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Schulich School of Law, Dalhousie University

Federalism

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Full-Text Articles in Law

Does The Attorney General Have A Duty To Defend Her Legislature’S Statutes? A Comment On The Reference Re Genetic Non-Discrimination Act, Andrew Martin Jan 2020

Does The Attorney General Have A Duty To Defend Her Legislature’S Statutes? A Comment On The Reference Re Genetic Non-Discrimination Act, Andrew Martin

Articles, Book Chapters, & Popular Press

The Reference Re Genetic Non-Discrimination Act was unusual because the Attorney General for Canada argued that federal legislation was unconstitutional. In this comment, I explore the implications of this choice for the role of the Attorney General and her relationship with Parliament. I argue that the Attorney General has a duty not to defend legislation, including legislation that began as a private member’s bill, that she reasonably believes to be unconstitutional – and that if Parliament wants to defend such legislation, it should do so itself instead of relying on the Attorney General. If Parliament does not do so, the …


Federalism And Health Care In Canada: A Troubled Romance?, Colleen M. M. Flood, William Lahey Prof., Bryan P. Thomas Jan 2017

Federalism And Health Care In Canada: A Troubled Romance?, Colleen M. M. Flood, William Lahey Prof., Bryan P. Thomas

Articles, Book Chapters, & Popular Press

Canadian federalism fragments health system governance. Although the Constitution has been interpreted as providing shared jurisdiction over health generally, with respect to health care, the courts have interpreted it as giving direct jurisdiction to the provinces. The federal role in health care is therefore indirect, but nevertheless potentially powerful. For example, the federal government has used its spending powers to establish the Canada Health Act (CHA), which commits funding to provinces on condition they provide first-dollar public coverage of hospital and physician services. However, in recent times, as federal contributions have declined, the CHA has been weakly enforced. …


The Supreme Court Of Canada And Federalism: Does / Should Anyone Care Anymore?, A. Wayne Mackay Jan 2017

The Supreme Court Of Canada And Federalism: Does / Should Anyone Care Anymore?, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

Federalism is still a relevant and vital aspect of Canadian Constitutional Law. Although a lower profile aspect than the Charter of Rights and Aboriginal rights (and in common parlance less "sexy"), the division of powers continues to an important part of the work of the Supreme Court of Canada and part of what defines us as a nation. The author argues that the Supreme Court has pursued an increasingly contextualized approach to division of powers issues - one that abandons the arid legalism of earlier days, in favour of a broad social analysis of issues based on extensive use of …


Recognizing Substantive Equality As A Foundational Constitutional Principle, Patricia Hughes Oct 1999

Recognizing Substantive Equality As A Foundational Constitutional Principle, Patricia Hughes

Dalhousie Law Journal

The author proposes that substantive equality be recognized as a foundational constitutional principle. The foundational principles--or underlying constitutional norms-which constitute the constitutional framework have become more important as Canada matures as a regime governed by constitutional supremacy. Most prime social and political values have been recognized as underlying constitutional norms, including democracy, federalism, protection of minority rights, political speech and judicial independence. Although section 15 of the Charter has been interpreted as encompassing substantive equality, which has been identified as a significant social value by the Supreme Court of Canada, the Court has yet to include it among the foundational …


The Constitutional Amending Process, A Paul Pross, Andy Anstett, Thomas Cromwell, A. Wayne Mackay, Dianne Pothier, Della Stanley Jan 1991

The Constitutional Amending Process, A Paul Pross, Andy Anstett, Thomas Cromwell, A. Wayne Mackay, Dianne Pothier, Della Stanley

Dianne Pothier Collection

Since the failure to ratify the Meech Lake Accord in June 1990, the constitutional future of Canada has been the topic of increasingly urgent debate. So far, a consensus has emerged on two things. First, federalism as it is enshrined in the Constitution Acts of 1867 and 1982 no longer meets the needs and aspirations of the majority. Second, the means used in the past to achieve major constitutional revision are no longer acceptable to the majority of Canadians. Put simply, constitutional revision is essential if Canada is to survive and the means of achieving this revision must be more …


Canada In Question: Federalism In The Seventies, David Covert Jan 1977

Canada In Question: Federalism In The Seventies, David Covert

Dalhousie Law Journal

Canada in Question is an apt title for D. V. Smiley's book discussing federalism in the seventies and the future of the Canadian federalist system. In this second edition, not only does he incorporate recent developments but he expands and re-casts several chapters in order to provide the reader with a more comprehensive coverage of the Canadian federal system. Smiley, in the first seven chapters, deals almost exclusively with the structures and processes of Canadian federalism, whereas the final three chapters are devoted to what he terms a more "speculative analysis of the relations between these structures and processes" (p. …


The Case Against Entrenchment Of A Canadian Bill Of Rights, Douglas A. Schmeiser Sep 1973

The Case Against Entrenchment Of A Canadian Bill Of Rights, Douglas A. Schmeiser

Dalhousie Law Journal

A limited form of judicial review has always been a prominent feature of Canadian federalism. Immediately after confederation, Canadian Courts assumed the jurisdiction to declare a statute to be beyond the legislative competence of the enacting body.' Until comparatively recently, Courts have also assumed that a totality of unrestricted legislative power resides in Parliament and the Provincial legislatures, i.e., as long as legislative jurisdiction exists, there is no limitation on the nature of legislation which may be passed.