THE CURIOUS HISTORY OF INTERJURISDICTIONAL IMMUNITY AND ITS (LACK OF) APPLICATION TO FEDERAL LEGISLATION
Keywords: Jurisdiction, division of powers, interjurisdictional immunity
AbstractInterjurisdictional immunity is a principle of Canadian constitutional interpretation with a somewhat chequered history. Its historical origins, and confusion between it and the related but distinct principle of Crown immunity, have resulted in the principle having been applied almost exclusively to protect federal jurisdiction against incursion by provincial legislation. Nevertheless, when the principle is properly understood, it is apparent that provincial jurisdiction has received more or less equivalent protection against federal legislation through the application of the “pith and substance” doctrine. Interjurisdictional immunity, properly understood, is really nothing more than a particular means of applying the pith and substance doctrine.
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