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The Supreme Court of Canada has affirmed that legislatures, including Parliament, are bound by the Constitution - even beyond the explicit text of the Charter and the British North America Act. Yet legislatures are increasingly asserting authority through rights-limiting laws and the use of the notwithstanding clause. This tension between parliamentary sovereignty and constitutional rights exposes a dangerous misconception: that Canadian legislators can abolish all of our fundamental rights with ordinary law.
By Authority of Parliament demonstrates that legislators do not have this power, and more importantly, they never did. Drawing on rich historical analysis, Ryan Alford traces the transformation of parliamentary sovereignty into an exaggerated parliamentary supremacy and uses habeas corpus to illustrate constitutional limits that governed in England, the United Kingdom, and Canada. Absolute rights and sovereignty appear to conflict only when sovereignty is redefined as supremacy, a shift justified by the influential constitutional theorist A.V. Dicey. As UK courts have recently turned away from this paradigm, Alford argues that Canadian courts should be equally forthright in recognizing that the Diceyan model has never described the Canadian constitutional order.
Essential reading for students, lawyers, and judges, this timely book will interest all those engaged in Canadian legal history and constitutional law.
