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Lecture 7

POL214Y1 Lecture Notes - Lecture 7: Remedial Education, Constitutional Basis Of Taxation In Australia, Concurrent Powers


Department
Political Science
Course Code
POL214Y1
Professor
Nelson Wiseman
Lecture
7

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Canadian Federalism throughout time Pt 3
Interstate vs intrastate federalism
Interstate: When Trudeau calls the premiers together this is interstate federalism
Intrastate: accommodations to represent provinces in federal instructions (eg.
Representation of provinces in the Senate)
Equalization payments is done to accommodate regional differences so that everyone
has the same standard of public services
Colonial Federalism: 1870s-1890s: Examples of federal dominance
There is an almost imperial relationship between federal government and provinces in
the 1870s constitution
Lieutenant Governor (Section 58): Federal government (PM and cabinet) appoint GG
Reservation and Disallowance (Section 55-57, 90): Lt. governor can disallow or reserve
at the provincial level
Residual power (Section 91-92): Anything not mentioned in terms of provincial or
federal laws is under federal jurisdiction
Control of Prairie and territorial resources: Outside of Atlantic Canada and
Quebec/Ontario, federal government controlled territory and prairie resources
POGG (sec. 91 preamble): Broad power that allows Ottawa to create laws for peace,
order and good government
Superior courts (Sect 96-101): Federal cabinet and PM appoint superior court judges
Treaty power (sec 132): Canada takes over treaty power with other countries
Remedial education legislation for denominational minorities (sec. 93.4): Federal
government can introduce legislation to protect minorities and their educational
systems
Declaratory power (Sec. 92.10): Federal government can declare something that crosses
provincial boundaries as federal ruled (eg. Uranium is under federal power)
Spending power for “public service” sec. 106: Parliament can use money for public
service
Unlimited taxation power (sec. 91.3): Federal government can impose any kind of tax
Agriculture and immigration (sec. 95): Concurrent powers; but the federal law trumps
provincial law
Division of powers biased towards federal government
Province deals with healthcare, education, natural resources
Feds: Defense, taxation, criminal law
Centrifugal forces that push from Ottawa to provinces
Judicial interpretation
Public expectations of social services
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Business opposes federal regulation
Crown Land and Provincial resources
JCPC Weakens Federal Power
Narrow interpretation of trade and commerce for federal government
Broad interpretation of property and civil rights which includes provinces
Interpreted POGG narrowly feds can’t use it every time
Metaphors: watertight compartments (Atkin 1937) vs living tree (Sankey, 1929)
Result: Imbalance in revenues and responsibilities between federal and provincial
governments
Classical federalism: 1890s-1930s
Lasts from Confederation-Depression
Provinces gain some superiority here
Growth of “watertight compartment theory” of provinces according to the Privy Council
Also Canada joins International Labour Organization
Provinces and Supreme Court agree to conventions and implement them
1935 is the Great Depression, Federal government signs more labour declarations into
law (the Canadian New Deal)
Also: Economic reasons: railway needed, poor need redistribution of tariffs, Rowell-
Sioire 1940: commissions
Ottawa signs convention related to radio, tries to use it to justify controlling labour
conventions but JCPC Lord Atkin says no
Provinces must give consent to federal government conventions that apply to provinces
This results in Canada + provinces constantly negotiating with each other
Emergency Federalism WW1 + WW2
Occurs during both WW1 and to larger extent WW2
Federal government takes sovereignty
Defence as the centralizing force during conflict
Courts will also unfence POGG: Federal government can enter provincial fields
Parliament abdicates powers to cabinet
Provinces ceded powers to Ottawa + vacated their tax fields
This leads to tax-rental agreements where Ottawa writes an IOU to the provinces to be
given after the war Provinces like Ontario refuse
1957: Ontario signs to ceding powers during war because the IOU cheque from the
federal government is big
Federal government enters into economic planning and research
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