Daly on Constitutional Courts in Canada and the UK

Paul Daly, University of Montreal Faculty of Law, has posted A Supreme Court's Place in the Constitutional Order – Contrasting Recent Experiences in Canada and the United Kingdom, which is forthcoming in the Queen's Law Journal:

There is a wealth of recent cases and commentary on the constitutional roles of two important common law supreme courts: the Supreme Court of Canada and the United Kingdom Supreme Court. Both have recently expressed distinctive understandings of their positions in their respective constitutional orders, drawing in part on supporting narratives by way of justification.

What emerges is that the Canadian high court is much clearer about its constitutional role. Recently, it confirmed beyond all doubt its entrenchment in the Canadian Constitution, weaving together a supporting narrative that allowed the Court to describe itself both as a neutral arbiter of disputes relating to federalism and human rights, and as a champion of the distinct values of the province of Quebec. By contrast, the UK Supreme Court has found it much more difficult to identify its place in the constitutional order, most notably in the area of rights protection. In a series of recent decisions, it has emphasized its fundamental role in expounding the common law. In doing so, it has relied on a narrative that venerates the common law and describes the Court as a protector of home-grown constitutional values.

My comparison reveals three points of particular interest. First, the framework for constitutional change in Canada was much more favourable to the Supreme Court of Canada, in part because of several of its own decisions, whereas its UK counterpart has never really been in a position from which it could formally complicate the process of constitutional reform. Second, the Supreme Court of Canada’s institutional position as arbiter of fundamental constitutional disagreements has long been undisputed, whereas the UK Supreme Court has operated in the shadow of the Strasbourg-based European Court of Human Rights. Recent Canadian history also indicates that the UK Supreme Court’s claims to the guardianship of the domestic constitutional tradition are likely to increase in both number and force Third, narratives that lawyers develop about their legal traditions influence the substantive law, but these narratives must be viewed critically, because they are often contingent on context and may not always reveal the whole story. Recent developments in Canada and the UK were not quite as inevitable as the supporting narratives developed by their high courts would have the reader believe.