Cooperative federalism – a division of powers principle to suit every need?

  • January 02, 2018
  • Olga Redko

Much ink has been spilled over the significance of the principle of cooperative federalism, starting with whether it is even a recognized doctrine that can be relied upon to adjudicate disputes over the division of legislative powers established by the Constitution Act, 1867. Although this may seem like the most academic of academic issues – division of powers is not exactly known as the sexiest aspect of Canadian constitutional law – the Supreme Court’s docket this year reminds us that cooperative federalism remains a liminal concept ripe for use by all sides of any debate that involves competing provincial and federal jurisdiction.

In the recently argued Comeau case, the parties duelled over the implications of the interpretation of section 121 of the Constitution Act, 1867 to the possibility of cooperative legislative efforts between federal and provincial authorities. Meanwhile this winter, the Orphan Wells case and the second Securities Reference out of QuĂ©bec will ask the court to opine on how the notion of cooperative federalism interacts with established doctrines such as pith and substance and paramountcy. In short, this elusive principle has been getting lots of traction from courts and parties alike.

To explore what cooperative federalism might actually mean and how that might matter to our division of powers jurisprudence, on Nov. 16, 2017, the CBA-Québec Administrative and Constitutional Law sections partnered to present a conference dealing with the historical and theoretical origins of this principle, as well as several visions of its utility and consequences.

Following a historical overview of the development of cooperative federalism in the jurisprudence presented by the Hon. Clément Gascon of the Supreme Court of Canada, the implications and possible interpretations of this principle were addressed in some detail by Alexander Pless, of the Department of Justice, and Noura Karazivan, Professor of Constitutional Law at the University of Montreal.

In Pless’s view, reliance on the notion of cooperative federalism actually tends to yield uncooperative consequences. Despite its name suggesting a preference for different orders of government working together to achieve common goals, in practice courts have invoked this principle in support of quite the opposite result. To take but one recent example, in Alberta (Attorney General) v Moloney, the majority of the Supreme Court referred to cooperative federalism as a principle favouring a restrained application of the paramountcy doctrine.Footnote1 Essentially, the call for cooperation can actually be used to militate for the operationalization of both federal and provincial laws – but with the end result being that both orders of government may act independently of one another, rather than in concert.

For Noura Karazivan, meanwhile, cooperative federalism might best be considered a means of promoting executive schemes that require a certain degree of interaction between provinces and the federal government. Where a regulatory structure entails the participation of both orders of government, each acting properly within its own jurisdiction – the federal-provincial cost sharing agreement at issue in Reference Re Canada Assistance Plan being but one exampleFootnote2 – Karazivan points out that courts will be reticent to interfere with the functioning of that scheme and the executive decisions that underlie it.

Of course, as Karazivan notes, inter-governmental agreements where each government acts within its own jurisdiction are not, strictly speaking, legally enforceable. The consequences of one order of government refusing to uphold its end of a given bargain may be political. This has, at least, been the approach taken to such agreements by the Supreme Court so far, even as the dissenting reasons in the Firearms ReferenceFootnote3 appear to open a door to a more robust use of cooperative federalism to actually invalidate “uncooperative” action. How that court will deal with the federal-provincial agreement at issue in the upcoming Securities Reference remains an open question.

That said, a jurisprudential approach that imposes a legal price on unilateral action in the context of inter-governmental agreements would be unprecedented, potentially amounting to an intrusion on legislative sovereignty. What is more, it could stand in contradiction to courts’ occasional reliance on cooperative federalism to preserveunilateral action, as hinted at in Moloney or in Gascon J.’s concurring reasons in Rogers Communications Inc. v Châteauguay.Footnote4 Indeed, it is unclear whether it would be possible to reconcile these competing visions and uses of the principle.

Ultimately, Karazivan may have put it best when she characterized cooperative federalism as a concept whose tenor and importance is adapted to fit the needs and circumstances of the party relying on it. Absent a jurisprudential crystallization of the principle, it remains sufficiently flexible to offer something for everyone. Whether this year’s batch of the Supreme Court’s federalism cases will change that remains to be seen.

Olga Redko is an associate with IMK LLP