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Political Science 3NN6 Lecture Nov 4-Nov11,2013.docx

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Department
Political Science
Course
POLSCI 3NN6
Professor
Greg Flynn
Semester
Fall

Description
Started on: 11/4/2013 12:27:00 PM Last saved on: 11/11/2013 8:48:00 PM C LASS N OTES FOR : 3NN6 McMaster University, Fall 2013 M ONDAY , NOVEMBER 4, 2013 Movement into a period where Courts can strike down actions by Government; - (Outside of the jurisdiction) Consideration of the division of powers and how it has been interpreted - FEDERAL STATE – Formally divides power between two governments; o UK – Quasi-federal o Federal states allow for diversity o Vary in terms of the amount of government that is allocated;  Some have highly centralized federalization o Federal government – You are responsible for certain areas o Provincial government – You are responsible for other certain areas - Unitary State – o New Zealand o France o Does not just mean that there‟s only one level of Government; Peace Order and Good Government Clause section 91 (Can make laws, except to matters that fall to the provinces) o Most concerned with section 91(2) and the trade and commerce o Section 92 (13) – Property and Civil Rights in the Province; - Interpretation of the constitutional act that divide powers between the two governments o Section 91 (Power to the federal government) – Concerned with section 2 o Section 92 (Power to the provincial government) – Concerned with section 13  Exclusive powers  16 clauses 1. WHO ARE THE JCPC? Judicial Committee of the Privy Council a. For the first 80 years, it was the highest judicial tribunal for Canada. b. Unelected by legally trained members of the house of lords who would decide legal questions in various colonies; c. Until 1949 the Supreme Court of Canada became the final authority in Canada. d. Had a significant impact in the manner to which our constitution was interpreted; 2. TRADE AND COMMERCE (international trade, interprovincial trade, trade that would affect the dominion as a whole a. This is where the JCPC had their biggest impact b. Over the consideration of what “trade and commerce” mean in section 91 c. While the US constitution it has been interpreted to apply to large areas of law, which gives the government greater range of authority. Section 91(2) **Citizens’ Insurance v. Parsons – Division of powers perspectives o One of the most important decisions in Canadian constitutional law o Parsons hardware store was destroyed by fire; but he had insured his hardware store against loss or fire with Citizens Insurance. However, citizens insurance refused to do so. Angie © McMaster University 1 Fall 2013 Started on: 11/4/2013 12:27:00 PM Last saved on: 11/11/2013 8:48:00 PM o Parsons that the condition he had failed to comply with was contrary to the fire policy act (to the provincial state) and so it did not apply and was unlawful and did not include him from being indemnified. o JCPC did not agree with citizen‟s insurance; o LEGAL TEST  PARSONS TEST  1. Section 92 of the constitution (what is the legislative manner that we are looking at and does this issue fall within section 92)  NO  FEDERAL AREA OF JURISDICTION  2. If YES is it also something that fall under section 91 – NO  Provincial  But what if YES it is up the court to reconcile;  (Overview) T ESTS FOR J URISDICTION Section 92  No  Federal Section 91  No  Provincial If it also relies in federal jurisdiction tries to - reconcile N OVEMBER 5, 2013 - Section 92, and 91 are still believed to be a distribution of authority. - Trade and commerce and property and civil rights, the JCPC gave us the argument that if it‟s given the authority that it purports to have, it will give the federal government to legislate over everything. - International, interprovincial and trade affecting the dominion as a whole - How broad or narrow? - Insurance Reference [1916] 1 A.C. 588 - The federal government created a federal insurance act, to establish a licensing regime for the insurance companies. - With the exception that they would not apply to provincial companies carrying on business wholly within a province o Ontario companies offering insurance to people in other provinces; looks like a matter of interprovincial trade; passed the federal act which was aimed at regulating the industry which had spread across the country o What about companies that might be incorporated in one province? But carry on business wholly within another?  The JCPC said to the Fed government that they‟re trying to regulate industry; scope of the business activities of the interest are not relevant to whom has the authority to regulate; we are dealing with the regulation of an industry period; trade and commerce does not extend to allow the regulation of a particular trade or industry;  If it can be regulated by the province, it should be regulated by the province; Board of Commerce - Following the end of the first WW; the federal government created the board of commerce whose job was to enforce prohibitions against the hoarding of goods and prevent price gauging on the sale of goods; o Split decision at the supreme court of Canada and appealed decision to JCPC; o The federal government could only use its trade and commerce regulation to interfere with jurisdiction where it was ancillary to other powers used by the prov gov’t. T.E.C. v. Snider [1925] A.C. 396 Angie © McMaster University 2 Fall 2013 Started on: 11/4/2013 12:27:00 PM Last saved on: 11/11/2013 8:48:00 PM - Fed government sought to regulate aspects of the economy as opposed to specific trades. Sought to impose a system of labour relations on the country (min. wages, hours worked, etc.) - Not regulating trade; industries, but regulating the general economy as a whole, clearly something that is interprovincial in orientation o JCPC – No, individual labour conditions were matters of property and rights; interference with jurisdiction of the provinces under property and civil rights; outside the scope of the federal jurisdiction National Products Marketing Act - Comes out of the depression - Federal government established a marketing scheme for agricultural products - Designed to help stabilize the industries (prices and supplies) - In the case, the judicial committee dismissing the trade and commerce argument said the regulation of individual forms of trade and commerce does not permit trade and commerce confined to the province; JCPC limiting what the federal government can do, if it has an effect on provincial powers it’s more inclined to say no - Intrusion on provincial jurisdiction only when was within the scope of the federal powers; - NARROW POWERS 3. PROPERTY AND CIVIL RIGHTS (section 92(13)) Civil Rights? - Civil rights does not refer to „civil liberties and civil freedoms‟ set out in the charter of rights and freedoms; talking about something much broader; deals with the legal rules that stipulate where one individual may claim damages from another; may claim rights or obligations from another - Involves things like “contractual rights, tort rights (legal remedy), it deals with all matters of property” - In order to understand this broad interpretation given to the meaning; where do we start to look? - Two things; o First there is nothing in the constitution act that provide reasons to limit the clause from the rights arising from contracts; these powers are not excluded from the provinces by anything listed under section 91; o Provinces; there‟s nothing in the right for wha
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