Judging the Limits of Cooperative Federalism

I have often wondered whether the history of Canadian constitutional law might best be taught by traversing a footbridge of metaphors. In the “Two Row Wampum” of treaty relations, the “compact” of Confederation, the “watertight compartments” and “balance” of the division of powers, the “living tree” of the Canadian Charter of Rights and Freedoms, and the “architecture” of our parliamentary structures, Canada’s Constitution has found expression in constructs of the imagination as much as commands of the text. Discerning meaning from abstract constitutional provisions invariably requires a turn to external principles and ideas to guide interpretation and to shape a larger constitutional story of purpose. Metaphors, norms, unwritten principles and narratives will always play a crucial role in constructing meaning in Canadian constitutional law. The question is not should courts turn to constitutional metaphors to guide constitutional interpretation —they will and must as a function of the interpretive role demanded of them —but rather what is the appropriate use of such metaphors in constitutional adjudication