Basic Structure Doctrine in Canada?

The recent decision of the Supreme Court of Canada makes one wonder whether there is any other example of more complex and contradictory discourse than the question concerning the nature and limits of constitutional constituent power!

- Upendra Baci

CONTRARY to a public adage, good news does not always travel fast! The doctrine of basic structure and essential features has travelled well, ever since it was judicially invented and articulated, in Kesavananda Bharati (1973), and its magnificent decisional progeny, has extended to South Asia, and the New Commonwealth of Nations.

The recent decision of the Supreme Court of Canada in City of Toronto vs Attorney General, Ontario (appeal heard March 16, 2021, judgment made on October 1, 2021) marks a somewhat fractured beginning. In a deeply divided reasoning and result, Justices Abella, Karakatsanis, Martin, and Kasirer JJ. disagreed with the joint opinion of Chief Justice Wagner and Brown J. (with Moldaver, Côté and Rowe JJ. concurring).

The judicial disagreement will not surprise Indian readers accustomed to a riot of meanings of prolix majority, partial concurring opinions and some dissentient judicial discourse. But the expedition with which the case was heard and decided surely will; and so, will the brevity of decisional text on so important a matter. It is a 186-paragraph decision, with the majority writing 85 and the dissent writing the rest. It shows that it is both possible and desirable to write in a succinct manner even on so complicated a matter. One wonders whether there is any other example of more complex and contradictory discourse than the question concerning the nature and limits of constitutional constituent power!

Although, it was a wafer-thin majority (a 5-4 decision), it would be wrong to characterize it as a majority/minority discourse all the way.