Search results

Implicit in the federal principle is the need to give equal respect to provincial and federal claims to autonomy within their respective spheres of exclusive jurisdiction. Two features of the Supreme Court of Canada's jurisprudence are at odds with this principle. The first is the interjurisdictional immunity doctrine which, in the Court's practice, treats federal powers as more exclusive than provincial powers. The Court has not seized opportunities to close this gap between principle and practice, thus confirming a jurisprudential status quo that runs directly counter to one of the fundamental principles of the Constitution. The second is the expansion of areas subject to concurrent federal and provincial power. In these areas, the federal paramountcy rule subordinates provincial autonomy to federal legislative policies. To halt further erosion of the federal principle, a majority of the Court denied Parliament jurisdiction over the regulation of all aspects of research and clinical practice in relation to assisted human reproduction; a similar majority is likely to reach the same conclusion with respect to securities regulation. If federal and provincial governments are convinced of the value of single national regulators in these areas of shared jurisdiction, they should pursue their goals through the enactment of interlocking federal and provincial legislation endowing single national regulators with comprehensive jurisdiction.

We are still in the early stages of working out what it means for the Canadian state to be both officially secular and supportive of religious pluralism. In this period of uneasy transition, the respective roles of secular and religious norms in shaping public policy are matters of considerable political debate and scholarly attention. The Supreme Court has had a few opportunities to contribute to these debates in recent years. The author discusses three significant 2004 rulings on religious freedoms: Syndicate Northcrest v. Amselem, the Same-Sex Marriage Reference and Congregation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village). While the majority in Lafontaine avoided the religious freedom issue, Lebel J.'s dissent introduced the language of religious neutrality into the Court's jurisprudence and his thoughtful discussion of its implications ought to contribute to future debates. The Court's opinion in the Same-Sex Marriage Reference was commendable by so clearly stating that religious freedom is in no way threatened by the federal government's Proposed Act (Bill C-38 in Parliament). The move from a definition of civil marriage rooted in Christendom to one aimed at fulfilling the secular ideals of the Charter is consistent with the state's duty of religious neutrality, and the Court's opinion played a valuable role in removing any legal objections to its attainment. Justice Iacobucci's opinion for the majority in Amselem is the Court's most ambitious contribution to the jurisprudence on freedom of religion since the Big M ruling. His emphasis on personal choice may pave the way for the development of a broad conception of freedom of conscience in the future.

Following the narrow vote against sovereignty in the 1995 Quebec referendum, the federal government referred three questions on the legality of unilateral secession to the Supreme Court of Canada for its opinion. The Quebec government refused to participate in the proceedings on the grounds that the Quebec people alone will determine their future and anything the Supreme Court has to say on the matter is irrelevant. The Court appointed an amicus curiae, Andre Joli-Coeur, to make the arguments in favour of the Quebec government's position. In this article, the author reviews the amicus' arguments and the Court's reasons for rejecting them. The amicus' submissions revealed one thing: they revealed the weakness of the best available arguments in support of a legal right to unilateral secession. The author argues that the Court was able to bring sovereignists into a conversation framed by the Court's opinion, at the same time as it was pulling the legal rug out from underneath them. The justices should be applauded for crafting an opinion that seeks to minimize the risks of social disorder that would accompany any unilateral declaration of sovereignty and to maximize the chances of a negotiated, peaceful accommodation of the political aspirations of a clear majority of Quebecers clearly expressed in any future referendum.