Judging federalism : a full circle account of the Supreme Court of Canada's post-Charter federalism jurisprudence
Loading...
Date
2013
Authors
Hastings, Kalen Michael
University of Lethbridge. Faculty of Arts and Science
Journal Title
Journal ISSN
Volume Title
Publisher
Lethbridge, Alta. : University of Lethbridge, Dept. of Political Science
Abstract
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.
Description
Keywords
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