New Publication: "Forgotten Foundations of the Canadian Constitution"

“[T]he Constitution should not be viewed as a mere collection of discrete textual provisions. It has an architecture, a basic structure.”

 Reference re Senate Reform, 2014 SCC 32, para 27

 

This month, LexisNexis Canada is publishing a collection of essays presented at CLF’s 2021 Academic Symposium on Religion, Law & Human Rights. The collection, edited by Dr. Brian Bird (Peter A. Allard School of Law) and Derek Ross (Christian Legal Fellowship), features 13 papers which examine features of the Canadian Constitution which have been underexplored to date. The collection is a timely one, coinciding with the 40th Anniversary of the Canadian Charter of Rights and Freedoms and the patriation of the Constitution of Canada (April 17, 1982). It also coincides with the 155th Anniversary of the enactment of the British North America Act, 1867.

Presenters at CLF’s 2021 Academic Symposium on Religion, Law & Human Rights (Western University, April 30)

 

The collection will appear as volume 105 of the Supreme Court Law Review (2nd Series). It will also be published as a softcover book, titled Forgotten Foundations of the Canadian Constitution.

 

This special collection builds on 2021’s publication, The Forgotten Fundamental Freedoms of the Charter, which was also produced out of a CLF Academic Symposium (co-organized with The Forgotten Freedoms Project). In that volume, legal scholars from across Canada examined those fundamental freedoms in s. 2 of the Charter which have been “forgotten” in that they have received little discussion and/or interpretation in Canadian jurisprudence to date (such as freedom of conscience, freedom of opinion, freedom of the press, freedom of other media of communication, and freedom of peaceful assembly).

 

In this year’s publication, contributors were invited to look further beyond the “forgotten freedoms” to consider other overlooked provisions in the Charter, as well as pre-1982 Constitutional provisions, which have not yet been thoroughly examined. Examples include:

  • the Charter’s preamble (which states that “Canada is founded upon principles that recognize the supremacy of God and the rule of law”);

  • the requirements of a “free and democratic society” referenced in s. 1;

  • pre-Charter jurisprudence on the nature and meaning of freedom;

  • other rights and freedoms that pre-exist the Charter, referenced in s. 26;

  • the preservation and enhancement of Canada’s multicultural heritage, enshrined in s. 27;

  • the preamble to the British North America Act, 1867 and its relationship to implied fundamental rights;

  • limits on government powers preserved by s. 31 of the Charter; and,

  • the scope of the Charter’s notwithstanding clause (s. 33).

 

The collection features essays from distinguished jurists, including the Hon. Marshall Rothstein, C.C., Q.C. (former Supreme Court of Canada Justice), as well as a special opening reflection penned by the Hon. Barry Strayer (former Judge of the Federal Court, both Trial Division and Court of Appeal, and one of the Charter’s principal drafters as Assistant Deputy Minister of Justice from 1974 to 1983).

 

For more information about the collection and for a summary of each of the papers, readers are invited to download the Introduction (free access).  The collection is now available for pre-order at the LexisNexis store.

 

Stay tuned for more information about the softcover release, as well as a collection of papers to be published in 2023 on Section 1 of the Charter, presented at CLF’s 2022 Symposium!

 

Further reading: