Sujit Choudhry — The Canadian Constitution and The World
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 interplaybetweenaconstitutionalbillofrightsandminoritynation-building,asreflected intheconstitutionalpoliticssurroundingtherecognitionofQuebec’sdistinctiveness,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 modelinteract.
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
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.
