When Canada abandoned its appeals to the Judicial Committee of the Privy Council in constitutional matters, the Supreme Court of Canada began to slowly re-shape the boundaries of our federalism jurisprudence. In doing so, it expanded the federal Parliament’s powers and articulated a diminished view of the judicial role. Its case law developed a “cooperative, flexible federalism” defined by “a fair amount of interplay and indeed overlap between federal and provincial powers”. It has explicitly contrasted its vision with a more “rigid” approach to the division of legislative powers. While the Supreme Court’s departure from the original meaning of the Constitution in many federalism-related cases has been documented and criticized (in the province of Québec and in a recent article by Asher Honickman), its theory for doing so has received far less attention. The Court seems to have borrowed from American federalism jurisprudence and scholarship to justify its deference to the federal legislative branch. Rather than enforce the stated will of constituent legislators, the Supreme Court has been content to let political actors at both levels of government debate policy issues amongst themselves within the large spheres of overlap it has created. In this contribution, I bring the Supreme Court’s theory to the fore (A), while briefly explaining why it rests on shaky ground (B).
The Supreme Court’s Theory of Judicial Review on Federalism Grounds
As Brian Bird recently explained, Canada’s system has always been characterized by constitutional supremacy, as opposed to parliamentary supremacy. Despite the Supreme Court’s pronouncements to the contrary following the adoption of the Canadian Charter of Rights and Freedoms, Canada’s status within the British Empire meant that legislation adopted by either level of government had to be consistent with British legislation extending to Canada. Since Canada’s Constitution was a law passed by the British Parliament, all laws that contradicted it were found to be void to the extent of their inconsistency. The Statute of Westminster adopted in 1931 brought an end to the Colonial Laws Validity Act. In that sense, the federal Parliament and the provincial legislatures were given the power to modify or repeal British laws that applied to them before that date. However, section 7(3) of the Statute of Westminster specifically excluded the division of legislative powers from this possibility. In other words, any statutes adopted by any legislature in Canada that were inconsistent with the constitutional division of powers were to continue to be rendered void and inoperative. The judiciary’s role simply expanded when further limits were placed on legislative action with the adoption of the Charter.
Faced with a legal framework indicating that the text, structure and original understanding of Canada’s constitutional documents imposes enforcement of supralegislative norms by the judiciary, the Supreme Court has been largely unwilling to do so in the federalism context. After decades of criticism, the Supreme Court decided to more clearly justify its approach to judicial review on federalism grounds in Reference re Employment Insurance Act. While Léonid Sirota and Benjamin Oliphant have demonstrated that this particular decision is in fact consistent with original public meaning originalism, the Court’s comments are nonetheless telling about its intended approach:
To derive the evolution of constitutional powers from the structure of Canada is delicate, as what that structure is will often depend on a given court’s view of what federalism is. What are regarded as the characteristic features of federalism may vary from one judge to another, and will be based on political rather than legal notions. The task of maintaining the balance between federal and provincial powers falls primarily to governments.
In essence, the Supreme Court prefers to interpret federal powers broadly in order to let political actors strike the appropriate balance of powers. The Court maintains a limited function in supervising the exercise of these powers, but it recognizes that political actors at both levels of government are “primarily” entrusted with the task of dealing with what it considers to be political matters. This is a view that has been re-stated in Canadian Western Bank. Evidently, this runs contrary to its own comments in Vriend v Alberta, when it said that “it is not the courts which limit the legislatures. Rather, it is the Constitution, which must be interpreted by the courts, that limits the legislatures.”
The Political Safeguards of Federalism: A Transplant on Shaky Ground
The “political safeguards of federalism” theory advanced by the Supreme Court of Canada is well-known in American federalism scholarship. When the Supreme Court of the United States began to relax its approach to judicial review in the post-New Deal Era, scholars attempted to justify the Court’s new approach. In a seminal article, Herbert Weschler initially argued that the structure of the federal political system was sufficient to protect sub-national interests. By having a Senate with equal representation for all States, a President elected through the Electoral College and the need for a two-thirds majority to avoid filibusters, among other things, it was thought that the political process at the federal level could adequately maintain the balance of powers between the two orders of government. In that sense, if a law managed to pass Congress and be signed into law by the President, the judiciary should refuse to intervene. Weschler’s theory has since been refined and enhanced by Jesse Choper and Larry Kramer.
In Garcia v San Antonio Metropolitan Transit Authority, the Supreme Court of the United States officially adopted this theory. Writing for the majority, Justice Blackmun wrote:
We are convinced that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the “States as States” is one of process rather than one of result. Any substantive restraint on the exercise of Commerce Clause powers must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible failings in the national political process rather than to dictate a “sacred province of state autonomy.”[…]
Of course, we continue to recognize that the States occupy a special and specific position in our constitutional system and that the scope of Congress’ authority under the Commerce Clause must reflect that position. But the principal and basic limit on the federal commerce power is that inherent in all congressional action – the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the States will not be promulgated.
Incidentally, this approach has been the subject of much criticism in the United States. I would direct those with an interest in this subject to excellent articles written by Ilya Somin & John O. McGinnis and Saikrishna Prakash & John C. Yoo, which raise policy and legal issues with this approach to judicial review.
Whatever the arguments in favour of this theory may be in the United States, it is evident that the reasons for its adoption cannot be found in Canada. Canada’s upper house is composed of members appointed by the Governor-General with the advice of the Prime Minister. In other words, the sub-national entities have no direct representation in the national legislature. Moreover, Canada’s head of government is not elected through anything resembling the Electoral College. It is well-known that, in our parliamentary system, citizens do not vote for the Prime Minister. This role is instead given to the leader of the political party who can maintain the confidence of the lower house. In fact, only members of political parties can elect their leader. As such, when a law passes the federal Parliament, there are no “political safeguards” to warrant judicial deference. This is because the political process at the federal level in Canada is not structured to protect the interests of the federated entities.
Instead, it seems the Supreme Court has modified the political safeguards theory for a Canadian audience, while failing to consider the serious problems with its modified approach. In its view, it is the sub-national entities themselves that are best placed to protect their interests through the political process. In other words, the Court seems to concede that the structure of the federal order of government cannot protect the interests of the provinces. That said, while I agree that the sub-national governments are better placed to voice their opposition to the federal Parliament and government from a position of strength because they possess institutional power, they lack the ability to repeal federal laws and oppose federal authority by passing laws that frustrate a federal purpose. In these circumstances, a broad interpretation of federal powers lays the groundwork for coercive federalism rather than cooperative federalism.
Assuming the political safeguards theory can ever have merit (which is very much a matter of debate), it must be grounded in two distinct elements: (1) sub-national opposition through voice; and (2) sub-national opposition through the ability to implement or propose contrary legal norms. After all, a federation is primarily about dividing sovereignty and sovereignty is defined by possessing legislative authority to act. Canada does a great job of providing the first element by having federated entities with legislatures and governments possessing their own legitimacy through direct election. However, the absence of direct representation in the federal legislature implies that the second element is lacking. In administrative federations like Germany, the political safeguards theory would be far more compelling because sub-national governments are directly represented in the federal upper house. In that sense, they do have the ability to limit federal involvement in their spheres of competences and can always propose legislation to repeal previously adopted federal laws because they are directly involved in the federal legislative process. In such a system, judicial review may be less important.
In sum, the Supreme Court’s approach is not only inconsistent with the text, structure and original understanding of the Constitution, but also fails to meet fundamental doctrinal and theoretical principles. In fact, it happens to be entirely inconsistent with its approach to judicial review in other cases. If the political process as currently structured is sufficient to protect the balance of powers between the two orders of government, why should the Court not also refuse to enforce the Charter? To ask the question is to answer it. It is evident that the Court would not refuse to do so. The judiciary is duty-bound to enforce the law and the Constitution as it finds it, no more no less. As Justice David Stratas of the Federal Court of Appeal recently put it, “[i]n our system of governance, all holders of public power, even the most powerful of them – […] Chief Justices and puisne judges […] – must obey the law”. Our Fathers of Confederation struck a bargain to ensure a federal union rather than a unitary state. In doing so, they delimited exclusive spheres of jurisdiction through the text of the Constitution. Barring a constitutional amendment or a constitutional command not to declare federal laws unconstitutional as is the case in Switzerland, the Supreme Court must give effect to the written words of the Constitution. This poor attempt at transplanting an American theory of judicial review devoid of context must end.
 Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39 at para 45,  2 SCR 536.
 OPSEU v Ontario (Attorney General)  2 SCR 2 at 18, 1987 CanLII 71 (SCC).
 Reference re Securities Act, 2011 SCC 66 at paras 57–59,  3 SCR 837.
 Reference re Employment Insurance Act (Can), ss 22 and 23, 2005 SCC 56 at para 10,  2 SCR 669. See also Canadian Western Bank v Alberta, 2007 SCC 22 at para 24,  2 SCR 3.
 Vriend v Alberta,  1 SCR 493 at p 531, 1998 CanLII 816 (SCC).
 Herbert Wechsler, “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government” (1954) 54 Colum L Rev 543.
 Jesse Choper, Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980).
 Garcia v San Antonio Metropolitan Transit Authority, 105 S Ct 1005 (1985).
 Canada (Citizenship and Immigration) v Tennant, 2018 FCA 132 at para 23.