Professional Documents
Culture Documents
Canadian Constitutional Law Federalism
Canadian Constitutional Law Federalism
Federal v Unitary
Federal Supremacy
• Federal Supremacy
though federal and provincial authorities are coordinate with each other, it is still possible
for the laws of one to ‘win-out’ when there is a conflict.
- E.g. Criminal law is an example of federal supremacy
In Canada, federal laws trump provincial laws where inconsistencies arise (and both have
been properly enacted)
- Highway traffic is provincial
The doctrine of paramountcy: the idea that if provincial and federal laws conflict the federal
law always prevail
• ‘Regions’ is an imprecise term, but one that has an important role in the structure of
Canadian government.
• Arguably, there are 5 ‘regions’:
Ontario, Quebec, the Atlantic, the Western, and (more recently recognized) the Northern
provinces.
• Regions are used to determine the makeup of the Senate and the Supreme Court.
Supreme Court
3 judges must, by statute, be from Quebec. By convention, 3 are from Ontario, 2 from the
Western, and 1 from the Maritime provinces.
Senate:
Ontario, Quebec, the Maritime (Atlantic minus Nfld), the Western all have 24 Senators. Nfld
has 6; Yukon, NWT, Nunavut each have 1
Regionalism has a notion of providing judges who understand things on a local context
These votes have no mentions of people from the north
*The northern often feel neglected …. Noting the high population of aboriginal culture
- They are high in resources yet neglected
While regionalism does not figure directly in the seven-fifty formula, mathematically
some regionalism sneaks in through
7 will always include one Atlantic and one Western, and 50% will always include Ontario or
Quebec.
• Also, the ‘regional veto statute’ indirectly reintroduces regionalism into the seven-fifty
formula, though not at a constitutional level (since it’s a federal statute; it could be
amended by normal legislative means).
The regions for the statute are: Ontario, Quebec, B.C., the Prairies, the Atlantic.
Subsidiarity
Provincial:
Today, private property law, contract, tort, (most) commercial, consumer, environmental,
labour, health, and social services law are all provincial domain.
Federal:
Customs and excise, trade, commerce, banking and commerce were assigned to Parliament.
Read Down:
However, marriage and divorce, criminal law, and penitentiaries were also also assigned to the
federal level, though these would appear to be suitable for provincial control.
- (Some matters, such as marriage, have been ‘read down’ at the federal level to give
some authority to the provinces.)
Federal cabinet does appoint judges at superior, district and county levels; could be
seen as in breach of federalism.
However, this is balanced by a strong tradition of judicial independence
moreover, cases involving provincial/ federal issues tend to be appealed outside of
provincial courts
• Federal power to remedy provincial education laws has never been exercised.
• Federal power to bring local works under federal control (for the general advantage of
Canada (POGG power) once used frequently (railroads_ now used rarely.
• The point?
Canada’s system has much stronger federal elements than might first appear, and, indeed,
its provincial is more clearly coordinate with the central elements than many other extant
federal systems
Cooperative Federalism
• Canada’s federalism can be described as ‘cooperative’—
- The idea that the provinces are unitary etc... is untrue and known by the courts
- It is known to be a cooperative federalist system
Why ferderalism?
• What reasons count in favour federalism in the Canadian context?
- Political necessary to effect Confederation
- Geographically expansive
- ethically and culturally diverse
- more efficient governing
- More responsive to regional needs and preferences
- Social laboratories