- The Oxford Handbook of the Canadian Constitution
- Contributors
- Introduction
- Indigenous Constitutionalism: Pre-existing Legal Genealogies in Canada
- Constitutional Debates in French Canada, 1764–1774
- 1867: Confederation
- The British Legal Tradition in Canadian Constitutional Law
- The Crown in Canada
- The Executive, the Royal Prerogative, and the Constitution
- Political Institutions in Canada in a New Era
- Parliamentary Sovereignty in Canada
- The Supreme Court of Canada and Appointment of Judges in Canada
- Courts, Administrative Agencies, and the Constitution
- Amending the Constitution of Canada
- Contending Sovereignties
- Treaties as Constitutional Agreements
- The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation
- The Section 35 Duty to Consult
- Métis Constitutional Law Issues
- From Dualism to Cooperative Federalism and Back?: Evolving and Competing Conceptions of Canadian Federalism
- Key Doctrines in Canadian Legal Federalism
- The Spending Power in Canada
- Federalism and Health Care in Canada: A Troubled Romance?
- Criminal Law in the Federal Context
- The Environment, Federalism, and the Charter
- Constitutional Aspects of Commercial Law
- The Exploitation of Natural Resources in the Federation
- Minority Languages, Education, and the Constitution
- Marriage, Family, and Federal Concerns
- International Treaty-Making and Treaty Implementation
- Interpreting the <i>Charter</i>
- Access to <i>Charter</i> Justice
- The Justification of Rights Violations: Section 1 of the Charter
- <i>Charter</i> Remedies
- The Notwithstanding Clause: Why Non-use Does Not Necessarily Equate with Abiding by Judicial Norms
- Democratic Rights
- The Right to Protest, Freedom of Expression, and Freedom of Association
- Freedom of Religion
- Section 7: The Right to Life, Liberty, and Security of the Person
- The <i>Charter</i> and Criminal Justice
- Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15
- Social and Economic Rights
- Constitutional Interpretation: On Issues of Ontology and of Interlegality
- The Living Tree
- Canadian Constitutional Culture: A Genealogical Account
- The Role of Theory in Canadian Constitutional Law
- Feminist Constitutionalism in Canada
- The Politics of Constitutional Law: A Critical Approach
- Constitutional Principles in the <i>Secession Reference</i>
- The Rule of Law, the Separation of Powers and Judicial Independence in Canada
- Understanding Dialogue Theory
- The Canadian Constitution and the World
- Table of Cases
- Index
Abstract and Keywords
The chapter addresses, first, the ontological issue of whether the interpretation of a constitution is fundamentally different than the construction of statutes. Based on a comparison of the Supreme Court of Canada decisions in constitutional interpretation, especially Charter cases, and the contemporary approach to statutory interpretation, endorsing Driedger’s modern principle, it is argued that a convergence of methodology has occurred. Second, recent developments in the domestic use of international law—that is interlegality—also show commonality in constitutional and statutory interpretation. The hypothesis is that recent case law on the operationalization of international normativity, far from supporting the end of the international/national divide, actually reaffirms the Westphalian paradigm. The contextual argument and the presumption of conformity, as interpretative tools, allow courts to be more flexible, indeed more permissive, in resorting to international law.
Keywords: interpretative methodology, statutory construction, constitutional construction, purposive interpretation, Driedger’s modern principle, international/national divide, interlegality, domestic use, international normativity operationalization
Stéphane Beaulac, Full Professor, Faculty of Law, Université de Montréal, and Flaherty Visiting Professor, University College Cork (2016–17).
Access to the complete content on Oxford Handbooks Online requires a subscription or purchase. Public users are able to search the site and view the abstracts and keywords for each book and chapter without a subscription.
Please subscribe or login to access full text content.
If you have purchased a print title that contains an access token, please see the token for information about how to register your code.
For questions on access or troubleshooting, please check our FAQs, and if you can''t find the answer there, please contact us.
- The Oxford Handbook of the Canadian Constitution
- Contributors
- Introduction
- Indigenous Constitutionalism: Pre-existing Legal Genealogies in Canada
- Constitutional Debates in French Canada, 1764–1774
- 1867: Confederation
- The British Legal Tradition in Canadian Constitutional Law
- The Crown in Canada
- The Executive, the Royal Prerogative, and the Constitution
- Political Institutions in Canada in a New Era
- Parliamentary Sovereignty in Canada
- The Supreme Court of Canada and Appointment of Judges in Canada
- Courts, Administrative Agencies, and the Constitution
- Amending the Constitution of Canada
- Contending Sovereignties
- Treaties as Constitutional Agreements
- The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation
- The Section 35 Duty to Consult
- Métis Constitutional Law Issues
- From Dualism to Cooperative Federalism and Back?: Evolving and Competing Conceptions of Canadian Federalism
- Key Doctrines in Canadian Legal Federalism
- The Spending Power in Canada
- Federalism and Health Care in Canada: A Troubled Romance?
- Criminal Law in the Federal Context
- The Environment, Federalism, and the Charter
- Constitutional Aspects of Commercial Law
- The Exploitation of Natural Resources in the Federation
- Minority Languages, Education, and the Constitution
- Marriage, Family, and Federal Concerns
- International Treaty-Making and Treaty Implementation
- Interpreting the <i>Charter</i>
- Access to <i>Charter</i> Justice
- The Justification of Rights Violations: Section 1 of the Charter
- <i>Charter</i> Remedies
- The Notwithstanding Clause: Why Non-use Does Not Necessarily Equate with Abiding by Judicial Norms
- Democratic Rights
- The Right to Protest, Freedom of Expression, and Freedom of Association
- Freedom of Religion
- Section 7: The Right to Life, Liberty, and Security of the Person
- The <i>Charter</i> and Criminal Justice
- Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15
- Social and Economic Rights
- Constitutional Interpretation: On Issues of Ontology and of Interlegality
- The Living Tree
- Canadian Constitutional Culture: A Genealogical Account
- The Role of Theory in Canadian Constitutional Law
- Feminist Constitutionalism in Canada
- The Politics of Constitutional Law: A Critical Approach
- Constitutional Principles in the <i>Secession Reference</i>
- The Rule of Law, the Separation of Powers and Judicial Independence in Canada
- Understanding Dialogue Theory
- The Canadian Constitution and the World
- Table of Cases
- Index