This article examines the Canadian Charter with reference to “the British connection” and “the Americanization thesis.” It also attempts to demonstrate the importance of Montesquieu's The Spirit of the Laws in addressing these issues. Pierre Trudeau insisted that a Charter of Human Rights would provide Canadians with a new beginning and settle difficult questions about the Canadian identity. His critics said that fundamental rights were already protected because Canada had a constitution similar in principle to the United Kingdom, and that the proposed Charter was a step in the Americanization of Canada. What a Montesquieuean analysis helps to identify are significant limitations in both “the British connection” account and “the Americanization thesis.” And, by the avoiding the abstract universalism of Trudeau's “inalienable rights” theorizing and Dworkin's “rights as trumps” regime, a Montesquieuean analysis also helps to demonstrate the distinctiveness of Canadian constitutionalism from Confederation to the Charter.

This paper re-examines the issue of hate propaganda under the Canadian Charter of Rights and the US Bill of Rights. It also reconsiders the significance of Locke's Letter Concerning Toleration. What the paper attempts to show is that one strand of Locke's famous argument supports First Amendment exceptionalism and Justice Holmes's dissenting opinions in Abrams and Schwimmer, but another strand buttresses the Keegstra and Butler decisions and the Report of the Special Committee on Hate Propaganda in Canada. In the contemporary context of the debate over free speech and its limits, Lockean toleration has communitarian as well as libertarian dimensions, and the control of hate propaganda in Canada's multicultural and multinational polity becomes more clearly an important part of the liberal tradition.

Arguments for tolerance, and criticisms of it, regularly produce paradoxes and other kinds of conceptual difficulty. We seek to show that these paradoxes are unnecessary, and that they arise from misconceptions of what a theory of tolerance is required to justify. Imagined as a “virtue,” tolerance is simply confused with other concepts; understood in the framework of a theory of “rights,” the element of choice essential to the concept is wholly neglected; explaining the concept in terms of some theory of fallibilism leads to a confusion of pragmatic with cognitive standards. Moreover, such mistaken approaches often arise from an equation of tolerance with liberalism or pluralism: the authors maintain, however, that justifications of tolerance do not rest on a commitment to any political theory or ideology, but imply only a recognition of the political situation itself.

The Supreme Court's decisions on constitutional amendment made possible and then sanctioned a political compromise which conflicts with the logic of the only provision of the BNA Act dealing with amendments to the division of powers. The implications of section 94 have been overlooked partly because judges are ill-disposed to arguments based upon the structure of the BNA Act, and partly because of Frank Scott's misleading essay on the subject. Scott's centralist interpretation of section 94 is untenable, largely because that section does not restrict provincial sovereignty or federalism but gives constitutional recognition to them. Section 94 also implies a formal amending procedure of unanimity: neither unilateral action by the federal Parliament nor substantial provincial consent has any application to the division of powers. Since the centralist interpretation of the Canadian constitution cannot be reconciled with a significant provision of the BNA Act, a conception of Canadian federalism is required which gives greater recognition to the constitutional autonomy of the provinces.

This study explores two conceptions of justice and their radically different implications for mandatory retirement. The author argues that the case against mandatory retirement rests on a conception of justice which ignores the fact that a society is composed of different generations. Yet the neglect of this seemingly trivial fact leads to serious problems of intergenerational justice; and the note considers both how these problems can be accommodated within a theory of liberal justice, and the implications of that theory for mandatory retirement. The note then considers which of these two conceptions of justice is embodied in the Canadian Charter of Rights and Freedoms. It argues that to ignore considerations of intergenerational justice in mandatory retirement cases amounts to a denial of the equal protection and the equal benefit of the law guaranteed by the Charter.

Federalism is commonly described, in Canada and elsewhere, as a political expedient, or a constitutional arrangement, or a sociological characteristic of some societies. Federalism can also be a moral experiment that seeks to realize a way of life. Canada is an instance of such an experiment. Moreover, the moral value that grounds the Canadian experiment is not freedom or diversity, but fraternity. Federalism as fraternity has its beginnings in Cartier's vision of Confederation, and provides a vision of federalism that can sustain Canadians in their times of trouble.

Professor Drummond has raised so many objections to my study of mandatory retirement that I cannot reply to all of them without taxing the patience of readers of this JOURNAL. But one of his criticisms articulates a conception of liberal justice under the Charter, and it is to this important issue that I shall confine my reply.

The Trudeau-Lévesque debate has created a political deadlock that threatens not only Confederation but federalism as well. At the core of the political deadlock is a philosophical dispute about language, in which liberty is set against community, and particularism becomes opposed to universalism. Not only does the Trudeau-Lévesque deadlock presuppose an antagonism between basic values that is difficult to justify, but it has also diverted attention from important dimensions of Canadian federalism. An exploration of the Trudeau-Lévesque debate provides insights as to how the deadlock can be dissolved, thereby facilitating the re-imagination of Confederation.