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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part IV Federalism, A Federalism in Canada, Ch.20 The Spending Power in Canada

Hoi L. Kong

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

In this chapter, I will argue that the Canadian Constitution authorizes the federal government to spend in areas of provincial jurisdiction and constrains the scope of this power. I will, moreover claim that effective enforcement of these limits requires that the judiciary recognize its institutional limits and that the political branches act with restraint. The arguments advanced will seek to occupy a middle ground, between proponents of an unlimited spending power and critics who would bind federal spending to the limits imposed by the legislative division of powers, strictly interpreted. In staking out this ground, I will undertake an approach to constitutional interpretation that closely examines the sources of constitutional law and carefully considers issues of institutional competence and constitutional legitimacy.

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