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Beyond Umpire and Arbiter: Courts As Facilitators of Intergovernmental Dialogue in Division of Powers Cases in Canada

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Beyond Umpire and Arbiter: Courts As Facilitators of Intergovernmental Dialogue in Division of Powers Cases in Canada Beyond Umpire and Arbiter: Courts as Facilitators of Intergovernmental Dialogue in Division of Powers Cases in Canada Wade Kenneth Wright Submitted in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the School of Law COLUMBIA UNIVERSITY 2014 © 2014 Wade Kenneth Wright All rights reserved ABSTRACT Beyond Umpire and Arbiter: Courts as Facilitators of Intergovernmental Dialogue in Division of Powers Cases in Canada Wade Kenneth Wright The courts in Canada have often been cast, by both courts and legal scholars, as ‘umpires’ or ‘arbiters’ of the federal-provincial division of powers – umpires or arbiters that have the exclusive, or at least decisive, authority to clarify and enforce, and resolve disputes about, ‘who does what’ in the federal system. However, the image conveyed by these metaphors underestimates the role that the federal and provincial political branches play in the federal system, by working out their own solutions, in the intergovernmental arena, both directly and indirectly, where questions and disputes arise about how jurisdiction is and should be allocated. The image conveyed by the umpire or arbiter metaphors also sits uncomfortably with the facilitative role that the Supreme Court of Canada has carved out for itself in its recent division of powers decisions, a role that casts the courts as facilitators of these instances of intergovernmental dialogue. This doctoral dissertation challenges, and moves beyond, the umpire and arbiter metaphors. It examines the political safeguards available to the provinces in Canada to prevent, or limit, perceived federal encroachments on provincial jurisdiction, in the process highlighting the role that the political branches play in Canada in working out their own allocations of jurisdiction, outside of the courts. It describes, and critically evaluates, the facilitative role carved out by the Court in its recent division of powers decisions, identifying various reasons to be skeptical of a facilitative role that casts the courts as facilitators of intergovernmental dialogue. Finally, and with an eye to future research, it briefly outlines an alternative facilitative role that focuses on facilitating deliberation about the division of powers implications of particular initiatives, arguing that it would be premature to dismiss facilitative approaches to judicial review altogether. TABLE OF CONTENTS ACKNOWLEDGEMENTS vii DEDICATION ix INTRODUCTION 1 FIRST ARTICLE: FACILITATING INTERGOVERNMENTAL 13 DIALOGUE: JUDICIAL REVIEW OF THE DIVISION OF POWERS IN THE SUPREME COURT OF CANADA INTRODUCTION 13 I. FACILITATING INTERGOVERNMENTAL DIALOGUE: CANADIAN 19 WESTERN BANK v. ALBERTA A. The Supreme Court’s Theory of Judicial Review 21 a. “The Principle of Federalism” 21 b. Deference to the Political Process 24 c. Facilitating “Co-operative Federalism” 29 d. Predictability in the Division of Powers 35 B. The Supreme Court’s Theory of Federalism at Work 36 a. Validity: The Pith and Substance and the Ancillary 40 Doctrines b. Applicability: The Interjurisdictional Immunity 43 Doctrine c. Operability: The Paramountcy Doctrine 52 i II. THE DIVISION OF POWERS IN THE MCLACHLIN COURT PRE- 55 CANADIAN WESTERN BANK A. Expressions of Intergovernmental Dialogue About 56 Jurisdiction B. Accommodating Overlap, Managing Conflict: Pre- 64 Canadian Western Bank a. Accommodating Overlap: The Pith and Substance 64 Doctrine i. Challenges to the Validity of Federal Legislation 65 ii. Challenges to the Validity of Provincial Legislation 78 b. Accommodating Overlap: The Ancillary Doctrine 83 c. Accommodating Exclusivity?: The 91 Interjurisdictional Immunity Doctrine d. Managing Intergovernmental Conflict: The 95 Paramountcy Doctrine III. FUTURE DIRECTIONS?: POST-CANADIAN WESTERN BANK 110 A. The Role of Intergovernmental Dialogue 111 B. Boundaries on Legislative Power 118 C. Federal Leadership or Equal Partners? 121 D. The Political Safeguards of Canadian Federalism? 124 CONCLUSION 126 ii SECOND ARTICLE: THE POLITICAL SAFEGUARDS OF 129 CANADIAN FEDERALISM INTRODUCTION 129 I. FRAMING THE DISCUSSION 137 A. The State of Play: The Debate About Political Safeguards 137 in Canada B. Defining Federalism 145 C. Assessing the Political Safeguards 151 a. Substance or Process? 152 b. Courts or Politics? 153 c. The “Shadow Cast by the Courts” 157 d. The Need for Safeguards of Federalism 161 II. THE (LACKING) INTRAGOVERNMENTAL SAFEGUARDS 164 A. The Senate 166 B. The Federal Cabinet 170 C. Political Parties 173 III. THE INTERGOVERNMENTAL SAFEGUARDS 177 A. The Intergovernmental Apparatus and Provincial Capacity 179 B. Opportunities to Challenge Federal Encroachment 184 a. Formal Negotiations 184 b. Lobbying 188 iii c. Public Criticism 189 d. Provincial Preemption 190 e. The Policymaking Process 193 C. Provincial Leverage 193 a. The Conventional View of Provincial Leverage 194 b. Provincial Capacity 197 c. The Threat of Retaliation 198 d. The Pressures Toward Coordination 200 e. Public Opposition 202 f. Interprovincial Cooperation 216 g. National Unity and the Threat of Secession 223 D. Examples 231 a. Active Labour Market Programs 232 b. Environmental Assessments 241 E. Evaluating the Intergovernmental Safeguards 258 CONCLUSION 268 THIRD ARTICLE: COURTS AS FACILITATORS: 271 INTERGOVERNMENTAL DIALOGUE, DEFERENCE AND JUDICIAL REVIEW OF THE DIVISION OF POWERS IN CANADA INTRODUCTION 271 iv I. INTERGOVERNMENTAL DIALOGUE IN THE SUPREME COURT 278 A. The Conventional Role: Courts as Umpires or Arbiters 279 B. Embracing a New Role: Courts as Facilitators 284 a. The Emergence of Courts as Facilitators 284 b. The Return to Umpire or Arbiter? 290 C. Facilitating Intergovernmental Dialogue and Deference 297 a. The Forms of Intergovernmental Dialogue 297 b. The Court’s Response to Intergovernmental 300 Dialogue II. THE PROMISE OF DEFERENCE TO INTERGOVERNMENTAL 306 DIALOGUE A. Reconciling the Theory and Practice of the Division of 306 Powers B. Mitigating Criticisms About the Desirability of Judicial 324 Review a. Indeterminacy and Judicial Discretion 324 b. Mitigating the Criticism From Reasonable 327 Pluralism c. Mitigating the Criticism From Democracy 335 d. Mitigating the Criticism From Institutional 342 Competence v C. Safeguarding Jurisdiction: The Necessity of Judicial 348 Review III. THE PITFALLS OF DEFERENCE TO INTERGOVERNMENTAL 351 DIALOGUE A. Safeguarding Jurisdiction: Necessity Revisited 351 B. Democratic Legitimacy: The Democratic Critique 367 Revisited C. Settlement and Stability 379 D. Defining the Contours of Deference 396 a. Defer When? 397 i. Faithful Representation 397 ii. Coercion 404 iii. The Many Forms of Intergovernmental Dialogue 407 b. Defer to Whom? 411 c. Degrees of Deference 423 CONCLUSION (AND GOING FORWARD) 425 BIBLIOGRAPHY 442 vi ACKNOWLEDGEMENTS I owe a tremendous debt of gratitude to a number of individuals, who assisted me in various ways as this dissertation was being prepared. First, a debt of gratitude is owed to my J.S.D. Committee, Professors Gillian Metzger (my supervisor) and Jamal Greene, both of Columbia Law School, and Robin Elliot, of the University of British Columbia, all of whom provided invaluable guidance, support and advice, both dissertation- and career-related. I would also like to thank Professor Michael Dorf, who, before departing for Cornell, was instrumental in bringing me to Columbia, and kindly, and happily, agreed to return to serve as an external examiner. Second, a special debt of gratitude is owed to Peter Hogg, who has been a tremendous mentor, and friend, over the years. His insightful, thoughtful comments on drafts of parts of this dissertation, and generosity, encouragement, support and guidance, both before and during the J.S.D., are greatly, greatly appreciated. Third, for helpful comments on parts of this dissertation, I am thankful to Erin Delaney, Leena Grover, Kirsti Mathers McHenry, Stephen Ross, Bruce Ryder, and the Columbia Associates’ Workshop. Fourth, to my family, for their love, patience and support, thank you. It’s a long way from Camlachie to New York; thank you for joining me on vii the journey, and helping me to carry the load on the way. And to Julie and Lauren, and Helen and Sam – it is my extraordinary good fortune that you came into my life during this J.S.D. Thank you for your support, and for helping inject so much life, and much-needed perspective, into this process. Finally, and above all, I would like to thank Alex Irwin, my wonderful partner. We met in the early stages of this J.S.D. And without his tremendous patience and sacrifice, clear-headed and excellent advice, and unwavering, awesome support and encouragement, this dissertation would simply never have been written. Thank you, my love. viii For Grandma C. ix INTRODUCTION The courts in Canada have often been cast, by both courts and legal scholars, as ‘umpires’ or ‘arbiters’ of the federal-provincial division of powers – umpires or arbiters that have the exclusive, or at least decisive, authority to clarify and enforce, and resolve disputes about, ‘who does what’ in the federal system.1 The political branches, the view seems to be, play at most a secondary role, which involves ensuring that their initiatives respect any applicable jurisdictional constraints, and looking to the courts for guidance if these constraints are unclear, or a dispute about them arises.2 A superficial review of the Supreme Court Reports might appear to confirm the accuracy of the image conveyed by these metaphors. Gun registration, environmental regulation, safe injection
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