The 2018 Pan-Canadian Securities Regulation Reference: Dualist Federalism to the Rescue of Cooperative Federalism
(2020) 94 Supreme Court Law Review (2nd), pp 85-123
40 Pages Posted: 30 Jun 2020
Date Written: November 4, 2019
Abstract
In Canada, a robust conception of parliamentary sovereignty is one of the enduring features of the original dualist federal architecture. Provinces and the federal order are equally endowed with parliamentary sovereignty within their respective sphere of legislative powers, which is key to the federal partners' autonomy. Yet, this dualist architecture somewhat collides with a contemporary, substantial practice of cooperative federalism, which is facilitated by a significant degree of judicial deference. Yet, when federal partners do not - or no longer wish to- cooperate, the Supreme Court upholds unilateral action, reverting back to dualist federalism, notably though a maximalist conception of parliamentary sovereignty. The latter is thus akin to a “sword” which members of the federation may unilaterally wield to renege on cooperative schemes to recover their full autonomy without due regard to the effects their withdrawal might have on other federal partners.
In the 2018 Reference re Pan-Canadian Securities Regulation, the Supreme Court was asked to rule on the constitutional validity of a complex intergovernmental cooperative scheme. The Quebec Court of Appeal had previously held that this cooperative commitment went beyond a “manner and form” limitation and therefore ran afoul of provincial parliamentary sovereignty as well as Canada's federal structure. The Supreme Court disagreed. Provincial legislatures, it held, are always free to legislate by virtue of their sovereignty. They can do so unilaterally, in a way that ignores or contradicts cooperative commitments made by the executive branches. In real life, this might not be a likely scenario. But it is a constitutionally admissible one. Ultimately, this formalistic possibility of resorting to a legislature’s sovereignty saves the cooperative scheme at issue. The “sword” that is parliamentary sovereignty thus becomes a “shield” behind which the political branches (and predominantly the executive) can reshape the constitutional landscape. Paradoxically, it is thus a key component of dualist federalism, parliamentary sovereignty, that comes to the rescue of intergovernmental arrangements, a hallmark of cooperative federalism.
Keywords: Dualist Federalism, Canada, Intergovernmental Relations, Cooperative Federalism, Parliamentary Sovereignty
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