The End of Umpire? Federalism and Judicial Restraint

Document Type

Article

Publication Date

2006

Source Publication

Supreme Court Law Review

Abstract

The author argues that, since the early 1980s, the Supreme Court of Canada has followed the path of judicial restraint when adjudicating federalism disputes to a degree that is unprecedented in the Court''s history. The Court has almost entirely abandoned, for more than two decades, the use of declarations of invalidity to police the federal division of legislative powers. Over the same period, however, the Court has demonstrated an increased willingness to invoke the interjurisdictional immunity doctrine and the paramountcy doctrine to limit the application and operation of provincial statutes. The combined effect of these trends has been to increase the legal potential for federal dominance and provincial subordination. The jurisprudence makes the exercise of provincial legislative autonomy increasingly conditional upon securing federal consent or forbearance. So long as the provincial pursuit of distinct policies in the growing areas of shared jurisdiction is conditional upon a permissive federal posture, the provinces cannot be confident that their autonomy will be safeguarded in the future.

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