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Lecture 8

October 25, 2012 - Lecture 8 (Trade and Commerce).pdf

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University of Saskatchewan
Political Studies
POLS 303
Joe Garcea

October 25, 2012 - Lecture 8 (Trade and Commerce) October-25-12 11:35 AM Trade and Commerce: - Begins with an analysis of S.91 (2) of the Constitution Act, 1867: ○ The regulation of Trade and Commerce?  It's clearly a federal priority? - Clearly falling within federal powers. - How was this power interpreted by the JCPC? - How has it changed under the SCC? Parsons (1881) - The insurance company argued that the Act is ultra vires in the province of Ontario. - Montague Smith suggests that there is a significant overlap between 91(2) and 92(13). ○ Property and civil rights are far morespecific to the case at hand. ○ T&C powers by contrast are far too broad. ○ According to legal scholars, Smith's analysis of the "Cubby Hole Doctrine" finds that the issue falls under 92(130because it is more specific to local, provincial issues. - Not surprisingly, given the ambiguity of the bright clear lines test, it begins to break down post-Parsons. Canada (A.G.) vs. Alberta (A.G.) (1916): - Regulation of insurance, which by 1916had become a national industry. - Monahan suggests surely that such an industry and that it was a matter for national concern. JCPC's logic on T&C: - Distinguishes between: ○ "Interprovincial" and "international" grade (91(2)) ○ Local trade (92(13)) Supreme Court of Canada (post-1949): Parliament clearly has jurisdiction over international and interprovincial trade. Can Parliamenthave any role in regulating local trade? Margarine Reference (1949): - Fe
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