Cooperative Federalism in Search of a Normative Justification: Considering the Principle of Federal Loyalty

Abstract

At first sight, federal loyalty does not mean much in Canadian constitutional law, if it means anything at all. However, as we will see in this paper, there are already some aspects of Canadian constitutional law which can be said to enshrine obligations pertaining to federal loyalty. Ultimately, what federal loyalty can bring to the debate in Commissioner of Firearms is a springboard from which to reflect on how and when the principle of cooperative federalism could be brought to bear in a consistent manner in division of powers cases.

Federalism as an institutional doctrine

“…Theorists further debate whether there are inherent principles of federalism all federal bodies do or should recognize. Some hold that federalism is necessarily cooperative and requires “loyalty” between federal and provincial governments—and thus regular consultation and submitting disputes to third‐party arbiters (Gamper, 2010; Gaudreault‐DesBiens, 2014). Others claim that federalism entails a commitment to subsidiarity, the principle under which decision‐making powers should rest at the most local level capable of addressing an issue (Hueglin & Fenna, 2015, p. 3).…”

Federalism: Contemporary political philosophy issues

“…Many attempts to avoid this conclusion by adding additional normative content then undermine their initial motivating ecumenicism. For instance, claims that federalism entails a commitment to a loyalty principle under which all federal actors engage in regular consultation and submit disputes to third-party arbiters (Gamper, 2010;Gaudreault-Desbiens, 2014) cannot account for non-recognition in the U.S.A. and Canada. 10 There are, moreover, other problems that federalism may seek to solve.…”

“…10 10 Even Gaudreault‐Desbiens (2014), who argues for a loyalty principle in Canada, grants that Canada only recognizes analogous principles and does not formally require strong consultation of third‐party arbitration. …”

The Supreme Court of Canada Long-Gun Registry Decision: The Constitutional Question Behind an Intergovernmental Relations Failure

“…Observing that the Supreme Court has come to increasingly rely on the underlying principle of federalism in division of powers cases since the Reference re Secession of Quebec, legal scholar Jean-François Gaudreault-DesBiens has suggested a way to give the principle more precise meaning, by reference to the principle of "federal loyalty" present in other federal constitutional arrangements, such as those of Belgium, Switzerland, South Africa, and, especially, Germany. 33 As he describes it, the principle of federal loyalty, by being inherent in the principle of federalism itself, irrespective of the particular constitutional expression of federalism in a particular country, "illustrates the principle of federalism's intrinsic normative potential. " 34 He does note, however, that the principle of federal loyalty seems especially relevant in federations with a rather deep level of socio-cultural diversity, which would include Canada.…”