Watertight Compartments: Getting Back to the Constitutional Division of Powers

40 Pages Posted: 19 Nov 2016 Last revised: 13 May 2017

Date Written: April 15, 2017

Abstract

This article offers a fresh examination of the constitutional division of powers. The author argues that ss. 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 Court should return to a more exclusivist footing in accordance with the text.

Keywords: federalism, division of powers, constitutional law, Constitution Act, Canada, textualism, originalism, BNA Act

Suggested Citation

Honickman, Asher, Watertight Compartments: Getting Back to the Constitutional Division of Powers (April 15, 2017). Alberta Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2852931 or http://dx.doi.org/10.2139/ssrn.2852931

Asher Honickman (Contact Author)

Advocates for the Rule of Law ( email )

http://www.ruleoflaw.ca

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