Les aventures de la Cour suprême du Canada au pays de la Grundnorm

Abstract

This article evaluates the Supreme Court of Canada’s constitutional action in light of Hans Kelsen’s positivist theory of law. Through its interpretive and sanctioning work, the Supreme Court goes beyond the negative legislator role assigned to constitutional courts by Kelsen. The Court’s use of the Constitution’s underlying principles and the inversion of rights into values are also elements that exceed the Kelsenian conception of constitutional justice. In doing so, the Supreme Court of Canada can, according to Kelsen’s positivist theory of law, be characterized as a legislative and philosophical court. Through its constitutional case law, the Supreme Court of Canada infuses substance into the basic norm, especially when she renders it explicit with the principles underlying the Constitution and the values underlying Charter rights.