bluuebunny/crossref_metadata_2025_split huggingface dataset:
Amending the Constitution of Canada
Authors: Pelletier Benoît 
Published: November 2017

Abstract
In the past, Canadian constitutional reform has been marked by surprising successes and resounding failures. Indeed, the failures were such that constitutional amendment itself, along with the word “Constitution”, became taboo in the eyes of a large part of the Canadian population. This chapter will commence with a brief history of constitutional reform in Canada from the Constitution Act, 1867 to the patriation of 1982, followed by an analysis of the post-patriation constitutional amendment procedures. It will then discuss the political and legal frameworks which further complicate the already strict requirements of modern constitutional amendment in Canada, and will conclude with an overview of the phenomena favouring paraconstitutional adaptation of the Constitution. Finally, it will point out that the full restoration of the word “Constitution” is of utmost importance in ensuring that constitutional reform itself does not simply become a matter of wishful thinking.
Treaties as Constitutional Agreements
Authors: Grammond Sébastien 
Published: November 2017

Abstract
This chapter reviews the history of treaty-making with the Indigenous peoples of Canada. After an initial period of roughly equal relationships, colonial authorities increasingly used treaties as a domestic law concept aimed at securing control over Indigenous land. The practice was continued after Confederation, but there appears to be a major misunderstanding as to the terms of those treaties, in particular as to the purported extinguishment of Aboriginal title. After a 50-year hiatus, treaty-making resumed in 1975 with the signing of ‘land claims agreements’ in most of the Canadian north. These agreements not only provide for the sharing of land, they also contain detailed provisions with respect to co-management of natural resources and, in some cases, self-government. Canadian law now affords statutory and constitutional protection to treaty rights, and courts are prepared to take into account extrinsic and oral evidence in interpreting treaties.
Key Doctrines in Canadian Legal Federalism
Authors: Brouillet Eugénie , Ryder Bruce 
Published: November 2017

Abstract
The division of legislative powers in the Constitution Act, 1867 is the most important textual expression of the federal principle that is at the heart of the Canadian constitutional order. The judiciary has the responsibility of interpreting these provisions and thus of determining the boundaries of the law-making powers of Canadian legislative bodies. In performing this high-stakes task, the courts have developed a rich jurisprudence that draws on text, history, structure, and principle. In recent decades, the Supreme Court has articulated a “modern” or “co-operative” approach that interprets both federal and provincial legislative powers generously, and tolerates a high degree of overlap and interplay between them. Despite this commitment to maximizing the democratic space available to all Canadian legislatures within their respective areas of jurisdiction, some doctrines developed by the courts have had asymmetric effects that favour the federal Parliament.
Constitutional Aspects of Commercial Law
Authors: Anand Anita 
Published: November 2017

Abstract
This chapter describes the constitutional aspects of commercial law and focuses on division-of-powers issues relating to banking, bankruptcy, corporate, and securities law. The chapter makes two important observations. First, the broader jurisdictional lines in commercial law areas are mostly settled. Banking and bankruptcy are areas of federal jurisdiction, for example, whereas the provincial and federal governments have overlapping jurisdiction over corporate law. Securities law is an exception. Although securities law has historically been under provincial control, the appropriate role of the federal government has been the subject of recent controversy and litigation. Second, the chapter explains that although the provincial and federal governments have separate constitutionally protected roles in various areas of commercial law, the role is rarely exclusively assumed (or the field occupied) by one level of government. That is, provincial legislation in one area of law impacts what is otherwise federal constitutional jurisdiction, and vice versa.
The Exploitation of Natural Resources in the Federation
Authors: Walton Luanne A. 
Published: November 2017

Abstract
This chapter traces the evolution of natural resources jurisdictional litigation from Confederation in 1867 until the present. Issues of resource ownership, legislative control, and environmental protection are all explored. In the years immediately following Confederation, the principal focus was establishing resource ownership for all provinces. Once that was established through the Natural Resources Transfer Agreements, legislative jurisdiction over resources became the issue. The caselaw from this period resulted in the resource amendment, which was the only change to the federal-provincial division of powers constitutionally entrenched by the Constitution Act, 1982. Issues of ownership and legislative jurisdiction were settled just in time for the courts to turn their focus to environmental protection. The author demonstrates the way in which litigation and negotiation through the years has led to the current conflict between environmental and resource protection, and the potential profits available in the fossil fuel sector, with special emphasis on pipelines.
The Justification of Rights Violations
Authors: Panaccio Charles-Maxime 
Published: November 2017

Abstract
This chapter is about the interpretation of section 1 of the Canadian Charter of Rights and Freedoms. Section 1 allows ‘limits’ to constitutional rights insofar as they are reasonable and justified in a free and democratic society. It asks the state for moral justification when a right has been infringed by state action. Moral justification has formal and substantive aspects; therefore the application of section 1 deploys a formal framework of proportionality nestled within a thin conception of liberal democratic political morality. The chapter also addresses the relative moral importance of the notion of ‘rights’, as well as the relevance of institutional considerations. It concludes that the section 1 framework follows a standard model of moral justification and cannot be significantly improved upon.
Charter Remedies
Authors: Roach Kent 
Published: November 2017

Abstract
This chapter argues that interpretative remedies have qualified the supremacy clause in section 52(1) of the Constitution Act, 1982 and should only be used when courts can avoid making choices best left to the legislature. It also suggests that suspended declarations of invalidity facilitate dialogue between courts and legislatures but should, as in the recent assisted dying case, be administered so that litigants not suffer irreparable harm during the suspension. Rights may be better enforced and developed in the criminal than the civil trial context because stronger remedies such as exclusion of evidence are available whereas most awards of Charter damages have been modest. Canadian courts prefer declarations or individual remedies such as damages or habeas corpus over the use of injunctions and the retention of jurisdiction. This has impoverished Charter rights relating to conditions of confinement, illustrating how remedies affect and even shape rights.
The Notwithstanding Clause
Authors: Hiebert Janet L. 
Published: November 2017

AbstractThe notwithstanding clause in section 33 has always been the Charter’s most controversial provision. Although rarely invoked, a failure to use this power should not be equated with a willingness to abide by judicial norms about the Charter. This chapter analyses the political life of the notwithstanding clause. It examines the origins of the notwithstanding clause, its uses, its influence on constitutional ideals beyond Canada, and the political consequences associated with a deeply entrenched reticence to invoke the notwithstanding clause. This discussion addresses whether current reluctance to use section 33 is better explained by risk aversion than by legislative compliance with the Charter.
Democratic Rights
Authors: Dawood Yasmin 
Published: November 2017

Abstract
This chapter examines the scope and protection of democratic rights in Canada. After outlining the source of democratic rights, it focuses on the right to vote by considering judicial decisions on such issues as voter qualifications, residency rules, and the entitlement to vote. It then shows how the Supreme Court has interpreted the right to vote as consisting of a bundle of democratic rights. By using the bundle of rights, the Supreme Court has been able to regulate a wide array of democratic institutions and processes. The chapter proceeds to examine the Court’s intervention in the electoral process by discussing its cases on electoral redistricting, political parties, campaign finance, and the dissemination of electoral information. The chapter concludes with an analysis of current and future challenges facing democratic rights and their protection by the courts.
Freedom of Religion
Authors: Berger Benjamin L. 
Published: November 2017

Abstract
This chapter examines freedom of religion in the Canadian Constitution. After locating the modern protection of freedom of religion within Canadian constitutional history, the chapter explores the Supreme Court of Canada’s interpretation of that right, drawing particular attention to how constitutional law defines and understands religion itself. The chapter then turns to three themes that have emerged as central in the freedom of religion jurisprudence, but that also reflect broader issues within Canadian constitutionalism: the instability of the public/private divide as a means of analysing constitutional problems, the tension between individual rights and regard for collective and community interests, and the paradoxes involved in the aspiration for state neutrality. Ultimately, the chapter argues that freedom of religion offers a unique avenue into understanding the deeper themes, tensions, ideologies, and politics at work in the Canadian state, as well as the history and logic of its constitutional order.
Section 7: The Right to Life, Liberty, and Security of the Person
Authors: Young Margot 
Published: November 2017

Abstract
Section 7 jurisprudence shows strong application of the rights to life, liberty, and security of the person to a range of state action and actors. However, courts have significantly limited the progressive potential of these rights through two doctrinal concerns: the negative/positive rights distinction and causation issues. The result is a bounded jurisprudence reflecting both the strengths and weakness of liberal legalism. In particular, claims targeting the twenty-first century crises of Canadian society—social and economic inequality, as well as environmental degradation—while meaningfully apiece with the values of life, liberty, and security of the person, are unlikely to succeed under section 7 without critical and pointed judicial movement beyond liberalism’s divide between public and private action.
The Living Tree
Authors: Waluchow W. J. 
Published: November 2017

Abstract
This chapter addresses two common beliefs: (1) that the Canadian Constitution is a living tree, subject to evolution in light of changing circumstances and developing moral and political beliefs; and (2) that the view expressed in (1) stands in sharp contrast with American-style originalism, a family of theories according to which, absent formal amendment, the meaning of a constitution is the meaning it had at the time of its adoption. This chapter elaborates on (1) and challenges (2), highlighting both (3) the extent to which Canadian courts view their evolving constitution as nevertheless rooted in original understandings, intentions and purposes; and (4) the fact that many contemporary originalists embrace a moderate version of their theory that allows for a healthy degree of evolution via the process contemporary originalists call constitutional construction.
The Role of Theory in Canadian Constitutional Law
Authors: Endicott Timothy , Oliver Peter 
Published: November 2017

AbstractCanadian constitutional law has been shaped by tacit assumptions about the philosophical foundations of the Constitution, and also by the articulate theorizing of judges, legal scholars, and legal practitioners. We discuss the assumptions behind the country’s choice in 1867 of a distinct form of federalism, a parliamentary form of government very different from American republicanism, and a role for judges (particularly in adjudicating the federal division of powers, and in their innovative reference jurisdiction) that judges had never had in the United Kingdom Constitution. The principles of parliamentary government and of federalism, while giving the Constitution a remarkably robust framework, developed in a changing context with the end of Imperial governance. We discuss those developments, and ways in which the judges’ role as theorists of the Constitution—enhanced by the Constitution Act, 1982—has burgeoned in that changing context, through their approach to the principles of the Constitution.
Constitutional Principles in theSecession Reference
Authors: Leclair Jean 
Published: November 2017

AbstractIn Reference Re Secession of Quebec, 1998, the Supreme Court of Canada concluded that the unwritten constitutional principles of federalism and democracy dictated that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province gave rise to a reciprocal obligation on all parties to the federation to negotiate constitutional changes to respond to that desire. To understand this astonishing decision, the author first examines how, over time, in Canada and Quebec, issues of identity(ies), constitutional law, and democracy came to be formulated in absolutist terms, making political compromises next to impossible. Only then does he analyse the Supreme Court’s decision and attempts to explain why the latter chose to decide as it did.
International Organizations and International Law
Authors: Peters Anne 
Published: November 2017

Abstract
This chapter provides an overview of the state of the art of legal thought about the international organizations (IOs) as legal entities in a legal environment. IOs are legal communities in a threefold sense: they are created by law, they use law as a means of governance, and they should be governed by the rule of law. Accordingly, international law constitutes, enables, and constrains IOs. The chapter shows that legal scholarship until the 1990s was primarily concerned with the constituting and enabling function of the law (thus securing the effectiveness of IOs), while the more recent legal concern is the constraining function of the law (thus improving the accountability of IOs). In the procedural law of organizations, a tryptichon of accountability procedures has been built: transparency, participation, and access to information.
International Organizations, 1865–1945
Authors: Herren Madeleine 
Published: November 2017

Abstract
This chapter traces the development of international organizations (IOs) from 1865–1945. It begins with the take-off period of the 1860s, when IOs began to shape access to the world market and the formation of transnational movements. It then elaborates on the ideological framework IOs were based on. Developed in the nineteenth century, the contemporary concept of internationalism served as an umbrella term that enumerated and linked different transnational movements. Within this ideological context, IOs became part of an increasingly connected world that gained visibility in international conferences, world's fairs and the activities of an international civil society. After World War I, the function and importance of IOs changed dramatically. The remainder of the chapter discusses the League of Nations as the first supranational body and forerunner of today's United Nations (UN); the influence of war and political crises on IOs; and the historicity of IOs and the conditions that influenced the creation of today's United Nations system.
Formal Intergovernmental Organizations
Authors: Klabbers Jan 
Published: November 2017

Abstract
International law provides little support for a hard and fast distinction between formal and informal international organizations (IOs). To the extent that the terms are useful, it is to signify a relative value: some organizations exhibit a higher degree of institutionalization than others or, differently put, the mixture of formal and informal elements in any organizational design may locate the organization on different points on a continuum between formal and informal. This chapter explores to what extent the formal-informal distinction affects foundational decisions: the decision to set up an organization, to grant or withhold international legal personality, and to endow it with specific powers. It suggests that the distinction between formal and informal meets with little resonance in the law of IOs or, more accurately, that while founding actors can opt for higher or lower degrees of formalization or institutionalization, their intentions have little direct bearing on the legal nature of the organization per se.
Peace Operations
Authors: Howard Lise Morjé , Dayal Anjali 
Published: November 2017

Abstract
This chapter discusses the origins of peace operations; their evolution alongside the growing international conflict management structures of the United Nations (UN) and other international organizations; and their core functions, composition, and efficacy. Although peace operations have roots in earlier forms of military intervention, their emergence as a dominant tool for conflict management is a distinct innovation of the same internationalist project that forged the UN. Their evolution lays bare the fundamental tensions between state interests and the liberal internationalist project of a ‘world organization for the enforcement of peace’, and their execution has defined the way wars are fought today. The chapter focuses on UN peace operations throughout because they are the modal type of mission in the world. It also discusses the use of force within peace operations, an issue of growing importance that highlights fundamental tensions in the authorization and execution of internationally-led efforts to maintain global peace and security.
Counterterrorism and Transnational Crime
Authors: Cockayne James 
Published: November 2017

Abstract
Economic globalization has facilitated transnational criminal and terrorist activity since the mid-nineteenth century, thus incentivizing closer international law enforcement cooperation. This chapter explores the history of that cooperation, the contours of which are shaped by the interaction of the institutions of sovereignty and the reality of power in the international system. It argues that international law enforcement cooperation to counter terrorism and transnational crime takes two independent, but interacting, forms: firstly, the use of existing international institutions to define behaviour as criminally deviant and to repress it, even against the will of some states; and, secondly, the formation of transgovernmental policing networks, and, more recently, collaborative multisectoral governance arrangements — both notionally apolitical, but inherently reflective of a shared understanding of criminally deviant behaviour. The interplay of these two approaches follows the contours defined by juridical sovereignty and power in the international system.
Criminal Justice
Authors: Scheffer David J. 
Published: November 2017

Abstract
This chapter considers the historical developments leading to the establishment of international criminal tribunals and why there exist unique provisions and capabilities, as well as some similar approaches to justice, among them. It highlights the key role of the United Nations (UN) in forging the new era of international criminal justice. The chapter is organized as follows. Part I examines the role of international organizations, particularly the UN, in the creation of the international and hybrid criminal tribunals since 1993 and each tribunal's legal character under international law. Part II compares and contrasts the structural composition of the tribunals, which is a critical base of knowledge about their history, how they function, and the law they enforce.
Refugees and Internally Displaced Persons
Authors: Loescher Gil 
Published: November 2017

Abstract
This chapter examines the roles, functions, achievements, and failures of the principal international organization — the Office of the United Nations High Commissioner for Refugees (UNHCR) — to protect refugees and internally displaced persons (IDPs), and to find solutions to their plight. It begins by outlining some of the similarities and differences between refugees and IDPs. It then discusses the complex history, development, and limitations of the legal, normative, and institutional regimes for both refugees and IDPs. Finally the chapter outlines some of the current challenges and emerging issues for responding to both kinds of forced displacement before assessing the overall successes and failures of the international regime for forced displacement.
Environment
Authors: Wirth David A. 
Published: November 2017

Abstract
This chapter surveys settings under the auspices of international organizations (IOs) and institutions, and highlights a number of underappreciated structural attributes of international environmental governance. It shows that many IOs whose functional orientation is not primarily environmental, such as the Organization for Economic Cooperation and Development (OECD) and the World Trade Organization (WTO), are very active on the environmental front. Only one international institution — the United Nations Environment Program, which is not even formally an international organization — is charged with environment as its primary mission. The treatment of environment is highly compartmentalized and fragmented, distributed among multiple multilateral institutions and international agreements. An identifiable model of an organic treaty establishing a comprehensive, self-contained regime has also emerged in recent years. The environmental-treaty-as-governance-structure is an alternative to, although in some ways the functional equivalent of, a formal international organization as an international institutional vehicle for addressing environmental issues.
Religion
Authors: Årsheim Helge 
Published: November 2017

Abstract
This chapter focuses on the increasing importance of religion to international organizations (IOs) over the course of the last decade. The first part gives an overview of how and why religion(s) and IOs relate and interact. It discusses the definitional ambiguity of what constitutes ‘religious’ IOs and examines some proposals to clarify the issue, before mapping some important and influential religious IOs. The second part of the chapter presents the interrelationship of secular IOs with religion, emphasizing the influential role the handling of religion at the different levels of the United Nations (UN) plays in international approaches to religion in general. It then presents some other important secular IOs and their interaction with religion, before providing a brief summary of the argument and a conclusion.