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    Canadian Political Science Association
    2020 Annual Conference Programme

    Confronting Political Divides
    Hosted at Western University
    Tuesday, June 2 to Thursday, June 4, 2020
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    Presidential Address:
    Barbara Arneil, CPSA President

    Origins:
    Colonies and Statistics

    Location:
    Tuesday, June 2, 2020 | 05:00pm to 06:00pm
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    KEYNOTE SPEAKER:
    Ayelet Shachar
    The Shifting Border:
    Legal Cartographies of Migration
    and Mobility

    Location:
    June 04, 2020 | 01:30 to 03:00 pm
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    Keynote Speaker: Marc Hetherington
    Why Modern Elections
    Feel Like a Matter of
    Life and Death

    Location:
    Wednesday, June 3, 2020 | 03:45pm to 05:15pm
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    Plenary Panel
    Indigenous Politics and
    the Problem of Canadian
    Political Science

    Location: Arts & Humanities Building - AHB 1R40
    Tuesday, June 2, 2020 | 10:30am to 12:00pm

Law and Public Policy



D19(a) - Getting There One Way or Another: Exploring Judicial-Federal Possibilities and Tensions

Date: Jun 4 | Time: 01:30pm to 03:00pm | Location:

Discussant/Commentateur/Commentatrice : Stéphanie Chouinard (Collège militaire royal du Canada / Queen's University)

Dialogue as Conflict Management? Considering the Supreme Court of Canada’s Federalism and Duty to Consult Jurisprudence: Minh Do (University of Toronto), Robert Schertzer (University of Toronto)
Abstract: Since its inception, the foundations, nature and direction of the Canadian state has continually been challenged. This conflict over the very nature of Canada is often most acute when it takes the form of jurisdictional disputes between the provincial and federal governments and when Indigenous Peoples assert their rights or challenge Canadian sovereignty. This paper investigates the role of courts in these types of conflict. The paper has two related goals: 1) to advance the theory of courts as facilitators of dialogue to manage conflict, contrasted with other approaches to arbitration; and, 2) to explore how the Supreme Court of Canada (SCC) has approached its role as a conflict manager across its federalism and Aboriginal rights jurisprudence. The paper starts with a consideration of the different approaches to arbitration. It then applies this framework to examine a number of the most prominent federalism disputes over the past 35 years and 11 duty to consult decisions. This analysis shows that the SCC has largely turned toward a facilitator role in contexts where political disputes target ideas about the nature of the political community. The paper concludes by reflecting on this development. Despite its promise, there may be potential negative consequences: high courts may not be accounting for, and may even reinforce, unequal power dynamics between negotiators by equally legitimating all perspectives in a dispute. Furthermore, the effectiveness of the facilitator role to manage conflict is also constrained by the adversarial context of litigation and the resulting hostile positions of negotiators.


Getting There One Way or Another: The Collapse of Meech Lake 30 Years Later: Andrew McDougall (University of Toronto Scarborough)
Abstract: June 2020 marks the 30th anniversary of the collapse of Meech Lake Accord. Although considered a major disaster in Canadian federalism at the time, this paper draws on theories of institutional change to argue that much of the substantive content of the accord has now been achieved. Better institutional security for Quebec surrounding judicial selection and representation on the Supreme Court, more limited federal powers to unilaterally reform the Senate brought about by the 2014 Reference re Senate Reform, better recognition of Quebec’s distinctness through case law and political action, and moderation of the spending power have all meant that there is less and less to be resolved in Quebec-Canada relations. Finally, and perhaps most importantly, the agreement to devolve substantial control over immigration since 1991 has meant that controversies arising out of the modern turn in Quebec towards identity issues have been confined to the province rather than becoming broader crises of federalism.


The Carbon Tax References: Governing Through Federalism with Strategic Litigation: Kate Puddister (University of Guelph)
Abstract: The Canadian reference power provides provincial and federal governments the ability to seek an advisory opinion from a provincial appellate court or the Supreme Court of Canada on virtually any matter, including the policies of other governments. Because of the great latitude in which governments can wield the reference power, many governments have done so strategically. By obtaining an authoritative decision from an appellate court, governments have used references in an attempt to insulate policies from future challenge by litigants, including other governments within the federation. The provincial challenges to the federal carbon pricing regime (Greenhouse Gas Pollution Pricing Act, 2018) initiated by Saskatchewan, Ontario, and Alberta is the most recent example of governments delegating disputes to the courts to rely on judicial review to mediate an intergovernmental dispute. Using the courts to resolve political disagreements is a trend that has occurred in Canadian politics since the creation of the reference power in 1875. Through an examination of the Carbon Tax References, this paper argues that the reference power provides governments the ability to delegate decision-making to the courts and to engage in a political strategy that has the potential to benefit governments, regardless if they win or lose in court, ultimately raising concerns regarding the judicialization of politics. The paper’s findings are contextualized with an analysis of a comprehensive dataset of all Canadian reference cases from 1875 to 2019.


Participants:
Andrew McDougall (University of Toronto)
Minh Do (University of Toronto)
Kate Puddister (University of Guelph)



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