Between 2000 and 2008, under Chief Justice McLachlin’s oversight, the Supreme Court of Canada (SCC) was unanimous in its disposition of division of powers issues in 25 rulings or reference opinions. Then, after the 2009 division in Fastfrate, 2009 SCC 53, the SCC divided sharply in all six federalism rulings released in 2010. In 2011, it seemed the SCC would likely continue this trend of division on federalism issues; this was particularly expected in Canada (A.G.) v. PHS Community Services Society, 2011 SCC 44 (hereafter Insite) in regards to the interjurisdictional immunity (IJI) doctrine, as it seemed likely the apparently ‘decentralist’ bloc of Deschamps and Lebel JJ. would side with the application of provincial IJI and be opposed by the apparently ‘centralist’ bloc of McLachlin C.J.C., Binnie J. and Fish J. However, the SCC was not only unanimous in Insite, but also unanimous in the recently released Reference re Securities Act, 2011 SCC 66 decision regarding the federal government’s s. 91(2) general power to regulate trade and commerce.
It appears a ‘return to unanimity’ may be occurring in the Court under Chief Justice McLachlin’s oversight of division of powers jurisprudence in 2011, especially since four of the six federalism rulings divided upon in 2010 split regarding the role of the IJI doctrine. While these rulings split on how to apply IJI after Canadian Western Bank v. Alberta, 2007 SCC 22 [Canadian Western Bank] the SCC ruling in Insite unanimously reaffirmed the previous decision to apply IJI with restraint by restricting it to existing precedent that has only protected federal powers. Also, in stating that “before applying the doctrine of interjurisdictional immunity in a new area, courts should ask whether the constitutional issue can be resolved on some other basis,” [at para. 65] the Insite ruling confirmed the doctrinal ordering conclusion of Canadian Western Bank that an analysis of paramountcy should precede application of IJI.
However, this development in 2011 comes after much controversy over the unreciprocal test for IJI articulated by McLachlin C.J.C. in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 [COPA] in 2010, and may be a significant factor as to why the court has achieved unanimity in its two most recent, major cases relating to federalism issues.
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