The Compact Theory in the Interpretation of the Constitution
La théorie du pacte dans l’interprétation de la constitution
The compact theory of the Canadian confederation is the idea that the constitution is the product of a political agreement (or « compact ») among the country’s constitutive parts. The theory has historically been applied to analyze confederation as a compact of founding provinces or, alternatively, as a compact between the English and the French. It may also be used to explain how treaties with the indigenous peoples contribute to buttress the foundations of the Canadian constitution. Although the theory has been widely criticized, this article shows how the theory has recently been used by the Supreme Court of Canada to explain the origins of certain parts of the constitution and to guide its interpretation, in particular in cases involving constitutional amendment and indigenous rights. It then discusses how the Court dealt with instances where one party’s consent to a foundational compact was vitiated or altogether lacking, and whether the Court’s use of compact theory gives rise to the objection that it is an « originalist » method of interpreting the constitution.