Over the last 10 years, the Supreme Court of Canada has referred explicitly to the principle of subsidiarity even though it is not found in the federation’s formal constitutional structure. Two examples are found in the 2010 decisions COPA and Reference re Assisted Human Reproduction Act. As a result, this paper focuses on the role currently played by the principle of subsidiarity in Canadian federalism. More specifically, it identifies the actual and potential effects of this principle on the balance of power between the federal and provincial governments. The first part briefly examines the close ties existing, at the the oretical level, between the principles of subsidiarity and federalism. The second part considers the place given to the principle of subsidiarity in Canadian constitutional law, first as a notion underlying the adoption of a federal form of government, and the n as a legal principle for regulating the exercise of powers. The paper demonstrates that the cooperative view of federalism adopted by the Supreme Court has generated a large number of de facto overlapping powers, creating fertile ground for the discreet, but increasingly apparent, emergence of a constitutional principle of subsidiarity in Canada.
"Canadian Federalism and the Principle of Subsidiarity: Should We Open Pandora's Box?."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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