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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: 26-03-2015
Format: Paperback
Edition: 1st
Extent: 304
ISBN: 9781841133638
Imprint: Hart Publishing
Series: Constitutional Systems of the World
Dimensions: 216 x 138 mm
RRP: £24.99
Online price : £22.49
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About The Constitution of Canada

The book introduces and describes the principal characteristics of the Canadian constitution, including Canada's institutional structure and the principal drivers of Canadian constitutional development. The constitution is set in its historical context, noting especially the complex interaction of national and regional societies that continues to shape the constitution of Canada. The book argues that aspects of the constitution are best understood in 'agonistic' terms, as the product of a continuing encounter or negotiation, with each of the contending interpretations rooted in significantly different visions of the relationship among peoples and societies in Canada. It suggests how these agonistic relationships have, in complex ways, found expression in distinctive doctrines of Canadian constitutional law and how these doctrines represent approaches to constitutional legality that may be more widely applicable. As such, the book charts the Canadian expression of trans-societal 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.

'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, Distinguished Professor, University of Victoria

'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, Professor Emeritus, University of Toronto

Table Of Contents

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. Aboriginal 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'
E. Economic Integration with the United States
IV. Conclusion
Selected Reading
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 Officers
V. Parliamentary Privileges and Immunities
VI. Public Participation in the Legislative Process
VII. Elections
VIII. Reform of the Legislative Process
IX. Conclusion
Selected Reading
I. Responsible Government
A. Principle
B. Formation of Governments
C. Responsible Government as a Constitutional Convention
II. Structure of the Executive
A. The Monarchy and Its Representatives
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
Selected Reading
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
IV. Conclusion
Selected Reading
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. Cooperative Federalism
V. Conclusion
Selected Reading
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
I. Constitution Act 1982, Section 35
A. Adoption of Section 35
B. Aboriginal 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 Aboriginal Peoples
B. Fiduciary Duty and the Honour of the Crown
III. Treaties
IV. Self-government
V. Resurgence of Aboriginal Jurisdictions
VI. Conclusion ............................................................................. 255
Selected Reading ................................................................................ 258
C9 CONCLUSION .............................................................................. 259
Selected Reading ................................................................................ 266


“This books 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

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