Safeguarding Provincial Autonomy from the Supreme Court's New Federal Paramountcy Doctrine: A Constructive Role for the Intention to Cover the Field Test?
Supreme Court Law Review
Canada; Constitutional Law; Paramountcy Doctrine; Federal-Provincial Relations; Provincial Autonomy
This paper reviews and critiques the Supreme Court of Canada's consideration of the constitutional law doctrine of federal paramountcy, in particular its willingness to broaden the circumstances in which the doctrine applies. Preservation of a high degree of provincial autonomy has been a consistent theme of federalism jurisprudence in Canada. Since taking over from the Judicial Committee of the Privy Council as the court of last resort for Canada, the Supreme Court has allowed federal and provincial legislation to overlap in a broad range of different areas. The Court's recent approach to the paramountcy doctrine could therefore potentially lead to significant inroads into provincial autonomy. This paper has four objectives: (1) to trace the evolution of the paramountcy doctrine from 1982 to 2007; (2) to summarize the Court's current extended understanding of the paramountcy doctrine's reach and its practical and theoretical implications; (3) to provide critical scrutiny of that understanding from the perspectives of constitutional principle and constitutional policy; and (4) to suggest a new way of thinking about the doctrine, which accepts the validity of its recent extension, but attempts to mitigate the potential damage that the extension may cause to provincial autonomy.
Robin Elliot, "Safeguarding Provincial Autonomy from the Supreme Court's New Federal Paramountcy Doctrine: A Constructive Role for the Intention to Cover the Field Test?" (2007) 38 Sup Ct Rev 629-668.