The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and the First Nations

Abstract

The author explores the possibility of employing Canadian constitutional doctrine to develop a more flexible approach that would allow for greater provincial autonomy and First Nation self-government within the existing scheme of jurisprudence interpreting sections 91 and 92 of the Constitution Act, 1867. Canadian constitutional doctrine is first interpreted through the competing models of the classical and modern paradigms. The former emphasizes sharp lines ("watertight compartments") between federal and provincial heads of power and tends to have a deregulatory impact. The modern paradigm, on the other hand, welcomes overlap and interplay between heads of power and maximizes the democratic space available to both levels of government. The author then discusses the relationship of the classical and modern paradigms to provincial autonomy and Aboriginal self-government respectively, concluding that each has an important role to play in enhancing respect for the federal principle in Canada.

Keywords: Constitutional Law, Federalism