The Patriation Reference and Quebec Veto Reference revealed deep disagreements as to the nature of Canadian federalism and the normative underpinnings, if any, of the federal principle. This paper identifies two dominant conceptions of federalism in these early 1980s references, a positivist-voluntarist one and generic-historicist one, which have both informed in one way or another the case law since. After examining the normative ideas recently associated with federalism by Supreme Court justices, the paper shows that members of the Court remain divided not only as to the meaning of such ideas and the normative consequences flowing from the m, but also as to the relevance and justiciability of the federal principle itself. It argues that although such an outcome is probably inevitable in a divided society such as Canada, a common syntax of federalism, revolving around core values underlying the federal principle, could help buttress the quality of reasons invoked in support of rulings made about the formal division of powers. If, incidentally, such an approach could help frame political debates so that they are more sensitive to the existence of diverse conceptions of federalism, and more prone to reconciling the m when possible, so much the better.
"The "Principle" of Federalism and the Legacy of Patriation and Quebec Veto References."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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