In an era where federal-provincial tensions over Canada’s international commitments dominate headlines, a clear understanding of our nation’s foreign affairs powers has never been more crucial. Foreign Affairs in the Canadian Constitution analyzes how Canada’s foreign affairs power has been applied, and how it is defined within the law.

Drawing on case studies from federal-provincial flashpoints over free trade in the 1980s to the showdown over federal climate change legislation, Scott Fairley bridges the silos of federal executive power cloaked in the royal prerogative and constitutionally divided federal and provincial legislative powers to define an integrated understanding of foreign affairs within Canada’s constitution. He also highlights this Canadian historical anomaly and makes the case that it has actually been resolved through constitutional evolution, governmental practice, and judicial interpretation which have firmly established foreign affairs as a constitutionally supported field of federal jurisdiction.

This rigorously argued account allows us a better understanding of Canada as a unified nation-state within the community of nations.

Foreign Affairs in the Canadian Constitution is a meticulously argued case for having the Canadian foreign affairs power rest firmly within the federal sphere.

Preface

Introduction

1 From Combative to Cooperative Federalism on the International Stage

2 A History of Foreign Affairs For and By Canada

3 Comparative Perspectives on the Canadian Anomaly among Federal Systems

4 Progress to a New Constitutional Status Quo

5 Critical Imperatives in and from International Law

6 International Law in the Law of Canada

7 Trade and Commerce: A Constitutionally Enumerated Companion to Foreign Affairs

8 Maturation of the Judicial Status Quo in Division-of-Powers Jurisprudence

9 Treaty Legislation as Such

10 A Foreign Affairs Power for the Nation

Notes; Selected Bibliography; Index

In an era where federal-provincial tensions over Canada’s international commitments dominate headlines, a clear understanding of our nation’s foreign affairs powers has never been more crucial. Foreign Affairs in the Canadian Constitution analyzes how Canada’s foreign affairs power has been applied, and how it is defined within the law.

Drawing on case studies from federal-provincial flashpoints over free trade in the 1980s to the showdown in the Supreme Court of Canada over federal climate change legislation, Scott Fairley bridges the silos of federal executive power cloaked in the royal prerogative and constitutionally divided federal and provincial legislative powers to define an integrated understanding of foreign affairs within Canada’s constitution. He also highlights this Canadian historical anomaly among federal states through comparative analyses of analogous countries, specifically Australia and the United States. He then makes the case that this anomaly has actually been resolved through constitutional evolution, governmental practice, and judicial interpretation which have firmly established foreign affairs as a constitutionally supported field of federal jurisdiction.

This rigorously argued account enables a better understanding of Canada as a unified nation-state within the community of nations.

Foreign Affairs in the Canadian Constitution is the authoritative book on the history and current state of foreign affairs law for policy-makers and public servants, practising private-sector and government lawyers, and scholars of Canadian law, history, and political science.

H. Scott Fairley is a partner at Cambridge LLP, Toronto, with extensive experience litigating constitutional and international issues before all levels of Canadian courts, including the Supreme Court of Canada. He was formerly a tenured professor at the University of Windsor, and served as constitutional counsel to the Ontario Ministry of the Attorney General before entering private practice. Dr. Fairley holds two advanced degrees in law, an LLM from New York University and an SJD from Harvard University. A past president of the Canadian Council on International Law, he has lectured widely and published over seventy articles, comments, and chapters in books. He is also the principal co-author of International Law, a title within the Canadian Encyclopedic Digest.

With feet in both scholarship and practice, Fairley has a lengthy and esteemed record as an academic lawyer. As such, his first-hand experience with many of the developments makes Foreign Affairs in the Canadian Constitution a rich and readable account of a complex subject.

Fairley has provided a rich, historical, constitutional, and legal account of the evolution of the exercise of foreign affairs powers in their fullest sense. Few others in Canada could have written as comprehensively on this subject.