Comparative Constitutional Law Fall 2008

Professor FischerConstitutional CrisisSeptember 3, 2008

Canadian Artist: Emily Carr (Kispiax Village)

Canadian Artist: Emily Carr (Autumn Wods)

Wrap-Up

• Federalism in Canada:• 2 list system• Broad reading of provincial powers,

narrow reading of POGG residuary power in A. 91 by both Privy Council and Supreme Court

What is

• Distributive federalism?• Identity-based federalism?• Which more accurately describes the

Canadian system? • Is canadian federalism asymmetrical? If

so, how? See p. 16 RR, See Re Quebec Objection to A Resolution to Amend the Constitution [1982] 2 SCR 793

Crisis Management by the Supreme Court of Canada

• Reference Jurisdiction

Manitoba Language Reference (1985)

Patriation Reference (1981)

Secession Reference (1998)

• Followed Quebec referendum in 1995: vote to secede failed by margin of 50.4%-49.4%

• Could Quebec constitutionally unilaterally secede from Canada?

Terrorism in Canada• The FLQ • October Crisis of 1970

(kidnapping of James Cross, Pierre Laporte)

• Trudeau response: the War Measures Act

• Invoked 3 times in Canadian history (First World War, Second World War (Japanese Candian internment), October Crisis)

• Replaced by Emergencies Act 1988

September 11, 2001

Security Certificates

• Charkaoui v. Minister of Citizenship and Immigration [2007] 1 S.C.R. 350 -

2008: Amendment of IRPA – Bill C-3

Charkaoui v. Canada [2008] SCC 38

• Charkaoui round 2: destruction of notes by CSIS

David Fontana article

• Do you agree with David Fontana’s comparative critique of the U.S. Supreme Court in Dissent? [Handout packet p. 72] Why or why not?