Canada’s Constitutional Evolution and the Possibilities and Limits of Legal Pluralism

In July, I had a chance to participate in the International Society of Public Law (ICON·S) Conference in Copenhagen, Denmark. The topic on which I presented explored the possibilities and limits of legal pluralism in Canada. As Canada marks the 150th anniversary of Confederation, much ink has been and will be spilled on reflections about Canadian constitutionalism. What is distinct about Canada’s journey? What insights on legal pluralism can be drawn from Canada’s experience? How can and will Canada come to terms with its colonial past?

This paper is being expanded for publication down the road – for now, I set out a summary below in hopes it will contribute to the ongoing and engaging conversations about Canada’s Constitution during this anniversary season.

Canada should be one of the most hospitable jurisdictions in the world to legal pluralism. Canada’s constitutional foundation was formed out of the encounter between different legal orders – the diverse Indigenous legal orders which governed the territory that now comprises Canada for millennia, the French civil law over territories controlled by France prior to the Treaty of Paris in 1763 and continued under English rule through the Quebec Act of 1774 and subsequent Constitutional documents in some areas thereafter, and the English common law legal order that was “received” in various parts of Canadian territory during the colonial era.

Physical proximity and economic interdependence led to significant influence from the United States on modernizing Canada’s legal order (a dynamic particularly apparent in the rise of human rights in Canada in the postwar era). Finally, a high rate of immigration have produced a more global and diverse population (particularly in Canada’s highly urbanized demographics), a deeper acceptance of legal difference, and a greater openness to international legal influences.
Indeed, in a very real sense, reconciling competing legal orders gave rise to Canada’s existence 150 years ago, and has become the key zeitgeist within the Canadian legal and political system.

The analysis I presented in Copenhagen was organized around several lenses on pluralism in public law in Canada.

First, I consider pluralism through the development of bijuralism between common law and civil law systems;

The First Lens: Bijuralism

The idea of bijuralism in Canada dates back to the Treaty of Paris in 1763. Prior to the signing of this Treaty, French civil law was the primary legal regime in New France, but the Treaty of Paris stated that the colonial government would impose English common law on the former French colony. In 1774, the Quebec Act reinstated French civil law to govern private disputes, but due to ongoing use of the British common law’s criminal and administrative law principles, courts were established to hear both civil and criminal cases. The Constitution Act of 1791, which created the colony of Lower Canada in the territory that had been New France, incorporated the recognition of civil law. The Civil Code of Procedure was enacted in 1867, but it was criticized for clashing with the common law of procedure, which was enacted by the colonial legislature, and elements of which were also incorporated into most courts’ individual rules of practice. As a result, the Code was revised. The Federal Court (first established as the Exchequer Court of Canada in 1875), is Canada’s national court of first instance and its operation depends on an interaction between common and civil law; through the jurisprudence of the Federal Court, the development of each provincial legal system is effected by the development of the other.

Subsection 92(13) of the Constitution Act, 1867 instantiated this form of legal pluralism by granting to the provinces in Canada jurisdiction over property and civil rights. This provision is what allowed Quebec to preserve its civil law regime after confederation and for all other provinces to maintain their common law regimes. Section 91 grants jurisdiction over certain matters to the federal government, but these laws must operate within provincial boundaries and therefore, harmonization of federal law with both civil and common law grew in significance.

Additionally, sections 8.1 and 8.2 of the Federal Interpretation Act require that provincial law supplement federal law in the areas of property and civil rights under federal jurisdiction and allow for federal legislation to be implemented differently in civil versus common law provinces. Another reflection of this type of legal pluralism (explored by the Court itself in the Nadon Reference in 2014) is the requirement under section 6 of the Supreme Court Act requires that at least three judges of the Supreme Court of Canada be from among the advocates or judges of Quebec.

Family law is a good example of the harmonization of various sources of law, as Robert Leckey’s excellent article Harmonizing Family Law’s Identities (2002) demonstrates. Within the federal sphere, the sources include statutes; regulations; common law, including equity; provisions in pre-Confederation colonial laws concerning marriage; custom; federal jurisprudence; doctrine; and private contract. In the common law provinces, sources include statutes, regulations, custom, common law, jurisprudence, academic writing, and contract. In Quebec, sources include the Civil Code of Quebec, the Code of Civil Procedure, statutes, regulations, custom, principles of the ius commune, jurisprudence, doctrine, and contract. Non-legal concepts also have an influence on family law – one prominent example is the “best interest of the child,” which was originally a psychological concept that now finds a basis in law. Ultimately, Leckey concludes, an understanding of the reflective role of law and a combination of internal and external harmonization allows for a more open approach to law reform that considers all relevant legal and societal factors, which is especially important in a country like Canada, whose legal system rests on multiple sources.

The Second Lens: Indigenous Constitutionalism

The development of Indigenous legal traditions, practices and knowledge provide a second lens on pluralism. Indigenous Law in all of its diversity is emerging as a broadly recognized and applied third source of law equal to common law and civil law, as John Borrows discusses in Canada’s Indigenous Constitution (2010). The status of Indigenous Law has been preserved in various ways.

First, Indigenous Law has been preserved through the operation of treaties. Section 35 of the Constitution Act, 1982 which gives constitutional recognition to all unextinguished aboriginal rights, gave existing and new treaty rights constitutional force. Although issues with consultation, negotiation, and implementation of treaties continue to beleaguer the relationship with Canadian Governments, the Supreme Court of Canada has endorsed the idea that section 35 binds the Crown to negotiate treaties that take into account the interests of Indigenous peoples.

Second, there are some Canadian statutes that allow for the incorporation of Indigenous law within their frameworks. As of June 2011, the Canadian Human Rights Act (“CHRA”) makes space for “due regard” to “First Nations legal traditions and customary laws in the interpretation and application” of the CHRA. This process has involved identifying community-based dispute resolution processes in Indigenous communities based on Indigenous law that will be followed when the CHRA complaint process applies to First Nations matters.

A third way that the status of Indigenous law is preserved is through agreements between Indigenous groups and the federal and provincial governments, which guarantee these groups self-government within the Canadian political order. An example of such an agreement is the Nisga’a Final Agreement, which among other things, grants sole jurisdiction to Nisga’a laws in certain areas (such as areas of core cultural importance), allows for the Nisga’a to make laws which are paramount if they meet or exceed provincial or federal standards, and ensures that the Nisga’a retain political and legal jurisdiction over their land. Overall, the Agreement, through the guarantee of self-government, establishes the Nisga’a Nation as a third order of government in relation to the federal and provincial governments of Canada.

In each of these ways, Canada’s Constitution can be seen as porous, interacting and evolving with both formal Aboriginal Law in Canada and the dynamics of Indigenous constitutionalism.

The Third Lens: Foreign/International Law in Canada

Third, canvassing the treatment of international and foreign law within the Canadian legal system sheds additional light on pluralism. There are three ways in which foreign and/or international law have been integrated into Canadian jurisprudence. The first is where international law standards are incorporated by reference into the bodies of domestic statutes. For example, the 1951 international Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees are incorporated into the definition of “Convention refugee” in section 96 of the Canadian Immigration and Refugee Protection Act (IRPA).

International standards also have implications for Canada’s domestic law where Canada has signed international conventions, but not yet directly incorporated them into Canadian legal statutes. In Baker v Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada suggested that provisions in such conventions might be used as interpretive aids for Canadian legal provisions and thereby shape the boundaries of reasonableness in the exercise of discretion. As well, the Supreme Court of Canada left open the possibility that international instruments ratified by Canada could give rise to legitimate expectations of people affected by administrative decisions, and therefore, international law would have a hand in determining what is required by the common law duty of procedural fairness.

The Supreme Court of Canada has relied on a number of transnational court decisions in domestic cases. In Mugasera v Canada (SCC 2005) for example, the Court relied on precedent established by the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda when suggesting that the elements of a crime against humanity needed to be redefined. As well, in Khadr v Canada in 2009, the Federal Court of Appeal relied on decisions of the English Court of Appeal, the Constitutional Court of South Africa, and the Federal Court of Australia in determining that the Canadian government was obliged to seek Mr. Khadr’s repatriation to Canada, on the basis that his section 7 Charter rights had been infringed. However, it is important to note that although foreign and international decisions may be referenced more frequently, they are not necessarily treated as binding by Canadian courts (as the Supreme Court affirmed in its decision in the Khadr in 2010).

In Beyond Self-Congratulation: The Charter at 25 in an International Perspective (2007) former Supreme Court of Canada Justice Louise Arbour & Fannie Lafontaine explore the significance of international and foreign law in the context of the Canadian Charter of Rights and Freedoms and its interaction with other sources of Canadian law. There is also a gap between an international treaty’s ratification and implementation; Although Chief Justice Dickson stated that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified (in the Alberta Reference (1987), Arbour and Lafontaine argue that the extent to which this ideal has become reality remains uncertain at best.

Justice Lebel (another retired Supreme Court Justice) offers a more robust view of the significance of international law on Canada’s justice system in his article, The Impact of International Law on Canadian Law A Common Law of the World? The Reception of Customary International Law in the Canadian Common Law (2014). Lebel asserts that Canada is moving toward an approach whereby customary international law is directly incorporated into the common law and is effective immediately without the need for further governmental action.

This principle of direct incorporation was taken from Britain, even though over the centuries, this principle was put into doubt. Doubt about this principle lingered over the course of Canadian jurisprudence as well, but the Supreme Court’s decision in R. v. Hape (SCC 2007) affirmed that this doctrine was part of Canadian law; the Court expressed that prohibitive or mandatory international customary norms are incorporated into our common law and must be followed by courts unless there is legislation which explicitly says otherwise. The scope of these norms remains to be determined, as does the mechanism by which they become.

Justice Michel Bastarache (in yet another perspective from a former Supreme Court Justice) in his article entitled How Internationalization of the Law has Materialized in Canada (2009) argues that our system is more of a hybrid demanding the implementation of conventional international law but allowing for the incorporation of customary international law.

The story of international law’s impact on Canadian domestic law is one of ambivalence. The Supreme Court has articulated the ways in which Canadian law is porous with respect to evolving international law standards (both customary law and through international law instruments such as covenants and treaties), but also some watertight boundaries (such as the need for Parliament or a legislature to incorporate ratified convenants and treaties for them to have binding effect on domestic law). This ambivalence may also reflect the fact that Canada’s Constitution (in part because of the impact of bijuralism and Indigenous constitutionalism) remains a work in progress – or to use what has become a distinctly Canadian metaphor, a living tree!

Conclusion

My modest contribution to the lively debate over legal pluralism in Canada is to attempt a more holistic approach – not focused just on the question of bijuralism, or Reconciliation, or the reception of international and transnational legal instruments and ideas, or focusing on a single area of law (e.g. human rights, family law, etc) but rather viewing all of these dynamics (and others not yet elaborated) as interrelated, dynamic and reinforcing – together creating a more open constitutional culture, and one focused on accommodating different legal traditions and ideas, with meaningful contributions from the legislative, executive and judicial branches of government, as well as from civil society, the academy, advocacy groups, Indigenous communities, and others.

Justice Katheryn Neilson tried to place Canada’s experience within a more global context in a talk entitled, “’Judicial Globalization’ – What Impact in Canada?” (2009) She noted that while Canada’s open textured constitutional tradition was well-received internationally, domestic anxieties remained, with respect to the coherence of how Canadian Courts deal with international/comparative sources of law, the legitimacy of allowing those without any accountability within Canadian democracy to play a role in shaping the Canadian legal system, and judicial cherry picking, as activist judges pick the source of law which most suit their normative commitments. While these concerns merit attention (and analogous concerns may arise in the contexts of bijuralism and/or integrating Indigenous legal traditions), the trend line in Canada as it marks the 150th anniversary of Confederation is relatively clear. That arc of Canada’s evolution is toward greater not lesser openness, and more rather than less engagement with legal pluralism.

Canada’s legal and political system is an amalgam – a mix of common law, civil law and Indigenous ideas about public authority and legal rules, and one I suggest, cumulatively, that is porous. While this has not always translated into a coherent acceptance of international and transnational legal instruments or ideas, or a fully fleshed out understanding of Reconciliation, I suggest Canada’s constitutional frameworks can (and may even be said to be designed to) support multiple sources of legal authority in order to reconcile the diverging histories, beliefs and values of Canadian society. Moreover, this dynamic is likely to strengthen over time, as Canada’s population becomes more global, as Canada’s “brand” of inclusion and global citizenship is put to the test. While Canada’s pluralist potential has yet to be fully realized, its constitutional future, in my view, looks bright.