Gerald Baier

Associate Professor

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Graduate Student Supervision

Master's Student Supervision (2010 - 2018)
Evolving federalism : intergovernmental relations and multilevel governance in Canada (2018)

The following research paper investigates the changing character of federalism in Canada, as expressed through intergovernmental relations. Specifically, the impact that individual prime ministers and their governments may have on these relationships is explored. In particular, Stephen Harper and Justin Trudeau’s management styles are compared in order to determine what lasting or significant effect, if any, these individuals have had on how Canada’s federal and provincial governments interact with each other. Secondary literature describing and summarizing Harper’s style of open federalism, in conjunction with primary research on Justin Trudeau’s reversion to a more collaborative style, concludes that though each prime minister was able to have some tangible effects on federal-provincial relations during their time in office, these effects were, or will be, easily overridden by their successors.The following research asks whether Harper and Trudeau’s actual styles of intergovernmental relations were consistent with their rhetoric on the same subject. Though Harper spoke often about his preferred style of open federalism, it appears to many scholars that not all of his actions reflected the core tenets of this model. Likewise, though Trudeau advertised a collaborative, more multi-level approach to governance during the 2015 election campaign and during his time in office, I conclude that much of his efforts to follow up on these principles are symbolic at best. In both cases, it appears that the federal government consistently pursues its own goals, regardless of the rhetoric used to describe provincial involvement, rights, and in Trudeau’s case, genuine collaboration with both the provinces and additional third-party groups.

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Democratic rights on trial : judicial reasoning, charter litigation, and the shaping of Canadian democracy (2017)

The purpose of this essay is to gain a greater understanding of judicial reasoning and strategic judicial behaviour through analysing Charter cases in one of its major subfields: democratic rights. While many authors have previously sought to address democratic rights cases dealing with judicial reasoning, none have offered a unified and comprehensive theory of democratic rights litigation that addresses all of the field’s major subcomponents, including prisoners’ voting rights, referendum and election campaign finance restrictions, party subsidies, and electoral boundaries. This essay will seek to provide a unified and comprehensive theory through looking at democratic rights cases involving all four major areas. It will ultimately argue that democratic rights litigation can best be understood as a product of tensions between two major lines of judicial reasoning, remedial egalitarianism and procedural libertarianism, over the constitutional meaning of equality. This essay will begin by exploring the nature of judicial reasoning and strategic behaviour, and then turn to defining and explaining the two major lines of judicial reasoning that characterize democratic rights litigation. Next, it will seek to apply the theoretical concepts of remedial egalitarianism and procedural libertarianism to explain judicial rulings involving the intersection between democratic rights on the one hand and freedom of expression and representation on the other. This essay concludes by speculating about where democratic rights litigation is likely to go in the future and how Canada’s experiences might be relevant to scholars abroad.

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Where do we fit in? : an explanation of the provinces' place in the Canada-US relationship and their involvement in re-negotiating NAFTA (2017)

The purpose of this paper is to explore the place of the provinces in the Canada-United States relationship by looking at the renegotiation of the North American Free Trade Agreement. In order to understand the current Canada-US relationship, a brief overview of the history of the relationship will be presented as well as various ways to define the relationship. This paper seeks to explain the constitutional place of the provinces in this complex relationship. The Canadian economy relies on natural resources, a matter of provincial jurisdiction. The provinces feel this earns them a place at the negotiating table. This paper argues the provinces will not have a seat at the negotiating table with the federal government, as occurred during the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) negotiations. The provinces are motivated to try and recreate a CETA-like negotiation environment, which would get each province to the negotiation table. The provinces want to lobby the US federal government to create this environment because the US has more power in the Canada-US trade relationship. The personal relationships various Premiers have created will help to increase their individual provincial bargaining positions. There have been varying levels of provincial involvement in preparing for NAFTA negotiations. In order for the Canadian government to present an image of unity to the US, the provinces will not have direct involvement but will instead be consulted. This paper will argue the level of provincial involvement during CETA was an isolated example. All ten provinces at the table, vying for their own self-interests at the expense of other provinces, would harm the country as a whole.

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Whither Leviathan : Canadian federalism and Alberta (2017)

Secession is federal failure and a phenomenon of identity politics. This thesis applies a theory of federal failure, as distilled from existing scholarship, to the relationship between Canadian federalism and Alberta. The theory posits that the successful conduct of federalism is constrained to avoid the initial phase of secession, “secessionist alienation”, defined as a constituency that can be mobilized in favour of secession within a specific federal territory. Secessionist alienation is composed of two (2) essential, interdependent elements: “secessionist capacity” and “secessionist will”. Secessionist capacity requires a separable territory within which its constituents share a territorial identity. Secessionist will is an intense fear of the federal union triggered by the emergence of the Federal Leviathan, central government oppression in the form of the appropriation of, or interference with, a federal territory’s authority in breach of the federal bargain that presents as an existential crisis for the territory’s identity. The application of the theory to the relationship between Canadian federalism and Alberta reveals that Alberta possesses secessionist capacity as a consequence of Canadian federalism and that the factors that facilitate the emergence of the Federal Leviathan are routinely present in the relationship between Alberta and Canadian federalism. Accordingly, if the successful conduct of Canadian federalism is constrained to avoid secessionist alienation in Alberta, the central government must respect Alberta’s territorial identity, economic subnationalism, that presents as its intense commitment to Alberta’s ownership and control of its oil and gas resources.

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Leave it to the amateurs : a career development explanation of political experience among Members of the Canadian Parliament (2015)

In many advanced democracies, political scientists have lamented the rise of professional politicians as a challenge to the effective representation of diverse electorates. In contrast, their relative absence from Canadian federal politics gives rise to concerns over high levels of political amateurism among Canadian MPs. This study, thus, seeks to account for the numerical weakness of individuals with an occupational background in politics in the Canadian Parliament. It utilizes both individual-level quantitative data on MPs serving between the 35th and 41st Parliaments, inclusive, as well as material from qualitative interviews with over seventy former MPs. Conceptualizing the field of politics as a career in itself, and drawing on career development theory, the study finds that at the key stages of establishing, maintaining, and disengaging from a federal political career, there are specific challenges that are not significantly ameliorated by the possession of professional experience in politics itself. Professional politicians, therefore, have no major advantage over those with non-political occupational backgrounds in their career development. Furthermore, by acknowledging the existence of different types of professional politician, it finds that those whose primary occupational background was in politics itself to be in a distinct minority, but the extent of political amateurism is challenged by a much larger minority of MPs whose primary occupation was non-political but who still possess some secondary or electoral experience prior to entering Parliament.

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From the legalization of politics, to the politics of the archive : examining some of the political effects of Canada’s constitutional patriation on Aboriginal peoples (2014)

This thesis examines some of the effects Canada’s constitutional patriation has had on Aboriginal peoples. In particular, it focuses on the way in which the politics of the archive has mediated the relationship between Aboriginal peoples and the Canadian state since 1982. To this end, while many studies of Canada’s post-1982 political constellation have noted an increasing ‘legalization’ of politics since the adoption of the Constitution Act, 1982, few have studied what legalization’s increasing reliance on archives means for mediating the resulting political relationships. By politics of the archive then, the thesis identifies the Canadian state’s attempt to structure political authority around the presence—or lack—of archival materials and documents. This ‘will to archive’ is identified as operating according to a distinct set of limitations however. Focusing on how these limitations are used, mobilized and exacerbated by the Canadian state reveals the extent to which Canada’s constitutional patriation has favoured the reinforcement of the state’s archival authority in relation to Aboriginal peoples’ claims. Through the use of Social Capital theory the latter portion of the thesis offers a critique of this tendency and ultimately concludes that a renewal of the relationship between Aboriginal peoples and the Canadian state will likely require the development of post-adversarial forms of justice, less structurally dependent on the presence of archives to determine the nature and scope of Aboriginal peoples’ rights to self-determination.

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The rocky road to reconciliation : exploring the effects of Aboriginal title jurisprudence on the relationship between First Nations and the Crown in Canada (2013)

The purpose of this paper is to explore the effects of Aboriginal title jurisprudence on the relationship between First Nations and the Crown in Canada, paying particular attention to the Tsilhqot’in case involving the Tsilhqot’in Nation’s Aboriginal title claim for lands in British Columbia. Findings show that the 2007 British Columbia Supreme Court’s trial judgement in Tsilhqot’in Nation v. British Columbia attempted to improve relations between the Tsilhqot’in and the Crown by placing equal weight on oral history and oral tradition evidence, adopting a broad and flexible standard of occupation, affirming the inapplicability of the Forest Act to Aboriginal title lands, and expressing an opinion on Tsilhqot’in Aboriginal title to facilitate the subsequent process of negotiations. Nonetheless, the trial judgement failed to provide the Tsilhqot’in people with a declaration of Aboriginal title, due to a defect in their pleadings. By contrast, while the 2012 British Columbia Court of Appeal’s decision in William v. British Columbia correctly allowed the Tsilhqot’in appeal on the issue of pleadings, it largely contributed to subverting relations between the Tsilhqot’in Nation and the Crown by interfering with the factual findings of the trial judge, creating a false dichotomy between site-specific and territorial claims, endorsing a narrow and stringent standard of occupation, articulating a preference for Aboriginal rights over Aboriginal title, and putting forward a hollow conception of reconciliation, which fails to place equal weight on the Aboriginal and non-Aboriginal perspectives. The Tsilhqot’in case confirms the broader pattern of Canadian Aboriginal title jurisprudence, whereby courts consistently dismiss Aboriginal title claims, either on procedural grounds to avoid dealing with their merits, or on substantive grounds to safeguard the interests of the Canadian state and society.

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Expert witnesses : why the Evangelical Fellowship of Canada selects legal mobilization (2010)

Two recent areas of controversy include the "legalization" and the "evangelical-ization" of Canadian politics. The paper connects these two areas of controversy by examining why Canada’s largest evangelical interest group, the Evangelical Fellowship of Canada (EFC), has emerged as a frequent intervener in Canada's courts. In order to answer this question, the paper combines an analysis of the interveners at the Supreme Court 1985-2009 with a descriptive analysis of the EFC’s selection of legal mobilization that relies upon elite interviews, EFC publications, and public documents. The paper then tests the dominant explanations for interest group legal engagement (articulated as four hypotheses) against the EFC's experience. The paper shows that the EFC's selection of judicial engagement is not determined by their legal resources, the opening of political opportunities, or normative commitments to judicial review; but rather, by an “awakening” to the increased salience of the courts as a policy arena. Because of the EFC's ambivalence regarding the normative place of the judiciary in Canadian political life, I term their attitude "judicial realism". As a result of this perception, the EFC adds legal engagement to their other lobbying strategies. In order to be where important decisions are made, the EFC mobilizes in the courts. Because of this attitude towards judicial power, the evidence suggests that the EFC will continue to select legal engagement regardless of any advantages they may accrue in other lobbying arenas.

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News Releases

This list shows a selection of news releases by UBC Media Relations over the last 5 years.
 

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