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This article describes the facilitative theory of judicial review that has animated the Supreme Court of Canada's decision-making in division of powers cases in recent years. Under this theory of judicial review, the Court encourages the political branches to take the lead in defining the division of powers, by working out their own mutually acceptable allocations of jurisdiction, outside of the courts. The Court limits its role in imposing particular substantive outcomes, and attempts to facilitate this ‘intergovernmental dialogue’, by encouraging, accommodating and (to some extent) rewarding its occurrence. Where the political branches fail to work out their own mutually acceptable allocations of jurisdiction, the Court reverts to its traditional role as umpire or arbiter, by resolving the particular dispute, while in various ways also trying to encourage intergovernmental dialogue in the future. This theory of judicial review allocates the courts two different roles: a facilitative role and a conventional umpire or arbiter role, with the facilitative role emphasized over the umpire or arbiter role. The article describes this theory of judicial review, analyzes how it manifests in the Court’s decision-making, and highlights several issues raised by it.

Facilitating Intergovernmental Dialogue: Judicial Review of the Division of Powers in the Supreme Court of Canada