E. The Watertight Compartments Spring Leaks: The Modern Era

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 256-261

Contenidos

• 1) Contemporary Problems Are Untidy and Expensive.
• 2) The Declining Importance of the Division of Powers in Sections 91 and 92.
• 3) A Return to Watertight Compartments?.

Page 256

The Supreme Court of Canada’s gradual departure from the early decisions of the Privy Council is traced in detail in subsequent chapters. As these chapters make plain since 1949, the Supreme Court of Canada since 1949 has followed the broad doctrinal outlines established by the Board. However, the Court has tended to expand the scope of federal legislative jurisdiction in certain limited but significant ways.

The point to be made here is more general. Canadian federalism in the first decade of the twenty-first century is radically different from that in 1949. The largest difference is the obvious growth in the size and scope of government. But a related difference is the fact that both levels of government are active in most of the new social and economic policy fields that have emerged over the past fifty years. In contemporary Canada, the watertight compartments idealized by the Privy Council have been supplanted by shared and divided jurisdiction. Wherever government is active - whether it involves stimulating the economy to overcome shortfalls in aggregate demand, regulating markets to protect consumers, imposing environmental controls, or retraining workers - both levels of government have a legitimate role and a range of policy instruments at their disposal.³⁶In fact, one of the largest challenges facing Canadian federalism is how to manage a situation in which the ac-

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tivities of one level of government overlap with those of the other. The question posed in the present chapter is how we arrived at this point. What are the forces that have driven the evolution of Canadian federalism in the direction of shared jurisdiction and functional concurrency?

While there are many factors that have driven this evolution, the judiciary has played a relatively minor and subsidiary role. To be sure, the judiciary has facilitated the growth of shared jurisdiction between governments. In addition to permitting a modest expansion of federal legislative jurisdiction, for example, the Supreme Court has also given greater prominence to certain interpretive doctrines - particularly the pith and substance and the aspect doctrines - that tend to favour overlapping or concurrent jurisdiction. However, the major impetus for the evolution of Canadian federalism has come from other factors and sources.

1) Contemporary Problems Are Untidy and Expensive

Chief among these factors shaping the evolution of Canadian federalism has been a change in the nature of the problems faced by government. Contemporary public policy issues are multifaceted and complex as well as untidy, in the sense that they cannot be dealt with effectively in isolation from other issues. The policies pursued by one level of government have had a significant impact on policies of other levels. This overlap led to a growing recognition that no single level of government can deal comprehensively with the major social and economic problems facing contemporary government. To take one obvious example, the problem of harm to the environment is at one and the same time local, national...