A Problem for Canadian Federalism
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
The Meaning of Canadian Federalism in Québec: Critical Reflections
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Revistes Catalanes amb Accés Obert The Meaning of Canadian federalisM in QuébeC: CriTiCal refleCTions guy laforest Professor of Political Science at the Laval University, Québec SUMMARY: 1. Introdution. – 2. Interpretive context. – 3. Contemporary trends and scholarship, critical reflections. – Conclusion. – Bibliography. – Abstract-Resum-Re- sumen. 1. Introduction As a teacher, in my instructions to students as they prepare their term papers, I often remind them that they should never abdicate their judgment to the authority of one single source. In the worst of circum- stances, it is much better to articulate one’s own ideas and convictions than to surrender to one single book or article. In the same spirit, I would urge readers not to rely solely on my pronouncements about the meaning of federalism in Québec. In truth, the title of this essay should include a question mark, and its content will illustrate, I hope, the richness and diversity of current Québec thinking on the subject. There are many ways as well to approach the topic at hand. The path I shall choose will reflect my academic identity: I am a political theorist and an intellectual historian, keenly interested about the relationship between philosophy and constitutional law in Canada, hidden in a political science department. As a reader of Gadamer and a former student of Charles Taylor, I shall start with some interpretive or herme- neutical precautions. Beyond the undeniable relevance of current re- flections about the theory of federalism in its most general aspects, the real question of this essay deals with the contemporary meaning of Canadian federalism in Québec. -
COVID's Collateral Contagion
June 2020 COVID’s Collateral Contagion: Why Faking Parliament is No Way to Govern in a Crisis Christian Leuprecht The COVID-19 epidemic is the greatest test for the maintenance of Canada’s democratic constitutional order in at least 50 years, certainly since the October crisis of 1970. It is also a bellwether for the way the Canadian state manages risk. Risks that stem from globalization have a common denominator: by definition, no state can manage them alone. However, citizens still expect their state to act. Confronted with dire predictions of immi- nent Armageddon, politicians invoke largely performative measures to signal to citizens that they are acting – to manage a risk that is largely beyond their control. Managing risk has become to individual citizens the essence of the modern welfare state: unemployment insur- ance, health care insurance, mortgage insurance, etc. Such is the essence of “risk society”: the expectations by citizens that the state will manage risks, many of which the state cannot control, such as a global pandemic. Paradoxically, the less control and certainty the state has over a risk that is perceived as existential, the more heavy-handed is its approach. Precisely because of the threatening environment in which it exists and because it is shut out of many international organizations, Taiwan was well prepared for the pandemic and its reaction was measured. By contrast, much of the rest of the democratic world was ill-prepared, which explains the heavy-handed measures taken by many of these countries, including Canada. The author of this document has worked independently and is solely responsible for the views presented here. -
Insights from Canada for American Constitutional Federalism Stephen F
Penn State Law eLibrary Journal Articles Faculty Works 2014 Insights from Canada for American Constitutional Federalism Stephen F. Ross Penn State Law Follow this and additional works at: http://elibrary.law.psu.edu/fac_works Part of the Comparative and Foreign Law Commons, and the Constitutional Law Commons Recommended Citation Stephen F. Ross, Insights from Canada for American Constitutional Federalism, 16 U. Pa. J. Const. L. 891 (2014). This Article is brought to you for free and open access by the Faculty Works at Penn State Law eLibrary. It has been accepted for inclusion in Journal Articles by an authorized administrator of Penn State Law eLibrary. For more information, please contact [email protected]. ARTICLES INSIGHTS FROM CANADA FOR AMERICAN CONSTITUTIONAL FEDERALISM Stephen F Ross* INTRODUCTION National Federation of Independent Business v. Sebelius' has again fo- cused widespread public attention on the role of the United States Supreme Court as an active arbiter of the balance of power between the federal government and the states. This has been an important and controversial topic throughout American as well as Canadian constitutional history, raising related questions of constitutional the- ory for a federalist republic: Whatjustifies unelected judges interfer- ing with the ordinary political process with regard to federalism ques- tions? Can courts create judicially manageable doctrines to police federalism, with anything more than the raw policy preferences of five justices as to whether a particular legislative issue is -
Interjurisdictional Immunity in Canadian Federalism
INTERJURISDICTIONAL IMMUNITY IN CANADIAN FEDERALISM DALE GIBSON* Winnipeg Introduction There are eleven different governments in Canada exercising a measure of constitutional sovereignty : ten provincial and one federal. Each has a distinct legal system. Each sometimes engages in activities which in one way or another have ramifications within the boundaries of the others. In such situations it is important to know the extent to which the laws of one government are legally binding on the other. A closely related problem, which arises even more frequently than that of directly controlling government con- duct, is the extent to which government "instrumentalities" (cor- porationscreated by a government, or enterprises involving activities under its legislative jurisdiction) are bound to obey the laws of other governments. Surprisingly, the solutions to these problems remain obscure after a century's experience with the Canadian constitution .' This article will examine the often inconsistent decisions that have been made on the subject in the past, and attempt to suggest an ap- proach for the future. It would, perhaps, be wise to say a word at the outset about my use of the word "Crown"? I use it as a convenient abbrevia- tion for "Her Majesty the Queen in the Right of Canada (or of a particular province)", which is, in turn, merely a useful ex- *Dale Gibson, of the Faculty of Law, University of Manitoba, Win- nipeg. 'Considerable controversy also surrounds the problem in Australia and the United States : Sawer, State Statutes and the Commonwealth (1961), 1 Tasmanian U. L. Rev. 580. Since that article was written, the Australian High Court has clarified matters somewhat by recognizing in Common- wealth v. -
Introduction/Reshaping Confederation: the 1982 Reform of the Canadian Constitution
RESHAPING CONFEDERATION: THE 1982 REFORM OF THE CANADIAN CONSTITUTION PAUL DAVENPORT INTRODUCTION The twelve papers that follow were presented at the McGill-Duke Symposium on The 1982 Reform of the Canadian Constitution, held at Duke University on April 26 and 27, 1982. The Symposium was organized jointly by Richard Leach, Director of the Canadian Studies Center at Duke University, and Paul Davenport, Chairman of the Canadian Studies Program at McGill University. The partici- pants included seven McGill academics and five academics from Duke, covering the disciplines of Political Science, Economics, History, and Law. The conference was thus explicitly interdisciplinary in nature: the purpose was to bring together scholars from different disciplines and backgrounds, so that they might compare their academic theories and personal insights into the constitutional reform process which culminated in the Canada Act of 1982. The process and the reformed constitution itself will undoubtedly play a cen- tral role in reshaping Confederation in the decades to come. The new provisions of the reformed constitution include many which will change the workings of Canada's federation: the expansion of provincial powers with respect to resource taxation and management; the entrenchment of language rights, particularly with regard to schooling; the Charter of Rights and Freedoms, which will certainly afford better legal protection of individual rights than the Canadian Bill of Rights; and the increased importance of the courts, especially the Supreme Court of Canada, in the interpretation and protection of individual rights. The process by which the reform was adopted will also influence the workings of Confederation. In particular, the failure to win approval from the Government of Quebec, and Quebec's subsequent feelings of betrayal, may complicate or indeed poison federal- provincial relations for some time to come. -
Public Opinion on Asymmetrical Federalism
PUBLIC OPINION ON ASYMMETRICAL FEDERALISM: GROWING OPENNESS OR “The question is,” said Alice, “whether you CONTINUING AMBIGUITY? can make words mean so many different things.” F. Leslie Seidle Lewis Carroll, Alice in Wonderland Centre for Research and Information on Canada and Institute for Research on Public Policy In politics, words can be used for good or ill; they can help clarify complex public policy Gina Bishop issues or baffle even well-informed citizens. At Centre for Research and Information on Canada different times and in different contexts, the expression ‘asymmetrical federalism’ has Foreword probably performed all of these functions and others. Some have used it to describe what they The federal Liberal Party’s 2004 general see as a strength of Canadian federalism, namely election platform heavily emphasized issues that that provinces are not identical in their history, are mainly subject to provincial competence circumstances and public policies. Others have under the constitution (e.g. health care, child used the term to express their opposition to the care, cities). Since the federal government lacks ‘special treatment’ they believe one province, the authority to implement detailed regulatory namely Quebec, seeks – or already receives - schemes in these areas, acting on these election within the federation. Still others claim that even commitments frequently requires federal- modest asymmetry, such as variation in provincial-territorial (FPT) agreements. intergovernmental agreements (as opposed to the A controversial question that arises when letter of the Constitution), violates the principle considering all intergovernmental agreements is of the equality of the provinces. whether they should treat all provinces and territories similarly or whether the agreements Largely because of the association with should be expected to differ from one Quebec, politicians and policy makers have province/territory to another. -
The Crown in the Provinces: Canada's Compound Monarchy
THE CROWN IN THE PROVINCES: CANADA’S COMPOUND MONARCHY Michael Jackson and Lynda Haverstock1 Canada: a “compound monarchy” (Smith, D.E., 1995, 12). This succinct phrase by David E. Smith, dean of Canadian scholars of the Crown, neatly sums up a key dimension of the constitutional monarchy in Canada. We contend that the Crown is an institution belonging jointly to the central and provincial governments and that it is crucial to the co-sovereign status of the provinces in Confederation. It is, therefore, of vital interest to the Province of Quebec and holds promise for First Nations’ governance. This aspect of our nation’s constitutional monarchy merits far more examination by scholars and policy-makers than it has received. Attention to the Crown in Canada – and attention there has recently been – has focused primarily on the Office of the Governor General. In part, this stems from a spotlight on the federal vice-regal reserve powers of dissolution and prorogation in 2008 and 2009 (Russell and Sossin, 2009). In addition, there has been debate in the media about the appropriateness of using the term “Head of State” in reference to the Governor General. In most cases, those who call for the end of the monarchy ignore its vital provincial dimension. Few commentators have drawn attention to the provincial Crown and the Lieutenant Governors who embody it; among those few are Michael Valpy and Ian Holloway (Valpy 2009). The present paper will discuss what we call the “provincial Crown” and how it evolved. By doing so, we will make the case that it is integral to how Canada has evolved as a fascinating federation and that to ignore its significance diminishes thoughtful discourse on the nation’s strengths. -
Sovereignty and Federalism: the Canadian Perspective
Canada-United States Law Journal Volume 20 Issue Article 34 January 1994 Sovereignty and Federalism: The Canadian Perspective Katharine F. Braid Robert V. Horte Follow this and additional works at: https://scholarlycommons.law.case.edu/cuslj Part of the Transnational Law Commons Recommended Citation Katharine F. Braid and Robert V. Horte, Sovereignty and Federalism: The Canadian Perspective, 20 Can.- U.S. L.J. 319 (1994) Available at: https://scholarlycommons.law.case.edu/cuslj/vol20/iss/34 This Speech is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Canada-United States Law Journal by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Sovereignty and Federalism: The Canadian Perspective Katharine F. Braid* Robert V. Horte** INTRODUCTION I was invited to speak to this institute when I was a real lawyer. I am no longer working in that capacity, but Henry was too nice to revoke the invitation when my job responsibilities changed. So although I know even less law than I did a year ago, you still have to be polite because I am a client now. My current responsibility of strategy devel- opment for CP Rail System leads me to look at Canadian sovereignty and free trade from the perspective of a Canadian railway company operating across provincial, state and international boundaries in Ca- nada and the United States. Free trade under the Canada/U.S. Free Trade Agreement (FTA) is definitely affecting the movement of goods and services within and between Canada and the United States. -
Canadian Federalism and Foreign Policy
Canada-United States Law Journal Volume 27 Issue Article 11 January 2001 Canadian Federalism and Foreign Policy George Anderson Follow this and additional works at: https://scholarlycommons.law.case.edu/cuslj Part of the Transnational Law Commons Recommended Citation George Anderson, Canadian Federalism and Foreign Policy, 27 Can.-U.S. L.J. 45 (2001) Available at: https://scholarlycommons.law.case.edu/cuslj/vol27/iss/11 This Speech is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Canada-United States Law Journal by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. CANADIAN FEDERALISM AND FOREIGN POLICY George Anderson* This conference brings a welcome focus to an issue, which many of us have been increasingly aware of for some time. This program indicates how much ground there is to explore in terms of the federal dimension of Canada- U.S. relations. This conference can contribute importantly to aiding our un- derstanding of the current state of North American integration. It is well known that, since the Canada-U.S. Free Trade Agreement (FTA), north-south trade between our two countries has grown tremendously. The impact, obviously, has been greater for Canada- our exports of goods to the United States last year exceeded four hundred billion dollars, which is equivalent to thirty-five percent of our gross domestic product (GDP). But despite these striking numbers, we are still not nearly as integrated north- south as we are east-west. -
Equal Autonomy in Canadian Federalism: the Continuing Search for Balance in the Interpretation of the Division of Powers
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 54 (2011) Article 20 Equal Autonomy in Canadian Federalism: The Continuing Search for Balance in the Interpretation of the Division of Powers Bruce Ryder Osgoode Hall Law School of York University, [email protected] Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Ryder, Bruce. "Equal Autonomy in Canadian Federalism: The onC tinuing Search for Balance in the Interpretation of the Division of Powers." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 54. (2011). https://digitalcommons.osgoode.yorku.ca/sclr/vol54/iss1/20 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. Equal Autonomy in Canadian Federalism: The Continuing Search for Balance in the Interpretation of the Division of Powers Bruce Ryder∗ I. INTRODUCTION During most of the past decade, the justices of the Supreme Court of Canada have achieved and maintained a remarkable degree of consensus around their approach to the interpretation of the division of legislative powers in the Constitution Act, 1867.1 Since Beverley McLachlin’s appointment as Chief Justice in January 2000, the Court has been unanimous in its disposition of division of powers issues in 25 rulings or reference opinions.2 The Court was divided on the disposition of a division of powers issue in only one case between 2000 and 2008.3 ∗ Associate Professor and Assistant Dean First Year, Osgoode Hall Law School, York University. -
Canadian Discord Over the Charlottetown Accord: the Constitutional War to Win Quebec
Penn State International Law Review Volume 11 Article 7 Number 3 Dickinson Journal of International Law 5-1-1993 Canadian Discord Over the Charlottetown Accord: The onsC titutional War to Win Quebec Jeffrey J. Cole Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, and the International Law Commons Recommended Citation Cole, Jeffrey J. (1993) "Canadian Discord Over the Charlottetown Accord: The onC stitutional War to Win Quebec," Penn State International Law Review: Vol. 11: No. 3, Article 7. Available at: http://elibrary.law.psu.edu/psilr/vol11/iss3/7 This Comment is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact [email protected]. Canadian Discord Over the Charlottetown Accord: The Constitutional War to Win Quebec I. Introduction "Do you agree that the Constitution of Canada should be re- newed on the basis of the agreement reached on August 28, 1992 - Yes or No?"' This was the question posed to the citizens of Canada in a nation-wide referendum held on October 26, 1992.2 The agreement of August 28, 1992, known as the Charlottetown Accord, proposed a package of sixty amendments to Canada's Con- stitution.3 Though the Accord addressed issues ranging from aborigi- nal self-rule to the establishment of new provinces, the heart of the agreement was a collection of provisions designed to keep Quebec from seceding from Canada.4 The natural isolation of French-speaking Quebec from English- speaking Canada has its origins in the colonial period of North America. -
Quebec Civil Law and Canadian Federalism
Quebec Civil Law and Canadian Federalism Catherine Valcket I. INTRODUCTION . .............................................. 67 If. CIViL LEGAL METHOD ......................................... 73 A. The Civil Law Conception of the ProperScope of Judicial Power ............ 73 B. The Civil Code ........................................... 77 C. Codal Reasoning ........................................... 81 Im. QUEBEC'S LEGISLATIVE POWERS IN THE CANADIAN FEDERATION ............... 88 A. The "Propertyand CivilRights" Clause of Section 8 of the Quebec Act and Subsection 92(13) of the British North America Act ............................ 90 B. The General Legislative Powers of Section 91 of the B.N.A. Act ............ 92 C. The "Trade and Commerce" and "Peace, Order, and Good Government" Clauses of Section 91 of the B.N.A. Act ................................... 95 D. The JudicialDoctrine of Ancillary Legislative Power Under the B.N.A. Act ..... 98 E. The Canadian Charter of Rights and Freedoms ....................... 101 IV. THE JUDICIAL ENFORCEMENT OF QUEBEC LAW IN THE CANADIAN FEDERATION ....... 103 A. The Legislative Powers Concerningthe Administration of Justice Under Sections 101 and 92(14) of the B.N.A. Act ................................... 104 B. The General Jurisdictionof Provincial Courts ........................ 107 C. The Institution of the Supreme Court of Canada ...................... 110 V. LEGAL METHOD IN QUEBEC ...................................... 114 A. The Substance of Judgmentsfrom Quebec ........................... 114