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Thursday, August 15, 2013

Oliver on Canadian Legal Federalism since 1982

Peter Oliver (not the one Canadian legal historians are most familiar with!) has published an article, "Canadian legal federalism since 1982" in Canadian Issues/Themes Canadiens (Federalism and Identies Issue.)

Here's the abstract:

This article considers the evolution of legal federalism over the past 30 years. It observes that since 1982 we have seen: considerable stability in the interpretation of heads of power; a judicial policy of cooperative federalism whereby both federal and provincial legislatures are afforded considerable room to legislate; an enduring interjurisdictional immunity rule that is weaker and narrower in its application; and a conflict rule that grants federal paramountcy under narrowly construed terms. By way of counterpoint to enduring federal paramountcy we have seen: broad federal powers such as Criminal Law and General Regulation of Trade and Commerce interpreted less expansively; the ancillary doctrine applied more rigorously; and the Charter of Rights and Freedoms used to limit federal paramountcy where other rules of legal federalism do not necessarily avail.

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