Constitutional law (1L edition–>Federalism, the Charter, and a bit on Aboriginal rights) seems to be marked by two main points of tension. On the one hand, under federalism, it is the tension of balancing the power distribution between the provincial and the federal governments. On the other, it is the challenge of deciding when the right of the individual–or special interest group–is more important than the collective interests of the many, as well as on what basis this is decided.
Then again, the basis upon which a decision is reached is a tension and point of debate in many areas of law, and can be disputed from one case to another.
The concept here is pretty straightforward. Canada is a federalist state–so power and the ability to act/legislate is divided between the federal and provincial governments. These powers were delegated and outlined in ss. 91 & 92 of the British North America Act (BNA Act), otherwise known as the Constitution Act, 1867. There are enumerated powers in each section (e.g. the provinces can legislate with regard to property and civil rights, while the federal government has the right to legislate copyrights). There’s also a clause that allows for the federal government to legislate for the “Peace, Order and Good Government” of the country regarding any matters that don’t fall under the enumerated powers–kind of an umbrella clause that catches everything that isn’t explicitly allocated.
The federalism section of Canadian legal history is really a narrative of competing powers. Early on, when the provinces were signing on to the Dominion and unifying into a country, there was a lot of tension and competition between each, as the Dominion (federal) government tried to exert its sovereignty, while the provinces tried to retain as much autonomy as they could. The playing field was wide open and so there was much jockeying for larger pieces of the pie on both sides.
You may wonder how, if everything is enumerated, there can be any kind of power struggles–surely it’s all listed there? Well, in a way. Many of the powers can be read broadly or narrowly, to have a wide scope (Peace Order and Good Government at one point was read as meaning anything that wasn’t explicitly enumerated. At another point, it meant the feds could legislate outside of their enumerated powers during states of emergency like war, famine etc. only–and that such were the ONLY times when POGG was sufficiently at stake to allow for that wide reach). Another reason for the tension is that the enumerated powers were not fully isolated from one another. There are overlapping interests that can be legislated on by each side. For instance, both the provincial and federal legislatures can pass laws regarding speeding on the roads–the provinces can impose fines and certain penalties as part of the regulation of roads and traffic, while the feds can also impose penal sanctions for the same infraction under the criminal law power that is their domain.
The tensions in the early part of Canadian history were further complicated by the fact that any disputes between the provs and the feds didn’t end with the Supreme Court of Canada. Until the middle of the 20th century, any Supreme Court decision could be appealed to the Privy Council–the top court in Britain. The colonial ties remained in place until surprisingly late in our history. Some of the decisions made by the Privy Council seem mystifying–one judge in particular, a Lord Haldane–really seemed to have it in for the feds, and decided consistently against them, reading all the clauses of their powers so narrowly that they had almost no power at all by the 1920s. It’s difficult to know whether he made these decisions because, as a scotsman, he had sympathy for the localized powers and interests, rather than what he might view as the equivalent of an imperial power, embodied in the federal government–or whether he had other, even more mysterious reasons. After his death, the tide turned for the federal interests, and the powers balanced out somewhat.
Toward the late-middle 20th century, the struggle seemed to settle somewhat, as different policies and paradigms were put in place and, through repeated precedents, solidified into doctrine. This helped with the stability of the power balance, such that in more recent years, there’s a better sense of the scope of each power, and there are defined ways to deal with overlaps in jurisdiction with regard to any proposed legislation. The result has been a far more “functional federalism,” with the two powers playing far more nicely together in the sandbox–despite the occasional, lingering dispute or tension that arises–and ongoing back and forths around things like budgetary allocation of taxation revenue and the like.
There are also some core concepts that emerged in the course of the federalism cases, one of which is the idea of the constitution as a living tree. This is the notion that any interpretation of the constitution should be made with the idea that it can grow and take new directions that the original authors might not have anticipated, like branches of a tree. Any interpretation should be a natural outgrowth, rather than a radical departure from the original text and the precedents and case law that has emerged around that text.
It’s a lovely and vibrant image–and it is core to both the federalism cases, and to cases relating to the Charter of Rights and Freedoms.