文章基本信息

标题：Incorporating Common Law into the Constitution of Canada: Egale v. Canada and the Status of Marriage
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作者：Walters, Mark D.
期刊名称：Osgoode Hall Law Journal
印刷版ISSN：0030-6185
出版年度：2003
卷号：41
期号：1
页码：75-113
出版社：Osgoode Hall Law School of York University
摘要：Recent decisions of the Supreme Court of Canada raise complicated questions about the relationship between the common law and the Constitution. In particular, a distinction may now be drawn between constitutional common law concepts that are "incorporated" by the Constitution and those that are "free-standing" or "text-emergent." The author explores the significance of these distinctions by examining the argument, accepted in the recent case of EGALE V. Canada, that the reference to marriage in section 91(26) of the Constitution serves to incorporate the common law definition of marriage into the Constitution, thus preventing federal or provincial legislation from legalizing same-sex marriages.