The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

BNA Act was effectuated in response to the ruinous U.S. Civil War and intended to constitutionalize a federal system intended to prevent U.S. style secessionism by creating a powerful federal or general government that unlike its U.S. counterpart, was granted all residual powers not specifically granted to the provinces. 120 Canada, however, was governed as a British colony until 1931 when the British Parliament enacted the Statute of Westminster that by limiting British Parliamentary authority over Canada, effectively made Canada an independent country. 121 The dynamics of Canadian history, however, led to a far looser union than Canada’s founders anticipated. One obvious cause was fear of prompting Quebec secession in a country with two official languages, French and English, where the bulk of the French-speaking population is based in Quebec, and where more than 90% of the country’s population lives within 100 miles of the U.S., which has always been the more populous and powerful country. 122 This, of course, distinguished Canada from the other British Dominions such as Australia and New Zealand. Another factor explaining Canada’s relatively loose confederation was that the Judicial Committee of the Privy Council in Britain, which served as Canada’s highest court until 1949, interpreted the BNAAct to limit the federal govern ment’s power vis-à-vis the provinces. 123 According to Calabresi, that caselaw has been accepted and built upon by the Supreme Court of Canada, which, to this day, sees one of its key roles as umpire to both separation of powers and federalism cases. 124 Former Prime Minister Pierre Trudeau engineered major changes to the Canadian Constitution, by way of “patriation,” or persuading the U.K. government to have its parliament to pass a series of statutes applicable to Canada that renamed the BNA Act the Canadian Constitution Act, ended 120 Id. 121 Steven G. Calabresi, The Global Rise of Judicial Review Since 1945, 69 Cath. U. L. Rev. 401, 435 (2020). 122 Where Canadians Live: The Concentration of Population, Canada Maps (Apr. 26, 2023), https://www.canadamaps.com/where-canadians-live-the-concentration-of-population/ 123 Miller, supra note 60 at pp. 53-4. 124 Id.

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