From the Ivory Tower to the Courtroom: Cooperative Federalism in the Supreme Court of Canada

Abstract

This article provides the first exhaustive quantitative account of the Supreme Court of Canada’s use of the term “cooperative federalism.” We find that cooperative federalism has appeared in twenty-four Supreme Court decisions from 1976 to 2019, and that these decisions have been more likely to favor the federal government than the provinces. Moreover, the Court’s use of the term can be divided between two distinct periods. During the formative period (1976–2009), the Court used the term fairly consistently. From 2010 to 2019, the Court has entered a contested period characterized by split decisions in which the Court is divided over differing conceptions of federalism. As cooperative federalism has transformed from a relatively vague concept into a more substantive constitutional principle, fissures over the term’s application have developed. This article shows how scholarly terminology can have an unexpected and even dispositive effect on judicial decisions, which can reflect uncertainty over how judges understand their institutional role.