Facilitating Intergovernmental Dialogue: Judicial Review of the Division of Powers in the Supreme Court of Canada

摘要

This article provides a novel account of the the ory of judicial review that is evident in the Supreme Court of Canada’s recent division of powers decisions (2000-2009). Under this the ory, the Supreme Court encourages the political branches to take the lead in defining the division of powers, by working out a mutually acceptable allocation of jurisdiction in each regulatory area. The Supreme Court limits itself primarily to facilitating intergovernmental dialogue about the division of powers, and managing the conflicts that result where the political branches fail to agree. The Supreme Court does not completely refuse to play a role in articulating the limits of federal-provincial power, but it openly encourages the political branches to take the lead, indicating that it will intervene only where one order of government dramatically upsets the balance of power.