{"id":2386,"date":"2017-06-18T02:03:20","date_gmt":"2017-06-18T02:03:20","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2386"},"modified":"2017-08-31T02:03:35","modified_gmt":"2017-08-31T02:03:35","slug":"alberta-law-review-to-publish-watertight-compartments","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/alberta-law-review-to-publish-watertight-compartments\/","title":{"rendered":"Alberta Law Review to Publish “Watertight Compartments”"},"content":{"rendered":"

I am very pleased to report that my paper, “Watertight Compartments: Getting Back to the Constitutional Division of Powers,” has been selected for publication in the upcoming edition of the Alberta Law Review. In this paper I argue that ss. 91 and 92 of the Constitution Act, 1867<\/em>\u00a0(formerly the B.N.A. Act, 1867<\/em>)\u00a0establish mutually exclusive jurisdictional spheres \u2013 what the Privy Council once termed \u201cwatertight compartments\u201d – that leave very little room for legitimate overlap. \u00a0The modern trend of “flexible” or “cooperative” federalism that facilitates overlap between federal and provincial powers is directly contrary to what the Constitution says.<\/p>\n

This year, as we celebrate the 150th anniversary of Confederation, let us also return to the words of our original Constitution, and its vision of exclusive, divided, and limited legislative powers.<\/p>\n

 <\/p>\n

Below is an excerpt for those who are interested. The full paper can be accessed on SSRN<\/a>.<\/p>\n

***<\/p>\n

Lord Sankey will forever be associated with the phrase \u201cliving tree,\u201d a metaphor that he used to describe Canada\u2019s constitutional order in the famous Edwards\u00a0 decision (better known to many as the Persons case).\u00a0 However, two years later he offered another analogy that, while far less known and cited, is no less relevant. In the Aeronautics Reference,\u00a0 Lord Sankey warned against judicial interpretations moving slowly but surely away from the original meaning of the text \u2013 \u201cfrom what has been enacted to what has been judicially said about the enactment\u201d\u00a0 and then offered the following analogy and admonition:<\/strong><\/p>\n

To borrow an analogy; there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make any distinction between the two, and yet at the one end of the range the colour may be white and at the other end of the range black. Great care must therefore be taken to consider each decision in the light of the circumstances of the case in view of which it was pronounced, especially in the interpretation of an Act such as the British North America Act, which was a great constitutional charter, and not to allow general phrases to obscure the underlying object of the Act, which was to establish a system of government upon essentially federal principles. Useful as decided cases are, it is always advisable to get back to the words of the Act itself and to remember the object with which it was passed.<\/strong><\/p><\/blockquote>\n

If that were not clear enough, Lord Sankey added that \u201c[t]he process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded.\u201d<\/strong><\/p>\n

In recent decades, Canada\u2019s federalism jurisprudence has begun to pass through Lord Sankey\u2019s \u201csixty colours.\u201d\u00a0 The Supreme Court is gradually, but steadily, \u201cwhittl[ing] down the provisions of the original contract\u201d by turning away from the textually-embedded exclusivity principle and toward a flexible model of federalism built upon overlapping jurisdiction.\u00a0<\/strong><\/p>\n

This trend is arguably inconsistent with the Court\u2019s own stated method of constitutional interpretation. While the Court has repeatedly affirmed the modern living tree doctrine, it has also continued to recognize \u201cthe primacy of the written text of the Constitution,\u201d\u00a0 which, as the Court has acknowledged, \u201cpromotes legal certainty and predictability\u201d and \u201cprovides a foundation and a touchstone for the exercise of constitutional judicial review.\u201d\u00a0 Constitutional interpretation must always \u201cbegin with the language of the constitutional law or provision in question,\u201d\u00a0 and \u201cthe analysis must be anchored in the historical context of the provision.\u201d\u00a0<\/strong><\/p>\n

In a similar vein, the Supreme Court has acknowledged the fundamental importance of constitutionalism and the rule of law in Canada\u2019s constitutional order.\u00a0 As Justice Rothstein said at a recent conference, the rule of law demands, among other things, that judicial decisions be made in accordance with the law.\u00a0 Under the Constitution Act, 1982, the power to amend the Constitution is given exclusively to the legislative branch. Sections 91 & 92 of the Constitution Act, 1867 similarly state that Parliament and the provincial legislatures have the \u201cexclusive\u201d authority to legislate \u2013 a principle \u201cwon four centuries ago at the cost of much bloodshed.\u201d\u00a0 The role of the judiciary is to decide cases and apply the law. The power to strike down legislation flows from, and is necessarily incidental to, this primary function. At base, it is the application of the supreme law \u2013 the Constitution \u2013 to inferior laws.\u00a0 If, in applying the supreme law, judges marginalize the text or alter its meaning, then they alter the law and thereby exceed their own constitutional authority.\u00a0<\/strong><\/p>\n

This is not to argue that there can be no role for the judiciary in guiding the course of the Constitution to ensure that it remains applicable to modern Canadian society; and indeed, much ink has been spilled on how an \u201coriginalist\u201d approach to constitutional interpretation may be qualified by modest judicial interventions.\u00a0 My aim here is not to advance that discussion; it is simply to state that if the text is indeed of primary importance as the Supreme Court has said, then that primacy requires, at a minimum, the courts to develop judicial doctrine with a close eye to constitutional language and structure.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

I am very pleased to report that my paper, “Watertight Compartments: Getting Back to the Constitutional Division of Powers,” has been selected for publication in the upcoming edition of the Alberta Law Review. In this paper I argue that ss. 91 and 92 of the Constitution Act, 1867\u00a0(formerly the B.N.A. Act, 1867)\u00a0establish mutually exclusive jurisdictional …<\/p>\n","protected":false},"author":2,"featured_media":2389,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[77],"tags":[359,360,159,203,357,129,128,358,51,61,356],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2386"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2386"}],"version-history":[{"count":4,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2386\/revisions"}],"predecessor-version":[{"id":2397,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2386\/revisions\/2397"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/2389"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2386"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2386"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2386"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}