Talk:Canadian constitutional law

• Maybe that might be a little controversial, but I moved Canadian constitutional law here, on the grounds that Interpretation of the Constitution of Canada was a red link in the template and, should it ever have been created separately, it would have been close to a duplicate article. Also, the article was an orphan until moved into the template, and now it's linked to everything. Cheers, CanadianCaesar 01:02, 1 November 2005 (UTC)

remove stub designation?

I think the stub designation can come off this article. IMO this article should not become too long, because most elements of "Canadian constitutional law" should be covered in other articles, especially Constitution of Canada.

Even the section of this article called Judicial review of legislative competence would be better placed in the Canadian federalism article, in my view.

I added a section on "Unwritten aspects of constitutional law" which covers the implied full faith and credit clause. There might also be a brief discussion of constitutional conventions, which some authors might consider an element of Canadian constitutional law (as they are in British constitutional law). --Mathew5000 17:01, 17 February 2007 (UTC)

I have no problem removing the stub. The only reason for it was to indicate that more converage is needed. I would agree that there is a fine line bw this article and Constitution of Canada. This article works best as a starting-point for the purely legal issues related to the Constitution. The Constitution article would deal more generally with the historical and political aspects of subject matter as well as some of the legal. The idea would be that this article would be divided into short sections on each legal topic related to constitutional law. So my thought would be to divide into something like: justicibility, jurisdiction, standing, underlying principles, unwritten aspects, federalism analysis, Charter rights, and remedies. Sections like the federalism, Charter rights, etc will link to the more comprehensive article. That was my intention, at least, when starting the article. --PullUpYourSocks 03:32, 18 February 2007 (UTC)

I see your logic, but there's something disturbing me that I can't quite put my finger on. Some thoughts:

• If the text of the article is mainly about procedural or technical issues like jurisdiction and so forth, while the substantive issues get just a brief mention with a link to another article, then this article as a whole might give a distorted impression of what constitutional law really is. Does that make sense? I'm not sure if that's really a problem or what the solution is, but I kind of think that as the article is called "Canadian constitutional law", the bulk of the article should be covering the substantive rules of Canadian constitutional law. But then that runs into the other problem of duplication between this article and the others.
• I had a look at the United States constitutional law article to see how they did it, but it's no help: that article is just a mess.
• I don't know if standing is really part of constitutional law, although it's related. The law relating to standing is essentially the same whether the issues in the proceeding are constitutional or nonconstitutional.
• The Canadian federalism article leads off with a statement about "the three pillars of the constitutional order" being responsible government, federalism, and the Charter. I don't think I've seen that anywhere else, but it sounds pretty reasonable. Maybe a statement like that should be at or near the top of the Canadian constitutional law article.
• Although the history of the Canadian Constitution does not belong in this article, I wonder if there should be something about the history of Canadian constitutional law. For example, before publication of Hogg's text in the mid-1970s, most lawyers seemed to understand constitutional law to refer exclusively to the division of legislative powers. Or to put it another way, the issues of constitutional law were largely disputes between different governments. Whereas now, most constitutional law issues that get litigated are disputes between a government and some group of citizens.
• Did Canada have its own equivalent of Marbury v. Madison? I.e. was it an issue historically whether courts had the power to strike down federal laws as usurping on the competence of the provincial legislatures. What was the first Canadian law to be struck down by the courts?
• Would be nice to say something about how constitutional issues can unexpectedly arise in nonconstitutional cases: criminal law obviously but also family law, torts, health law, almost anything.
• Do the courts have a different approach in interpreting constitutional provisions as opposed to provisions in an ordinary statute? If so what are the differences? That might be something to discuss in this article rather than Constitution of Canada.
• Constitutional remedies probably deserves its own article. It would be particularly interesting to see a list of cases where the SCC has granted a "suspended declaration of invalidity".

Sorry my thoughts are all scattered today but hope some of this makes sense or is helpful.--Mathew5000 20:21, 18 February 2007 (UTC)

Your comments are fair and well received. I will try to address them where I can:

• While the current text is mostly procedural, what I had in mind would cover everything broadly, including the substantive stuff. You're right, the bulk would likely be substantive and, yes, it would potentially be overlap. Still, my feeling is that since there are many dimensions to the constitution (history and politics, etc) it would be handy to have an article dedicated to the law itself. Perhaps it's comparable to criminal justice vs criminal law, or Canadian immigration vs Canadian immigration law. The obvious intent of the article is to fit in with the series of other canadian law articles and should appeal to those interested in the law (such as law students). Somehow fitting it all into the Constitution article doesn't fit as well. I don't know if this is the right answer but it seems to be the best option available.
• You're right that standing isn't a constitutional topic, but is it ever an issue outside of constitutional challenges? If you're not challenging the law, you likely have standing by virtue of being a party to a dispute. But anyway, point taken.
• Re history: interesting points. I think that supports the view that the history of the constitution itself is different from the history of constitutional law.
• I am not aware of any Marbury v. Madison equivalent. I think I've read an old case where the SCC cites (possibly adopts) it. In any event, it's a moot point now. Section 52 (the "supreme law of canada" clause) entrenches judicial power to strike down laws.
• re interpretation: yes, they are quite different. Constitutional interpretation uses the "living tree" approach. Regular statutes basically follow the approach is described in the oft-cited Rizzo Shoes case from 1998.
• A constitutional remedies article is definitely in order.

That's it for now. --PullUpYourSocks 03:55, 19 February 2007 (UTC)

Good points; we are essentially in agreement about what this article should look like. The living tree doctrine is probably what I was thinking of in connection with constitutional vs statutory interpretation but I couldn’t remember the name.

As for standing, yes the issue comes up in non-constitutional cases, especially in administrative law cases where the issue is whether the petitioner has standing to bring an application for judicial review. For example, see Chetwynd Environmental Society v. Dawson Creek Forest District (District Manager) [1] and cases cited therein. In tax law, see Harris v. Canada (Minister of National Revenue) (2000), 187 D.L.R. (4th) 419 [2]. In Federal Court, there is a large body of case law interpreting what it means for someone to be “directly affected by the matter” for purposes of s. 18.1(1) of the Federal Courts Act [3] and thus to have standing to bring the application.

Aside from constitutional law and admin law, standing issues can arise in litigation relating to family law, trust law, really just about any area. Sometimes it is referred to as something else; for example, in contract law, standing issues are called privity of contract. --Mathew5000 19:22, 19 February 2007 (UTC)

I stand corrected. :) -PullUpYourSocks 03:23, 23 February 2007 (UTC)

I would suggest the link to "https://en.wikipedia.org/wiki/Purposive_approach" be removed as it links to 'purposive approach' in American law. The American 'purposive approach' is like that in Quebec's Civil law, taking into account things like drafters' notes and other expressions of purpose that are not found in the legislation or the Constitution itself. The Canadian common law examination of purpose is restricted to the purpose apparent in the text itself, whether express or implied, as guided by, in the case of legislation and regulations, the Interpretation Act (of the relevant jurisdiction) and in all cases, jurisprudence on interpretation. This is largely the case for Constitutional law as well, with broad discretion to go outside the text in some cases, particularly those involving the rights of indigenous peoples, but not turning to expressions of purpose by drafters or proponents. That last is because scrutiny of the Constitution has to depend on what is common in both Civil and Common law. The common law approach is based on the premise that there is no guarantee any one person's (or group of persons') intentions are what moved those who enacted an act, regulation or Constitutional instrument so they cannot be a guide to purpose. If someone wants to keep that link, I would suggest it be in the form of "Not to be confused with the American purposive approach" with "American purposive approach" being the link to the American article. Mike from Ottawa (talk) 06:19, 6 February 2023 (UTC)