Structural Cooperative Federalism

(2016) 76 SCLR (2d) 45

22 Pages Posted: 17 Oct 2018

See all articles by Kate Glover Berger

Kate Glover Berger

Osgoode Hall Law School, York University

Date Written: September 2016

Abstract

This paper considers the status and content of the principle of cooperative federalism in Canadian constitutionalism. It argues that our understanding of cooperative federalism – often called the ‘modern form’ of federalism in Canada - is enriched by looking to constitutional contexts beyond the division of powers. This paper focuses on just one of those contexts, namely, the text and structure of the constitutional amending procedure set out in Part V of the Constitution Act, 1982. It contends that when we look to the multilateral procedures of Part V, we see a strong expression of cooperative federalism, one that is embedded in the architecture of Canada’s constitution. This paper then considers the implications of this observation about Part V for the interpretation of sections 91 and 92 of the Constitution Act, 1867. It explores the claim that while the impact of an enriched understanding of cooperative federalism in the division of powers context remains to be worked out in practice and in the jurisprudence, the principle of cooperative federalism could entail some measure of positive obligation on official actors engaged in joint action.

TABLE OF CONTENTS

INTRODUCTION

I. The Status of Cooperative Federalism in Division of Powers Jurisprudence

II. Cooperative Federalism and Part V

1. Cooperative federalism as a descriptive concept 2. Cooperative federalism as an interpretive principle

III. Cooperative Federalism as Constitutional Structure

CONCLUSION

Keywords: Cooperative Federalism, Division of Powers, Constitutional Amendment, Structuralism, Part V of the Constitution Act 1982

Suggested Citation

Glover Berger, Kate, Structural Cooperative Federalism (September 2016). (2016) 76 SCLR (2d) 45, Available at SSRN: https://ssrn.com/abstract=3255093

Kate Glover Berger (Contact Author)

Osgoode Hall Law School, York University ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

HOME PAGE: http://https://www.osgoode.yorku.ca/faculty-and-staff/glover-berger-kate/

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