Oct. 16, 2012 - POGG (Peace, Order and Good Government) and Federalism.pdf
University of Saskatchewan
POGG (Peace, Order and Good Government) and
Determining the Legacy of JCPC and the Canadian Constitution
- Strict constitutionalists?
- Visionary leadership?
- What’s the debate?
Centralization and Decentralization
- What’s the JCPC’s role in reshaping the Canadian Constitution?
Constitution Act, 1867
- John A. Macdonald believed that the Act was drafted to ensure that “all conflict of
jurisdiction had been avoided.”
- Macdonald thus saw little role for the courts of influence (or alter Canadian federalism).
- Proves false:
o The courts play a central role in interpreting the Act.
o That reinterpretation has lasting legacy in Canada.
Judicial Committee of the Privy Council (JCPC):
- Established in 1833, the JCPC is one of the highest courts in the UK.
- It was (and still remains) the highest appeal court for many Commonwealth countries.
- The JCPC’s record in interpreting the Constitution Act 1867 is controversial:
o The JCPC interprets a centralizing document and allocates greater power to the
- JCPC conceives its role as legal and not political.
o Members of JCPC are from the House of Lords and have no vested interest in the
- JCPC’s jurisprudence worked to create clear, “bright lines” between sections 91 and 92.
- The court states that this “categorical reasoning” allows it to avoid determining the best
economic, political institutions for the country.
- Proceeds on the notion that sections 91 and 92 are mutually exclusive.
POGG and National Concern
- Russell. vs. The Queen
o Can federal legislation restrict taverns from selling alcohol?
o Federal legislation states that ¼ of elections in a “county or city” may petition for
a plebiscite on prohibition.
o Fredericton holds a referendum which votes to enact prohibition.
o Fredericton pub owner (C. Russell) convicted of violating Federal Act.
o Russell argued that the CTA violates:
o S.92 (9) Legislate matters related to taverns and saloons.
o S.92 (13) Property and Civil Rights.
o S.92 (16) Matters of a Local or private nature?
o Sir Montague Smith argues that the legislation was valid because it dealt “with an
evil which is assumed to exist throughout the entire Dominion.”
- Hodge vs. Regina (Queen) (1883):
o Upholds Ontario statute regulating the sale of liquor.
o Lord Peacock:
“subjects which in one aspect… may fall within S.92 may in another
aspect and for another purpose fall within S.91.”
Provincial statute does not interfere with fed. Legislation on the same
Provinces could ena