On living federal lives: Katherine Swinton’s <i>The Supreme Court and Canadian Federalism</i> and the future of federal imagination

Katherine Swinton published The Supreme Court and Canadian Federalism: The Laskin-­Dickson Years in 1990. It was a time of disenchantment with the law of federalism. Many scholars found the Court’s interventions to be inconsistent or useless, hiding essentially political decisions behind a legally formalistic facade. Swinton’s rebuttal remains one of the most robust and sophisticated defences of the role of law and courts in the life of Canadian federalism. Focusing on the wave of decisions of the 1970s and 1980s that thrust the Court back into the constitutional spotlight, Swinton reconstructed the principled visions of federalism and constitutional legality of Bora Laskin, Jean Beetz, and Brian Dickson. This article contextualizes Swinton’s writings and analyses some of her main contributions to Canadian constitutional scholarship. Beyond the rich reconstruction of the jurisprudential debates of this pivotal period, the article argues that Swinton’s whole approach rested on the appreciation of the importance of federalism in peoples’ lives. Contrary to what critics believed, Swinton argued that governments are only one among many parties interested in the resolution of jurisdictional disputes. Swinton’s penchant for the ‘jurisprudence of interests’ of Chief Justice Brian Dickson, which best captures the plurality of interested parties in federalism disputes, still offers valuable resources to think afresh about persisting constitutional debates. The article suggests that the development of the law of constitutional amendment can be read in a new light when ‘jurisdiction’ and ‘interests’ are thus considered as alternative prisms through which to think about the constitutional protection afforded to communities that transcend the provincial and federal orders of government. The article concludes by suggesting that a deepening of Swinton’s pluralist sensibility is needed if federalism is to speak meaningfully to one of Canada’s most pressing constitutional challenges – the confrontation of Indigenous and Crown sovereignty.