A Return to Classical Federalism?

Barry Cooper, Canada, Publications, Regulation, Role of Government, Uncategorized

EXECUTIVE SUMMARY

In a (surprisingly) unanimous decision just prior to Christmas 2011, the Supreme Court of Canada ruled that the proposal by the federal government as found in the Securities Act to regulate securities in Canada was unconstitutional. The Court ruling was based on the division of powers sections of the Constitution Act, 1867, originally a statute of Victorian Britain. This was only slightly less surprising. In this paper, Barry Cooper, Professor of Political Science at the University of Calgary, analyzes the historical context for this decision, the reasons for judgment and the politics that underlay both the attempt by Ottawa to take over an area of provincial jurisdiction and the implications of the failure in court.

In summary, he shows that the Court’s decision conforms to the notion of classical federalism, whereby the central government and the provinces have reasonably clear areas of jurisdiction and responsibility. Given that classical federalism has been out of favour in Canada since at least the end of World War II, this is also a surprising development, Professor Cooper argues. Whether the Supreme Court of Canada (SCC) or the Government of Canada continues in this direction, of course, remains to be seen. Nevertheless, it is unquestionably a step in the right direction.

INTRODUCTION

To understand the potential significance of the recent SCC decision in reference to the Securities Act (2011), a brief contextual history of the distribution of powers in Canada between Ottawa and the provinces is required.1 These remarks will simplify a wonderfully complex and controversial jurisprudential and political history but without, one hopes, distorting it.

We begin with an uncontroversial observation: Many legal scholars, lawyers, judges and political scientists have argued that until the Charter of Rights and Freedoms became law in 1982, the SCC was, owing to the force and effect of precedent, or of stare decisis, largely subordinate to the rulings of the Judicial Committee of the Privy Council (JCPC), especially in matters relating to federalism, even though the JCPC ceased to be the court of final appeal in 1949. As Alan Cairns pointed out a generation ago, the hope, at least in English-speaking Canada, was that when the SCC became the final appeal court, it would reverse what critics of the JCPC saw as the debilitating consequences of a series of JCPC decisions that had effectively reduced and limited the aspirations of the Dominion government, as it was then still called.2 In the view of the critics of the JCPC, the SCC would be an agent of centralization, thus restoring a measure of the original intent of the Fathers of Confederation. Criticism of such hopes was centered chiefly in the Quebec legal, political and academic communities.

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