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The Canadian Constitution and the World
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Abstract and Keywords
This chapter examines the influence of elements of Canada’s constitutional model abroad,
in three areas: (1) the Canadian Charter of Rights and Freedoms as an innovative way to
institutionalize the relationship among legislatures, executives, and courts with respect to
the enforcement of a constitutional bill of rights, as justified by “dialogue theory”, that
contrasts starkly with its leading alternatives, the American and German systems of
judicial supremacy; (2) Canada’s plurinational federalism as a strategy to accommodate
minority nationalism and dampen the demand for secession and independence within the
context of a single state, by divorcing the equation of state and nation; and (3) the
complex interplay between a constitutional bill of rights and minority nation-building, as
reflected in the constitutional politics surrounding the recognition of Quebec’s
distinctiveness, and the role of the Supreme Court of Canada in adjudicating
constitutional conflicts over official language policy arising out of Quebec.
Keywords: Canadian Charter, Constitution of Canada, constitutional amendment, dialogue, federalism, language,
legislative override, nationalism, secession, Canadian Supreme Court
The Canadian Constitution and the World
Sujit Choudhry
The Oxford Handbook of the Canadian Constitution
Edited by Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers
Print Publication Date: Oct 2017
Subject: Law, Constitutional and Administrative Law, Law and Society
Online Publication Date: Nov 2017 DOI: 10.1093/law/9780190664817.003.0050
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The Canadian Constitution and the World
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1. Introduction
Canadian constitutional discourse—scholarly, legal, political—has been receptive to
comparative influences since its very inception. Our openness to comparative
engagement, I would suggest, is a product of the constitutional pluralism that defines the
Canadian constitutional order. Canada’s constitutional framework is a métissage arising
from English, French, and Indigenous legal traditions, and from a variety of sources—
constitutions, statutes, common law, convention, custom, and treaty—within each of those
traditions. Canadian constitutional argument consists not just of arguing within discursive
frameworks, but reasoning and justifying across them. Integrating the diverse lineaments
that are the constitutive elements of Canadian public law is at the very heart of our
constitutional project. It is only natural that Canadians would instinctively look beyond
our legal borders to comparative experience from other countries as a source of lessons
learned, models to be followed, and dangers to be avoided.
In this chapter, I examine the corollary to Canada’s comparative engagement—the
influence of elements of Canada’s constitutional model abroad, in three areas: (1) the
Canadian Charter of Rights and Freedoms as an innovative way to institutionalize the
relationship among legislatures, executives, and courts with respect to the enforcement
of a constitutional bill of rights, as justified by “dialogue theory”, that contrasts starkly
with its leading alternatives, the American and German systems of judicial
supremacy; (2) Canada’s plurinational federalism as a strategy to accommodate minority
nationalism and dampen the demand for secession and independence within the context
of a single state, by divorcing the equation of state and nation; and (3) the complex
interplay between a constitutional bill of rights and minority nation-building, as reflected
in the constitutional politics surrounding the recognition of Quebec’s distinctiveness, and
the role of the Supreme Court of Canada in adjudicating constitutional conflicts over
official language policy arising out of Quebec. The first two mark well-trodden terrain,
whereas the third, less so, although it bears careful attention for countries interested in
learning how the different pillars of the Canadian constitutional model interact.
The vectors of Canadian influence are not those that characterize the leading global
constitutional models—the first post-colonial, republican constitution adopted by a
country that emerged as the world’s leading economic and military superpower (United
States); metropolitan constitutions that still held appeal during the process of
decolonization (France, United Kingdom); the distinct attraction of post-authoritarian,
dignity-protecting constitutions that resonate with countries underdoing similar
transitions, especially after the fall of Communism (Germany); and the growing
importance of constitutional models from the global south that are attuned not only to the
need to constrain public power, but to mandate and channel its exercise in the service of
human development in the context of deeply entrenched socio-economic inequality (India,
South Africa). Rather, Canada’s global constitutional footprint is rooted in our “soft
power”—that is, the attractiveness of our example as a rights-protecting liberal
*
(p. 1076)
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democracy characterized by multiple forms of diversity (immigrant, Indigenous,
plurinational) that is remarkably prosperous, peaceful, and stable, and deeply committed
to the rule of law.
While the focus of this chapter is contemporary, this should not imply that foreign interest
in Canada’s constitutional model is only recent, especially in the Commonwealth. For
example, as Peter Oliver has taught us, Canada, along with Australia and New Zealand, in
the process of achieving independence within the imperial constitutional order, had to
wrestle with the central puzzle of constituent power in the face of the competing
imperatives of legal continuity and parliamentary supremacy, on the one hand, and on the
other, the democratic pressure for an autochthonous source of constitutional title in
newly democratic states. How each country approached this issue was of great interest to
the others. More prosaically, the doctrines of Canadian federalism—such as pith and
substance, and double aspect—have become important tools of judicial interpretation in
other Commonwealth federations, such as Australia, India, and South Africa, and even in
the United Kingdom with respect to the scheme of devolution created by the Scotland
Act. The Canadian recognition of common law aboriginal title in Calder in the early 1970s
was a harbinger for the recognition of similar rights across the Commonwealth in the
following decades, in Australia, Belize, Botswana, Malaysia, New Zealand, Papua
New Guinea, and South Africa. Indeed, as David Law and Mila Versteeg have highlighted,
the Charter resembles most closely bills of rights in other Commonwealth jurisdictions.
We can extend their observation to suggest that the combination of shared legal tradition,
language, colonial history, and constitutional text creates a dense legal platform for the
migration of constitutional ideas among Commonwealth jurisdictions, both with respect
to constitutional design not only of bills of rights, but also federalism and the status and
powers of Indigenous peoples, as well as the judicial interpretation of those provisions.
Canadian scholars have figured prominently in transnational debates about bills of rights
and the constitutional accommodation of minority nationalism. What bears special
attention is that there is an important domestic politics to our foreign interventions.
Interest in elements of the Canadian constitutional model abroad coincided with intense
controversy over precisely those elements at home. International engagement with the
Canadian alternative to judicial supremacy with respect to constitutional bills of rights
took place at a time when the Supreme Court of Canada came under sustained attack for
engaging in judicial activism and asserting its supremacy over the other branches of
government, which appeared to place a core feature of that model in question. The rise
and promotion of the Canadian model of plurinational federalism, in parallel fashion,
occurred during the constitutional crisis of the mid-1990s over Quebec secession, which
that very model was designed to prevent. Canadian experts promoted elements of the
Canadian constitutional model abroad, in part, to enhance their political attractiveness
and success domestically.
1
(p. 1077)
2
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2. Dialogue Theory and the Canadian
Alternative to Judicial Supremacy
Anxieties over judicial review under a constitutional bill of rights were an important
element of the debates preceding adoption of the Charter, because of the new element it
introduced into Canada’s pre-existing system of constitutional supremacy, hitherto
confined to the federal division of powers. The experience of the United States—
especially the constitutional crisis over the New Deal, and the liberal legal agenda
championed by the Warren Court—loomed large, especially to Canadian legal elites who
increasingly receive their graduate training in the United States. The federal
government’s proposals were clearly alert to the risks that judicial review under the
Charter posed, no more so than with section 7. That provision was drafted to prevent the
libertarian legacy of the Lochner era from coming to Canada, by excluding
“property” and substituting it with “security of the person”, with the goal of orienting the
provision around corporeal interests and protecting the redistributive, regulatory state
from constitutional challenge. It was also designed to preclude the activist legacy of
Lochner, rooted in the doctrine of substantive due process, by requiring that the
deprivation of protected interests accord with “the principles of fundamental justice”, not
“due process”, ironically in order to limit the scope of the provision to procedural
fairness.
But the biggest constitutional concession to the fears of the growth in judicial power
under the Charter was the inclusion of the legislative override or notwithstanding clause,
section 33. That provision allows the federal Parliament and provincial legislatures to
enact laws that would otherwise be unconstitutional because they unjustifiably limit
certain Charter rights—the fundamental freedoms, legal rights, and equality rights—but
not the democratic rights, mobility rights, or language rights. An exercise of the override
expires at the end of five years. The override is a distinctive, made-in Canada
constitutional innovation, and is at the heart of the global interest in the Charter, because
it combines a form of judicial review of legislation with the retention of ultimate
legislative supremacy. Mark Tushnet has helpfully termed the Canadian model of rights-
based judicial review “weak-form”, to contrast it with “strong-form” judicial review built
around judicial supremacy, whether wielded by a generalist apex court (as in the United
States) or a specialist, Kelsenian constitutional court (as in Germany and most
countries). It offers a “third way” in between legislative supremacy and judicial
supremacy that broadens the scope for constitutional choice, and in particular, another
option for countries with legislative supremacy that wish to adopt judicial review but
which have misgivings about it.
However, because the override was added to the Charter during the final, closed-door
round of negotiations in November 1981, there is little in the way of a contemporaneous
legislative record that sets out the justification of constitutional actors for its adoption—
unlike for section 7, for example. What is indisputable is that the override was a political
3
4
(p. 1078)
5
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compromise that enabled nine provinces (not Quebec) and the federal government to
come to agreement over the 1982 constitutional package, which included the Charter, the
Aboriginal rights provisions of the Constitution, and domestic procedures for
constitutional amendment. In the years since its enactment, two main theoretical
justifications for the override have emerged, which I term the negative and positive
justifications. The negative justification is that the override provides a constitutional
safety-valve in the event of prolonged conflict between the courts, on the one hand, and
executives and legislatures, on the other. In the absence of an override, the political
branches would eventually prevail over the courts, through abusing the power of judicial
appointment (court-packing) and/or publicly attacking the court (court-bashing), which
could severely damage and perhaps destroy the institution of judicial review itself. The
override is an institutional mechanism for channelling this disagreement into a
transparent, public process governed by the rule of law through a self-terminating
legislative enactment that must be express in its intention to set aside the Charter. It
thereby preserves the institution of judicial review while allowing the political branches
to ultimately prevail. The override, on this view, is a constitutional conflict avoidance
mechanism designed to provide a means to avert a crisis such as the one that occurred in
the United States on the constitutionality of the New Deal.
The negative justification of the override suggests this mechanism’s principal target is
the behaviour of political institutions; it is noticeably silent on the impact that the
override could have on how courts conceptualize and execute judicial review under the
Charter. By contrast, the positive justification for the override offers such an account.
The most fully-worked out theory has been offered by Stephen Gardbaum, initially in an
article published in 2001. Gardbaum argued that the override lies at the heart of a
constitutional model of rights-protection whereby judges and legislatures perform distinct
functions or roles. Judges should interpret bills of rights without fear of the consequences
of judicial over-enforcement, because judges are not supreme. The reasons for deference
that arguably follow from judicial supremacy no longer exist. Judges can interpret rights
broadly, and apply every stage of the proportionality analysis in a stringent manner to
impose a very high burden of justification. Should a court hold that legislation
contravenes rights in a manner that cannot be justified, the legislature could disagree
and respond to the court by re-enacting its previous legislation.
What judicial review coupled with an override adds to a system of pure legislative
supremacy is a mechanism to correct several well-known defects in the legislative
process: the failure to anticipate the consequences of general legislation which sets out
abstract standards when applied to individual cases, especially in circumstances where
the legislature lacks representation by the socially disadvantaged or marginalized who
would have been alert to the disproportionate impact of legislation on their rights (e.g.,
women, the poor); the discounting of the rights of those who completely lack the political
power to protect themselves in the political process (e.g., non-citizens, children); the
prejudice or indifference toward the rights of discrete and insular minorities who may
6
(p. 1079)
7
8
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wield the right to vote and who—in Jeremy Waldron’s helpful formulation—are not just
topical, but decisional minorities because they are persistently on the losing side of
legislative votes and rights-violating political decisions; the making of decisions under
panic in response to concerns about national security, and so on.
One or more of these pathologies serve as a basis for most contemporary justifications of
strong-form judicial review, which presuppose that courts are less likely than legislatures
to fall prey to them. However, strong-form review is subject to two well-known democratic
objections: that it debilitates democracy by dulling the habits of self-government
through the removal from the political agenda of the most controversial and
important questions of political morality, and that it distorts policy choices because
political institutions must work within the constitutional framework laid down by the
court, either ex post (if a law is struck down), or ex ante (in anticipation of a finding of
unconstitutionality). At its heart, weak-form review aspires to capture some of the upsides
of judicial review while lowering the risk of the downsides. The principal role of a court
under weak-form review is to serve as an institutionalized forum for highlighting rights-
based issues to lower the risk they will be ignored in subsequent legislative debates.
The task of legislatures in responding to court judgments under weak-form review is not
simply to recapitulate the exercise engaged in by the reviewing court—that is, not to re-
run the legislative process but to give concerns about rights priority over all other
competing considerations. Rather, the role of legislatures is to make an all-things
considered judgment in which rights-related considerations occupy an important and
perhaps even a central place, but are by no means the only relevant or most important
factor on the table. If the legislature sets aside the court’s judgment, and either proceeds
with its initial course of action or modifies it to adopt measures that impair the right to a
lesser extent but which are not necessarily the least rights-infringing measures, this
disagreement does not mean that the legislature has made a legal error in interpreting
and applying the bill of rights. Rather, it reflects the legislature’s judgment that a broader
range of considerations can outweigh the rights-related reasons advanced by the court
that may be entirely correct on their own terms. The value of judicial review is that it
forces the legislature to reconsider the legislation in light of the views of a body expert in
questions of rights-protection, as expressed through a thoughtful, detailed judgment, to
respond to those views, and to be held politically accountable for any decisions to
disagree. Judicial review with an override neither debilitates democracy nor distorts
policy choice. On the contrary, it enhances both.
It is the positive case for the override that has captured comparative attention. Canadian
scholars have been central participants in this global conversation, although their
preoccupations have been domestic, and have arisen out of local concerns over judicial
activism. Canadian debates about judicial activism have in fact come in waves. The first
critics of the Charter came principally from the Left, and focused on the concern that
notwithstanding the exclusion of rights of contract and property from the Charter, the
courts would erect constitutional obstacles to the interventionist, regulatory state.
Oddly, the override was absent from these debates, despite its origins precisely as a
9
(p. 1080)
10
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means to equip legislatures to check the rise of this kind of jurisprudence.
Instead, Canada’s constitutional Left trained its fire at the Court’s broad interpretation of
rights, and the demanding version of the proportionality test it adopted in Oakes. The
Supreme Court responded to these criticisms not, as it could have, by insisting on the use
of the override, and maintaining its stringent approach to justification under section 1.
Rather, it crafted a series of doctrines of deference that made it far easier for
governments to meet the burden of justification under section 1.
The mantra of judicial activism in Canada was then taken up by the Right, who charged
that under the cloak of judicial review, the Supreme Court was foisting a left, progressive
political agenda upon the Canadian public, especially on questions of same sex rights,
gender, and criminal justice. The most prominent right-wing academic critics were Ted
Morton and Rainer Knopff, whose views gained great currency in the Reform Party, a
right-wing political party (which later merged with the Progressive Conservative Party to
form the Conservative Party of Canada, which for nearly a decade governed Canada led
by Stephen Harper). The central response to this critique from Canadian legal scholars
is “dialogue theory”, which captures distinct yet related institutional and interpretative
claims. The institutional claim is that the Supreme Court does not in fact have the “last
word”, because its judgments finding laws unconstitutional are in many cases followed by
legislative “replies” that largely achieve the same objectives, albeit by different means.
However, one of the notable features of Canadian constitutional practice is that these
legislative replies are enacted without the use of the override. Rather, as Peter Hogg and
Alison Bushell—the academic originators of dialogue theory—explained, the principal
mechanism of “dialogue” is section 1, whereby legislation is usually struck down because
it fails to use the least restrictive means, as opposed to pursuing an illegitimate goal.
The ability to pursue the same goal through modified means signifies that to characterize
the balance of judicial and legislative power under the Charter as judicial supremacy tout
court is an over-simplification. Thus, the response to the right-wing critics of the Charter
was to mobilize empirics to throw into question the inference of judicial domination of the
political branches from the institution of judicial supremacy. The Hogg and Bushell article
was highly influential, not only as a piece of scholarship, but as a domestic political
intervention that reconfigured debates in Canada over the Supreme Court. Dialogue
quickly emerged as the dominant metaphor in scholarly, legal professional and political
discourses for conceptualizing judicial review in Canada and to contrast it with judicial
supremacy, especially in the United States. Notably absent from Hogg and Bushell’s
analysis is the override, which for them played only a minor role in dialogue. This was
likely due to the fact that the override has been sparingly used in Canada—
approximately a dozen times—arguably because it was delegitimized through its use by
Quebec in the late 1980s to protect legislation mandating French commercial signage
after the Supreme Court’s decision in Ford. Nonetheless, dialogue in a different form
has emerged, through section 1.
(p. 1081)
11
12
13
(p. 1082)
14
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Kent Roach extended the institutional claims of dialogue theory considerably in a manner
that linked up Canada to transnational discussions of the Commonwealth constitutional
model. Institutionally, Roach analogized between judicial review under the Charter and
statutory interpretation against the backdrop of common law rights, which could be
overridden through express statutory language. These so-called clear statement rules
anticipate weak-form judicial review, as legislatures must expressly override rights that
apply presumptively; however, the absence of a proportionality analysis applicable to
such statutory derogations of common law rights makes the analogy imperfect.
Nonetheless, as a rhetorical matter, Roach’s linkage of the Charter and its common law
antecedents had the effect of tying Canada to debates over the establishment of rights-
based review of legislation in the United Kingdom and New Zealand, which he also saw
as growing out of the common law tradition of rights-protection. For Roach, what these
systems shared is that, like the common law, legislative supremacy was retained. To be
sure, there are important differences among these systems; the New Zealand Bill of
Rights Act only creates an interpretative obligation for legislation that can be overridden
by clear legislation, and therefore represents the least of a break from the common law;
the United Kingdom Human Rights Act incorporates the European Convention of Human
Rights into domestic law, and grants courts both an interpretative power and the
authority to issue declarations of incompatibility for legislation but not invalidity; the
Charter alone among these three instruments grants courts the power to strike down
legislation for unconstitutionality, along with interpretive authority. But there is a clear
domestic politics to Roach’s argumentative move. On his account, the Charter is not a
constitutional revolution; rather, it is an incremental development from Canada’s common
law constitutional past, which combined judicial rights-protection with legislative
supremacy—as does the Charter. Moreover, by grouping the Charter with systems of
weak-form review in other advanced industrial democracies within the Commonwealth
with which Canada shares a common law tradition and fidelity to Parliamentary
democracy, and which provide for a lesser degree of judicial power and a greater degree
of legislative supremacy than does the Charter, Roach further sought to deflect domestic
political criticism.
What does dialogue theory say about the interpretative question of how the different
branches of government should conceptualize their relationship to, and functions under, a
constitutional regime of rights protection, such as that established by the Charter? This
first question arose with respect to the courts, in the narrow context of Charter
challenges to legislative replies that do not strictly conform to the court’s prior judgment.
Under a system of strong-form review, such legislation should be
unconstitutional. Courts could approach this kind of situation in precisely the same way
under the Charter, compelling the use of the override, even if the deviation from the prior
judgment is minor, thereby forcing a public debate and democratic accountability for this
legislative decision. Judicial practice under the Charter, however, has been inconsistent.
The Supreme Court has asserted the supremacy of its interpretations of the Charter in
Sauvé (2), whereas seemingly allowing Parliament to overrule it without recourse to the
override in Mills, Hall, and JTI MacDonald. Arguably, Mills can be explained on the basis
15
(p. 1083)
16
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that the reply legislation overruled a prior common law ruling of the Court, O’Connor,
and that the Court merely showed deference to a statute which itself had not sought to
re-enact a legislative provision previously struck down. The rationale for Hall and JTI
MacDonald could possibly be that Parliament adduced new social science evidence to
justify the reply legislation at issue in both cases, shifting the minimal impairment
analysis under section 1 to uphold measures it had previously struck down because of a
lack of an evidentiary foundation. Neither rationale would distinguish the Charter from
strong-form judicial review. But the Court—and Canadian legal scholars who advocate
dialogue theory—have thus far failed to offer a coherent account of these cases, which
should be rooted in an underlying account of how courts should orient themselves to
reply legislation.
Political scientists, notably Janet Hiebert, have taken up this task, by arguing that
dialogue theory should be extended to embrace coordinate construction by Parliament
with respect to the interpretation and application of rights. She later broadened this
research agenda comparatively, initially to the United Kingdom and more recently, in
collaboration with James Kelly, to New Zealand. This comparative turn served as the
basis for the original and more radical claim that bills of rights in Westminster-style
parliamentary democracies (including Canada) disperse responsibility for rights
protection beyond courts to the Executive and to the legislature. As a consequence,
instead of taking place only during the process of judicial review, rights review takes
place at three different stages: (1) pre-enactment political rights review of primary
legislation by the Executive and the legislature, (2) judicial rights review, and (3)
legislative reconsideration of court judgments which have held primary legislation to be
inconsistent with the bill of rights. These claims about interpretative authority have
important institutional implications. In addition to recasting the relationship between
courts, on the one hand, and executives and legislatures, on the other, they also
reconfigure the relationship between the legislature and the Executive—or more
precisely, the government backbench and Cabinet. Clothing the legislature with
the responsibility to engage in rights-review has the goal of empowering the government
backbench relative to the Cabinet, in alliance with opposition MPs, by providing it with a
legal tool to challenge party discipline in limited yet important circumstances involving
rights-infringing legislation. Gardbaum’s most recent work has taken on board these
claims.
This most recent turn in dialogue theory—encompassing in Canada, the United Kingdom,
and New Zealand—is a significant departure from its initial formulation, which
conceptualized courts and legislatures as performing distinct functions within a system of
rights-protection. It squarely raises the empirical question of how political institutions
actually reason with rights. In dialogue theory’s first iteration, pre-enactment review
takes the form of legal risk management in the shadow of constitutional doctrine,
whereas post-judgment legislative replies are rooted in all-things-considered judgments
where rights are one consideration among others. In its second iteration, dialogue theory
posits that political institutions have the opportunity and perhaps even the responsibility
to offer their independent good faith interpretations and applications of bills of rights,
17
18
19
(p. 1084)
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which at times may be at odds with those of the courts, at both the pre-enactment and
post-judgment legislative stages. However, the facts do not fit the theory. Kelly has shown
that prior to the introduction of legislation, internal analysis by federal and provincial
government legal advisors in Canada is largely confined to risk analysis. Hiebert and
Kelly have recently extended this observation to the United Kingdom and New Zealand.
Moreover, they also show that the anticipated impact on backbench behaviour has not
materialized either in Canada, the United Kingdom, or New Zealand. This is true even in
the United Kingdom, where the Joint Committee on Human Rights of the UK Parliament
has special responsibility to scrutinize legislation for compliance with the Human Rights
Act, making the United Kingdom the most highly developed and transparent system of
pre-enactment political rights review in the Commonwealth. However, the Committee’s
reports consist largely of highly sophisticated legal analysis of European Court of Human
Rights and United Kingdom Supreme Court jurisprudence, as opposed to counter-
interpretations of the Human Rights Act. Although there have been important exceptions,
the Committee has rarely frontally challenged the government and forced it to change
course. In New Zealand, electoral reform (shifting from first past the post to mixed
member proportional) has enhanced the power of political parties relative to MPs,
dampening the potential for legislative accountability for rights-protection even further.
The empirics do not match the normative ambitions of the most recent version of dialogue
theory. Why is this the case? Hiebert and Kelly argue that two of the core features
common to Westminster democracies—cabinet dominance of the legislature in situations
of majority government, and strongly disciplined political parties which do not provide
much scope for legislators to stray from party positions—are so deeply rooted that the
dispersal of authority for rights protection, even with creative institutional design,
cannot overcome them. By situating Canada comparatively, their analysis gains
considerable power by highlighting explanatory factors shared with New Zealand and the
United Kingdom. The next move in this global scholarly conversation should be to bring it
full circle back to its origins in Canada, as a further spur to comparative reflection. If the
original version of dialogue theory is the more realistic one, it is important to ensure that
judicial decisions holding that legislation contravenes bills of rights do in fact receive a
legislative response. A large factor is which institution bears the burden of legislative
inertia. In cases where courts possess the power to issue a declaration of invalidity
(Canada), or to interpret legislation to be compatible with rights (Canada, New Zealand,
and the United Kingdom), a judicial ruling stands absent a legislative response. The
legislation is thrust back onto the legislative agenda, and the legislature must
affirmatively act if it is to have the final say, which increases the likelihood that there will
be a political debate on how to respond to the court’s judgment. Of these two, a
declaration of invalidity is more transparent and hence the best tool for cuing political
debate and accountability. In the United Kingdom, the practice of legislative replies to
declarations of invalidity is almost entirely a function of the contingent fact that cases
under the Human Rights Act may ultimately come before the European Court of Human
Rights, which has the power to issue legally binding judgments to which the United
21
(p. 1085)
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Kingdom Parliament must respond. As a matter of institutional design, the Canadian
version of weak-form review has comparative advantages over its counterparts in New
Zealand and the United Kingdom.
However, the development of a rich jurisprudence of doctrines of deference under section
1 has had the effect of diminishing the need to deploy the override, and undermined the
potential of the uniquely innovative aspect of Canada’s constitutional design. Those
doctrines are far more developed in Canada than in the United Kingdom or New Zealand.
What is striking is that these doctrines—which have generated an immense jurisprudence
that cuts across particular rights under the Charter, and has been a flashpoint of conflict
on the Supreme Court—read as if the Charter created a system of judicial supremacy, and
that it therefore falls to the Court to calibrate the intensity of judicial review. The override
is entirely absent from the Court’s conceptualization and doctrinal operationalization of
the idea of deference. What needs to occur is the integration of institutional and
interpretive analysis. In its purest form, dialogue theory posits that courts should not
defer under section 1, because of the possibility of the override. An alternative would be
to differentiate among different kinds of Charter violations, requiring only some to trigger
the use of the override. I defer the full elaboration of this argument for another day.
3. The Canadian Model of Plurinational
Federalism
The Canadian model of plurinational federalism is another dimension of our constitutional
regime that has garnered considerable global interest, and is of central importance
to international debates over how constitutional design can and should respond
to the relation between constitutionalism and nationalism. The context in which this
issue arises is the plurinational state. The constitutional problems of plurinational states
arise because modern states necessarily engage in a process of nation-building, which is
designed to produce a degree of common identity, shared by all its citizens, across the
entire territory of the state. The means to do so include policies centered on language,
and culture, and on the centralization of legal and political power. The goals of nation-
building are diverse, and include providing the necessary motivational element missing
from liberal accounts of political legitimacy to induce individuals to make a particular set
of liberal democratic institutions work and accept their demands; providing a mobile
work force, literate in a common language that can pursue economic opportunity across
an integrated national market; and ensuring that citizens can communicate directly with
government officials.
But many states also contain national minorities whose members once formed complete,
functioning societies on their territory, endowed with a considerable degree of self-rule,
prior to their incorporation into the larger state through conquest and empire or
voluntary federation or union. Consequently, many national minorities will resist nation-
(p. 1086)
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building efforts, and respond by conceiving of themselves as nations and making
constitutional claims designed to both protect themselves from the majority’s nation-
building project and to enable them to engage in a parallel process of nation-building
focused on the territory around which they constitute a majority. There are many
plurinational states around the world—Canada, the United Kingdom, Belgium, Spain,
Russia, Sri Lanka, Iraq, and India—just to name a few. In these states, constitutional
design matters a great deal, as constitutions are the principal sites for majority nation-
building as well as for national minorities’ resistance to the overarching process of
nation-state consolidation. Canada is a conspicuous example of how constitutional design
can accommodate competing nation-building agendas within a single state. Put simply,
the Canadian exemplar responds by challenging the equation of nation and state that
underlies not only majority nation-building but also the defensive response of minority
nations, for which the logical response is to resist incorporation into the majority nation
and demand states of their own.
Federalism is the feature of the Canadian constitutional model that addresses this issue
most directly. Canada is a plurinational federation because the boundaries of the province
of Quebec were drawn so that francophones would constitute a majority therein and
could not be outvoted by the anglophone majority in Canada as a whole. This remains
true today—indeed, the territorialisation of linguistic communities across Canada is
greater now than when Quebec was created. Moreover, Quebec was granted a mix of
concurrent and exclusive jurisdiction over a wide range of policy areas that gives it the
tools to ensure the survival of a francophone society by creating a complete set of
institutions that operate in French across the economy, politics and public
administration, and education. Inasmuch as language is the driving force behind
Quebec’s claims for political autonomy, the Canadian model blunts its force by implying
from jurisdiction over certain institutions or relationships the power to set the language
in which those institutions operate or relationships occur. In exercise of this authority,
Quebec enacted the Charter of the French Language in 1977 to make French “the
language of the Government and the law, as well as the normal and every day language of
work, instruction, communication, commerce and business”. The key provisions of the
Charter of the French Language are those that establish French as the exclusive
language of work within the civil service, flowing from the province’s constitutional
authority over provincial public administration. Likewise, the Charter of the French
Language promotes French as the internal working language of medium- and large-sized
business in the province through Quebec’s power over property and civil rights, which
encompasses the authority to regulate commercial transactions and private sector
workplaces. Together, these measures vastly increased range and attractiveness of the
economic opportunities for francophones in Quebec.
The responsibility for primary, secondary, and postsecondary education also lies within
provincial jurisdiction, and impliedly encompasses power over the language of instruction
and curriculum. This authority has been crucial for Quebec, because the Constitution has
permitted the province to establish and operate a primary and secondary educational
system that operates in French and is a prime instance of linguistic nation-building.
(p. 1087)
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Additionally, the control over education has enabled Quebec to create French-language
colleges and universities, an indispensable support for the use of French in economic and
political life. At the same time, this arrangement has denied the federal government the
power to set a standard curriculum in a shared national language, a common instrument
of nation-building in many countries.
Although the Canadian model of plurinational federalism continues to evolve, many of its
key features have been in place since the mid-nineteenth century. However, there was
sharp rise in academic and policy interest in Canada’s plurinational federalism in the
mid-1990s. Why? The answer may be found not in Canada, but in Eastern and Central
Europe. The collapse of the communist dictatorships in the latter region were followed by
the rise of profound ethnic conflict within these democratizing states. As it turned out,
many of these states fulfilled the definition of a plurinational polity, and the political
sociology of emergent conflict within plurinational polities—the competing projects of
majority and minority nation-building—fit the unfolding pattern of political conflict in
those countries. In the search for solutions, plurinational federations such as Canada
were an obvious candidate.
But the advocates of plurinational federalism were confronted with the fact that the three
former communist dictatorships of Eastern and Central Europe—Czechoslovakia, the
Soviet Union, and Yugoslavia—had already been plurinational federations prior to the
transition to democracy, and all three began to disintegrate shortly after the transition.
By contrast, unitary states with large national minorities in which nationalism served as
the axis of internal political conflict—Hungary, Poland, and Romania—did not fall
apart. Indeed, the problem went even deeper. A widely accepted explanation for the
disintegration of the communist federations of Eastern and Central Europe is that
federalism not only did not prevent their breakup; it may have facilitated it. In these
states, federal subunits provided a territorial and institutional power base for national
minorities that served as a springboard to statehood. Unitary constitutional structures
denied national minorities such a platform.
As plurinational federalism in Eastern and Central Europe may have had the perverse
effect of fuelling precisely those political forces it was designed to suppress, the region’s
experience posed a fundamental challenge to plurinational federalism as a viable
constitutional strategy in that part of the world. Indeed, it posed a more general
challenge to the very idea of plurinational federalism. The best way to respond to the
negative examples of Yugoslavia, Czechoslovakia, and the Soviet Union was to identify
models where plurinational federalism had actually worked. Hence the sudden and sharp
increase in interest in Canada’s plurinational federalism. Will Kymlicka and Charles
Taylor were the foremost scholarly proponents of the Canadian federal model. Indeed,
Canada became one of the central cases in an ever-broadening comparative debate
regarding the very possibility of crafting a constitutional accommodation between
majority and minority nationalism within a single state.
(p. 1088)
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But although it is true that global interest in Canadian federalism manifiested itself
during the disintegration of the plurinational federations of Eastern and Central Europe,
it also coincided with Canada’s own constitutional crisis. This arguably began in
September 1994, with the resurgence of the Parti Québécois (PQ), which won power on a
platform that had as its centrepiece a commitment to hold a referendum on sovereignty
within its first mandate, which took place in October 1995. The results were extremely
close, with the sovereignty proposal failing by 1 percent. Provincial legislation governing
the referendum had set a one-year time limit on those negotiations, after which Quebec
would have issued a unilateral declaration of independence. Nor was the near
disintegration of the Canadian federation in the mid-1990s completely unexpected. From
1990 onward, the secession of Quebec became a topic of widespread political and
academic debate. A sub-literature assumed that Canada was doomed, and that the
country should turn to the difficult question of how secession should occur, and examined
very specific issues such as the debt, borders, citizenship, the rights of Aboriginal
peoples, and the nature of the economic and political partnership between Canada and an
independent Quebec, as well as the process for such negotiations.
What was the connection between Canada’s constitutional crisis and rise of global
interest in the Canadian model of plurinational federalism? The answer is politics.
Arguing for the necessary success of the Canadian model was not just a scholarly
endeavour. It was a political intervention in two different but interrelated arenas. It was
an intervention in international politics—to offer a practical, viable model to deal
with the issue of minority nationalism, which had become a source of political
instability in Eastern and Central Europe and beyond. It was also an intervention in
domestic constitutional politics—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. These agendas were integrally linked. Many proponents
of the Canadian model not only recognized the crisis gripping the Canadian constitutional
order, but also viewed the international promotion of the Canadian model as an important
element in resolving domestic problems. The promotion of the Canadian model abroad
should be understood, at least in part, as an attempt to reinforce support for the
Canadian model in Canada by installing national pride. As the prestige of the Canadian
model is enhanced abroad, so too is its prestige at home. Indeed, the violent collapse of
the plurinational federations of Eastern and Central Europe appeared to challenge the
viability of plurinational federalism not only in that region but in Canada as well.
Canadians stared into the constitutional abyss in the 1990s and asked themselves
whether the same fate awaited Canada. If the Canadian model could not work in Canada,
it could not work in circumstances that are far more difficult. Canada needed to make its
constitutional arrangements work not only for the world’s sake, but for its own as well.
What was the precise character of the Canadian constitutional crisis? The conventional
wisdom is that the Canadian constitutional crisis was substantive, and arose from
competing constitutional logics which are at war with each other: the accommodation of
Quebec, the Charter, and the juridical equality of all provinces (including Quebec).
These different constitutional logics have come into conflict over two issues:
(p. 1089)
24
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asymmetrical powers for Quebec and the constitutional recognition of Quebec as a
distinct society. Asymmetry is demanded by Quebec as necessary in order to give it the
jurisdictional tools to preserve and promote its distinct identity in economic and social
circumstances that have changed dramatically since 1867; it is resisted in English
Canada, both by those who want to centralize power in Ottawa as part of a nation-
building exercise and by those who believe that special arrangements for any one
province are a form of discrimination. Constitutional recognition of Quebec as a distinct
society, if designed to augment Quebec’s powers alone, raises similar objections. To the
extent that such recognition would give greater scope to Quebec to limit Charter rights
legitimately—in order to preserve and promote its linguistic identity—it would come into
conflict with the concept of the Charter as the essential foundation of equal citizenship,
providing for equal enjoyment of constitutional rights throughout Canada.
But there is also a procedural account of the constitutional crisis, in which the near-
collapse of the Canadian constitutional system can be traced to a lack of a shared
understanding regarding the constitutional procedures within which substantive
constitutional politics could occur. Consider the following argument. In
politics, we frequently disagree about the substance of public policies. A basic ambition of
constitutionalism is to channel disagreements into institutions that reach decisions that
members of the political community will accept as authoritative. But for institutional
decisions to yield political settlement, the decision-making procedures of those
institutions must be viewed as constituting and regulating political life without forming
part of it—as being indifferent among political positions. Were the mechanisms by which
political disagreement is managed themselves to be subject to political contestation in the
course of their operation, it would be difficult for institutional settlement to translate into
political settlement. The rules for constitutional amendment and their relationship to
substantive constitutional politics can be conceptualized in like manner. If the rules of
constitutional amendment are to operate effectively, they too must be accepted as
constituting and regulating constitutional politics, and not forming part of it. They must
be seen as operating indifferently among the competing constitutional positions on the
table.
The difficulty with this highly simplified picture is that political procedures—both for
normal and constitutional politics—are far from substantively neutral themselves. Rather,
as Jeremy Waldron has argued, political procedures reflect competing conceptions of the
very sorts of values that are the customary fare of both normal and constitutional politics.
For example, by determining which individuals and communities can participate in
political decision-making, and what role those individuals and communities may play,
decision-rules reflect substantive judgments of political sovereignty, and by extension, the
very identity of a political community. So the boundary between substantive political
disputes and the procedural frameworks within which those disputes are worked out is
highly artificial. Liberal democratic constitutionalism depends on the suspension of
(p. 1090) 25
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political judgment with regard to institutions and institutional decision-making
procedures precisely in order to gain the prospect of political settlements.
The suspension of political judgment with respect to political procedures will become
exceedingly difficult to sustain when the substantive dispute challenges the very
conception of political community that underlies the decision-making framework within
which that debate occurs. With respect to the rules of normal politics, the consequence
will be to shift the terrain of disagreement from normal politics to constitutional politics,
regulated by the procedural rules governing constitutional amendment. But in
plurinational polities, the ease with which political judgment with respect to
constitutional amending rules can be suspended depends on the nature of the issue at
hand. In plurinational polities, constitutional politics takes place on two levels. On the one
hand, there is the sort of constitutional politics that presupposes the existence of
a national political community, where the basic question of constitutional design is how
this political community should grapple with the task of democratic self-government. This
kind of constitutional politics also occurs in political communities that are not
plurinational. But in parallel—and simultaneously—plurinational polities also engage in
constitutive constitutional politics, which concern questions that go to the very identity,
even existence, of a political community as a plurinational political entity. In practice, it is
hard to disentangle these two sorts of constitutional politics, because they often touch on
similar sorts of issues—the structure of national institutions, federalism, and bills of
rights—and often occur at the same time. For example, proposals to entrench the
Supreme Court of Canada constitutionally, to recognize its unique responsibility as an
independent organ of government and final arbiter charged with enforcing the Charter—
were accompanied by demands by Quebec that, given the Court’s role as the final judicial
arbiter in federal-provincial disputes, three of its nine seats should be constitutionally
guaranteed for justices from that province.
The problem is that it can be very difficult, if not possible, to suspend political judgment
regarding the procedures for constitutional amendment at moments of constitutive
constitutional politics precisely because these procedures might reflect one of the
competing constitutional positions at play. In the absence of agreed-upon procedures for
constitutional decision-making, institutional settlement cannot yield political settlement.
The result may be that the constitutional system itself comes tumbling down.
This is what happened in Canada in the mid-1990s. For alongside disagreement on the
substantive questions of how Quebec’s constitutional claims should be accommodated
within the Canadian constitutional order and whether Quebec should remain a part of
Canada, there was a procedural disagreement over whether the rules governing
constitutional amendment should govern the process of secession. As a strictly legal
matter, a change in Quebec’s status from province to independent country could be
achieved through constitutional amendments that would require the consent of the
federal government and most, if not all, of the provinces. Unilateral secession would be
unconstitutional. But Quebec sovereignists challenged the assumption that Quebec’s
independence would be governed by the rules governing constitutional amendment, for
(p. 1091)
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the simple reason that those rules beg the question. Those rules presuppose that Quebec
is a constituent component of the Canadian federation, functioning as a subnational
community with extensive but limited rights of self-government within Canada.
Accordingly, Quebec is a constitutionally recognized actor in the process of constitutional
amendment through processes that require a high degree of federal and provincial
consensus. Quebec cannot act alone. But it is precisely that constitutional vision that the
Quebec sovereignty movement challenges, in raising the substantive question of whether
Quebec should remain a part of Canada or become an independent state. Not
surprisingly, the sovereignists rejected the amending rules as a neutral framework within
which the question of Quebec’s independence could be resolved. As sovereignists wished
to make a radical and total break from the Canadian constitutional order, it is hard to
imagine that they would have subscribed to a process governed by it.
The broader point is that the Canadian problem is a common one. The
constitutional politics of rules for constitutional amendment are frequently a point of
conflict in plurinational polities. The reason is that these rules are where the most
fundamental clashes in nation-building occur. By assigning the power of constitutional
amendment to certain populations and/or institutions, in various combinations, the rules
governing constitutional amendment stipulate the ultimate locus of political sovereignty
and are the most basic statement of a community’s political identity. The ability to
reconfigure the most basic terms of political life must lie with the fundamental agents of
political life. By looking at amending rules, we can see who those agents are. In
plurinational polities, assigning roles to national minorities as part of the procedure for
constitutional change accordingly acknowledges the fundamental plurinational character
of the political community. The refusal to acknowledge this fact translates into a
preference for constitutional amending rules that do not recognize and empower the
constituent nations of a plurinational polity. And in either situation, secession is a limiting
case that would challenge the application of the existing constitutional order to part of
the state’s territory. So it is far from surprising that in a broad variety of recent cases,
such as Iraq, Spain, Sri Lanka, and the United Kingdom, as in Canada, a principal arena
of constitutional conflict has concerned the design of constitutional amending rules.
The true lesson for multinational polities of the Canadian model of plurinational
federalism may be this. Canada is indeed a success story—it is one of the world’s oldest
countries, has wrestled with and responded imaginatively to forces that have torn other
countries apart, and has achieved a remarkable degree of prosperity and freedom. In
large part, the Canadian model operates under the law. But as the Canadian
constitutional crisis shows us, a legal approach to the accommodation of minority
nationalism has both its strengths and weaknesses. The main problem lies in meeting
demands for constitutional change from minority nations. Rules for constitutional
amendment face genuine difficulty in constituting and regulating moments of constitutive
constitutional politics, because at those moments, the very concept of political community
those rules reflect is placed in contention by the minority nation. And what Canada may
(p. 1092)
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teach us is that secession may be a limiting case where constitutionalism and the rule of
law run out.
4. Rights Protection in a Plurinational
Federation
Finally, I turn to an issue that has received much less comparative attention, but should:
how the different pillars of the Canadian constitutional model interact, in
particular, the complex interplay between a constitutional bill of rights and the
constitutional accommodation of minority nationalism. This has occurred both in
constitutional politics and adjudication. For the former, perhaps the best example is the
debate surrounding the constitutional recognition of Quebec’s distinctiveness; for the
latter, the role of the Supreme Court of Canada in adjudicating high profile constitutional
conflicts over official language policy arising out of Quebec. Although these issues have
arisen in different institutional contexts, there is a common problem that unites them—
the clash between competing constitutional logics that lie with the same constitutional
document, and that give rise to compelling political and legal claims that pull in opposite
directions.
Political and judicial institutions sometimes have no choice but to grapple with these
tensions. In some cases, they will give priority to one constitutional logic over the other—
as occurred, for example, with the rejection of the proposed “distinct society” clause of
the Meech Lake Accord, which would have afforded constitutional recognition of
Quebec’s particularity, on the basis of a fear that it would have eroded the equal
enjoyment of Charter rights across Canada. In other cases, they may be able to find an
accommodation that allows both constitutional logics to operate within the framework of
a common constitutional order. The Canadian experience suggests that the ability of
particular institutions to achieve this kind of constitutional co-existence might be a
product of their institutional design—and that the plurinational character of the Supreme
Court might have enabled it to be particularly effective in this respect.
As Peter Russell argued in a classic article, the Charter was Prime Minister Pierre
Trudeau’s central instrument for nation-building, and arose as a direct response to an
important shift in the character of Quebec’s constitutional demands in the 1960s. Until
then, Quebec’s constitutional claims had been defensive, aimed at safeguarding its
existing areas of jurisdiction. However, in the 1960s, Quebec’s goals shifted to engage in
a nation-building enterprise and construct a modern Quebec, the major institutions of
which operated in French. Why this shift in Quebec took place is a complex story. To a
considerable extent, it was a defensive response to the dramatically increased role of
Ottawa in economic and social policy after the Second World War. Federal policy activism
meant an increase in the importance of federal institutions, especially the federal
bureaucracy, which worked in English and in which francophone Quebeckers were a
(p. 1093)
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small minority. Another factor was enormous social change within Quebec. After the
Second World War, there was massive urbanization and industrialization, in a context
where anglophones dominated positions of economic leadership and many of the
professions. These demographic and economic shifts underlined and reinforced the role
of language as the basis for the unequal distribution of economic power within the
province. Quebec’s political elites responded by mobilizing francophones around the
nationalist project of maître chez nous, which encompassed both the expansion of
Quebec’s jurisdiction and the use of these new tools to shift power away from the
anglophone minority toward the francophone majority through constructing a
modern set of economic and political institutions to ensure the survival of a modern,
French-speaking society.
The Charter was the federal government’s defensive response to these centrifugal
pressures. At first blush, this is counterintuitive, as nation-building usually involves the
assertion of legal and political power to form a common identity in a manner that limits
individual freedom of choice, whereas bills of rights set limits on such policies. Yet a bill
of rights can nonetheless play this role. Indeed, there are two ways to think about the
nation-building role of a bill of rights: the regulative conception and the constitutive
conception. On the regulative conception, the function of a bill of rights is to enable
individuals to invoke the machinery of the courts to set binding constraints on political
decision-making. Serving this function does not depend on a bill of rights having any
effect on citizens’ political identities. On the constitutive conception, a bill of rights
constitutes the very demos that it also constrains. A bill of rights calls for citizens to
abstract way from group markers, such as race, ethnicity, religion, or language. It
encodes and projects the idea of a political community built around citizens who are
equal bearers of constitutional rights—a constitutional patriotism—whose political
membership is unmediated by group identity. To serve as the instrument of nation-
building, a bill of rights must alter the very self-understanding of citizens.
The Charter relies on both the constitutive and regulative conceptions of a bill of rights to
serve as an instrument of nation-building. The Charter was intended to function
constitutively as the germ of a pan-Canadian constitutional identity. In a federal state
such as Canada, where citizens share rights under a bill of rights irrespective of language
or province of residence, a bill of rights serves as a transcendent form of political
identification—the spine of common citizenship that unites members of a linguistically
diverse and geographically dispersed polity across the country as a whole. The actual
effects have been different. Outside of Quebec, the Charter has generated a new pan-
Canadian patriotism, likely more quickly than even the most optimistic predictions
suggested. However, within Quebec, the Charter has decidedly not had this effect.
Indeed, the sharply differentiated effect of the Charter on Canadian constitutional culture
suggests that it may now be harder, precisely because of the Charter, to build a unifying
account of the Canadian constitutional order that transcends linguistic and regional
divides.
(p. 1094)
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The divergent reactions to the distinct society clause outside and within Quebec
powerfully illustrate these points. The clause would have mandated that the Constitution
be interpreted to recognize “that Quebec constitutes within Canada a distinct society”
and would have affirmed “[t]he role of the legislative and Government of Quebec to
preserve and promote the distinct identity of Quebec”. Outside Quebec, the fear
was that the clause would provide for the unequal application of the Charter, by
authorizing Quebec to limit the Charter in a manner not open to other provincial
governments. In particular, there was a concern that it would provide additional
constitutional support for linguistic nation-building on the part of Quebec. What
underpinned this resistance was a shift in political identity outside of Quebec wrought by
the Charter. The Charter was what made Canada a country and was the spine of a
Canadian citizenship that was shared by all Canadians, and the potential for its unequal
application was an assault on a basic, non-negotiable term of the Canadian social
contract. Within Quebec, the view on the distinct society clause was exactly the opposite,
rooted in a competing account of Canada. On this account, Canada is unintelligible except
against the backdrop of the idea that the institutions of plurinational federalism are
designed to protect Quebec’s linguistic distinctiveness. Yet the odd thing about the
Canadian Constitution is that it lacks express recognition of this fact and treats Quebec
on a basis of juridical equality to the other provinces. The distinct society clause therefore
mattered a great deal because it was the first time the Constitution would explicitly
acknowledge a view of what Canada was for. The repudiation of the distinct society clause
on the basis of a theory of Canadian citizenship that was rooted in the Charter set up the
Charter as an obstacle to, rather than as a central component of, how many Quebeckers
understood the nature of their relationship with Canada.
The broader lesson from the Canadian case is that it is very difficult for bills of rights to
constitute a new political identity on their own. Contrary to those who argue for the
possibility of a pure constitutional patriotism based on the commitment to universalistic
principles of political morality, a bill of rights must be nested in a contingent context—a
constitutional narrative drawing on a web of political memory forged by shared
experiences, challenges, failures, and triumphs. The Canadian experience tells us that in
plurinational polities there is an additional hurdle. The task is not simply to situate a bill
of rights in a contingent historical and political context. The task is to do so in a context
in which the existence of competing nationalisms makes the dominant question of
constitutional politics the conflict between contending national narratives. If the ambition
of a bill of rights as a constitutive instrument of nation-building is to be a central element
of an overarching narrative, by standing apart from, and transcending, those competing
narratives, a plurinational context is a particularly difficult environment in which to do so.
Indeed, there is the danger that rather than transcending those national narratives, a bill
of rights will be drawn back into it. This is what has happened in Canada. And if this
would happen in Canada, where we have managed our nationalist politics peacefully and
within the rule of law, the difficulties may be greater still for countries wracked by
(p. 1095)
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political instability, with weak institutions and a halting commitment to legalism, and
often emerging from violent conflict.
What about the regulative nation-building role of the Charter? In regulatory terms, the
Charter imposes legal constraints on minority nation-building by Quebec, through
entrenching rights to inter-provincial mobility and minority language education for
children. The centrality of the mobility and minority language education rights
provisions to the nation-building project of the Charter is underlined by their exemption
from the override—and hence, from Canada’s system of weak-form judicial review, and
the possibilities for dialogue it creates. Both rights can be understood as a response to
potential or actual policies of linguistic nation-building by Quebec, and indeed, Quebec
has objected to both, precisely because they are not subject to the override. The Charter
prohibits the use of disincentives to inter-provincial migration by guaranteeing the right
to “move and take up residence in any province” and “to pursue the gaining of a
livelihood in any province”. Quebec objected, arguing that the province legitimately
discriminated to preserve its distinct linguistic identity.
Far more important as a tool of minority nation-building is the linguistic assimilation of
international and inter-provincial migrants. Absent the Charter, Quebec could have
mandated that the exclusive language of public education be French. Yet the Charter
granted to certain categories of citizens the right to receive minority language primary
and secondary education for their children where numbers warrant it. The flashpoint of
controversy within Quebec has been the right of anglophones who received their primary
school instruction anywhere in Canada in English to have their children educated in
English in Quebec—the so-called “Canada Clause”. This provision was specifically drafted
to render unconstitutional a provision in the Charter of the French Language that would
have limited this right to parents who had been educated in English in Quebec. Another
provision of the Charter, which grants children who have received their schooling in
English anywhere in Canada the right to continue their English-language education in
Quebec, also limits Quebec’s ability to linguistically integrate migrants from other
provinces.
The clash between the Charter and Quebec’s policies of linguistic nation-building
occurred in three important cases before the Supreme Court. In all three cases, the
Court found these policies to be unconstitutional. In Ford, the Court struck down a
provision in the Charter of the French Language that required outdoor commercial
signage to be exclusively in French; in Quebec Protestant School Board, it applied the
“Canada Clause” to strike down a provision of the Charter of the French Language that
required citizens educated in the English language elsewhere in Canada to have their
children educated in French; in Solski, the Court rejected an attempt to construe
narrowly the Charter’s right of children who have received schooling in English anywhere
else in the country the right to continue schooling in English in Quebec.
(p. 1096)
30
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There are three noteworthy features of these decisions. First, Quebec lost every case, and
the Charter did indeed constrain Quebec’s ability to establish French as the common
language of political, economic, and social life in that province. Second, although the
Supreme Court struck down Quebec’s nation-building policies, it nonetheless accepted
the purpose underlying these laws as legitimate under section 1; the constitutional defect
in each case is that the laws, as framed or construed by the Government, failed
at the minimal impairment stage of the proportionality analysis. Third, the judgments
were unanimous and handed down by “The Court” as an institution rather than by an
individual judge with whom the rest of the Court concurred. Collective authorship by the
Court is very rare and indicates the greatest possible degree of consensus among the
justices.
These pieces fit together. Their significance becomes clear if one recalls that the
Supreme Court is a regionally representative body, with three of nine justices coming
from Quebec, three from Ontario, and one from British Columbia, the Prairies, and
Atlantic Canada, respectively. However, Quebec’s representation is special, as is reflected
by the fact that is the only province whose representation has been legally guaranteed for
several decades, whereas the regional distribution of the remaining seats is a matter of
constitutional convention at best. An important justification for the special rules
governing Quebec’s representation is that the Supreme Court takes civil law appeals
from Quebec and therefore requires justices with the requisite expertise. But the deeper
rationale is that the composition of the Court reflects and institutionalizes the
plurinational character of Canada. Quebec’s status as a nation within Canada entitles it to
a guaranteed minimum level of representation in a federal institution—such as the
Supreme Court—that makes important decisions delimiting the scope of Quebec’s power
to pursue such policies. A Court that ruled on these issues without justices from Quebec
would be widely perceived as constitutionally illegitimate within that province.
It is worth reflecting on how the plurinational nature of the Supreme Court’s membership
might play out in adjudication, especially with respect to cases that arise out of Quebec.
As a formal matter, the Quebec justices enjoy no special powers relative to other justices,
either individually or collectively. But with regard to cases of special interest to Quebec—
for example, those that concern the power of Quebec to engage in linguistic nation-
building—as a matter of constitutional practice, the Quebec justices might play a different
institutional role in the Court’s decision making. Consider the following counter-factual:
imagine that in Ford, Quebec Protestant School Board, and Solski, the Court had divided
on national lines. The Quebec justices voted to uphold the policies under challenge,
perhaps holding that they breached Charter rights but were justified under section 1. A
majority of the Court, however, struck them down, and went further than holding that the
measures were disproportionate. Rather, it held that the very objective of preserving and
enhancing the status of French as Quebec’s common language was per se illegitimate,
because that objective sought to redistribute economic and political power away from
anglophones toward francophones, and was therefore inherently discriminatory.
(p. 1097)
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Moreover, when it rendered judgment in those appeals, the Quebec justices were all
francophone and the justices from the rest of Canada all anglophone, so that the division
on the Court would have been basic and fundamental, and plurinational in character.
If that had happened, the dissent by the Quebec justices would have been much more
than the routine disagreement that occurs on multi-member courts in the common law
world. Given the political origins of the Charter as a response to Quebec nationalism, and
the singular importance of the challenged laws to modern Quebec nationalism, a
Supreme Court divided on national lines would have served to undermine the
legitimacy of the Charter, and perhaps even the Court itself, within Quebec. This would
have been a disaster. The Court’s decision to speak unanimously as a single institution
indicates its awareness that, with respect to these divisive issues, it was important to
present a common front that transcended the national divide built into the Court’s design.
The Court’s choice emphasized that what drove the judgment was not the national origin
of any individual justice but the Court’s collective understanding of the Charter and its
relationship to the project of Quebec nationalism. Moreover, in these three cases, the
judgments occupied an intermediate position between polar extremes, by striking down
the provisions under challenge while still leaving space for Quebec to pursue those
policies through accepting Quebec’s objectives as constitutionally legitimate.
What role did the Quebec justices play in the Court’s internal deliberations on the Quebec
language cases? We do not, and may never, really know. But a plausible account is that
the Quebec justices brought to these cases alertness to, and understanding of, the roots
of modern Quebec nationalism, and the social and economic transformations that gave
rise to them. As members of Quebec’s elite who had lived through these transformations
and were indeed products of them, the Quebec justices brought to the conference table
an understanding of the origins and importance of these policies. They were therefore
able to persuade their colleagues from outside the province of their constitutional
legitimacy, and to highlight for them the risks of interpreting the Charter to deny to
Quebec the constitutional space to pursue them. Their attempts at persuasion may have
been coupled with the threat to collectively dissent, which would have been politically
costly for the Charter and the Court. Although their leverage was insufficient to save
Quebec’s legislation, it was enough to shape the manner in which it was struck down,
allowing Quebec to enact a more narrowly-tailored policy in the future that would survive
constitutional challenge.
Canada holds broader lessons. The Canadian Constitution is not alone in entrenching a
bill of rights and accommodating minority nationalism, and in generating cases that
require an apex court to work through and craft the relationship between these
contending constitutional agendas. Other plurinational polities face a similar set of
issues. The judgments of the Supreme Court avoided an all-or-nothing victory for either
rights-based constitutionalism or minority nationalism; rather, it created a constitutional
middle-ground that protected individual rights while still permitting Quebec to engage in
linguistic nation-building. The likelihood of an apex court to chart a path of constitutional
compromise under such circumstances probably turns in part on its design. For that
(p. 1098)
32
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reason, one should expect there to be a politics of apex court design—as there has been
in Canada—where national minorities advance constitutional claims to ensure that an
apex court adopts an interpretative agenda that is congenial to the protection of minority
interests.
There are in theory a number of dimensions to the design of apex courts that
provide levers for achieving this broader objective. One is the appointments process, for
example, through granting the authority to federal sub-units controlled by national
minorities to appoint a number of judges, through super-majority or concurrent majority
requirements that empower minority legislators, or through minority control over
nominations (e.g., the exclusive power to generate shortlists). A closely related, but
distinct issue would be the composition of the Court. Certain seats could be designated
for justices from national minorities, or from federal sub-units in which national
minorities predominate. Yet another aspect of design would be the justices’ legal
expertise. In bijural jurisdictions, such as Canada and the United Kingdom, a certain
number of seats on the apex court could be set aside for judges trained in the component
legal traditions where that tradition is tied to questions of a minority nation’s identity.
Finally, there are the decision-rules of the apex court. A court may constitute special
panels of subsets of judges to hear cases of special interest to national minorities. These
panels would contain a disproportionate number of judges appointed by minority nations,
and/or national minority judges. Alternatively, a court may require a super-majority or
concurrent majority to reach decisions, either on all issues or those of special concern to
national minorities.
Indeed, a largely forgotten part of Canadian constitutional history shows that some of
these options were advanced over several decades by Quebec, in the wake of the
abolition of Canadian appeals to the Judicial Committee of the Privy Council in 1949.
The Privy Council had favoured strong provinces and a weak federal government; with
the federally-appointed Supreme Court becoming Canada’s final court of appeal, Quebec
was concerned that Quebec’s autonomy would be eroded by a Court biased in favour of
the federal government. An early proposal from Quebec included a nine-member
specialist Constitutional Court, consisting of five judges appointed by the federal
government and one judge appointed by each of the executives of each region of Canada
(Quebec, Ontario, Atlantic Canada, and Western Canada). Another proposal empowered
provincial executives to appoint two-thirds of the Constitutional Court, with one-third of
the judges appointed by Quebec. Quebec later shifted its focus from the creation of a
specialist constitutional court to the reform of the Supreme Court. The 1971 Victoria
Charter proposed that appointments require the agreement of the federal and provincial
executives, and that every case involving Quebec’s civil code be heard by a panel of five
justices, including three from Quebec. The Meech Lake Accord would have provided for
federal appointment of three justices from Quebec from a list of candidates prepared by
the provincial government. A final set of proposals involved expanding the Court and
increasing the number of sitting justices from Quebec, as well as ensuring that
(p. 1099)
33
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constitutional cases be heard by a smaller panel on which all the Quebec justices would
sit.
5. Conclusion
Let me conclude by suggesting how to extend the research agenda set out in the last
section—how the various components of the Canadian constitutional model interact.
Debates about the legislative override have not given much attention to how its
application could be conditioned by, or be responsive to, Canada’s plurinational character.
But the previous section suggests how. The Supreme Court’s jurisprudence on the
constitutionality of key elements of the Charter of the French Language presupposed that
it fell to the Court to reconcile the competing logics of rights-protection and minority
nationalism. But that assumption in turn rests on the notion of judicial supremacy. To be
sure, in the case of the minority language education rights, the Court does enjoy
supremacy, because of the inapplicability of the legislative override to the relevant
provisions of the Charter. But the same does not hold true for other Charter rights, such
as freedom of religion.
In recent years, the Court has taken a series of appeals from Quebec argued on the basis
of freedom of religion that have opened up a new front in the complicated relationship
between Quebec nation-building and the Charter, around the issue of secularism and
reasonable accommodation. The roots of the particular salience of secularism in Quebec
lie in the origins of modern Quebec nationalism, which entailed a rejection of the
institutionalized role of the Roman Catholic Church in the delivery of health care,
education, and social services, and its related role as the arbiter of public morality. The
replacement of the Church in these realms by newly created state institutions, coupled
with a liberal social morality free from the strictures of the Church, was a central demand
of nationalist mobilization in the 1950’s. Indeed, it can be said that modern Quebec
nationalism was as much about secular nation-building as it was about linguistic nation-
building.
However, unlike in its jurisprudence on Quebec’s language policy, in its jurisprudence on
reasonable accommodation in Quebec, the Court has been divided. Its francophone
judges have penned separate concurrences or dissents articulating theories of religion-
state relations that echo the discourses of political elites in Quebec. This poses a risk to
the legitimacy of both the Charter and the Court itself, against the backdrop of ongoing
political controversy in Quebec. The absence of the override from these debates is
puzzling, because it offers a constitutional mechanism for Quebec to express its
disagreement with the Court in a manner that could alleviate the pressure on some
members of the Court toward deference, in a manner that could protect the Court from
the very public attacks that its jurisprudence has sparked.
(p. 1100)
34
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Notes:
(*) I. Michael Heyman Professor of Law, University of California, Berkeley. I thank
Nathalie Des Rosiers, Patrick Macklem and Peter Oliver for their generous invitation to
contribute to the Handbook. I also thank Patrick Macklem and David Schneiderman for
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helpful advice and feedback on an earlier draft, and more importantly, for their
intellectual camaraderie over the past two decades. All remaining errors are mine.
(1) P. Oliver, The Constitution of Independence: The Development of Constitutional Theory
in Australia, Canada, and New Zealand (Oxford University Press, 2005).
(2) D. Law & M. Versteeg, “The Declining Influence of the United States
Constitution” (2012) 84 NYU L. Rev. 762.
(3) See, e.g., P. Monahan, Politics and the Constitution: The Charter, Federalism and the
Supreme Court of Canada (Carswell, 1987).
(4) S. Choudhry, “The Lochner Era and Comparative Constitutionalism” (2004) 2 ICON 1.
(5) M. Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in
Comparative Constitutional Law (Princeton University Press, 2008).
(6) Choudhry, above (n 4).
(7) S. Choudhry, “The Commonwealth Constitutional Model or Models?” (2013) 11 ICON
1094.
(8) S. Gardbaum, “The New Commonwealth Model of Constitutionalism” (2001) 49
American J. of Comp. L. 707.
(9) J. Waldron, “The Core of the Case against Judicial Review” (2006) 115 Yale L.J. 1346.
(10) J. Bakan, Constitutional Rights and Social Wrongs (University of Toronto Press,
1997); M. Mandel, The Charter of Rights and the Legalization of Politics in Canada
(Thompson Educational Publishing, rev. ed. 1994); A. Hutchison, Waiting for CORAF: A
Critique of Law and Rights (University of Toronto Press, 1995); A. Petter, “The Politics of
the Charter” (1986) 8 Sup. Ct. L. Rev. 473; A. Petter, “The Charter’s Hidden
Agenda” (1987) 45 The Advocate 857. For a recent publication in this intellectual
tradition, see A. Petter, The Politics of the Charter: The Illusive Promise of Constitutional
Rights (University of Toronto Press, 2010).
(11) For an overview of this jurisprudence, see S. Choudhry, “So What Is The Real Legacy
of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section
1” (2006) 35 Sup. Ct. L. Rev. (2d) 501.
(12) R. Knopff & T. Morton, The Charter Revolution and the Court Party (University of
Toronto Press, 2000); S. Choudhry, Review Essay of Judicial Power and the Charter:
Canada and the Paradox of Liberal Constitutionalism, 2d ed. by C.P. Manfredi (2003) 1
ICON 379.
(13) P. Hogg & A. Bushell, “The Charter Dialogue between Courts and
Legislatures” (1997) Osgoode Hall L.J. 75.
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(14) Ford v Quebec (AG), [1988] 2 S.C.R. 712.
(15) K. Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue
(Irwin Law, 2001).
(16) Sauvé v Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519; R. v Mills, [1999] 3
S.C.R. 668; R v Hall, [2002] 3 S.C.R. 309; Canada (Attorney General) v JTI-Macdonald
Corporation, [2007] 2 SCR 610.
(17) J. Hiebert, Charter Conflicts: What Is Parliament’s Role? (McGill-Queen’s University
Press, 2002).
(18) J. Hiebert, “Parliamentary Bills of Rights: An Alternative Model?” (2006) 69 Mod. L.
Rev. 7; J. Hiebert, “Parliament and the Human Rights Act: Can the JCHR Help Facilitate a
Culture of Rights?” (2006) 4 ICON 1; J. Hiebert, “Governing under the Human Rights Act:
The Limitations of Wishful Thinking” (2012) Public Law 27.
(19) J. Hiebert & J. Kelly, Parliamentary Bills of Rights: The Experiences of New Zealand
and the United Kingdom (Cambridge University Press, 2015).
(20) S. Gardbaum, The New Commonwealth Model of Constitutionalism (Cambridge
University Press, 2013).
(21) J. Kelly, Governing with the Charter (Vancouver: University of British Columbia Press,
2005).
(22) S. Choudhry, “Does the World Need More Canada? The Politics of the Canadian
Model in Constitutional Politics and Political Theory” (2007) 5 ICON 606; S. Choudhry,
“The Globalization of the Canadian Constitution” (2012) 4 Trudeau Foundation Papers 88.
(23) W. Kymlicka, Multicultural Citizenship (Oxford University Press, 1995); W. Kymlicka,
Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford
University Press, 2007); C. Taylor, Reconciling the Solitudes (McGill-Queen’s University
Press, 1993).
(24) A. Cairns, Reconfigurations: Canadian Citizenship and Constitutional Change
(McLelland and Stewart, 1995).
(25) I have developed this argument in Choudhry, above (n 22); S. Choudhry, “Popular
Revolution or Popular Constitutionalism? Reflections on the Constitutional Politics of
Quebec Secession” in T. Kahana & R. Bauman, eds, The Least Examined Branch: The Role
of Legislatures in the Constitutional State (Cambridge University Press, 2006) 480; S.
Choudhry, “Referendum? What Referendum?” (2007) 15:3 Literary Review of Canada 7; S.
Choudhry & J.-F. Gaudreault-DesBiens, “Frank Iacobucci as Constitution-Maker: From the
Quebec Veto Reference, to the Meech Lake Accord and the Quebec Secession
Reference” (2007) 57 U. Toronto L.J. 165; S. Choudhry, “Ackerman’s Higher Lawmaking in
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Comparative Constitutional Perspective: Constitutional Moments as Constitutional
Failures?” (2008) 6 ICON 193.
(26) S. Choudhry, “Old Imperial Dilemmas and the New Nation-Building: Constitutive
Constitutional Politics in Multinational Polities” (2005) 37 Connecticut L. Rev. 933; S.
Choudhry, “Constitutional Politics and Crisis in Sri Lanka” in J. Bertrand & A. Laliberté,
eds, Multination States in Asia: Accommodation or Resistance (Cambridge University
Press, 2010) 103.
(27) P. Russell, “The Political Purposes of the Charter of Rights and Freedoms” (1983) 61
Can. Bar. Rev. 30.
(28) S. Choudhry, “After the Rights Revolution: Bills of Rights in the Postconflict
State” (2010) 6 Annual Review of Law and Social Science 301.
(29) S. Choudhry, “Bills of Rights as Instruments of Nation-Building in Multinational
States: The Canadian Charter and Quebec Nationalism” in J. Kelly & C. Manfredi, eds.,
Contested Constitutionalism: Reflections on the Charter of Rights and Freedoms
(University of British Columbia Press, 2009) 233.
(30) S. Choudhry, “Rights Adjudication in a Plurinational State: The Supreme Court of
Canada, Freedom of Religion, and the Politics of Reasonable Accommodation” (2013) 50
Osgoode Hall L.J. 575.
(31) Ford, above (n 14); Attorney General of Quebec v Quebec Association of Protestant
School Boards et al., [1984] 2 S.C.R. 66; Solski (Tutor of) v Quebec (Attorney General),
[2005] 1 S.C.R. 201.
(32) S. Choudhry & R. Stacey, “Independent or Dependent? Constitutional Courts in
Divided Societies” in C. Harvey & A. Schwartz, eds., Rights in Divided Societies (Hart
Publishing, 2012) 89.
(33) S. Choudhry, “Not a New Constitutional Court: The Canadian Charter, the Supreme
Court and Quebec Nationalism” in P. Pasquino & F. Billi, eds., The Political Origins of
Constitutional Courts: Italy, Germany, France, Poland, Canada, United Kingdom (Adriano
Olivetti Foundation, 2009) 39.
(34) Choudhry, above (n 30). The cases are Bruker v Marcovitz, 2007 SCC 54;
Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village),
2004 SCC 48; Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6; SL v
Commission scolaire des Chenes, 2012 SCC 7; Syndicat Northcrest v Amselem, 2004 SCC
47.
Sujit Choudhry
The Canadian Constitution and the World
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Sujit Choudhry, I. Michael Heyman Professor of Law, University of California,
Berkeley
