Canadian Constitutional Law, 4th Edition
In its 4th edition, Canadian Constitutional Law continues to offer a truly national perspective — drawing on an editorial team that is rich with regional, linguistic, and scholarly diversity. This edition remains true to the structure and purposes of previous editions, especially with regard to the editors’ commitment to the idea that understanding constitutional history is critical to comprehending the present and future of Canadian constitutional law.
Significant changes have been made in several chapters:
- Chapter 8, “Interpreting the Division of Powers” incorporates new developments in paramountcy and inter-jurisdictional immunity as a result of Canadian Western Bank and Lafarge.
- Chapter 18, “Application” has a new section on extra-territorial application of the Charter including Hape.
- Chapter 19, “Freedom of Religion” is reorganized to include new sections on religious accommodation (including Amselem, Multani, and Hutterian Bretheren), state imposition of religion, and the relationship between secular and religious law (Bruker).
- Chapter 20, “Freedom of Expression” contains new cases on commercial expression (JTI-Macdonald Corp. and Guignard), human rights codes and regulation of hate speech, sexually explicit expression (Labaye), election speech (Harper), access to public property (Montreal v. 2952-1366 Québec Inc., B.C. Student Federation), and state support for expression (Baier).
- Chapter 21, “Freedom of Association” includes the major new decision, B.C. Health Services.
- Chapter 22, “Life, Liberty, and Security of the Person” is reorganized with a new section on s. 7 and social citizenship (Gosselin and Chaoulli).
- Chapter 23, “Equality Rights” is revised and reorganized to take account of Kapp and post-Kapp developments.
- Chapter 25, “Enforcement of Rights” includes new material on retroactive relief (Hislop), constitutional exemptions (Fergusson), structural injunctions (Doucet-Boudreau) and standing (Martin).
The 4th Edition retains a flexible design that allows teachers to teach constitutional law in their preferred order and way. Each part is designed to be relatively free-standing, allowing the casebook to serve as a reader for a course based on any combination of issues relating to federalism, Aboriginal rights, and the Charter.
PART ONE: Introduction to Canadian Constitutional Law
Chapter One: Introduction
Chapter Two: Judicial Review and Constitutional Interpretation
I. Judicial Review and the Legitimacy Issue
II. Constitutional Interpretation
III. Triggering Judicial Review and Procedural Issues
PART TWO: Federalism
Chapter Three: From Contact to Confederation
I. Pre-Contact, Contact, and the Myth of Terra Nullius
II. New France: Canada's First European Constitutional Regime
III. From Acadia to Nova Scotia: The Genesis of the Maritimes
IV. The Expansion and Consolidation of British North America: From the Conquest of New France to the Constitutional Act, 1791
V. Troubles in the Colonies: The Quest for Self-Government, the Rebellions, and the Union Act of 1840
Chapter Four: The Late Nineteenth Century: The Canadian Courts Under the Influence
Chapter Five: The Early Twentieth Century: The Beginnings of Economic Regulation
Chapter Six: The 1930s: The Depression and the New Deal
Chapter Seven: Federalism and the Modern Canadian State
Chapter Eight: Interpreting the Division of Powers
I. Values Informing the Interpretation of the Division of Powers
II. Validity: Characterization of Laws
III. Applicability: The Interjurisdictional Immunity Doctrine
IV. Operability: The Paramountcy Doctrine
Chapter Nine: Peace, Order, and Good Government
Chapter Ten: Economic Regulation
I. The Constitution and the Economy
II. Provincial Powers Over Economic Regulation
III. Federal Powers Over Economic Regulation
IV. Strengthening the Canadian Economic Union
Chapter Eleven: Criminal Law
I. Federal Powers Over Criminal Law
II. Provincial Power to Regulate Morality and Public Order
Chapter Twelve: Instruments of Flexibility in the Federal System
I. Policy Instruments and Flexible Federalism
II. Amending the Constitution
PART THREE: The Judiciary
Chapter Thirteen: The Judicial Function
I. Introduction Law
II. The Court Structure
III. Separation of Powers and Section 96
IV. The Independence of the Judiciary
V. The Judicial Appointment Process
PART FOUR: Aboriginal Peoples
Chapter Fourteen: Aboriginal Peoples and the Constitution
II. Common Law Foundations of Constitutional Recognition
III. The Constitutional Entrenchment of Aboriginal Rights
IV. Constitutional Recognition of Aboriginal Title
V. Treaty Rights
VI. The Duty to Consult
VII. Métis Rights VIII. Distribution of Legislative Authority
IX. Aboriginal Rights of Self-Government
PART FIVE: Rights
Chapter Fifteen: Antecedents of the Charter
I. The Common Law Constitution
II. Rights and Federalism
III. The Canadian Bill of Rights
Chapter Sixteen: The Advent of the Charter
II. The Adoption of the Charter
III. The Merits of Entrenchment and the Legitimacy of Judicial Review
Chapter Seventeen: The Framework of the Charter
I. Interpreting Rights
II. Defining Limitations: Section 1
III. The Override
Chapter Eighteen: Application
I. Introduction: The Debate About Application to Private Action
II. Governmental Action
III. Governmental Inaction
IV. Application of the Charter to Courts and the Common Law
V. Territorial Limits on the Application of the Charter
VI. Who Is Protected by the Charter?
Chapter Nineteen: Freedom of Religion
II. Sunday Observance and the Scope of Section 2(a)
III. The Restriction and Accommodation of Religious Practice
IV. Government Support for Religion
V. Religious Families and Religious Communities
Chapter Twenty: Freedom of Expression
I. Introduction: Purposes of the Guarantee
II. The Scope and Limits of Freedom of Expression
III. Commercial Expression
IV. Hate Speech
V. Regulation of Sexually Explicit Expression
VI. Controls on Election Spending
VII. Access to Public Property
VIII. State Support for Expression
Chapter Twenty-One: Freedom of Association
II. The Right to Associate with Others
III. The Freedom Not to Associate with Others
Chapter Twenty-Two: Life, Liberty, and Security of the Person
II. Section 7 and Bodily Integrity
III. Life, Liberty, and Security of the Person and Decisional Autonomy
IV. Section 7 and Social Citizenship
Chapter Twenty-Three: Equality Rights
I. The Constitutional History of Equality
II. Early Interpretation and Application of Section 15: The Andrews Test and the 1995 Trilogy
III. The "Equality Trilogy of 1995"
IV. The Law Test
V. The Kapp Test
VI. Equality's Three Steps
Chapter Twenty-Four: Language Rights
II. Language Rights and the Constitution
III. Interpreting Language Rights
IV. Proposals for Constitutional Amendment
Chapter Twenty-Five: Enforcement of Rights
II. Standing: Who Can Raise Charter Issues?
III. Jurisdiction: Where Can Charter Issues Be Raised?