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Osgoode Hall Law Journal

Document Type

Article

Abstract

This article examines the current division of powers over cultural matters in the Canadian Constitution and the manner in which the 1992 Charlottetown Accord would have altered that distribution. During the debate over the Charlottetown Accord, it was argued by the federal government and the provinces that the Constitution allocates primary legislative responsibility over cultural matters to the provinces. Therefore, the cultural amendments in the Accord which would have recognized the provinces' exclusive jurisdiction to make laws in relation to culture were justified on the basis that they merely codified the status quo. This paper challenges the belief that the provinces enjoy exclusive legislative authority in relation to culture. It is argued that the federal government possesses quite significant legislative authority relating to cultural matters, the most important being its authority to pass laws in relation to matters of national concern. The promotion and strengthening of a distinct Canadian national identity is, it is argued, one such matter of national concern. Thus, over time, the proposed amendments relating to culture in the Charlottetown Accord would probably have significantly reduced federal legislative powers. Assuming that some kind of cultural power is to be entrenched in the Constitution at all, culture should be recognized as an area of shared or concurrent jurisdiction in which both Parliament and the provincial legislatures have legitimate roles to play. This paper also calls into question the whole concept of entrenching a cultural power in the Constitution in the first place, arguing that it is unwise to recognize indeterminate and amorphous concepts like culture as a basis for legislative authority in a federal state.

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