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Conference Report–Symposium on “The Constitution of Canada: History, Evolution, Influence, and Reform”

Asress Gikay, Matteo Monti, and Orlando Scarcello, Scuola Universitaria Superiore Sant’Anna Pisa (SSSA)–Sant’Anna School of Advanced Studies, Pisa, Italy

On May 24, 2017, the Institute of Law, Politics and Development (Istituto di Diritto, Politica e Sviluppo) [DIRPOLIS] of Sant’Anna School of Advanced Studies hosted a symposium on “The Constitution of Canada: History, Evolution, Influence & Reform”, on the occasion of the 150th Anniversary of Confederation and in memory of Prof. Alessandro Pizzorusso. The symposium was supported by the Canadian Embassy, the International Association of Constitutional Law and the Italian Society of European and Comparative Law.

The symposium being conceived within the setting of the Sant’Anna Legal Studies Project, was co-convened by Giuseppe Martinico (SSSA), Richard Albert (Boston College Law School), Antonia Baraggia (University of Milan), and Cristina Fasone (LUISS, Rome). Scholars from around the world gathered to discuss the historical evolution of the Canadian constitution and its interplay with national constitutional laws.

The Symposium was organized into four panels each with one discussant. Each panelist had ten minutes to present the core of his/her paper followed by comments and questions from the discussants and the participants. Susanna Mancini (University of Bologna & Johns Hopkins University) delivered a keynote address entitled “Constitutional Currents and Cross-Currents: From Canada to Europe and Back.”  

An opening speech was delivered by Martinico, in which he welcomed the participants and highlighted Pizzorusso’s contribution to the development of the symposium and to scholarship in European and Comparative Public law. For more information, visit https://www.santannapisa.it/en/event/constitution-canada-history-evolution-iinfluence-and-reform. This report provides an overview of the symposium.

Panel I – The Migration of Ideas

This panel was chaired by Guerino D’Ignazio (University of Calabria) with Angioletta Sperti (University of Pisa) as a discussant.

Hillel Sommer (Radzyner Law School- IDC Herzliya) delivered the first presentation on “The Canadian Override Mechanisms: A “Bête Noire”? A White Knight? Designing 50 Shades of Grey.” He examined the override mechanism that is transplanted from the Canadian Charter of Rights and Freedoms to Israel. After describing the peculiarities of the override clause in Israel, Australia and Canada, Sommer concludes that “the override mechanism need not be a “bête noire,” nor is it a panacea to all of the difficulties facing judicial review in some countries.” “The Canadian Living Tree Doctrine as a Comparative Model of Evolutionary Constitutional Interpretation” by Leonardo Pierdominici (University of Bologna & EUI) was the next topic where the author addressed the structural and doctrinal influence of the Canadian constitutions in other legal systems by reference to the living tree doctrine.

This panel was concluded by Francisco Javier Romero (University of the Basque Country) discussing “The Spanish Vision of the Clarity Act: From Idealization to the Myth.” His work examines the causes for what he calls “”the deifying” of the Clarity Act in Spain” and its influence on the treatment of the secessionist claims that Spain is currently experiencing.” After elaborating on its meaning, historical and political context in Canada, he argues that “even though importing the Clarity Act does not seem as a good choice, its notions are a good starting point, but they need to be adapted to the constitutional architecture of the Spain.”

Panel II – Institutional Challenges

Four works were presented in the second panel themed “institutional challenges” with Richard Albert (Boston College) as Chair and Paolo Passaglia (University of Pisa) as a discussant.

James Gardner (SUNY Buffalo Law School) began the session by addressing “Canadian Federalism in Design and Practice.” He examines how subnational constituents in Canada compete with the central government using different strategies and tactics. He explains that in the field of intergovernmental contestations, extra- constitutional innovation and improvisation by both subnational units and central government have changed the forum of intergovernmental contestation as originally thought.

Also on the second panel, Lorne Neudorf (Thompson Rivers University) discussed “Executive Erosion of Parliamentary Sovereignty with Comparative Perspectives on Lawmaking in Canada and the UK” where he critically examines the trend of delegation of legislative power by the Parliament to the executive, its limits, and constitutional implications. Stressing that, relative to the UK model, the current Canadian practices are deeply inadequate, the author concludes that “In order to comply with its constitutional obligations, parliament must supervise executive lawmaking by establishing controls and by using those controls, to hold the executive to account.”

In another work titled “Provincializing Constitutions: History, Narrative, and the Recovery of Canada’s Provincial Constitution” Peter Price (Cambridge University) examines how the change in the narrative in scholarship has led to the “disappearance of Canada’s Provincial Constitutions.” By examining the reorientation of constitutional scholarship in Canada over the past 150 years and its effect on provincial constitutions from a diachronic point of view, the author asserts that the shift from dualist to monist narrative has effaced the provincial constitutions that get subsumed by the “mega-constitution” of the federation.

Panel II concluded with Allan Tatham (CEU-San Pablo Madrid) presenting his work on “Promoting Canadian Constitutional Values Abroad: The Diplomatic Work of the Supreme Court of Canada” where he underlines the nature of judicial diplomacy and how Supreme Court has developed its form of judicial dialogue looking at the range of strategies it employs i.e. Organization of the Court’s international relations, bilateral relations with other Courts,  Multilateral Relations in International Groupings and other arenas for bilateral and transregional diplomacy.

Panel III – The Constitution across Time

This panel was moderated by Matteo Nicolini (University of Verona) with four presentations with Patricia Popelier (University of Antwerp) as a discussant.

In his work titled “The Unbroken Supremacy of the Canadian Constitution,” Brian Bird (McGill University) discussed the diachronic evolution of the constitutional judicial review and the supremacy of the Constitution. By examining the Colonial Laws Validity Act (CLVA) of 1865, the 1931 Westminster Statute and the constitutional moment of 1982, Bird underlines that “while Canadian courts rarely cited the CLVA and Statute of Westminster in pre-1982 cases regarding the constitutional invalidation of legislation, these statutes were the legal basis for this judicial practices and Section 52 of the Canadian Constitution- supremacy clause.

Also in this panel, Eszter Bodnár (Eötvös Loránd University) presented her paper titled “Transparency of the Selection Process for the Supreme Court of Canada: What Can the World Learn From Canada, What Can Canada Learn From the World?” in which she analyzes the selection process of Supreme Court judges in Canada looking at the principles of transparency and independency. By examining the constitutional principles and relevant international (soft law) standards, the current selection process in Canada and the experiences of other western legal systems, the author submits that the best system would be the one that combines professional and political elements, involving “open and complex application process.”

Marcel Martel (York University Toronto) delivered his presentation on “The “French Canadian” Moment and the “Quebec” Moment: A Comparison Between 1867 and 1967.”  Martel studies, inter alia, the role of French-speaking fathers of the Confederation in the Legislative Assembly debates on federalism in 1865, looking at the Quebec ‘problem to argues that while the question of Quebec has been resolved in the 1980s, today the main push for reconciliation is not between linguistic groups, but between Indigenous and non-Indigenous people.

Finally in panel III, Charlotte Helen Skeet (University of Sussex) addressed “Post-Coloniality and the Development of Women’s Constitutional Rights in Canada.” The author “challenges mainstream presentations of women’s rights acquisition and seeks to disturb ‘the discourse of the continuous,’ by refuting both the view of women’s rights developing through simplistic linear progress and by arguing for the recognition of indigenous contribution to the history of women’s rights in Canada.”

Panel IV – Interpreting and Enforcing Rights

In the fourth and final panel, three papers were presented in the frame of “Interpretation and enforcing of rights in Canada” chaired by Giacomo Delledonne from SSSA.

Geoffrey Conrad (McGill University) has extensively examined Section 7 of the Canadian Charter of Rights and Freedoms, focusing on the different methods employed by the Supreme Court to interpret the crucial clause on the “fundamental principles of justice” and to recognize whether a rule is “unjust” or not. First, a historical overview was provided, focusing on the shift from an incremental, inductive, and quite open approach (Motor Vehicle case phase) to the Rodriguez/Malmo-Levine doctrine, a more rigid and exclusionary test, aimed at stabilization of the meaning of the clause, until the most recent approach based on “proportionate standards.”  Lastly, some broad reflections on the general shift from the Canadian debate on the “nature of justice” and its authoritative definition to a “culture of justification” focused on the substantive construction of acceptable standards of “Public Reason.” were provided.

Jacqueline Hand (Detroit Mercy) presented her work on Canada’s “Duty to Consult Indigenous Peoples.” The author draws an interesting comparison between the American and the Canadian experiences in the field of indigenous rights. According to the author, the American model of Non-Constitutional clauses is considered more exposed to changeable political contingency and generally subject to a more strict and “skeptical” attitude by the Judiciary in interpreting indigenous’ rights whereas the Canadian model of constitutionally entrenched rights was linked to a more “equitable” view regarding indigenous rights.

Finally, Davide Strazzari (University of Trento) dealt with the topic of immigration and asymmetrical federalism in the Canadian experience. Although immigration is a shared competence in Canadian Constitution, constitutional practice has recognized immigration as a mostly Federal power for decades. The process of progressive devolution was then considered, focusing on the different way in which this happened in Quebec and in the rest of the country. A particular attention was given to the shift from a de jure to de facto asymmetry in the field of the Canadian devolution of power on immigration, underlining the still prevalent Québécois “exceptionalism.” Cautious remarks on the possible comparison between the Canadian and the European policy on immigration were in the end made.

Conclusion

The symposium was closed with remarks from Anna Gamper (University of Innsbruck). As confirmed by Martinico during his concluding remarks, the works presented in the symposium were enriching and thought-provoking. Besides showing the historical evolution of the Canadian Confederation and its peculiar constitutional setting, the symposium provided an opportunity to discuss the ongoing influence of the Canadian constitution on national constitutions across jurisdictions with concrete examples. Additionally, some of the researches addressed how the Canadian system can benefit from the experience of other jurisdictions.

The migration of ideas and norms from the Canadian Confederation continues to occur, for better or worse, and the symposium covered key aspects of the phenomenon, opening also a door for future discourses.

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Published on July 19, 2017
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