Federalism and the Paramountcy Doctrine


  • Jesse Hartery Ph.D. candidate, Centre for Comparative Constitutional Studies, Melbourne Law School




Federal systems require individuals to comply with laws enacted by more than one order of government. At times, the laws enacted by each order may overlap, and different approaches have been adopted to deal with this situation. In Canada, this is done through the paramountcy doctrine, which permits a court to render a law inoperative when faced with two valid but conflicting laws adopted by different orders of government. However, despite being a staple of constitutional law for over a century, the paramountcy doctrine has been the subject of important doctrinal fluctuations over the years. For the time being, the doctrine includes a narrow branch known as the operational conflict branch and a broader — and sometimes controversial — branch known as the federal purpose branch. In its 2015 trilogy on the subject, the Supreme Court of Canada clarified the precise parameters of the doctrine while also noting in obiter that further doctrinal change may be on the horizon.