Judging federalism : a full circle account of the Supreme Court of Canada's post-Charter federalism jurisprudence

In the post-Charter era, Canada’s national high court has developed a distinct political philosophy that guides the manner in which they dispose of federalism disputes. Although adherents to the “pendulum theory” of judicial review believe that federalism “balance” is created and maintained through a series of offsetting federal-provincial “wins” and “losses,” I suggest that the Supreme Court’s tolerance and embrace of legislative concurrency flows out of a deeper, conscious desire to facilitate intergovernmental relations in Canada. This approach is implicit in both the doctrines they apply and the policy statements they make. The Court is reluctant to declare laws invalid and avoids application of what they refer to as the “constraining” interjurisdictional immunity and paramountcy doctrines. The Supreme Court’s decision-making philosophy in federalism cases is not value-free, however. While the Supreme Court’s post-Charter preference for “balance” and “flexibility” reinforces the practice of intergovernmental collaboration—a political convention—it simultaneously undermines the political ideals the Fathers of Confederation intended federalism to serve. The jurisprudence of “restraint” suppresses the civic virtues that naturally emanate from a classical, originalist reading of the division of powers. In Judging Federalism I seek to bridge the gap by attempting to understand the Supreme Court’s federalism case law vis-à-vis the moral underpinnings of our Constitution.

Authors

• Hastings, Kalen Michael
• University of Lethbridge. Faculty of Arts and Science

• Supreme Court of Canada
• post-Charter
• legislative concurrency
• division of powers
• federalism jurisprudence
• Canada. Supreme Court -- Decision making
• Canada. Canadian Charter of Rights and Freedoms
• Constitutional law -- Canada
• Dissertations, Academic

Identifier

hdl:10133/3568

OAI identifier oai:identifier

oai:opus.uleth.ca:10133/3568