I am pleased to announce that my paper, “Watertight Compartments: Getting Back to the Constitutional Division of Powers” has now been published in the Alberta Law Review.<\/p>\n
Per the abstract:<\/p>\n
This article offers a fresh examination of the constitutional division of powers. The author argues that sections 91 and 92 of the Constitution Act, 1867<\/em> establish exclusive jurisdictional spheres \u2014 what the Privy Council once termed \u201cwatertight compartments.\u201d This mutual exclusivity is emphasized and reinforced throughout these sections and leaves very little room for legitimate overlap. While some degree of overlap is permissible under this scheme \u2014 particularly incidental effects, genuine double aspects, and limited ancillary powers \u2014 overlap must be constrained in a principled fashion to comply with the exclusivity principle. The modern trend toward flexibility and freer overlap is contrary to the constitutional text. The author argues that while some deviation from the text is inevitable due to the presumption of constitutionality and stare decisis, the Supreme Court should return to a more exclusivist footing in accordance with the text.<\/p><\/blockquote>\n