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Publication Date


Source Publication

McGill Law Journal/Revue de Droit de McGill. Volume 36, Number 2 (1991), p. 308-381.


constitutional law; federalism


The author explores the possibility of employing Canadian consitutional doctrine to develop a more flexible approach that would allow for greater provincial autonomy and First Nation self-government within the existing scheme of ss 91 and 92 jurisprudence. Canadian constitutional doctrine is first interpreted through the competing models of the classical and modem paradigms. The former emphasizes a sharp division of powers and has traditionally been used, the author argues, to invalidate legislation seen to interfere with the market economy. The modem paradigm, on the other hand, recognizes competing jurisdictions and has been used to uphold legislation focusing on morals. The author then brings this analysis to bear on the issue of provincial autonomy, focusing on the doctrinal writings of Québécois scholars. Using the classical paradigm to restrict federal intrusion, and the modem paradigm to expand provincial powers will, the author argues, enhance provincial autonomy within the existing federal structure, pending further constitutional amendment. Finally, the author extends the analysis to the issue of First Nations autonomy, arguing that similar doctrinal analysis could be used to promote self-government for the First Nations.

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