1. Federalism and the judiciary Nathalie Des Rosiers Dean, Civil Law University of Ottawa, Canada

2. Outline A - The characteristics of a good « final arbiter » of juridictional challenges Legitimacy Impartiality Appropriate procedural safeguards B – The issues facing a good final arbiter of juridictional challenges Complexity Certainty vs flexibility Final concluding remarks : rights disputes vs. Juridictional disputes

3. Why are we concerned about the role of the judiciary in federalism? In a federation, there will be a need for a final arbiter in a dispute over which level of government has the power to act in a particular case- The judiciary is appropriate choice for this final arbiter provided that it has the following characterisctics: legitimacy, impartiliaty and operates with procedural and legal guarantees to ensure that it can and will continue act with these qualities.

4. Legitimacy The primary role of a tribunal is to be the Guardian of the Constitution; to be in a position to the fiduciary of all the hopes, the compromises of the different groups that came together to unite in a federal state. People and government must respect the decisions of the courts.

5. Legitimacy Process of appointment must be seen to be legitimate : important characteristic in order to add « credibility » to the process. In some cases, regional representation on the final court was seen as necessary – –- ex. Québec 3 judges / women’s represntation / all regions are represented –Impeccable Reputation of the judges appointed (discipline ensured by the judges themselves s a group) –Not only at the upper level but throughout : independence, salary and security of tenure. –Fostering a sense of high responsibility

6. Impartiality Impartiality is what confers legitimacy However, impartiality is not to have no opinions or no identity but rather to have an open mind to Hear and understand the arguments of all parties.

7. Legitimacy is earned Responsiblity of the government and of the court to reflect constantly on the maintaining legitimacy Only way to ensure respect for the laws.

8. Procedural guarantees Different forms of juridictional adjudication –a citizen debates whether the government ( state or federal) had the jurisdiction to enact a particular statute –Governments ( state or federal) want to know whether their legislation or another government’s is legitimate ( reference) –Both types of juridictional adjudication demand procedural safeguards

9. The procedural aspects Notice to the Attorney generals of all provinces and the federal government Possibility for other groups to intervene in the dispute

10. The process Pleadings (written arguments, evidence) Sharing in advance of the arguments so parties can prepare and react Hearing that is free of violence and respected as process

11. The decision Must acknowledge the positions of the parties – they have to feel they have been heard Certainty vs flexibility –Courts can frame the dispute for parties to negotiate better –Principles of federalism must be explained –Cours as teachers –Must be an explanation, –Tension between constitution as a living document ( adapt to the circumstances) and reflecting the original deal

12. Complexity Complex issues as problems cannot be addressed without cooperation of all actors; All levels may be empowered to address part of the issue, there may be overlap (a constitution usually provides a rule for such conflicts) but courts can be asked to determine whether there is a real conflict

13. Conclusion Important role because even if both levels of government must discuss, co-operate and share information, the possibility of having a plce to resolve disputes creates a helpful framework; Role of interpreting a constitution ( federalism and human rights) in constantly changing contexts is the training of courts. That is what they do