Constitutional Roundtable with H. Scott Fairley

The David Asper Centre for Constitutional Rights’ Constitutional Roundtables are an annual series of lunchtime discussion forums that provide an opportunity to consider developments in Canadian constitutional theory and practice.  The Constitutional Roundtable series promotes scholarship and aims to make a meaningful contribution to intellectual discourse about Canadian constitutional law.

We are pleased to be hosting H. Scott Fairley (partner at Cambridge LLP) for a lunchtime Constitutional Roundtable on February 4, 2026 about his new book, “Foreign Affairs in the Canadian Constitution” (UBC Press, 2025).

TITLE: The making of a foreign affairs power within the four corners of the written and unwritten Constitution of Canada (some thoughts Foreign Affairs in the Canadian Constitution and why they matter in these uncertain times).

ABSTRACT: This book challenges previously siloed understandings of treaty-making (federal) and treaty implementation (federal or provincial depending on subject matter regardless of the international context) with a view to bringing them together under a single subject as its title suggests. However, it does so, mindful that Canada remains a diverse federal state spread over a vast territory. My account does not seek to drive a cart and a horse through constitutionally allocated provincial powers. What I do say, however, is that the “international” makes the “local” of national interest and importance for purposes of federal competence to act comprehensively for that purpose, both at the executive level and through Parliament as a key part of federal residual powers for the Peace, Order and Good Government of the Nation or POGG for short. Federal trade and commerce cases have also been very helpful in conveying a similarly principled message. There are chapters on both. In this I am perhaps a little ahead of the Supreme Court of Canada on point, but that court is not far behind. We might even go so far as to say that our current government is leading with its chin in this area in seeking new allies to augment or replace our now mercurial neighbour to the south and trying to pull off grand projects in the national interest, in part, to nurture those relationships.

BIO: Scott Fairley, Partner, Cambridge LLP., A.B., LL.B. (Queen’s U. at Kingston), LL.M. (NYU), S.J.D. (Harv.) has a diverse civil litigation and arbitration practice, a significant portion of which involves public law and international law issues. He was lead counsel in bringing a reference case to the Federal Court of Appeal and then to the Supreme Court of Canada which established the current governing test for the commercial activity exception to sovereign immunity under Canada’s State Immunity Act, has acted for private and foreign government clients on sovereign immunity cases and  in domestic Crown immunity cases in provincial jurisdictions within Canada, and has appeared as amicus curiae counsel and as an expert witness in U.S. federal courts the A former academic, Scott has continued to publish widely in the fields of  public and private international and constitutional law.