Forgotten Foundations of the Canadian Constitution

40 years after the Canadian Charter of Rights and Freedoms arrived and 155 years after Confederation, it might be tempting to think that we have come to grasp all of the facets of the Canadian Constitution. Forgotten Foundations of the Canadian Constitution reveals that the opposite is true. Many aspects of Canada’s constitutional order remain undertheorized and merit closer examination. 

This collection seeks to excavate and explain a variety of foundational elements of the Canadian Constitution. Some of these elements reside in the text, some beneath it, and some only come into focus when the written and unwritten portions of the Constitution speak to each other.

The result is an enriching exploration of Canada’s constitutional architecture that will not only aid the work of judges, lawyers and scholars. It will benefit anyone who wishes to grow in knowledge of — and appreciation for — Canada’s supreme law.

The Collection of Papers

1. Brian Bird & Derek Ross – Forgotten Foundations of the Canadian Constitution: An Introduction
2. The Honourable Marshall Rothstein C.C., Q.C. – The Forgotten Roots of Canada’s Living Tree: Constitutional Interpretation and the Rule of Law
3. Dwight Newman, Q.C. – God in the Constitution: The Supremacy of God Clause in the Preamble to the Canadian Charter of Rights and Freedoms
4. John Sikkema – The First Division of Power: State Authority and the Preamble to the Charter
5. Mark Mancini – The Rule of Law in Judicial Review Today
6. Jamie Cameron – Resetting the Foundations: Renewing Freedom of Expression under Section 2(b) of the Charter
7. Derek Ross – Pluralism and Freedom from Assimilation: A Foundation for a “Free and Democratic Society”
8. Geoffrey T. Sigalet – The Truck and the Brakes: Understanding the Charter’s Limitations and Notwithstanding Clauses Symmetrically
9. Brian Bird – Unchartered Rights and the Free and Democratic Society
10. Matthew P. Harrington – “The Rights Retained By The People”: The Implications of the Ninth Amendment for the Interpretation of Section 26 of the Charter
11. Blair Major – All the Voices of Religious Freedom
12. André Schutten and Tabitha Ewert – Section 31 and the Charter’s Unexplored Constraints on State Power
13. Ryan Alford – Applied Legal History and the Principled Way Forward to the Recognition of Implied Fundamental Rights
14. Kristopher E.G. Kinsinger – Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774