46 S. C. L. Rev. 923 (1994-1995)
Federalism and the Conflict of Laws: The Curious Position of the Supreme Court of Canada

handle is hein.journals/sclr46 and id is 939 raw text is: Federalism and the
Conflict of Laws:
The Curious Position
of the Supreme Court of Canada
John Swan
When I undertook to write this Paper I had a fairly clear idea of what I
would say, even though two long-awaited decisions of the Supreme Court of
Canada had not yet been delivered and were expected to make a significant
change in the law. I I thought that I knew what the range of possible decisions
might be and what kind of choices the Supreme Court faced. I have been
proved wrong in all my assumptions and expectations to an extent that I could
never have imagined.2 The Supreme Court has delivered a judgment that is
one of the most unexpected and extraordinary judgments that I have ever read.
I shall offer an analysis of it later but first I want to explore some important
issues that will provide a basis for an analysis of that judgment.
There is always a tension in federal states between the need or political
pressure for a strong central authority and the expression of local values. A
constitution will give expression to these values and provide a balance (perhaps
not happy or stable) between the forces in tension. One expression of the
tension that exists in Canada is called the division of powers, meaning the
allocation of legislative authority between the Canadian Parliament and the
provincial legislatures. It is natural (though many of us may wish that it were
not) for Canadians to debate the appropriate division of powers and to accept
* Aird & Berlis, Barristers and Solicitors, Toronto, Canada.
1. The cases were Tolofson v. Jensen, 89 D.L.R. (4th) 129 (B.C. Ct. App. 1992) (Tolofson)
and Lucas v. Gagnon, 99 D.L.R. (4th) 125 (Ont. Ct. App. 1992) (Gagnon). One of the curious
questions in the judgment of the Supreme Court of Canada is that the Ontario Court of Appeal
decided Gagnon at the same time as it decided Williams v. Osei-Twum, 99 D.L.R. (4th) 146
Ont. Ct.App. 1992). The Court of Appeal stated that its judgments should be read together. The
Supreme Court never mentions Osei-Twum, and was not appealed to the Supreme Court. The
Supreme Court gave one judgment in both the Tolofson and Lucas appeals, Tolofson v. Jensen;
Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022. I shall refer to the single
judgment as Tolofson/Gagnon.
2. In the paper delivered at the Conference I wrote: If the Court adopts an analysis of what
the law should be that bears little or no relation to what I think it might or should do, it will not
be the first time or, I suppose, the last time that I have been wrong. I can only say now, Wow,
was I wrong!

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