Despite being similarly concerned with the legitimacy of law under conditions of diversity, political and legal theorists currently seem to differ significantly in the role they would reserve for religious reasons in public decision-making processes. Religious arguments that would generally be considered inappropriate if not inadmissible in a courtroom are increasingly viewed as acceptable and even desirable contributions to debate in the political public sphere. The author argues that the existence of this disconnect can be explained by the special challenges that religion poses for constitutional adjudication which in turn should inform our understanding of the judicial decision-making function. Constraints inherent to constitutional courts that make them effective institutions for concrete dispute resolution significantly limit their ability to engage seriously with the normative challenges posed by religious diversity. We should thus properly understand the role of constitutional adjudication as peripheral in matters of public policy that intersect with questions of religious difference. / Graduate

The 1980s witnessed a judicial “rights revolution” in Canada characterized by the Supreme Court of Canada striking down both federal and provincial legislation which violated the rights guaranteed by the 1982 Charter of Rights. The lack of a similar judicial “rights revolution” in the wake of the 1960 Canadian Bill of Rights has largely been attributed to the structural difference between the two instruments with the latter – as a “mere” statute of the federal parliament – providing little more than a canon of construction and (unlike the Charter) not empowering the courts to engage in judicial review of legislation. Yet this view contrasts starkly with how the Bill was portrayed by the Diefenbaker government, which argued that it provided for judicial review and would “prevail” over other federal legislation. Many modern scholars have dismissed the idea that the Bill could prevail over other federal statutes as being incompatible with the doctrine of parliamentary sovereignty. That is, a bill of rights could only prevail over legislation if incorporated into the British North America Act. As such, they argue that the Diefenbaker government could not have intended the Bill of Rights to operate as anything more than a canon of construction. However, such a view ignores the turbulence in constitutional thinking on parliamentary sovereignty in the 1930s through 1960s provoked by the Statute of Westminster. This era produced the doctrine of “self-embracing” sovereignty – in contrast to traditional “Dicey” sovereignty – where parliament could limit itself through “ordinary” legislation. The effective author of the Canadian Bill of Rights, Elmer Driedger, was an adherent of this doctrine as well as an advocate of a “purposive” approach to statutory interpretation. Driedger, thus, drafted the Bill based upon the doctrine of self-embracing sovereignty and believed it would enjoy a “purposive” interpretation by the courts, with the Bill designed to be as effective at guaranteeing rights as the Statute of Westminster was at liberating Canada from Imperial legislation.

The 1980s witnessed a judicial “rights revolution” in Canada characterized by the Supreme Court of Canada striking down both federal and provincial legislation which violated the rights guaranteed by the 1982 Charter of Rights. The lack of a similar judicial “rights revolution” in the wake of the 1960 Canadian Bill of Rights has largely been attributed to the structural difference between the two instruments with the latter – as a “mere” statute of the federal parliament – providing little more than a canon of construction and (unlike the Charter) not empowering the courts to engage in judicial review of legislation. Yet this view contrasts starkly with how the Bill was portrayed by the Diefenbaker government, which argued that it provided for judicial review and would “prevail” over other federal legislation. Many modern scholars have dismissed the idea that the Bill could prevail over other federal statutes as being incompatible with the doctrine of parliamentary sovereignty. That is, a bill of rights could only prevail over legislation if incorporated into the British North America Act. As such, they argue that the Diefenbaker government could not have intended the Bill of Rights to operate as anything more than a canon of construction. However, such a view ignores the turbulence in constitutional thinking on parliamentary sovereignty in the 1930s through 1960s provoked by the Statute of Westminster. This era produced the doctrine of “self-embracing” sovereignty – in contrast to traditional “Dicey” sovereignty – where parliament could limit itself through “ordinary” legislation. The effective author of the Canadian Bill of Rights, Elmer Driedger, was an adherent of this doctrine as well as an advocate of a “purposive” approach to statutory interpretation. Driedger, thus, drafted the Bill based upon the doctrine of self-embracing sovereignty and believed it would enjoy a “purposive” interpretation by the courts, with the Bill designed to be as effective at guaranteeing rights as the Statute of Westminster was at liberating Canada from Imperial legislation.

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Cotutelle avec l'Université de Bordeaux en France. / Cette thèse analyse la controverse ayant opposé, en 2020 dans l’affaire Québec inc., les juges de la Cour suprême du Canada au sujet du rôle du droit international et du droit comparé dans l’interprétation de la Charte canadienne des droits et libertés. Elle atteste de la montée en puissance inédite d’une préférence pour une attitude de repli national au détriment d’une valorisation de l’ouverture sur le monde dans l’interprétation des droits et libertés constitutionnels et quasi-constitutionnels des Canadiens. Plus précisément, grâce à l’approche dworkinienne du droit comme pratique interprétative, sont examinées successivement les deux philosophies judicaires concurrentes exprimées en 2020, la compréhension différente par les juges des règles d’interprétation existantes de la Charte ainsi que la pratique judiciaire observable depuis 2014 pour démontrer que la position soutenue par la majorité dans Québec inc. constitue davantage un retournement de situation qu’une suite cohérente de l’œuvre jurisprudentielle écrite depuis 1982 par les juges du plus haut tribunal canadien. Au-delà de la contribution à l’avancement des connaissances s’agissant de l’évolution du rôle du droit international et du droit comparé dans l’interprétation des droits constitutionnels et quasi-constitutionnels des Canadiens, cette recherche doctorale témoigne de la possibilité de voir l’emporter de manière fulgurante des formes de résistance au transnational, y compris dans des contextes juridiques et culturels largement favorables à l’internationalisation et à la mondialisation du travail du juge constitutionnel. Enfin, d’un point de vue méthodologique, elle démontre l’apport, tout comme les limites, de la réalisation d’études juridiques empiriques pour enrichir un discours de connaissance critique sur la pratique judiciaire. / This thesis analyzes the controversy that opposed in 2020, in the Quebec inc. case, the judges of the Supreme Court of Canada regarding the role of international law and comparative law in the interpretation of the Canadian Charter of Rights and Freedoms. It attests to the unprecedented rise of a preference for an attitude of national withdrawal to the detriment of a valorization of openness to the world in the interpretation of the constitutional and quasi-constitutional rights and freedoms of Canadians. More precisely, thanks to the Dworkinian approach to law as an interpretative practice, the two competing judicial philosophies expressed in 2020, the different understanding by the judges of the existing rules of interpretation of the Charter as well as the judicial practice observable since 2014 are successively examined to demonstrate that the position supported by the majority in Québec inc. constitutes more of a reversal of the situation than a coherent continuation of the jurisprudential work written since 1982 by the judges of the highest Canadian court. Beyond the contribution to the advancement of knowledge regarding the evolution of the role of international law and comparative law in the interpretation of the constitutional and quasi-constitutional rights of Canadians, this doctoral research demonstrates the possibility of see forms of resistance to the transnational prevail in a dazzling manner, including in legal and cultural contexts largely favorable to the internationalization and globalization of the work of the constitutional judge. Finally, from a methodological point of view, it demonstrates the contribution, as well as the limits, of carrying out empirical legal studies to enrich a discourse of critical knowledge on judicial practice.

This thesis is an examination of whether the “egalitarian model” for political finance that has been established by the Supreme Court of Canada, other Canadian courts and legal scholars and commentators is actually egalitarian and has been applied consistently (in Chapter 2), and whether Canada’s political finance system measures up to the Court’s model (in Chapters 3 and 4), and how it could be changed to comply with a more egalitarian model that would also be ethical in terms of preventing even the appearance of a conflict of interest (in Chapters 6 and 7). Chapter 1 sets out a general theoretical framework for evaluating the Supreme Court’s egalitarian model, and I develop and set out a more egalitarian model in Chapter 5. In the Chapter 8 conclusion, I summarize the findings and propose structural and positive Charter rights court cases as a way forward, given that the platforms federal politicians and political parties from the past few elections, and the reports of parliamentary committees, have not called for the most of the changes I propose are needed to make the system more egalitarian. The thesis addresses political finance broadly defined as money, property, use of property, gifts, services, favours and other benefits and advantages provided to nomination contestants, election candidates and political party leadership contestants, electoral district associations, political parties, politicians and their staff during election campaign periods and also during the time period between elections, including support provided by “third-party” interest groups, lobbyists and other individuals, and by media outlets. In Chapter 3, I examine the rules that apply to each of these political actors in the areas of registration, donations and loans, spending, public subsidies and disclosure (including auditing), including a separate section on the role of media and social media. Given that political systems include providers (whether as contractors or donors) of money, property and the use of property (including gifts and other benefits and advantages), and services (including favours) to politicians, and given that providers could be lobbyists, I also examine in Chapter 4 the rules concerning gifts, favours and other benefits and relations between voters, lobbyists and politicians, and concerning the conflicts of interest that can be caused by these activities. Other than disclosure and auditing, I do not cover enforcement measures or systems in any of the areas. However, I do note at various points in the thesis that, as several studies and history have shown clearly, effective enforcement measures, policies and practices are key to ensure compliance with such rules. The main contentions that I make are: that the key principles of the Supreme Court of Canada’s egalitarian model have not been consistently upheld by the Court and other Canadian courts, that Canada’ federal political finance system does not fulfill the Court’s egalitarian model, and that several changes are needed to make the model and the system more egalitarian, only a few of which have been addressed by Canadian courts and scholars to date. These contentions counter the claim made in the Court’s rulings, and by many scholars and commentators, that Canada’s political finance system has developed and is based on an egalitarian model. In Chapters 5 through 7, I develop a more egalitarian model and set out specific proposed changes to make Canada’s systems more egalitarian, both in theory and in practice, within the framework of a democratic good government political system (meaning a system with separation of powers, elections, human rights protections, rule of law etc.) and a mixed market economy with both public sector institutions and private sector businesses, unions and other organizations (cooperatives, non-profit, religious organizations etc.). Both the model and many of the specific proposed measures should also be applicable in other jurisdictions with different political systems and economic systems. The framework of 19 standards for a more egalitarian model that I develop in Chapter 5 is based mainly on John Rawls’ theory of justice, but modified and expanded to incorporate critiques of Rawls’ theory, other legal principles and democratic good government theories, international standards, government ethics case law, behavioural psychology studies, and evidence of the public’s expectations. The 201 proposals I make in Chapters 6 and 7 for specific changes to the rules of Canada’s current federal political finance system (again, broadly defined), are based on the model, measures from various jurisdictions in Canada and elsewhere, and international standards. I am not claiming that these changes would definitely result in “better” or more “public interest” policy-making decisions, however that would be determined. I am only contending that the framework I develop is more egalitarian than the Supreme Court’s model, and that the rule changes I suggest would make the political finance, gifts, favours, conflict of interest and lobbying systems align with the more egalitarian model I propose. I primarily use the doctrinal research methodology by examining scholarly research and, given I also examine aspects of the laws of Canadian provinces and municipalities, and other countries, I also deploy some aspects of the comparative methodology (most fully when comparing Canada’s federal rules to Quebec’s rules, and somewhat when comparing Canada’s rules to the U.S. and U.K. rules). The research results from these sources inform the conclusions I set out in my thesis. The thesis advances knowledge in the following areas: 1. It is the first complete evaluation of the federal Canadian political finance, gifts-favours-benefits, conflict of interest and lobbying rules and systems in their current state as of May 2023, based on the findings of extensive new research into key parts of these systems; 2. It sets out the first comprehensive analysis of how the Supreme Court of Canada’s egalitarian model has been applied by the Court and other courts inconsistently, in ways that do not comply with the model; 3. It sets out the first analysis of how Canada’s political finance statutory rules, again defined broadly to include rules that apply to donations, loans, gifts, services, favours and other benefits, lobbying and conflicts of interest, do not comply with the Supreme Court’s egalitarian model, based in part on new statistical research set out in 28 charts, and; 4. It sets out a new theoretical framework based on 19 standards, and a comprehensive set of 201 innovative proposals for changes to make Canada’s political finance rules (again defined broadly) more egalitarian, and more ethical in terms of preventing conflicts of interest. Five comprehensive studies of key parts of the political finance, ethics and lobbying systems are also proposed to gather key information needed to inform the design of some of the 201 proposed changes. Eight structural and positive Charter rights cases are also proposed to challenge current rules that do not comply with the egalitarian model.