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Review of Constitutional Studies/Revue D'études Constitutionnelles Review of Constitutional Studies/Revue d’études constitutionnelles Editor-in-Chief Advisory Board Peter Carver Richard Bauman Judith Garber Managing Editor David Schneiderman Patricia Paradis Editorial Assistants Book Review Editor Nicholas Beauchesne Dwight Newman Michael Custer Editorial Board Tasneem Karbani Eric Adams Richard Moran Benjamin Berger Production Hugo Cyr Herb Ratsch, Art Design Printing Inc. Alexandra Dobrowolsky Kiera Ladner Robert Leckey Margot Young Review of Constitutional Studies/Revue d’études constitutionnelles is published twice yearly by the Centre for Constitutional Studies. Th e opinions expressed herein are those of the authors and do not necessarily refl ect the views of the Centre for Constitutional Studies or the editors of Review of Constitutional Studies/Revue d’études constitutionnelles. Subscriptions (Individual or Institutional) Canadian orders: US and other international orders: $63.00 CDN (includes 5% GST) $60.00 US per volume (two issues) per volume (two issues) Payment can be made by cheque, money order, or credit card (Visa or MasterCard). Subscriptions may be invoiced upon request. Send subscription orders to: [email protected], or phone: (780) 492-5681. Indexing Review of Constitutional Studies/ Révue d’études constitutionnelles is indexed in: Index to Canadian Legal Periodical Literature, Index to Canadian Legal Literature, Current Law Index; it is available in Academic Search Complete, CPI.Q., LegalTrac, and HeinOnline. Copyright Canadian Publication Mail Product Registration No. 40064496 Copyright © 2017 978-0-9869365-9-3 Authors may use their own material in other publications provided that the Review is acknowledged as the original place of publication. Th e Centre gratefully acknowledges the continuing fi nancial support of the Alberta Law Foundation. Review of Constitutional Studies/Revue d’études constitutionnelles Th e Review publishes original scholarly works in English or French, from a variety of disciplines, on subjects of constitutional concern. Book reviews and review essays are also welcome. Submissions should be made electronically in Microsoft Word. All article manuscripts are subject to a double-blind peer review process. Th e fi nal decision about publication rests with the Editor-in-Chief. Articles submitted for consideration must not have been previously published or be under review elsewhere. Word Limit 7800–9000 words. Exceptions to this word limit are made in some circumstances. All submissions should include an abstract. Style Sheet Th e offi cial style sheet for Review of Constitutional Studies/Revue d’études constitutionnelles is available at: http://ualawccsprod.srv.ualberta.ca/images/documents/ Review-style-sheet-for-submissions.pdf Format Th e text of all manuscripts should be doublespaced, with margins of at least 1 inch on all sides. Citations Follow the Canadian Uniform Guide to Legal Citation (McGill Guide), 8th ed., using footnotes rather than endnotes. Spelling Follow the Canadian Oxford Dictionary for English spelling; for French spelling, follow Multidictionnaire de la langue française, 5e éd. Usage and Style For submissions in English, follow Th e Chicago Manual of Style, 16th ed.; for submissions in French, follow Multidictionnaire de la langue française, 5e éd. Manuscripts that do not conform to the fundamentals of this journal’s style may be returned to the authors for revision. Article Submissions Book Review Submissions Peter Carver, Professor Dwight Newman, Professor Editor-in-Chief College of Law Faculty of Law, Room 443 University of Saskatchewan University of Alberta 15 Campus Drive Edmonton, AB T6G 2H5 Saskatoon, SK S7N 5A6 [email protected] [email protected] Phone: (780) 492-3313 Phone: (306) 966-4847 VOLUMEreview 22 • NUMBER 2 • SEPTEMBER, 2017 Table of Contents Articles 143 All I Really Needed to Know About Federalism, I Learned from Insurance Law Barbara Billingsley 171 Th e Protective Function of the Constitutional Amending Formula Sébastien Grammond 211 Surfi ng the Surveillance Wave: Online Privacy, Freedom of Expression and the Th reat of National Security David M. Tortell 239 Baxter Family Competition on Federalism Rachel and Colin Baxter 241 Exploring the Principle of (Federal) Solidarity Erika Arban 261 Spending Power, Social Policy, and the Principle of Subsidiarity Éléonore Gauthier 281 BOOK REVIEW Th e Right Relationship: Reimagining the Implementation of the Historical Treaties John Borrows & Michael Coyle, eds (Toronto: University of Toronto Press, 2017) Katherine Starks All I Really Needed to Know About Federalism, I Learned from Insurance Law Barbara Billingsley* Canadian law is commonly learned through Le droit canadien s’apprend généralement the examination of court decisions. Th is “case par l’examen de décisions judiciaires. Cette study” technique is intended to demonstrate not technique « d’étude de cas » est destinée à only the prevailing principles of law but also démontrer non seulement les principes de how these principles have developed over time. droit actuels mais aussi comment ces principes Taking this approach a step further, this paper se sont développés au fi l du temps. Poussant demonstrates that the governing principles of cette approche un peu plus loin, l’auteur de Canadian constitutional law pertaining to cet article démontre qu’on peut découvrir les federalism (i.e. the division of powers) can principes directeurs du droit constitutionnel be discovered by studying Canadian court canadien en matière de fédéralisme (c.-à-d. decisions on a discreet topic: namely, insurance le partage des pouvoirs) en examinant les law. While reviewing the fundamental décisions judiciaires canadiennes portant sur principles of federalism analysis, this paper un sujet discret, à savoir le droit des assurances. illustrates the important role that insurance En examinant les principes fondamentaux de has and continues to play as a focal point l’analyse du fédéralisme, l’auteur illustre le rôle for developing constitutional law principles; important des assurances, qu’elles continuent de reminds readers that matters of public law jouer, comme point central dans l’élaboration are often decided on the basis of private law de principes de droit constitutionnel; il rappelle disputes; and examines the approach that aux lecteurs et lectrices que les questions de Canadian courts have taken to federalism droit public sont souvent décidées à partir de issues where the relevant subject matter (i.e. litiges de droit privé; et il examine l’approche insurance) is not specifi cally itemized in the prise par les tribunaux canadiens par rapport written text of the constitution. aux questions de fédéralisme là où la matière pertinente (c.-à-d. les assurances) n’est pas expressément détaillée dans le texte de la constitution. * Professor, University of Alberta Faculty of Law. I am grateful to Haley Edmonds, who provided exceptional research assistance for this paper while she was a JD student at the University of Alberta Faculty of Law. Haley’s work was generously supported by the Roger S. Smith Undergraduate Student Researcher Award, jointly funded by the University of Alberta Faculty of Law and the University of Alberta. I am also grateful to the University of Alberta Faculty of Law, and in particular to the Dean’s Special Fund for Research and Personal Development, for supporting my presentation of this paper at the Constitution 150 conference, Th e Canadian Confederation: Past, Present & Future, held at l’Université de Montréal, May 15-18, 2017. 143 All I Really Needed to Know About Federalism, I Learned from Insurance Law I. Introduction In 1988, Robert Fulghum published his bestselling book, All I Really Needed to Know … I Learned in Kindergarten. In this book, Fulghum contends that the cardinal rules for success in life can be gleaned from the fundamental lessons taught in a single, elementary institution: namely, kindergarten. Adopting, and adapting, Fulghum’s approach (and his catchy title), the main objective of this paper is to demonstrate how the basic principles of Canadian constitutional law regarding federalism — that is, the fundamental legal doctrines pertaining to the division of legislative powers between the federal and provincial govern- ments — can be gleaned solely from court decisions concerning the provision and regulation of insurance. Readers may appropriately wonder about the relevance of this objective. One hundred and fi fty years after Confederation, the central elements of Canadian law regarding division of powers analysis are well-established. One might therefore ask why it is important to look at these basic principles through the lens of insurance law. My answer to this question is threefold. First, the signifi cant role that insurance law cases have played in developing fundamental constitutional law doctrine merits recognition. Insurance law cases depict the evolution of judicial thinking about the division of powers from Confederation to the present day. Moreover, insurance remains an important subject for fed- eralism analysis today. For example, questions have been raised about the con- stitutionality of the recently passed federal Genetic Non-Discrimination Act, which, among other things, prohibits a party from withdrawing from or refus- ing to enter into a contract with an individual who refuses to undergo genetic testing or who refuses to release the results of genetic testing.1 Although not aimed specifi cally at insurance companies, this prohibition applies to insurance companies.
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