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POLSCI 1G06 (280)
Todd Alway (280)

Lecture 5a Federalism II.doc

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Political Science
Todd Alway

Political Science 1G06 2013 II Lecture 5a Federalism - Canada is a federation rather than a unitary state - Both Ottawa and the Provinces possess separate powers o And neither level of Government is, technically speaking, subordinate to the other within its area of jurisdiction - They are both (at least in theory) “autonomous” within their respective spheres - The separation of power between the Federal government and the Provincial governments is entrenched in the Canadian Constitution - Bearing in mind that the Canadian constitution is composed of the numerous elements that we looked at last week - Elements of Federalism 1. The Division of Power in the Constitution Act, 1867 - Each level of government is granted constitutional power in certain areas – areas over which it has exclusive legal sovereignty - However, the Constitution Act, 1867, appears to give more power to the central government than the provinces - Section 92 lays out 16 specific areas where Provinces have exclusive jurisdiction - Public lands, property and civil rights, health care, education, etc - The power of the Federal government is established in Section 91 - Section 91 establishes: - “It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subject next hereinafter enumerated…”” - Subsequently lists 29 areas of exclusive Federal jurisdiction - Trade and commerce, defence, banking, aboriginals, criminal law - Section 95 – concurrent powers: Agriculture, immigration - While the text of 1867 (and the intention of framers like MacDonald) was to make the provinces (somewhat) subordinate to Ottawa - The division of powers in practice was read in a different direction via Judicial interpretation - Constitutional decisions in the Judicial Committee of the Privy Council had the effect of increasing the powers of the provinces at the expense of the federal government: 1 - Limited Reading of Section 91 - Section 91(2): trade and commerce restricted to international trade and commerce - Expansive reading
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