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This article examines the current division of powers over cultural matters in the Canadian Constitution and the manner in which the 1992 Charlottetown Accord would have altered that distribution. During the debate over the Charlottetown Accord, it was argued by the federal government and the provinces that the Constitution allocates primary legislative responsibility over cultural matters to the provinces. Therefore, the cultural amendments in the Accord which would have recognized the provinces' exclusive jurisdiction to make laws in relation to culture were justified on the basis that they merely codified the status quo. This paper challenges the belief that the provinces enjoy exclusive legislative authority in relation to culture. It is argued that the federal government possesses quite significant legislative authority relating to cultural matters, the most important being its authority to pass laws in relation to matters of national concern. The promotion and strengthening of a distinct Canadian national identity is, it is argued, one such matter of national concern. Thus, over time, the proposed amendments relating to culture in the Charlottetown Accord would probably have significantly reduced federal legislative powers. Assuming that some kind of cultural power is to be entrenched in the Constitution at all, culture should be recognized as an area of shared or concurrent jurisdiction in which both Parliament and the provincial legislatures have legitimate roles to play. This paper also calls into question the whole concept of entrenching a cultural power in the Constitution in the first place, arguing that it is unwise to recognize indeterminate and amorphous concepts like culture as a basis for legislative authority in a federal state.

This paper examines the causes of the failure of the Meech Lake Accord, as well as the implications of the demise of the Accord for Canada's political future. The paper challenges the prevailing interpretation of the Accord's failure, an interpretation which centers on the shortcomings of political leadership. The paper argues that the Accord's failure is, in reality, a product of factors that can be traced back to the 1982 constitutional settlement. The 1982 decision to proceed without the consent of the government of Quebec made it necessary to undertake a subsequent series of negotiations designed to accommodate Quebec. The problem was that the amending formula entrenched in 1982 was so inflexible as to make any such negotiations prone to failure. Further, the predictable outcome of any such failure would be a destabilization of Quebec's commitment to the Canadian federation. The paper draws a number of lessons from the Meech Lake experience for the future of constitutional reform in Canada. It is evident that there is no realistic possibility of securing a constitutional amendment addressing Quebec's concerns under the general amending formula. Quebec will be faced with the difficult and fateful decision of either accepting the status quo, or attempting to jump outside of the existing rules for constitutional amendment. The paper analyses the implications of a break in legal continuity, concluding that it would be contrary to the best interests of all Canadians.

With important decisions concerning Charter remedies, freedom of speech, the right to counsel, the division of powers, and the interpretation of First Nations treaties, 2010 was a significant year on the constitutional front. It was also a controversial year: only 56 per cent of constitutional cases were unanimous in judgment, in contrast to the overall average for the year of 75 per cent. That split was especially palpable in the federalism and Aboriginal rights cases, where two sharply divided camps tended to emerge. In the Charter arena, the Court showed notable deference to the legislative and executive branches while eschewing categorical rules in favour of case-by-case balancing tests that afford it greater flexibility. Looking to the future, the surprise retirements of Justices Binnie and Charron present the government with a significant opportunity to influence the direction of the Court. In particular, the retirement of the Justice Binnie may reinforce the present direction in which the Court appears to be moving, at least in constitutional cases, if his successor's jurisprudential disposition is comparable to that of the present government's previous appointees.

Frontmatter -- Contents -- Preface / Mcroberts, Kenneth / Monahan, Patrick J. -- Introduction / Mcrobert, Kenneth / Monahan, Patrick J. -- PART ONE. The Reform of Central Institutions in the Charlottetown Accord -- 1. The Reform of Federal Institutions / Watts, Ronald L. -- 2. The Charlottetown Accord Senate: Effective or Emasculated? / Elton, David -- 3. Speaking for Ourselves / Day, Shelagh -- 4. The Charlottetown Accord and Central Institutions / Beaudoin, Gérald-A. -- PART TWO. The Division of Powers in the Charlottetown Accord -- 5. Division of Powers in the Charlottetown Accord / Hogg, Peter W. -- 6. The Charlottetown Accord and the End of the Exclusiveness of Provincial Jurisdictions / Frémont, Jacques -- 7. The Charlottetown Accord: A Faulty Framework and a Wrong-headed Compromise / Rebick, Judy -- 8. The Dog That Never Barked: Who Killed Asymmetrical Federalism? / Whitaker, Reg -- PART THREE. Distinct Society, Aboriginal Rights, and Fundamental Canadian Values -- 9. The Charlottetown Discord and Aboriginal Peoples' Struggle for Fundamental Political Change / Turpel, Mary Ellen -- 10. Québec, a Nation Divided / Giroux, Raymond -- 11. The Referendum and Democracy / Barlow, Maude -- 12. Sinking Again into the Quagmire of Conflicting Visions, Groups, Underinclusion, and Death by Referendum / Mendes, Errol P. -- 13. The Charlottetown Accord: A Canadian Compromise / Lougheed, Peter -- PART FOUR. The Referendum -- 14. The October I 992 Canadian Constitutional Referendum: The Socio-Political Context / Adams, Michael -- 15. The Referendum and Its Aftermath / Simpson, Jeffrey -- 16. The Quebec Referendum: Quebeckers Say No / Blais, André -- PART FIVE. The Future of Canada -- 17. The End of Mega Constitutional Politics in Canada? / Russell, Peter H. -- 18. The Sounds of Silence / Monahan, Patrick J. -- 19. Disagreeing on Fundamentals: English Canada and Quebec / Mcroberts, Kenneth -- 20. Speculations on a Canada without Quebec / Gibbins, Roger -- Contributors -- APPENDIX 1. Consensus Report on the Constitution Charlottetown August 28, I 992 Final Text -- APPENDIX 2. Draft Legal Text October 9, 1992 -- APPENDIX 3. Official Voting Results, by Province 26 October 1992

The last year was a high-profile one for the Court in constitutional matters: Two cases, PHS and the Securities Reference, are especially noteworthy, not just for their political significance, but for their likely impact on constitutional jurisprudence in years to come. Several other decisions concerning freedom of association, equality rights and Aboriginal rights also reflected important developments in their respective areas, and in one case underscored deep divisions on the Court. Notably, 2011 was a year of unusual unanimity on the Court in the constitutional area: The justices agreed in all but four constitutional cases. That said, where the justices split, a core group comprising the Chief Justice and Justices Binnie, Charron, Rothstein and Cromwell were most likely to sign on to the majority opinion. Continuing a trend in recent years, the more liberal Justices LeBel, Fish and Abella found the mselves writing separately relatively frequently, as did the especially independent-minded Justice Deschamps. For the second year in a row, Prime Minister Stephen Harper will have a chance to change the face of the Court given the retirement of Justice Deschamps. With the appointment of her successor, Justice Wagner, Mr. Harper has appointed five justices, making 2012 the first year of a "Harper Court". With two approaching mandatory retirements, by the time of the next federal election Mr. Harper will have had an opportunity to appoint a clear majority of justices, who will shape the jurisprudence of the Court for years to come.