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POLS 303 (23)
Joe Garcea (23)
Lecture 9

Oct. 30, 2012 - Lecture 9 (Property and Civil Rights).pdf

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Department
Political Studies
Course
POLS 303
Professor
Joe Garcea
Semester
Fall

Description
Lecture 9 (Property and Civil Rights) October-30-12 2:16 PM Property and civil rights - Are the most important provincial powers in S. 92. - Was much later than when interpreted by JCPC. - 92.13, as it was drafted, should have been, or seemingly was, not very broad. - Smith concluded that the drafters of S. 92 (13) should interpreted in a broad/expansive manner. o Exact opposite of what constitutional scholars was supposed to be. - JCPC basically interpreted in a broad manner. - Property/civil rights cover: o Contractual rights. o Labour relations. o Business activity generally in a province. o Insurance? - JCPC interpretation of S. 92 (13) effectively supplants the opening words of S. 91 POGG. - Continues into the post-1949 jurisprudence. Chicken & Egg Reference (1971): - Ontario farmers produced an abundance of cheap eggs. - Quebec farmers produced an abundance of cheap chickens. - Farmers in both provinces exported their product to the other. - Farmers in both provinces pushed their provinces for protective legislation against the other (as each area had a comparative language). - Quebec established an egg marketing board with the power to protect Quebec’s producers. o Ontario creates similar board. o Legislation appears to be neutral (it isn’t). o Other farmers are shut out of Quebec and Ontario marketing scheme and lobby feds for protective powers. - Manitoba can’t refer to Quebec’s legislation to its own court. - Manitoba enacts identical legislation to the Quebec legislation and referred that legislation to its Court of Appeal. o Manitoba wanted to lose case to appeal to the SCC. o Nine judges on panel: 6 + 2 + 1 (all agreed ultra vires) - Bora Laskin’s first major decision: o Laskin is annoyed that case is fabricated? o Obiter since Parsons led to attenuation of literal interpretation of Trade & Commerce powers. o Laskin orders that a provincial marketing scheme would be acceptable “if” producers in other provinces were treated equally to control the import of eggs from other provinces. o Therefore, the matter is ultra vires (92(13)). - Monahan o Argues that the chicken and egg reference was “surely right.” o He suggests that provincial powers over property and civil rights could be used by one province to erect protectionist and discriminatory barriers. - Decision was followed by feds and provinces through an agreement that settled a national marketing plan. Natural Resources Cases - Canadian industrial gas and oil? o Provinces pushed for control of natural resources in Constitution. - Central Canada Potash? o Provinces pushed for control of natural resources in Constitution. - Friends of Oldman River vs. Canada Ont. - Hydro vs. Labour Rel
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