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The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

The Promise and Limits of Cooperative Federalism as a Constitutional Principle

Warren J. Newman, Department of Justice of Canada

Abstract

In this article, I shall address the Supreme Court of Canada’s recent jurisprudence on cooperative federalism and its promise for the future, from the perspective of federalism as an underlying constitutional principle. In its jurisprudence, particularly over the past decade, the Court moved from an ostensibly neutral view on what form federalism, as a normative concept, should take, to one of not just tolerating but actively encouraging flexible and cooperative federalism. There are limits to the ambit of cooperative federalism as an organizing principle, and it must be balanced with other principles, including parliamentary sovereignty and the separation of powers, and occasionally, with the fact that sections 91 and 92 of the Constitution Act, 1867 grant powers that are, in principle, exclusive and not concurrent (even though they may apply concurrently to certain matters through the double-aspect doctrine). On the separation of powers, there are also limits to what courts can do as adjudicative bodies in encouraging cooperation, and it falls principally to federal and provincial political actors to determine the dynamics and degree of cooperation, given the diversity of views and perspectives inherent in a federal system. Given its origins in the political dynamics of federal-provincial relations and its implementation largely through political agreements and more or less informal institutional or administrative arrangements and concertation, cooperative federalism might be better understood and applied in the legal context as a modality of the federal principle, rather than as a full-blown constitutional principle in its own right.

Citation Information

Newman, Warren J.. "The Promise and Limits of Cooperative Federalism as a Constitutional Principle." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 76. (2016).
DOI: https://doi.org/10.60082/2563-8505.1329
https://digitalcommons.osgoode.yorku.ca/sclr/vol76/iss1/4