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The Constitution of Canada

A Contextual Analysis

By: Jeremy Webber
Media of The Constitution of Canada
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Published: 22-04-2021
Format: PDF eBook (?)
Edition: 2nd
Extent: 304
ISBN: 9781509947195
Imprint: Hart Publishing
Series: Constitutional Systems of the World
RRP: £22.49
Online price : £17.99
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About The Constitution of Canada

The first edition of this text quickly established itself as the classic introduction to the Canadian constitution. Setting it in its historical context, noting especially the complex interaction of national and regional societies, it shows how the constitution continues to morph and shape itself.

These changes are explored through key constitutional themes: democracy; parliamentarism; the rule of law; federalism; human rights; and Indigenous rights, and describes the country that has resulted from the interplay of these themes.

Clarity of expression and explanation, which never veers into simplicity, combined with the author's expertise, makes this the ideal starting point for the student or comparative lawyer keen to gain a strong understanding of how Canadian democracy and government works.

Table Of Contents

1. Introduction

2. The Making of the Canadian Constitution
I. Pre-confederation Canada
A. Founding of British North America
B. Conflict, Rebellion, and Responsible Government
II. Post-confederation Canada
A. Territorial Extension
B. From Colony to Nation
C. Canada's Economic Evolution
D. Provincialism, Regionalism, and Canadian Nationhood
E. Federalism and the French Canadians
F. Multicultural Canada
G. Indigenous Rights
III. The Contemporary Canadian Constitution: Patriation and its Aftermath
A. Constitution Act 1982
B. Negotiations after Patriation
C. 1995 Referendum on Quebec Sovereignty and the Secession Reference
D. 'Administrative Measures'
IV. Conclusion
Selected Reading

3. The Legislative Power
I. Parliamentary Sovereignty
A. Principle
B. Internal Limitations on Parliamentary Sovereignty
C. Limitation (or Abandonment?) of Parliamentary Sovereignty
II. Canadian Parliaments
A. Parliament of Canada
B. Provincial Legislatures
C. Other Legislative Bodies
III. The Legislative Process
IV. Parliamentary Office-holders
V. Parliamentary Privileges and Immunities
VI. Public Participation in the Legislative Process
VII. Elections
VIII. Reform of the Legislative Process
IX. Conclusion
Selected Reading

4. The Executive Power
I. Responsible Government
A. Principle
B. Formation of Governments
C. Responsible Government as a Constitutional Convention
II. Structure of the Executive
A. Governor General and Lieutenant Governors
B. Prime Minister and Cabinet
C. Ministers and their Departments
D. Government Agencies, Crown Corporations, and Administrative Tribunals
III. The Rule of Law
A. Legal Foundations of Executive Authority
B. Executive Privileges and Immunities
C. Institutionalization of the Rule of Law
IV. Conclusion 0
Selected Reading

5. The Judiciary
I. Court Structure
A. Superior Courts
B. Federal Court
C. Provincial Courts
D. Administrative Tribunals
E. Supreme Court of Canada
II. Judicial Independence
A. Constitution Act 1867, Sections 99 and 100
B. Constitution Act 1982, Section 11(d)
C. Implied Principle of Judicial Independence
III. Supreme Court of Canada as a Constitutional Court
A. References and Justiciability
B. Parties, Intervenors, Representation, and Evidence
C. Constitutional Remedies and Stare Decisis
IV. Conclusion
Selected Reading

6. Federalism
I. Visions of the Canadian Federation
A. Canada as a Quasi-Federation
B. Compact versus Statute?
C. Quebec's Distinct Society versus the Equality of the Provinces
D. Comparisons to the European Union
E. Conclusion
II. Principles of Interpretation of the Division of Powers
III. Federal and Provincial Powers
A. Peace, Order, and Good Government
B. 'Property and Civil Rights' and 'Matters of a Merely Local or Private Nature'
C. Federal Economic Powers
D. Criminal Law Power
E. Social Legislation
F. Citizenship, International Affairs, and Defence
G. Provincial Authority Over Public Lands
H. Fiscal Relations, Taxation, Equalization, and the Spending Power
IV. Interprovincial Conflicts
V. Cooperative Federalism
VI. Conclusion
Selected Reading

7. Rights and Freedoms
I. The Universe of Rights Protections in Canada
A. Legislative Support of Rights
B. Courts and Rights before the Charter
C. Executive Enforcement of Rights
II. Canadian Charter of Rights and Freedoms
A. Application and Structure
B. Substance of Rights and Freedoms under the Charter
III. Conclusion
Selected Reading

8. Indigenous Peoples
I. Constitution Act 1982, Section 35
A. Adoption of Section 35
B. Indigenous Rights to Land and Resources
C. Effect of Section 35
D. Haida and the Turn Towards Interim Measures
II. Federal/Provincial Authority, Fiduciary Obligations, and the Honour of the Crown
A. Constitutional Authority with Respect to Indigenous Peoples
B. Fiduciary Duties and the Honour of the Crown
III. Treaties
IV. Self-government
V. Resurgence of Indigenous Jurisdictions
VI. Conclusion
Selected Reading

9. Conclusion
Selected Reading

Reviews

“This book is an umbrella of fundamental principles, covering flexibility, accommodation and negotiation necessary to enable members of a constitutional community who may disagree on issues but who want to remain bound together within a country and society. Impressive!” –  Gregory Tardi, Journal of Parliamentary and Political Law

“The Constitution of Canada is a masterpiece – an outstanding and original study of the Canadian constitutional experience by one of Canada's leading legal scholars. Webber explains the history, characteristics and resourcefulness of the living constitution in non-technical and illuminating language. He also shows how the constitution is shaped by the engagement and interaction of the diverse people of Canada, who are simultaneously subjects and active citizens of it – a dynamic he calls “agonistic constitutionalism."” –  James Tully,

“Jeremy Webber has given us a rich, contextual account of Canada's constitution. Webber moves beyond the confines of constitutional texts and judicial decisions and grounds his account in the circumstances of the country's history. Only such an account can capture the deep diversity that is the hallmark of Canada's constitutional culture.” –  Peter Russell,

“This is an excellent book. It provides relevant sociological context and outlines major elements of Canadian constitutional history and law. It does so in a very clear and accessible fashion, yet one that is never reductive or simplistic.” –  Prof. Johanne Poirier, McGill University

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