Beyond Umpire and Arbiter: Courts As Facilitators of Intergovernmental Dialogue in Division of Powers Cases in Canada
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Of Canada 2001
4 THE CRIC PAPERS Portraits of Canada 2001 JANUARY 2002 Table of Contents 1 Preface 3 Highlights 4 Methodology 5 1. The Economy and the Quality of Life 7 2. Canada in a Changing World Ties to the US A Common Currency? Energy Policy Globalization 13 3. Immigration 16 4. Federalism and National Unity Equalization: A Commitment to Sharing the Wealth The Practice of Federalism: An Assessment Priorities for Change The Balance of Power Support for Sovereignty in Quebec 32 5. Official Languages 33 6. Aboriginal Peoples 35 7. Health Care and Social Programs The Surplus Health Care 40 8. Rural Canada 41 Conclusion Centre for Research and Information on Canada (CRIC) 2000 McGill College Avenue, Suite 250 Montréal, Quebec H3A 3H3 1-800-363-0963 Fax: (514) 843-4590 www.ccu-cuc.ca Ce document est aussi disponible en français. Preface latest Portraits of Canada offers Not so. The a clear picture of what unites Canadians, and what divides them. Portraits of Canada also reveals that in every part of the country, except Ontario and This annual tracking poll reveals broad areas Quebec, a majority feels that their province of agreement among Canadians on a wide neither gets the respect it deserves, nor variety of subjects that were in the news enjoys the influence that it should have. during the past year. In and of itself, this more negative con- It pinpoints established or emerging sensus considerably limits the impact of consensuses on: the abovementioned areas of agreement. • support for a common Canada-US currency But it highlights another major national • rejection of a continental energy policy consensus identified in this and other CRIC • the need to protect Canadian sovereignty polls: Canadians continue to demand, in in the face of globalization a forceful and sustained way, closer • support for equalization cooperation between the federal and • up to a certain point, the best means provincial governments. -
Annualreport2015.Pdf
WHAT OTHERS ARE SAYING ABOUT OUR WORK “The Mowat Centre is leading the way on researching nudging and its effectiveness” Derek Sankey in The Calgary Herald, December 13 2014 On Public Service Transformed “Excellent primer on past and new Canadian infrastructure directions. The Mowat Centre continues on its excellent work” The Wilson Centre Canada Institute’s Beyond the Border Observer, August 6 2014 On Rebuilding Canada “A masterful survey of the fundamental economic issues of the corporate income tax” Alan Macnaughton (University of Waterloo) in The Canadian Tax Journal, Summer 2014 On Corporate Tax Reform “Particularly timely and well worth reading” Stephen Tapp (Research Director at the Institute for Research on Public Policy) in the Policy Options blog, February 18 2015 On Policymaking for the Sharing Economy “An important paper” The Governor General of Canada His Excellency the Right Honourable David Johnston, in a keynote address at the Great Lakes Economic Forum, April 28 2015 On The Vital Commons: A Policy Agenda for the Great Lakes Century Contents Mowat’s Impact Methodology 1 2014-15 By the Numbers 4 Publications 6 INTERGOvernmental ECONOMIC ANd SOCIAl POlicy 6 GOvERNMENT TRANSformation 13 Mowat NfP 16 Mowat energy 18 TldR 20 Public and Stakeholder Engagement 21 PUBlIC presentations 21 knowlEdGE TRANSfER activITIES 22 stakeholdER CONSUltations 23 Who is Using Our Work? 24 Year-End financial Statement 26 Mowat People (fellows, Advisory Board, Editorial Board) 27 director’s message In the following pages we present our 2014-15 annual report. We marked our sixth year with several accomplishments including some important policy wins, successful new initiatives, and impressive growth in our reach and recognition among stakeholders and the public. -
Judicial Review of the Division of Powers in the Supreme Court of Canada 2010 Canliidocs 474 Wade K
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 51 (2010) Article 21 Facilitating Intergovernmental Dialogue: Judicial Review of the Division of Powers in the Supreme Court of Canada 2010 CanLIIDocs 474 Wade K. Wright Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Wright, Wade K.. "Facilitating Intergovernmental Dialogue: Judicial Review of the Division of Powers in the Supreme Court of Canada." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 51. (2010). http://digitalcommons.osgoode.yorku.ca/sclr/vol51/iss1/21 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. Facilitating Intergovernmental Dialogue: Judicial Review of the Division of Powers in the Supreme Court of Canada 2010 CanLIIDocs 474 Wade K. Wright∗ I. INTRODUCTION A cursory review of any Canadian law review tells the story: the Ca- nadian Charter of Rights and Freedoms1 is “in” and the division of powers is “out”. Since 1982, when the Charter came into force, there has been a vast amount of writing about the Supreme Court of Canada’s Charter decisions. However, its division of powers decisions, once the staple of constitutional law scholars, are now routinely ignored, particu- larly in English Canada.2 This trend has been noted before, with little effect. -
Paramountcy in Penal Legislation
OCCUPYING THE FIELD : PARAMOUNTCY IN PENAL LEGISLATION BORA LASKIN* Toronto Among the time-honoured doctrines of Canadian constitutional law none has a more disarming simplicity and none is more ques- tion-begging than the last of the four propositions proclaimed by Lord Tomlin in the Fish Canneries case' and repeated on three subsequent occasions by the Privy Council.2 It reads as follows : "There can be a domain in which Provincial and Dominion legisla- tion may overlap, in which case neither legislation will be ultra vires if the field is clear, but if the field is not clear and the two legislations meet the Dominion legislation must prevail."' The issues raised by this pronouncement are concomitants of federal- ism, familiar in the United States and in Australia, and immanent in the constitutions of the new federal states that have come into being since the end of World War Two.4 Three fairly recent decisions of the Supreme Court of Canada, in each of which there were dissents, illustrate that court's ap- preciation ofthose issues as they emerged in provincial and federal penal legislation. The three cases are sufficiently different from one another in their facts and supporting legislation to provide adequate perspective for an examination of the doctrine of the "occupied field"-the paramountcy doctrine, to use an equivalent-as it pertains to penal enactments. *Bora Laskin, Q.C., of the Faculty of Law, University of Toronto. 1 A.-G. for Canada v. A.-G . for British Columbia, [1930] A.C. 111, [19301 1 D.L.R. 194, [192913 W.W.R. -
Product Liability Defense: Preemption in Canada
Product Liability Defence North and South of the Border: Is there such thing as Canadian pre-emption? By Craig Lockwood, Sonia Bjorkquist and Alexis Beale from Osler, Hoskin & Harcourt LLP and Maura Kathleen Monaghan, Jacob W. Stahl and Christel Y. Tham from Debevoise & Plimpton LLP PRODUCT LIABILITY DEFENCE NORTH AND SOUTH OF THE BORDER Osler, Hoskin & Harcourt llp | Debevoise & Plimpton Table of Contents Introduction 3 An Overview of the U.S. Experience 5 The Canadian Experience 9 Recent Developments 15 Conclusion 19 2 PRODUCT LIABILITY DEFENCE NORTH AND SOUTH OF THE BORDER Osler, Hoskin & Harcourt llp | Debevoise & Plimpton 1 Introduction In Canada, most food products, pharmaceuticals, cosmetic products and medical devices are subject to federal regulation pursuant to the Food and Drugs Act (FDA) and other related legislation.1 Similar to the U.S. regulatory scheme, the Canadian regime is administered and enforced by the federal regulatory authorities – most notably Health Canada – responsible for establishing standards of safety for, and regulating and approving the use of, health-related products sold in Canada. However, U.S. manufacturers who sell regulated products in Canada may be surprised to learn that compliance with the FDA and associated regulatory frameworks has not historically served as a defence to product liability claims. In particular, the Canadian regulatory regime has traditionally operated as a ‘regulatory floor,’ rather than a comprehensive code of conduct. Conversely, applicable regulatory frameworks in the United States may prescribe comprehensive codes of conduct that do not leave the regulated entity with any discretion, potentially creating irreconcilable conflicts between the state and federal governments. -
Insight Trudeau Without Cheers Assessing 10 Years of Intergovernmental Relations
IRPP Harper without Jeers, Insight Trudeau without Cheers Assessing 10 Years of Intergovernmental Relations September 2016 | No. 8 Christopher Dunn Summary ■■ Stephen Harper’s approach to intergovernmental relations shifted somewhat from the “open federalism” that informed his initial years as prime minister toward greater multilateral engagement with provincial governments and certain unilateral moves. ■■ Harper left a legacy of smaller government and greater provincial self-reliance. ■■ Justin Trudeau focuses on collaboration and partnership, including with Indigenous peoples, but it is too early to assess results. Sommaire ■■ En matière de relations intergouvernementales, l’approche de Stephen Harper s’est progressivement éloignée du « fédéralisme ouvert » de ses premières années au pouvoir au profit d’un plus fort engagement multilatéral auprès des provinces, ponctué ici et là de poussées d’unilatéralisme. ■■ Gouvernement réduit et autonomie provinciale accrue sont deux éléments clés de l’héritage de Stephen Harper. ■■ Justin Trudeau privilégie la collaboration et les partenariats, y compris avec les peuples autochtones, mais il est encore trop tôt pour mesurer les résultats de sa démarche. WHAT HAS HAPPENED TO INTERGOVERNMENTAL RELATIONS IN CANADA? Surprises. In October 2015, we had an election with a surprise ending. The Liberal Party, which had been third in the polls for months, won a clear majority. The new prime minister, Justin Trudeau, provided more surprises, engaging in a whirl- wind of talks with first ministers as a group and with social partners that the previous government, led by Stephen Harper, had largely ignored. He promised a new covenant with Indigenous peoples, the extent of which surprised even them. Change was in the air. -
Current Trends in Canadian Federalism. Centripetal and Centrifugal Forces in Canadian Division of Powers ERIKA ARBAN1 Summary
Current trends in Canadian federalism. Centripetal and centrifugal forces in Canadian division of powers ERIKA ARBAN1 Summary: 1.Introduction; 2. Canadian Federalism and the division of legislative powers; 3. Judicial interpretation of the division of powers; 4. Level of (de)centralization of Canadian federalism; 5. Future changes in the division of powers; 6. Conclusions. 1. Introduction Canadian federalism is often described as the most decentralized in the world. This paper tries to identify elements of Canadian federalism which support and which go against this statement, to ultimately determine whether Canadian federalism is presently on a decentralizing (centrifugal) or centralizing (centripetal) course. As pointed out by Ronald Watts, in determining the level of (de)centralization of a given federal scheme, the first task becomes that of clarifying which powers we want to analyze. 1 L.L.M., University of Arizona; Ph.D. Candidate, University of Ottawa. 1 Centralization or decentralization can refer both to the legislative powers assigned to each level of government (federal or provincial in Canada), or to the role played by the various components in federal decision making.2 Also, we can analyze the level of (de)centralization by looking at the administrative bodies in a federal state and how federal institutions are more or less present locally. In this paper, however, I will focus only on the level of (de)centralization in the distribution of legislatives powers between federal Parliament and provincial legislatures in Canada as stemming from the Canadian Constitution and as shaped by the decisions of the Privy Council (hereinafter, “P.C.”) and the Supreme Court of Canada (hereinafter, “SCC”). -
Untangling the Web of Canadian Privacy Laws
Reproduced by permission of Thomson Reuters Canada Limited from Annual Review of Civil Litigation 2020, ed. The Honourable Mr. Justice Todd L. Archibald. Shining a Light on Privacy: Untangling the Web of Canadian Privacy Laws BONNIE FISH AND ALEXANDER EVANGELISTA1 It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. George Orwell, 1984 I. THE GENESIS OF PRIVACY LITIGATION Although there are more Canadian privacy laws than ever before and the right to privacy has quasi-constitutional status,2 Canadian citizens have never had greater cause for concern about their privacy. Our devices make public a dizzying amount of our personal information.3 We share information about our preferences and location with retailers and data brokers when shopping for online products and when shopping in physical stores using our credit cards, payment cards or apps. Smart homes and smart cities make possible Orwellian surveillance and data capture that previously would have been illegal without a judicial warrant.4 The illusion of anonymous or secure internet activity has been shattered5 by large scale privacy breaches that have exposed the vulnerability of our personal information to hackers.6 The COVID-19 crisis raises new privacy concerns as governments and private institutions exert extraordinary powers to control the outbreak, including the use of surveillance technologies.7 1 Bonnie Fish is a Partner and the Director of Legal Research at Fogler, Rubinoff LLP, Alexander Evangelista is an associate in the litigation department of Fogler, Rubinoff LLP. -
The Hidden Ally: How the Canadian Supreme Court Has Advanced the Vitality of the Francophone Quebec Community
The Hidden Ally: How the Canadian Supreme Court Has Advanced the Vitality of the Francophone Québec Community DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Douglas S. Roberts, B.A., J.D., M.A. Graduate Program in French and Italian The Ohio State University 2015 Dissertation Committee: Professor Wynne Wong, Advisor Professor Danielle Marx-Scouras, Advisor Professor Jennifer Willging Copyright by Douglas S. Roberts 2015 Abstract Since the adoption of the Charter of Rights and Freedoms in 1982, the Canadian Supreme Court has become a much more powerful and influential player in the Canadian political and social landscape. As such, the Court has struck down certain sections of the Charter of the French Language (Bill 101) as contrary to the Constitution, 1867 and the Charter of Rights and Freedoms. In Ford v. Québec, [1988] 2 S.C.R. 712, for instance, the Court found unconstitutional that portion of Bill 101 that required commercial signage to be in French only. After the decision was announced, public riots broke out in Montreal. As a result of this decision, one could conclude that the Court has, in fact, resisted Québec‘s attempts to protect and promote its own language and culture. In this dissertation, however, I argue that this perception is not justified, primarily because it fails to recognize how Canadian federalism protects diversity within the Confederation. Contrary to the initial public reaction to the Ford case, my contention is that the Court has, in fact, advanced and protected the vitality of Francophone Québec by developing three fundamental principles. -
225 Watertight Compartments: Getting Back to the Constitutional Division of Powers I. Introduction
GETTING BACK TO THE CONSTITUTIONAL DIVISION OF POWERS 225 WATERTIGHT COMPARTMENTS: GETTING BACK TO THE CONSTITUTIONAL DIVISION OF POWERS ASHER HONICKMAN* This article offers a fresh examination of the constitutional division of powers. The author argues that sections 91 and 92 of the Constitution Act, 1867 establish exclusive jurisdictional spheres — what the Privy Council once termed “watertight compartments.” This mutual exclusivity is emphasized and reinforced throughout these sections and leaves very little room for legitimate overlap. While some degree of overlap is permissible under this scheme — particularly incidental effects, genuine double aspects, and limited ancillary powers — overlap must be constrained in a principled fashion to comply with the exclusivity principle. The modern trend toward flexibility and freer overlap is contrary to the constitutional text. The author argues that while some deviation from the text is inevitable due to the presumption of constitutionality and stare decisis, the Supreme Court should return to a more exclusivist footing in accordance with the text. TABLE OF CONTENTS I. INTRODUCTION ............................................. 226 II. THE EXCLUSIVITY PRINCIPLE .................................. 227 A. FROM QUEBEC TO THE BRITISH PARLIAMENT ................. 227 B. THE NON OBSTANTE CLAUSE AND THE DEEMING PROVISION ...... 231 C. CONCURRENT POWERS ................................... 234 III. PITH AND SUBSTANCE AND LEGITIMATE OVERLAP ................. 235 A. INTERJURISDICTIONAL IMMUNITY ......................... -
The Constitution of Canada and the Conflict of Laws
Osgoode Hall Law School of York University Osgoode Digital Commons PhD Dissertations Theses and Dissertations 2001 The onsC titution of Canada and the Conflict of Laws Janet Walker Osgoode Hall Law School of York University, [email protected] Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/phd Part of the Conflict of Laws Commons, and the Jurisdiction Commons Recommended Citation Walker, Janet, "The onC stitution of Canada and the Conflict of Laws" (2001). PhD Dissertations. 18. http://digitalcommons.osgoode.yorku.ca/phd/18 This Thesis is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in PhD Dissertations by an authorized administrator of Osgoode Digital Commons. THE CONSTITUTION OF CANADA AND THE CONFLICT OF LAWS Janet Walker A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy Worcester College Trinity Term 2001 The Constitution of Canada and the Conflict of Laws Janet Walker, Worcester College Doctor of Philosophy Thesis, Trinity Term 2001 This thesis explains the constitutional foundations for the conflict of laws in Canada. It locates these constitutional foundations in the text of key constitutional documents and in the history and the traditions of the courts in Canada. It compares the features of the Canadian Constitution that provide the foundation for the conflict of laws with comparable features in the constitutions of other federal and regional systems, particularly of the Constitutions of the United States and of Australia. This comparison highlights the distinctive Canadian approach to judicial authority-one that is the product of an asymmetrical system of government in which the source of political authority is the Constitution Act and in which the source of judicial authority is the continuing local tradition of private law adjudication. -
Public Policy in Crisis? Understanding PolicyMaking in Canada
PUBLIC POLICY IN CRISIS? UNDERSTANDING POLICYMAKING IN CANADA UNE CRISE DES POLITIQUES PUBLIQUES ? COMMENT SE FONT LES POLITIQUES AU CANADA PROGRAMME Annual conference Conférence annuelle of the McGill Institute for the Study of Canada de l’Institut d’études canadiennes de McGill March 26 and 27, 2009 Du 26 au 27 mars 2009 McGill Faculty Club Faculty Club de McGill Montréal, Québec, Canada Montréal (Québec) Canada DIRECTOR’S MESSAGE MESSAGE DE LA DIRECTRICE Dear Friends and Colleagues, Chers amis et collègues, Welcome to the McGill Institute for the Study of Bienvenue à la conférence 2009 de l’Institut d’études Canada’s 2009 conference, Public Policy in Crisis? canadiennes de McGill : Une crise des politiques Understanding Policy‐Making in Canada. publiques ? Comment se font les politiques au Canada. Since 1995, the McGill Institute for the Study of L’Institut d’études canadiennes de McGill est fier Canada has been proud to convene annual d’organiser depuis 1995 des conférences annuelles visant conferences to foster informed, non‐partisan à promouvoir un débat informé et non‐partisan sur les discussions of issues affecting Canadians, ranging sujets qui concernent les Canadiens, comme les relations from Quebec‐Canada relations, Aboriginal issues, Québec‐Canada, les questions autochtones, la citizenship and health care to Canadian media, the citoyenneté et les soins de santé, ou encore les médias, la Charter, and cultural policy. These public events, Charte et la politique culturelle. Ces événements publics, designed to raise provocative questions and conçus pour soulever des questions stimulantes et encourage open debate, have brought together encourager un débat ouvert ont rassemblé des centaines hundreds of practitioners, academics, students, de praticiens, d’universitaires, d’étudiants et de politicians and engaged citizens, and have attracted politiciens ; ils ont suscité l’intérêt des citoyens et reçu national and international media coverage.