Book Review: The Judicial Role in a Diverse Federation: Lessons From the Supreme Court of Canada

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

The Judicial Role in a Diverse Federation: Lessons from the Supreme Court of Canada. By Robert Schertzer. Toronto: University of Toronto Press, 2016. ix, 338 p. Includes tables, bibliography, and index. ISBN 978- 1487500283 (cloth) $52.50.

Reviewed by Kim Clarke
Director, Bennett Jones Law Library University of Calgary
In CLLR 43:4

In The Judicial Role in a Diverse Federation, Robert Schertzer, an assistant professor of political science at the University of Toronto, explores the impact that a nation’s highest court can have on how federalism develops in that jurisdiction. He uses the Supreme Court of Canada (SCC) as a case study, analyzing 139 of its cases from 1980–2010.

The book comprises two distinct parts. The first part provides a foundational review of theories underlying federalism. Chapter one examines the relationship between federalism and “national minorities” and explores three Canadian models of federalism: pan-Canadian, provincial-equality, and multinational. In the second chapter, Schertzer analyzes the various roles the highest court could assume in the federal process, namely umpire, guardian, branch of government, or facilitator/fair arbiter.

Part two contains the results of Schertzer’s original analysis of the SCC cases. His methodology and framework are described in chapter three, followed by an examination of the Secession Reference case as an exemplar of his research in chapter four. The remaining cases are analyzed in the final two chapters, with cases in which the Court applied a specific model of federalism discussed in chapter five and cases wherein the Court recognized that there are multiple models of federalism, and that the system works best through a process of negotiation, examined in chapter six.

Schertzer scrutinizes each case for four pieces of information: the Court’s depiction of federalism, its use of legal argument to reinforce that depiction, the outcome of the case, and the role the Court itself assumed in this process. The depiction of federalism is the lens through which the Court considers the legislative actions of the parties, either ascribing to one particular model of federalism or supporting the notion that the system relies on “negotiation between the holders of legitimate competing models” (p 179). The legal argument component of the study focusses on which of the seven possible models of constitutional interpretation is used by the Court. With respect to the outcome of the case, Schertzer noted the traditional meaning (which party won, and to what degree?) but also examined the effect the outcome had on the federal system. The final consideration was what the Court viewed as its role in the federalist system: umpire, branch of government, guardian, and facilitator/fair arbiter.

Schertzer also explores connections between these components. His research demonstrates, for example, that a “zero-sum” outcome resulting in a clear winner and loser usually occurred when the Court applied a specific model of federalism. His analysis also shows a correlation between the Court’s self- imposed role in a federalist system and its view of federalism, with its umpire and branch of government roles appearing more frequently when a model of federalism is employed, and its facilitator role appearing double any other role when the Court recognized the negotiation aspect of federalism.

This is a well-written and organized book. The tables in chapters five and six display the analysis of every case in column form, serving as a quick reference for readers. The book’s index is thorough, containing concepts, jurisdictions, people, statutes, and cases as index terms. It also uses “see also” references to authors and publications on the bibliography for readers who want to probe concepts further. The bibliography is a treasure trove for researchers, listing articles and books from Canada, the UK, and the US, along with cases and legislation.

Based on Schertzer’s doctoral thesis research, The Judicial Role in a Diverse Federation was deservedly shortlisted for the Donald Smiley Prize from the Canadian Political Science Association in 2017. Schertzer’s analysis of the bulk of the SCC’s decisions from a 30-year period is a valuable addition to the Canadian constitutional law landscape. The patterns and connections reflected in his research will be of interest to Constitutional scholars and lawyers, providing them with the opportunity to gain a deeper understanding of why the Court reached the outcomes it did. A book with such a broad impact should be in every academic, governmental, and national law firm library.