One Nation Under Court: The Supreme Court and Canadian Federalism

“In each of the four references the Court was presented with at least two distinct visions of the Canadian federation: a centralist, a provincialist, a dualist and a multinational. The first two visions are indicative of a mono-national conception of Canada, and the latter two of a plural-national conception. The Court, in being asked to resolve the conflict between the federal and provincial governments in the Senate and Patriation References, or between the federal and Quebec governments in the Quebec Veto and Secession References, was asked, in effect, to choose between these conflicting visions. And, in rendering an opinion that implicitly gave precedence to one or other of these visions, it elaborated a conception of Canada. In this paper I argue that in all four references, the SCC, acting as mediator, expanded upon a particular vision of the Canadian federation reflecting a mono-national conception of Canada, even when faced with an alternative plural-national conception. In this way, the Court emphasized the imperative need for “one Canada” at the expense of the constitutional expression of nationhood outside the nation.”

“Under the mono-national approach, the Canadian nation is understood as a ‘polyethnic’ entity comprised of many ethno-cultural groups which, though they subscribe to a common national identity, still express a multiplicity of values that distinguish them from other groups. These divisions remain important and are recognized formally and informally by the state. In other words, the Canadian nation still recognizes cultural diversity through various judicial, legislative, or even constitutional concessions despite its overarching commitment to the unity of the political nation. ”

“While it may be true that the Court in all four references rendered balanced decisions by recognizing the role of both orders of government, it is also true that the Court reaffirmed a particular conception of the nation, one that asserts the idea of ‘one Canada’. In the Senate Reference, the SCC affirmed the legitimacy of the Senate as a federally appointed institution that secures regional representation at the centre within the federal policy-making institutions by arguing that the Senate, as is – an appointed body acting as a chamber of sober second thought – cannot be altered unilaterally by any one order of government. As a result of this opinion, the SCC seemingly strengthened the position of the provinces in the federation in two ways: first, the Senate must continue to exist because it ensures regional representation at the centre, a key federal principle; second, abolition of this institution affects federal-provincial relations, thus the provinces must be consulted and their consent obtained. In actuality however, this decision, though it did not constitutionally strengthen the position of the federal government vis-à-vis the provinces and central institutions, did reinforce and legitimize this position politically by assuring that the Senate remains a body appointed solely by the federal government. The Court did not expand upon why the Senate must continue to be appointed to perform its legislative function or if the Senate performed its function in practice – it simply stated that it must.”

Verrelli, Nadia. “One Nation Under Court: The Supreme Court and Canadian Federalism”.