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Review of Constitutional Studies Revue D'études Constitutionnelles Review of Constitutional Studies Revue d’études constitutionnelles Centre for Constitutional Studies Centre d’études constitutionnelles Volume 15, Number 1, 2010 Review of Constitutional Studies/ Revue d’études constitutionnelles Managing Editor Advisory Board Patricia Paradis Richard Bauman Judy Garber Book Review Editor David Schneiderman Benjamin Berger Student Editors Editorial Board Anna Kuranicheva Eric Adams Jill Gamez Alexandra Dobrowolsky Danielle Wilson Donald Ipperciel Robert Leckey Production Dwight Newman Kimberly Hay Steve Patten Margot Young Review of Constitutional Studies/ Revue d’études constitutionnelles is published twice yearly by the Centre for Constitutional Studies. The opinions expressed herein are those of the authors and do not necessarily reflect the views of the Centre for Constitutional Studies or the editors of Review of Constitutional Studies/Revue d’études constitutionnelles. Subscriptions (Individual or Institutional) Canadian orders: US and other international orders: $60.90 CDN (includes 5% GST) $58.00 US per volume (two issues) per volume (two issues) Payment can be made by cheque, money order, or credit card (Visa or MasterCard). Subscriptions may be invoiced upon request. Send subscription orders to: [email protected], or phone: (780) 492-5681. Review of Constitutional Studies/ Révue d’études constitutionnelles is indexed in: Index to Canadian Legal Periodical Literature, Index to Canadian Legal Literature, Current Law Index; it is available in Academic Search Complete, CPI.Q., LegalTrac, and HeinOnline. Canadian Publication Mail Product Registration No. 40064496 Copyright © 2010 ISBN 978-0-9811751-6-4 Authors may use their own material in other publications provided that the Review is acknowledged as the original place of publication. The Centre gratefully acknowledges the continuing financial support of the Alberta Law Foundation. Review of Constitutional Studies/ Revue d’études constitutionnelles Review publishes original scholarly works, in English or French, on subjects of constitutional concern, in addition to book reviews. We welcome submissions on relevant topics from any discipline. All article manuscripts are subject to a double-blind peer review process. The final decision about publication rests with the Managing Editor. Articles submitted for consideration must not have been previously published or be under review elsewhere. The official style sheet for Review of Constitutional Studies/Revue d’études constitutionnelles is available at: www.law.ualberta.ca/centres/ccs/Journals/Submissions.php Format The text of all manuscripts should be doublespaced, with margins of at least 1 inch on all sides. Citations Follow the Canadian Uniform Guide to Legal Citation (McGill Guide), 7th ed., using footnotes rather than endnotes. Spelling Follow the Canadian Oxford Dictionary for English spelling; for French spelling, follow Multidictionnaire de la langue française, 4e éd. Usage and Style For submissions in English, follow The Chicago Manual of Style, 16th ed.; for submissions in French, follow Multidictionnaire de la langue française, 4e éd. Manuscripts that do not conform to the fundamentals of this journal’s style may be returned to the authors for revision. Article Submissions Book Review Submissions For submissions information, For suggestions or submissions contact the Managing Editor: contact the Book Review Editor: Patricia Paradis, Acting Executive Director Professor Benjamin L. Berger Centre for Constitutional Studies, Faculty of Law, 448E Law Centre, University of Victoria, University of Alberta PO Box 2400, Stn. CSC Edmonton, AB T6G 2H5 Victoria, BC V8W 3H7 [email protected] [email protected] Phone: (780) 492-8281 Phone: (250) 721-8163 VOLUME 15 • NUMBER 1 • OCTOBER, 2010 review Table of Contents The 20th Annual McDonald Lecture in Constitutional Studies 1 What Canadian Federalism Means in Québec Guy Laforest Articles 35 The Bouchard-Taylor Report on Cultural and Religious Accommodation: Multiculturalism by Any Other Name? Luc B. Tremblay 77 A Strategic Approach to Judicial Legitimacy: Supreme Court of Canada and the Marshall Case Vuk Radmilovic 117 Restraint and Proliferation in Criminal Law Jula Hughes 149 Boumediene and the Meanings of Separation of Powers in U.S. Emergency Law Emily Hartz and Dimitrios Kyritsis Book Review 177 Self-Defeating and Self-Transforming Dimensions of Proportionality Analysis: A Review Essay on: James B. Kelly and Christopher P. Manfredi, eds. Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms, Vancouver UBC Press, 2009. Dwight Newman The 20Th AnnuAl McDonAlD lecTure in consTiTuTionAl sTuDies What Canadian Federalism Means in Québec Guy Laforest* 1. Introduction Georges-Henri Lévesque, the founder of the Faculté des Sciences Sociales at Université Laval where I teach, deeply believed that universities are at the heart of a pluralistic and open society, and that they require both the liberty of culture and a culture of liberty. The McDonald Constitutional Lecture at the Centre for Constitutional Studies, Faculty of Law, University of Alberta, belongs to this great humanistic heritage. I am grateful for the privilege of having delivered the lecture in 2008 and very pleased to honour the memory of the late David C. McDonald. As a teacher, in my instructions to students as they prepare their term papers, I often remind them that they should never abdicate their judgment to the authority of one single source. Even in the worst of circumstances, it is much better to articulate one’s own ideas and convictions than to surrender to a single book or article. In the same spirit, I would urge readers not to rely solely on my pronouncements about the meaning of federalism in Québec. In truth, the title of this lecture should include a question mark, and its content will illustrate, I hope, the richness and diversity of current Québec thinking on the subject. There are many ways to approach the topic at hand. The path I have chosen reflects my academic identity: I am a political theorist and an intellectual historian, hidden in a political science department, who is keenly interested in the relationship between philosophy and constitutional law in Canada. * Guy Laforest teaches Political Theory and Canadian Intellectual History in the Department of Political Science, Université Laval. 1 What Canadian Federalism Means in Québec As a reader of Gadamer and a former student of Charles Taylor, I shall start with some interpretive or hermeneutical precautions. Beyond the un- deniable relevance of current reflections about the theory of federalism in its most general aspects, the real question of this lecture deals with the contem- porary meaning of Canadian federalism in Québec. This question arises fol- lowing the celebrations surrounding the 400th anniversary of the founding of Québec City—an anniversary which can be interpreted as marking the found- ing of Canada. Constitutional experts are all too aware that after decades of wide-ranging discussions and reform projects about the fundamental law of the land, Canada now suffers from a broad constitutional fatigue.1 The idea of constitutional reform appears dated, passé, rendered almost unattainable through the legal and political rigidities surrounding the amending formula. Other issues now dominate the political agenda: the war in Afghanistan, the global environment, the security of rights in a multicultural society, economic challenges. In Québec, something else must be added. The dream of full political sovereignty, which has occupied so many people and mobilized so much en- ergy in the past four decades, appears more and more improbable as time goes on. The idea of holding a referendum on sovereignty has even disappeared from the platform of the Parti Québécois. Two of our most prominent public intellectuals, Daniel Jacques and Alain Dubuc, a philosopher and a journalist respectively, have recently written about the consequences of granting contin- ued prominence to the ideal of sovereignty while its realization appears ever more unlikely. They argue that it encourages a spirit of bad faith in Canadian politics—for instance, witness the contradictions of the Bloc Québécois and how this party is perceived elsewhere. This ideal also fosters an attitude of self- contempt in younger generations—why be proud of a self-proclaimed nation that just cannot realize the highest goal it seems to value? Finally, it inculcates a quasi-surreal aspect to public debates, yielding to arcane idealism rather than lucidly and responsibly facing the challenges of current times.2 So, in addition to the constitutional fatigue shared with the rest of Canada, Québec now seems to be characterized by a kind of political exhaustion. Full 1 Roger Gibbins, “Constitutional Politics,” in James Bickerton and Alain-G. Gagnon, eds., Canadian Politics, 5th ed. (Peterborough, ON: Broadview Press, 2009) 97 at 113. 2 Alain Dubuc, À mes amis souverainistes (Montréal: Éditions Voix Parallèles, 2008) [Dubuc]; Daniel Jacques, La fatigue politique du Québec français (Montréal: Boréal, 2007); Guy Laforest, “The Internal Exile of Quebecers in the Canada of the Charter,” in James B. Kelly and Christopher P. Manfredi, eds., Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms (Vancouver: University of British Columbia Press, 2009) 251 [Laforest]. 2 Volume 15, Issue 1, 2010 Guy Laforest nation-state status eludes sovereigntists, while federalists remain unable to get the kind
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