Jesse Hartery

LL.B./B.C.L. Candidate (McGill University, Faculty of Law), Honours B.A. in History and a Minor in Asian Studies (University of Ottawa). He was a Research Assistant to Professors Johanne Poirier (holder of the Peter MacKell Chair in Federalism) and Yaëll Emerich (Director of the Paul-André Crépeau Centre for Private and Comparative Law).

This essay is submitted to The Federal Idea for the first edition of the André-Pratte Prize Essay Contest

March 30, 2017

Introduction

In federal states, supreme courts have to grapple with the exercise of overlapping jurisdiction between the federal authority and federated entities. Canadian courts have developed the doctrine of paramountcy (“paramountcy”) as a response to this problem. Paramountcy ensures that when a validly enacted provincial law conflicts with federal legislation, it will be found inoperable. Essentially, to the extent of the conflict, the provincial law does not apply.

This said, despite the Supreme Court of Canada’s (the “Supreme Court”) repeated statements that the written text of our Constitution enjoys primacy, its approach has been divorced from the constitutional text. No paramountcy provision was provided in 1867. In this paper, I will first look at the state of paramountcy as developed by the Supreme Court (A). Then, I propose a reading of paramountcy that takes into account the text of the Constitution (B). Lastly, I shine a light on the recent paramountcy trilogy by the Supreme Court and the opportunity it offers to adopt an approach consistent with the constitutional text (C).

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