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Oct. 16, 2012 - POGG (Peace, Order and Good Government) and Federalism.pdf

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University of Saskatchewan
Political Studies
POLS 303
Joe Garcea

POGG (Peace, Order and Good Government) and Federalism October-16-12 11:06 PM 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 provinces. - 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 disputes. - 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 subject.  Provinces could ena
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