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
Date Written: 2016
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
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