Courts as Facilitators of Intergovernmental Dialogue: Cooperative Federalism and Judicial Review

(2016) 72 Supreme Court Law Review (2d) 365-454

Posted: 22 Feb 2016 Last revised: 6 Jan 2017

See all articles by Wade K. Wright

Wade K. Wright

Western University - Faculty of Law

Date Written: 2016

Abstract

The courts in Canada have often been cast, by both courts and legal scholars, as “umpires” or “arbiters” of the division of powers – umpires or arbiters that have the exclusive, or at least primary and decisive, authority to clarify, enforce, and resolve disputes about the allocation of jurisdiction in the federal system. This article critically examines a novel alternative role for the courts, a role that is evident, I argue, in the Supreme Court of Canada’s recent division of powers decisions. In this role, the courts are cast as facilitators of “cooperative federalism”, or what I call intergovernmental dialogue – allocations of jurisdiction worked out, directly or indirectly, by the political branches in the intergovernmental arena, not by the courts. As facilitator, the Court limits its role in imposing particular substantive outcomes, and attempts to encourage, accommodate and reward intergovernmental dialogue, in part by deferring to it where it occurs. The article explores the arguments that might be thought to weigh in favour of this facilitative role, attempting, in the process, to shed some light upon what may account for the Court’s attraction to it. It argues that these arguments do not hold up, well or at all, when subjected to closer critical scrutiny, and that there are various reasons to be sceptical of an approach that casts the courts as facilitators of intergovernmental dialogue.

Keywords: Constitutional law; Canadian constitutional law; constitutional theory; judicial review; role of courts; federalism; division of powers

Suggested Citation

Wright, Wade K., Courts as Facilitators of Intergovernmental Dialogue: Cooperative Federalism and Judicial Review (2016). (2016) 72 Supreme Court Law Review (2d) 365-454, Available at SSRN: https://ssrn.com/abstract=2735943

Wade K. Wright (Contact Author)

Western University - Faculty of Law ( email )

London
Canada

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