Canadian Federalism Doctrine Foundations, Recent Developments, and Future Possibilities.

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Presentation transcript:

Canadian Federalism Doctrine Foundations, Recent Developments, and Future Possibilities

Objectives (1) Provide an overview of federalism doctrines and examine the federalism implications of some interpretive choices. (2) Examine recent developments, in light of those choices. (3) Consider the implications of those developments for a case before the SCC.

One Big Idea Judicial Interpretive Choices Affect the Balance of Federalism.

Parsons v. Citizens Insurance (1896) Which order of government has jurisdiction over insurance contracts? The principle of mutual modification.

Federalism: Balancing in the Text Broadly worded federal power provisions— POGG, Trade & Commerce and Criminal Law. Broadly worded provincial power provisions— Property & Civil Rights + Merely Local Matters

Interpretive Method Bright-line, formal rules Functional standards

Theory of Federalism Exclusive Spheres Overlapping Spheres

Trade and Commerce (early cases) Only interprovincial/international trade and commerce and no incidental effects.

Peace, Order and Good Government (early cases) Only an emergency POGG power.

Trade and Commerce (mid 20 th Century) Interprovincial Trade & Commerce, With Incidental Effects.

General Motors Test (1989) General Regulatory Scheme Continuing Oversight of Administrative Agency Trade in General, Not a Particular Industry Constitutional Inability Practical Inability

POGG (1988) National Concern Branch Test Not an Emergency New Singleness, Distinctiveness and Indivisibility Provincial Inability

Interpretive Doctrines: Paramountcy Impossibility of Dual Compliance. Frustration of Federal Legislative Purposes.

Inter-jurisdictional Immunity “Impairing the Core of a Power” Symmetrical Application

Ancillary Doctrine Degree of Intrusion + Degree of Fit.

In short, POGG, Trade and Commerce, Paramountcy, Inter-jurisdictional Immunity and Ancillary.

Developments in this SCC Term Quebec v. Lacombe + Quebec v. Canadian Owners and Pilots Association Interjurisdictional Immunity, Paramountcy, POGG and Property & Civil Rights/Purely Local Matters

Developments in this SCC Term Reference re: Assisted Human Reproduction Act: The Limits of the Criminal Power

Coming Soon: Securities Regulation Application of – Trade in General, Not a Particular Industry? – Provincial Inability?

Recap (1) An overview of federalism doctrines and of the federalism implications of some interpretive choices. (2) Examine recent developments, in light of those choices. (3) Consider the implications of those developments for a case before the SCC.

One Big Idea/Question Judicial Interpretive Choices Affect the Balance of Federalism. On What Basis Should they Choose?