Facilitating intergovernmental dialogue: Federalism, judicial review and the supreme court of canada

The decision of the Supreme Court of Canada in Canadian Western Bank v. Alberta (2007) was quickly hailed as the most important federalism ruling in 20 years. The decision has already been the subject of considerable academic commentary, but that academic commentary has been focussed, almost exclusively, on the doctrinal implications of the decision; there has been very little discussion of the underlying theory of federalism described in the decision. This paper will fill that gap. I will argue that, in Canadian Western Bank, the Supreme Court clearly outlines the theory of judicial review that has been animating its decision-making in division of powers cases, at times explicitly, but mostly implicitly, for at least the last ten years. Under this theory, the Supreme Court encourages the political branches to take the lead in defining the scope of the division of powers; the Supreme Court limits itself to facilitating an intergovernmental dialogue about the scope of the division of powers, and managing the conflict that results where the political branches fail to reach agreement.
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