The Political Safeguards of Canadian Federalism
National Journal of Constitutional Law
This article provides a novel and interdisciplinary account of Canada’s ‘‘political safeguards of federalism”, which are aspects of the political system that help determine and protect the federal-provincial balance of power, in concert with judicial review. It argues that these political safeguards arise, in large part, from the vast intergovernmental apparatus that has been established in Canada in recent decades to manage federal-provincial relations, not the sorts of intragovernmental safeguards of federalism that have been highlighted by federalism scholars in the United States, like the Senate. It describes the capacity, opportunities, and leverage that these intergovernmental safeguards of federalism provide the provinces to block, or limit, perceived federal encroachments, and provides two detailed case studies of situations where they were successfully utilized. It does not argue that these intergovernmental safeguards ‘‘sufficiently” protect provincial jurisdiction, and thus that judicial safeguards of federalism are unnecessary; on the contrary, it highlights various reasons to give these intergovernmental safeguards only ‘‘two cheers” as safeguards of federalism. It argues that these intergovernmental safeguards provide the provinces with the means to check federal encroachments and influence federal policy in some cases, by blocking federal initiatives altogether in some situations, and influencing their design and implementation in others. It suggests that an appreciation of these intergovernmental safeguards is vital to understanding how federalism is safeguarded in Canada, and that more attention ought to be paid to them in discussing the role that the courts do and should play in its federal system.