Research Paper Number

53/2016

Title

Compact Is Back: The Revival of the Compact Theory of Confederation by the Supreme Court

Subsequently published in the Osgoode Hall Law Journal.

Document Type

Article

Publication Date

2016

Keywords

Constitutional law; Canada. Supreme Court; Canada

Abstract

The compact theory of the Canadian confederation is the idea that the constitution is the product of a political agreement (or compact) among the country’s constitutive parts. Although the theory has been widely criticized, this article shows how the theory has recently been used by the Supreme Court of Canada to explain the origins of certain parts of the constitution and to guide its interpretation, in particular in cases involving constitutional amendment and indigenous rights. It then discusses how the Court dealt with instances where one party’s consent to a foundational compact was vitiated or altogether lacking, and whether the Court’s use of compact theory gives rise to the objection that it is an originalist method of interpreting the constitution.