The Supreme Court of Canada Stops the Pendulum

This is a post that will mainly be of interest to the law crowd only.

In my view the biggest news out of the Supreme Court of Canada this year is not the Charter or anything out of the criminal law but instead the two federalism cases brought down by the Supremes at the end of May: Canadian Western Bank v. Alberta, 2007 SCC 22 ( http://scc.lexum.umontreal.ca/en/2007/2007scc22/2007scc22.html ) and British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23 http://scc.lexum.umontreal.ca/en/2007/2007scc23/2007scc23.html ) where they make a valiant effort at straightening out the legendary (at least in law students' minds) quagmire of the border between federal and provincial jurisdiction in Canada.

For those of us who went to law school prior to the serious days of the Charter, constitutional law largely consisted of trying to figure out the rules for figuring out whether federal or provincial laws were ultra vires because they improperly intruded onto the other level of government's turf. We would read reams of cases that seemed to make no particularly good sense and seemed impossible to reconcile (largely because they did make no sense and were impossible to reconcile). In the end the best we hoped for was to figure out which era of judicial reasoning favoured which approach and hope that we knew which era any judge we were facing would like.

The truth is the law in this area swung wildly about in a number of different directions (no nice grandfather clock type pendulm here) as Courts favoured either strict separation of powers (watertight compartments), largely loose co-extensive fields of influence or a battlefield where the federal government could (if it was just forceful enough) occupy the field and rout the provincial governments back to their modest hovels.

In these two cases the Supreme Court of Canada is remarkably candid about the history of this process and about the problems it spawned in coming up with any coherent explanation of the division. Even more remarkably the Supreme Court in these two cases has expressly tried to stop the swinging pendulm by drawing a line and saying 'no change beyond here'. So where have we ended up and what does it mean?

In essence the Court has done a few things: (1) it has expressly limited the growth of interjurisdictional immunity (that is the no-go zone for the provinces) to list of items that had been described that way by previous decisions -- Indians, airports, harbours and major federal projects (federal persons, places or things); (2) it has beefed up the idea of conflicting laws so that now there are clearly situations where a federal law and a provincial law can conflict even if it is technically possible to obey both (thus Multiple Access v. McCutcheon is dead); (3) it has made it clear that becuase of (1) and (2) we now live in a world of massive federal and provincial overlap where issues will be resolved by paramountcy (that is deciding which law comes out on top) rather than by no trespassing doctrines.

While these decisions have laregely gone under the radar they actually to my mind represent quite strong political statements on the part of the Court about the nature of our nation and the role of the Federal government. All to often in recent years we have heard assertions of territorial absolutism coming from various provincial governments that oppose ideas of national health care standards, national environmental laws and national securities laws (for example). This opposition sees a small federal government that has to be held in close check if the the autonomous provinces are not to be allowed to fulfill their destinies. These cases are a ringing rejection of that idea. Instead we see a Canada where the two levels of government co-exist and can be allowed to work together in a wide range of areas to develop both local and national objectives as a nation and not merely as a loose collection of principalities looking to the federal government as a bandit charged with the dirty work of robbing from one set of provinces to give to another set.