Implicit in the federal principle is the need to give equal respect to provincial and federal claims to autonomy within their respective spheres of exclusive jurisdiction. Two features of the Supreme Court of Canada’s jurisprudence are at odds with this principle. The first is the interjurisdictional immunity doctrine which, in the Court’s practice, treats federal powers as more exclusive than provincial powers. The Court has not seized opportunities to close this gap between principle and practice, thus confirming a jurisprudential status quo that runs directly counter to one of the fundamental principles of the Constitution. The second is the expansion of areas subject to concurrent federal and provincial power. In these areas, the federal paramountcy rule subordinates provincial autonomy to federal legislative policies. To halt further erosion of the federal principle, a majority of the Court denied Parliament jurisdiction over the regulation of all aspects of research and clinical practice in relation to assisted human reproduction; a similar majority is likely to reach the same conclusion with respect to securities regulation. If federal and provincial governments are convinced of the value of single national regulators in these areas of shared jurisdiction, they should pursue their goals through the enactment of interlocking federal and provincial legislation endowing single national regulators with comprehensive jurisdiction.
"Equal Autonomy in Canadian Federalism: The Continuing Search for Balance in the Interpretation of the Division of Powers."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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