Friday, March 27, 2015

Cooperative federalism does not limit otherwise proper governmental actions

Quebec (Attorney General) v.Canada (Attorney General), 2015 SCC 14:

The principle of cooperative federalism, therefore, cannot be seen as imposing limits on the otherwise valid exercise of legislative competence: Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 421.  This was recently reiterated by this Court in its unanimous opinion in Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at paras. 61-62:

While flexibility and cooperation are important to federalism, they cannot override or modify the separation of powers.  The Secession Referenceaffirmed federalism as an underlying constitutional principle that demands respect for the constitutional division of powers and the maintenance of a constitutional balance between federal and provincial powers.

In summary, notwithstanding the Court's promotion of cooperative and flexible federalism, the constitutional boundaries that underlie the division of powers must be respected.  The "dominant tide" of flexible federalism, however strong its pull may be, cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state. [Emphasis added.]

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