Eugénie Brouillet & Yves Tanguay, “The Legitimacy of the Constitutional Arbitration Process in a Multinational Federative Regime: The Case of the Supreme Court of Canada”

Working Abstract

The federative legitimacy of constitutional justice has seldom been a subject of interest in Canada since the entrenchment of the Charter in 1982. Within a federative setting, courts and judges are invested with the role of arbitrating jurisdictional disagreements which inevitably spring from the orders of federal and federated governments pertaining to the area of jurisdiction reserved to them under the Constitution. In the first part, an analytical framework is drafted illustrating the federative legitimacy of constitutional courts (courts specialized in constitutional matters and final courts of appeal in such cases) as it gravitates around three axes: institutional legitimacy, functional legitimacy and social legitimacy. In the second part, an evaluation is made of the greater or lesser federative legitimacy of the Supreme Court of Canada as measured from this triple point of view. This exercise will make it possible to illustrate certain problems pertaining to the legitimacy of the Supreme Court of Canada acting in its capacity as the ultimate arbitrator of federative disagreements.

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