Поиск федерально-субъектного консенсуса в конституционализме: опыт Канады

Журнал зарубежного законодательства и сравнительного правоведения. 2020. № 2. С. 5–22.

Bogdanovskaya I., Danilov S.

The article aims to analyze regulatory specifics of relations between the federation and its constituent entities in Canada in terms of achieving and maintaining a minimal consensus between them. The tasks are: to consider regulation of powers belonging to federal center and its constituent entities based on the evolving and unconsolidated multi-act Constitution; to investigate the role played by constitutional agreements and judicial precedents in the constitutional evolution of a modern federal state; to characterize the contribution of independent actions of the provinces to the development of the country. The research is based on logical, systemic, formal legal and comparative historical methods. The results are: extensive factual material, that hasn't previously used in domestic constitutional legal science, is put into academic circulation; the connection between the affirmation of Canada's sovereign rights in relations with the United Kingdom and recent trends towards a certain consolidation of the Federation's position in its relations with the constituent entities are revealed. The article estimates ways to modernize relations between federation and its constituent entities in the constitutional mechanism of Canada. The specificity of the Canadian Charter of Rights and Freedoms is assessed through its impact on relations between the federation and the provinces. The status and activities of the newly created in the 2000s the Canadian Council of the Federation — instead of federal-provincial conferences — is analysed; the place it occupies in the constitutional mechanism of the country is evaluated. The article also contains an analysis of modern attempts to update the reform of the upper house of Parliament — the Senate of Canada, which cannot cope with the fulfillment of its main function — protecting provincial interests in order to optimize relations between the federation and peripheral provinces. Independent actions of the Canadian provinces in the field of international relations are considered based on legal practice

Keywords: полномочия, компетенция, Quebec, Квебек, powers, Сенат, Convention, прецеденты, precedents, competence, Senate, провинции, Alberta, British Columbia, конституционные соглашения, Альберта, Британская Колумбия