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- Title
Dissipating Normative Fog: Revisiting the POGG's National Concern Test.
- Authors
GAUDREAULT-DESBIENS, JEAN-FRANÇOIS; KARAZIVAN, NOURA
- Abstract
This article argues that the test used to determine the constitutional validity of a federal statute on the basis of the national concern branch of Parliament's power to legislate for the peace, order and good government of Canada should be revisited. Such a revision appears all the more important in light of federal initiatives pertaining to the regulation of greenhouse gas emissions, which are justified on the basis of that theory. More specifically, the three criteria of distinctiveness, indivisibility and singleness, identified as the proper indicators of federal jurisdiction grounded in the national concern doctrine, should be abandoned. In addition, the doctrine should be recognized as applying to matters subject to the concurrent jurisdiction of Parliament and provinces or that have a double aspect. Last, and most importantly, it argues that the provincial inability test should be incorporated in a broader analysis revolving around the principle of subsidiarity. The proposed reformulation of the national concern doctrine's test would reduce the confusion created by the current test, and would provide a more stable and predictable analytical framework, to the benefit of both Parliament and provinces.
- Subjects
JUDICIAL power; JURISDICTION; REPRESENTATIVE government; GREENHOUSE gas mitigation laws; POLLUTION prevention laws
- Publication
Revue Juridique Thémis, 2021, Vol 55, Issue 1, p103
- ISSN
0556-7963
- Publication type
Article