that drove constitutional litiga-
tion for nearly two decades.
The broader point is that constitutional globalization need not
deny the distinct character of national constitutional discourses nor
homogenize political and legal order. As a practical matter, when
foreign constitutional advisors support constitutional transitions,
I think that they need to take the same approach. I have been for-
tunate to work on the ground in Sri Lanka and in Nepal, and will
be soon providing expertise in support of transitions in Jordan, the
broader Middle East and North Africa region, and Vietnam. The task
of foreign experts is not to preach and promote an international best
practice. Rather, our role is much more modest: to clarify the lessons
sujit choudhry98
and implications of foreign constitutional experiences and options,
in order to facilitate domestic constitutional choice.
Does the World Need More Canada?
In September 1996, I was a law clerk to Chief Justice Antonio Lamer
of the Supreme Court of Canada. One day, the “Chief,” as we called
him, summoned my fellow clerks and me to his office. He waved a
piece of paper and said, “Look what Mr. Rock has sent us!” On the
page was a set of reference questions concerning the legal framework
for the secession of Quebec. This was the beginning of the famous
Quebec Secession Reference4 that was handed down in 1998. I had
nothing to do with the case while I was at the court. After my clerk-
ship year, I went down to Harvard, become engrossed in my work,
and did not give the case much thought.
The judgment was handed down in August 1998. The Supreme
Court had been asked three questions: whether unilateral secession
by Quebec was legal under Canadian constitutional law; whether
it was legal under international law; and, in the event of a conflict
between Canadian and international law, which body of law would
prevail. I had expected a short judgment of a few pages on the first
question, because the answer was crystal clear. The Canadian consti-
tution creates Quebec, defines its territory and borders, brings into
being its legislative and executive branches, confers limited areas of
jurisdiction on them, and asserts its supremacy over all exercises
of public power. The Constitution does not grant any province the
right to unilaterally secede from Canada. Secession would require a
constitutional amendment. Our constitution possesses five amend-
ing formulas. Save for one, all require the consent of the federal
government. There is one amending procedure that provinces can
deploy unilaterally, but it is limited in scope to matters internal to
4. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, Supreme Court
of Canada.
The Globalization of the Canadian Constitution 99
the province and its institutions, and does not extend to secession.
So the answer to the first question should have been a brief, and
firm, no.
The court’s judgment was astonishing.5 It resolved the case not
on the basis of the text of the Constitution, but on the basis of four
underlying principles: federalism, democracy, constitutionalism and
the rule of law, and respect for minorities. The court used these prin-
ciples to develop an unwritten, yet binding, constitutional frame-
work for the secession of Quebec. If a clear majority of Quebecers
votes in a referendum by a clear majority on a clear question in
favour of secession, this would not have the effect of bringing about
secession. Rather, this would trigger a reciprocal obligation on the
other parts to Confederation to negotiate constitutional changes to
respond to that desire. The four unwritten constitutional principles
would have to be taken into account during the negotiations and
would shape the final deal. Finally, the constitutional framework is
legally binding but judicially unenforceable. The court clearly did
not want to be drawn into this constitutional morass again.
This judgment is completely bizarre and departs from every
convention of Canadian constitutional practice. The constitutional
text is the starting point of all constitutional argument, and says
nothing about referenda, clear majorities, clear questions, and seces-
sion. Moreover, the text offered a straightforward answer to ques-
tion one. The only way to understand the judgment is that the court
amended the constitution to create a secession clause. But under our
constitution, the power of constitutional amendment rests with pol-
itical institutions. So the real question raised by the judgment is why
the court did not permit the political actors to amend the constitu-
tion, and took this task upon itself.
I spent a few years puzzling over the judgment. I ultimately con-
cluded that the Court had acted in response to a deep and profound
5. Ibid.
sujit choudhry100
breakdown in the Canadian constitutional order.6 To understand
why this breakdown occurred, we need to delve deep into constitu-
tional theory. In politics, we frequently disagree about the substance
of public policies. One of the basic functions of a constitution is to
channel these disagreements into institutions that reach decisions
that members of the political community will accept as authorita-
tive. But for institutional decisions to yield political settlement,
those institutional decisions must be made in a certain way. They
must be made in a way that is viewed as constituting and regulating
political life while also being indifferent among the policy positions
on the table. If the procedures to manage political disagreement
were themselves politically disputed, it would be difficult for insti-
tutional settlement to translate into political settlement. In parallel
fashion, the rules governing constitutional amendment are a set of
6. See Sujit Choudhry and R. Howse, “Constitutional Theory and the
Quebec Secession Reference,” Canadian Journal of Law and Jurisprudence 13,
no. 2 (2000), 143-69; S. Choudhry, “Old Imperial Dilemmas and the New
Nation-Building: Constitutive Constitutional Politics in Multinational
Polities,Connecticut Law Review 37 (2005), 933-45; S. Choudhry, “Popular
Revolution or Popular Constitutionalism? Reflections on the Constitutional
Politics of Quebec Secession,” in Legislatures and Constitutionalism: The Role
of Legislatures in the Constitutional State, eds. T. Kahana and R. Bauman
(New York: Cambridge University Press, 2006), 480-98; S. Choudhry and J.-F.
Gaudreault-DesBiens, “Frank Iacobucci as Constitution-Maker: From the
Quebec Veto Reference, to the Meech Lake Accord and the Quebec Secession
Reference,” University of Toronto Law Journal (2007), 165-93; S. Choudhry,
“Does the World Need More Canada? The Politics of the Canadian Model
in Constitutional Politics and Political Theory,International Journal of
Constitutional Law 5 (2007), 606-38; S. Choudhry, “Referendum? What
Referendum?,Literary Review of Canada 15, no. 3 (2007), 7-9; S. Choudhry,
Ackerman’s Higher Lawmaking in Comparative Constitutional Perspective:
Constitutional Moments as Constitutional Failures?,International Journal of
Constitutional Law 6 (2008), 193-230; S. Choudhry and N. Hume, “Federalism,
Devolution and Secession: From Classical to Post-Conflict Federalism,” in
Research Handbook on Comparative Constitutional Law, eds. T. Ginsburg and
R. Dixon (Edward Elgar Publishing, 2011).
The Globalization of the Canadian Constitution 101
procedures that cannot produce constitutional settlement unless
they too are viewed as being impartial among the full range of sub-
stantive constitutional options at play.
The problem is that political procedures, including the proced-
ures for constitutional amendment, are not substantively neutral.
By determining which individuals and communities can participate
in political decision making, and what role those individuals and
communities may play, constitutional amending rules stipulate the
ultimate locus of political sovereignty and are the most basic state-
ment of a community’s political identity. In debates over constitu-
tional change, when the proposal at issue challenges the conception
of political community that underlies the rules governing consti-
tutional amendment, those rules will be drawn into constitutional
politics and cannot do the work we expect of them. I coined a term
for this type of situation: these are moments of constitutive constitu-
tional politics. In these moments, maintaining agreement on the pro-
cedural rules of constitutional change among constitutional actors
who disagree on what that change should be is very difficult. Indeed,
the constitutional system as a whole may collapse.
This, in a nutshell, is what happened in Canada in the mid-
1990s. The federal government’s view was that secession required
constitutional amendment. Quebec sovereignists responded by
challenging the assumption that independence could be governed
by the amending rules. Those rules presuppose that Quebec is a
constituent component of the Canadian federation, functioning as a
subnational political community with extensive but limited rights of
self- government within Canada. But it is precisely this constitutional
vision that the Quebec sovereignty movement challenged, because it
raised the substantive question of whether Quebec should remain a
part of Canada or become an independent state. Since the sovereign-
ists wished to make a radical break from the Canadian constitutional
order, it is hard to imagine them subscribing to a process governed
by it.
sujit choudhry102
The Quebec Secession Reference helps us to change our under-
standing of the Canadian constitutional crisis of the 1990s. The
conventional wisdom is that the crisis was substantive—a struggle
among the competing constitutional logics of the Charter, provincial
equality, and Quebec’s distinctive identity. But the Quebec Secession
Reference points toward a procedural account of that crisis, in which
the near-collapse of Canada’s constitutional system can be traced to
the lack of a shared agreement on the rules governing constitutional
amendment.
There is an important global dimension to this story. In the
early 1990s, the so-called Canadian model of multinational federal
democracy began to be promoted internationally by Canadian pol-
itical theorists such as Will Kymlicka and Charles Taylor, and later
by the federal government through the establishment of the Forum
of Federations. The rise of the Canadian model was precipitated by
events in Eastern and Central Europe. The collapse of the commun-
ist dictatorships was followed by the rise of profound ethnic conflict
within these democratizing states between national majorities and
minorities. In the search for solutions, multinational federalism was
an obvious candidate.
But the advocates of multinational federalism were confronted
with a major problem. Three of the former communist dictatorships
of Eastern and Central Europe—Yugoslavia, the Soviet Union, and
Czechoslovakia—had already been multinational federations prior
to the transition to democracy, and all three began to disintegrate
shortly after the transition. By contrast, unitary states in which
nationalism served as the cleavage of internal political conflict did
not fall apart. So, far from being the solution, multinational feder-
alism may have done little or nothing to prevent state dissolution.
Moreover, since only multinational federations broke up—and all
of them did—multinational federalism may have had the perverse
effect of fuelling the secession it was designed to prevent. The essence
of the argument is that federal subunits provided an institutional
The Globalization of the Canadian Constitution 103
power base for national minorities that served as a springboard to
statehood.
The region’s experience posed a fundamental challenge to multi-
national federalism as a viable constitutional strategy in Eastern and
Central Europe and elsewhere. The best way to respond to the nega-
tive examples of the failed multinational federations of Eastern and
Central Europe was to identify places where multinational federal-
ism had actually worked—such as Canada. The success or failure of
Canada became a critical element in a global debate regarding the
mere possibility of crafting an accommodation between majority
and minority nationalisms within a single state.
What perplexed me was that the rise of the Canadian model in
political theory and constitutional politics coincided with Canada’s
worst constitutional crisis. I concluded that this was not a coinci-
dence. Many proponents of the Canadian model not only recog-
nized the crisis gripping the Canadian constitutional order, but also
viewed the international promotion of the Canadian model as an
important element in resolving problems at home. Arguing for the
necessary success of the Canadian model was a political interven-
tion in two different but interrelated arenas. It was an intervention
in international politics—to offer a practical, viable model dealing
with the issue of minority nationalism, which had become a source
of political instability in Eastern and Central Europe and beyond.
Kofi Annan’s and Mikhail Gorbachev’s public interventions in the
Canadian national unity debate demonstrated how important the
success of the Canadian model was to an international community
struggling with the destructive potential of nationalism.
But it was also an intervention in domestic constitutional pol-
itics—to argue that Canada had hit upon one of the few workable
solutions to the accommodation of minority nationalism within a
liberal democratic constitutional order, and that this was a reason
for us to make our arrangements work. From time to time, Canada’s
politicians have sought to place the Canadian example at the heart
sujit choudhry104
of Canada’s foreign policy by offering it as a pillar of development
assistance to deeply divided societies. Part of the motivation is to
increase Canada’s influence abroad through the exercise of soft
power. But there a domestic agenda is at work here as well. As the
prestige of the Canadian model is enhanced abroad, so too is its
prestige at home.
Contextualizing the rise of the Canadian model against the
backdrop of Canada’s constitutional crisis has an important prac-
tical implication. When we promote the Canadian model abroad,
there is the danger of lapsing into “peddling Canada”—to sanitize
our constitutional experience and offer Canada as a perfect consti-
tutional role model that all countries with similar problems would
be wise to emulate. To be sure, Canada is a success story—it is one
of the oldest countries in the world, it has responded imaginatively
to forces that have torn other countries apart, and it has achieved a
remarkable degree of prosperity and freedom. But our history shows
us that we have had our existential crises as well. When Canadian
experts go abroad, we should discuss these facets of the Canadian
experience openly and courageously. It is simply not credible to do
otherwise with foreign audiences, who are often very well informed
of Canadian developments.
Ethnic Immigrants and the Canadian Constitution
In 1984, Ontario Premier Bill Davis rose in the Ontario legislature
to announce a major shift in educational policy. For several dec-
ades, Ontario had funded Roman Catholic schools until the end of
Grade 10, but not other religious schools. Premier Davis announced
the expansion of public funding for Roman Catholic schools until
the end of high school, while continuing to deny funding to other
religious schools. The leaders of the opposition parties rose in
the legislature to announce their support for the extension of full
funding, making it a fait accompli. The measure became law the next
year, and remains in place to this day.
The Globalization of the Canadian Constitution 105
I was in Grade 9 at the time and vividly recall my outrage. The
existing arrangement discriminated on the basis of religion, and the
extension of public funding merely amplified that discrimination.
It was argued that the funding of Roman Catholic schools violated
the Charter’s equality rights provision, section 15, which was to come
into effect the next year. The potential unconstitutionality of the
policy led the provincial government to pose a set of reference ques-
tions to the Ontario Court of Appeal, and the case ultimately ended
up before the Supreme Court of Canada.
The Bill 30 Reference was the first constitutional case I was ever
interested in.7 When the Supreme Court’s judgment was handed
down in 1987, I carefully read an extract in the Toronto Star. The
decision rested on two grounds. First, while s. 15 applied to legis-
lation, it did not apply to the Constitution itself. The Court held
that full funding for Roman Catholic schools was required by the
Constitution, and was a constitutionally mandated form of religious
discrimination immune from Charter scrutiny. Second, the Court
held that even if there was no constitutional duty to provide full
funding for Roman Catholic schools, the provincial power to confer
such funding was so fundamental to the Confederation compromise
that it survived the enactment of the Charter.
What stood out in my mind was the way in which the Court
conceptualized the discrimination at issue. To be sure, Ontario’s
funding arrangements discriminate on the basis of religion because
they exclude schools operated by Protestants, Jews, Muslims,
Hindus, and other non-Catholics. But many of these faiths are new
to Canada, as a result of immigration. This means the policy also has
the effect of discriminating against new Canadians, on the basis of
immigrant status. Moreover, because the Court held that these obli-
7. Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1
S.C.R. 1148.
sujit choudhry106
gations were constitutionally entrenched, they cannot be changed
through the ordinary legislative process.
The last point has important political implications. Demography
is destiny. Demographic change eventually leads to shifts in polit-
ical power. Absent constitutional barriers, demographic change
would eventually lead to a change in the arrangements surround-
ing the funding of religious schools in Ontario. The constitutional
entrenchment of these policies insulates them against changes that
reflect the evolving nature of Canada.
But the lesson of Canadian history is that if we do not adapt
our constitutional arrangements to respond to new demographic
realities, we do so at our peril. Consider 1867. Confederation was the
coming together of the separate colonies of British North America.
But it also involved the division of one of those colonies, the United
Province of Canada. That province was created in 1840, through the
union of Lower and Upper Canada. Each half of Canada was repre-
sented by equal numbers of members in the Legislative Assembly.
Initially, Canada East’s population was larger than that of Upper
Canada’s. It opposed this system of representation, in the name of
representation by population (rep by pop). A decade later, the pos-
itions had reversed, and Canada West had the greater population
and was demanding rep by pop. Disagreement on this basic issue
ultimately led to legislative deadlock in 1864. A new constitutional
dispensation was needed to end political paralysis. Cartier and the
Bleus initially opposed rep by pop. But they eventually came to see
that the demographic trends that fuelled this demand were inevit-
able and irreversible.
What is the lesson of 1867? Above all, Confederation was a
moment of clear-sightedness driven by demographic change that led
us to adapt our institutions to better deal with the future. The clash
between constitutional arrangements rooted in Canada’s past on one
hand, and Canada’s changing demography on the other, is far from
over.
The Globalization of the Canadian Constitution 107
These issues have become a major preoccupation of my scholar-
ship for the last several years, but I frame the constitutional issues
raised by demographic change somewhat differently from others.
The dimension I want to add is Canada’s ethnic diversity, which
is largely a product of immigration, and is another way in which
globalization will shape our constitutional development.
Our constitution is increasingly out of sync with some key
demographic facts.
First, Canada’s population is increasingly urbanizing, but is con-
centrated in a small number of provinces and major urban areas.
Eighty-one percent of the population lives in urban areas (Census
Agglomerations, or CAs), while 69 percent live in the largest urban
areas (Census Metropolitan Areas, or CMAs). Forty-six percent
live in metropolitan Toronto, Montreal, Vancouver, Calgary, and
Edmonton. Between 1981 and 2011, the country’s population grew
from 24.3 million to 33.5 million. Of the total growth, 80 percent
occurred in Alberta, British Columbia, and Ontario. Every other
province has seen its share decline over the same period.
Second, Canada’s population is being transformed by vis-
ible minority immigration. Between 2001 and 2011, two-thirds of
Canada’s population growth was due to immigration. Projections
indicate that nearly all population growth will be due to immigra-
tion by 2031. The proportion of foreign-born residents in Canada
is approximately 20 percent and will continue to increase. These
immigrants are primarily visible minorities, reflecting a shift in the
source countries for immigration to Canada. In 2006, 16 percent of
the population consisted of visible minorities, a figure that is pro-
jected to grow to 33 percent by 2031.
Finally, urbanization and visible minority immigration are
intertwined. Between 2001 and 2006, 97 percent of immigrants
chose to settle in CMAs, with 69 percent settling in the three largest
metropolitan areas of Toronto, Montreal, and Vancouver. Patterns
of immigrant settlement are creating a demographic divide between
sujit choudhry108
urban and rural Canada. Some 95 percent of the foreign-born live in
CMAs or CAs, versus 78 percent of the Canadian-born. Ninety-six
percent of visible minorities live in CMAs, compared to 68 percent
of the general population.
These demographic trends are now firmly set. In the short term,
some variation may occur. But the long-term trend is clear and
inevitable. A new issue for constitutional politics in the 21st century
is how our institutions will respond to these profound demographic
changes. At the most fundamental level, the question is this: will
votes, political power and public expenditure follow people as they
make choices about where to work and live, fundamentally altering
the geographic distribution of Canada’s population in the process?
The immigrant dimension of this new kind of constitutional
politics is crucial. Canada’s constitutional arrangements are legit-
imized by narratives that are firmly anchored in our constitutional
past. These narratives are built around a set of historical agreements,
compacts, and legal texts among Canada’s founding nations, which
constitute a kind of common sense of the purpose of the Canadian
constitutional project. The Supreme Court’s decision in the Bill 30
Reference is a reflection of this way of comprehending and articu-
lating the logic inherent in our constitutional arrangements and
political practices.
But to many new Canadians, this constitutional common sense
does not resonate.8 Employing the liberal values of equal dignity
and non-discrimination, they have increasingly challenged these
narratives in a number of areas. One example is the debate over the
Distinct Society Clause in the Meech Lake Accord, and its replace-
ment by the Canada Clause in the Charlottetown Accord. New
Canadians have a distinctively modern stance toward Canada and
8. I first set out the theoretical basis for these arguments in S. Choudhry,
“National Minorities and Ethnic Immigrants: Liberalism’s Political Sociology,
Journal of Political Philosophy 10 (2002), 54-78.
The Globalization of the Canadian Constitution 109
its constitutional order that treats the past as undeserving of respect
simply because of its “pastness.” They feel that to be legitimate and
relevant, Canada’s fundamental law should reflect our nation’s con-
temporary needs and sense of self. I am quite confident that I am
not alone in sharing this view, and that an increasing number of
Canadians of my demographic—urban, ethnic, immigrant—hold
it as well. As immigration accelerates, this critical stance toward
Canada’s constitutional arrangements will only increase.
I have tried to bring these concerns to bear on the analysis of
two sets of issues: political representation and social policy.9
First, consider political representation. The rules governing
the allocation of seats in the House of Commons, both across and
within provinces, have produced enormous disparities in the sizes
of ridings. Although all adult Canadians enjoy formal equality with
respect to the right to vote, the weight of their votes varies widely.
These variations are deliberate. The traditional justification for
the rules governing the allocation of seats is that they protect the
minority of voters who live in smaller provinces and rural areas
from being outvoted by urban voters and the residents of the larger
provinces. I have argued that bringing visible minority status into
9. See S. Choudhry, “What Is a Canadian?,” in What Is a Canadian?, ed.
I. Studin (Toronto: McLelland & Stewart/Douglas Gibson Books, 2006), 117-23;
S. Choudhry, “Redistribution in the Canadian Federation: The Impact of the
Cities Agenda and the New Canada,” in Dilemmas of Solidarity: Redistribution
in the Canadian Federation, eds. S. Choudhry, J.-F. Gaudreault-DesBiens, and
L. Sossin (Toronto: University of Toronto Press, 2006), 45-56; S. Choudhry
and M. Pal, “Is Every Ballot Equal? Visible Minority Vote Dilution in Canada,
IRPP Choices 13 (2007), 1-30; S. Choudhry, “Constitutional Change in the 21st
Century: A New Debate over the Spending Power,Queen’s Law Journal 34
(2008), 375-90; S. Choudhry and M. Mendelsohn, Voter Equality and Other
Canadian Values: Finding the Right Balance (Toronto: Mowat Centre for
Policy Innovation, 2011); S. Choudhry and M. Pal, The Impact of Regionally
Differentiated Entitlement to EI on Charter-Protected Canadians (Toronto:
Mowat Centre Employment Insurance Task Force, 2011).
sujit choudhry110
the equation complicates this picture considerably. Members of vis-
ible minority communities overwhelmingly reside in urban areas in
Canada’s most populous provinces. The implication for the debate
over electoral reform is that promoting the interests of Canada’s
rural minority and the minority of Canadians who live in smaller
provinces comes at the cost of the interests of a visible minority,
which are also worth protecting.
In the social policy arena, I have argued that these demographic
shifts could play out in the following way. I have described the
federal-provincial transfer system as Canada’s 20th-century fiscal
constitution, layered on top of our 19th century political constitu-
tion. This system is sustained by narratives of solidarity with the
“Other Canada”—the idea that our fellow citizens in all parts of
the country deserve a basic level of services, no matter where they
are born or where they live. For a generation, the Other Canada
was Corner Brook, Prince George, Rimouski, and Yellowknife. But
increasingly, the Other Canada is also to be found closer to home, in
the growing enclaves of poverty in urban areas that are taking on an
increasingly racialized character, and that are at least partly a func-
tion of the well-documented difficulties that recent immigrants face
in integrating into the labour market. If narratives of social citizen-
ship undergird the federal-provincial transfer system, then changes
to those narratives that emphasize bonds of solidarity that are much
more local could have dramatic implications for Canada’s fiscal
constitution. There may be a demand that the kind of energy and
resources we have long invested in regional development projects
in Northern and Atlantic Canada now be directed to our deprived
inner cities and immigrant populations. The growing chasm
between our institutions of representation and the emerging pat-
terns of political identity would be manifest in a new type of debate
over fiscal federalism—a debate that would give voice to the larger
demographic pressures that are building for constitutional change.
The Globalization of the Canadian Constitution 111
I have come to appreciate that these positions cut deeply against
the grain of much of our way of constitutional thinking. As is so
often the case, I had to leave Canada to grasp this. My moment of
constitutional revelation occurred in Sri Lanka, where I was on mis-
sion as a foreign constitutional expert. My suggestion was that the
Canadian system of ethnocultural accommodation was a potential
model for Sri Lanka to deal with its own ethnic conflict among the
Tamils and Sinhalese.
A common theme in our presentations was some form of ter-
ritorial autonomy for the Tamil minority in the north-east of the
island within a united Sri Lanka, analogous to Quebec’s position in
Canada. In the process of explaining why federalism was a potential
solution to Sri Lanka’s problems, we were often met with the objec-
tion that federalism in Sri Lanka would set the stage for secession.
In response, I found myself making the case for Canadian federal-
ism with gusto, through simultaneous translation into Sinhalese. Far
from Quebec posing a threat to Canada’s viability, had Quebec not
been created in 1867, there would likely be no Canada today.
Over the course of my visit to Sri Lanka, I found myself
repeating this argument time and time again. This was one of the
most astonishing experiences of my academic career.
My own experience tells us something in microcosm about con-
stitutional culture writ large. When citizens live under a constitu-
tional order, we are engaged in highly complex and elaborate social
practice. That practice emerges from the concrete political history of
a society, a history that explains the origins of our governing institu-
tions, why we have them, and how they operate. This practice is the
beginning point of any constitutional conversation.
But the question is this: are Canadians forever doomed to move
along the paths charted by our constitutional past?
Let me answer this question by returning to Trudeau. Trudeau
burst onto the political scene in Quebec with the publication of
sujit choudhry112
his landmark work, The Asbestos Strike, in 1956.10 He offered an
unapologetically modern critique of Quebec’s elites, whom he
accused of failing to grapple with the new realities of industrializ-
ation and urbanization. Trudeau’s modernism was closely linked to
his global outlook. He argued that Quebec should be open to new
ideas: ideas from around the world, ideas that would challenge the
veneration of tradition for the sake of tradition. I have no doubt that
Trudeau would endorse a modernist critique of our constitutional
framework. And as the champion of an open, tolerant, and welcom-
ing Canada, he would welcome the right of all Canadians, both old
and new, to engage actively in that constitutional conversation.
10. Pierre E. Trudeau, “The Province of Quebec at the Time of the Strike,
in Pierre E. Trudeau, ed., The Asbestos Strike (Toronto: James Lewis & Samuel,
1974).
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