POL337Y1 Lecture Notes - Stamen, Pith

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8 Nov 2012
School
Course
Professor
Oct 30 2012
POL 337Y1 Canadian Constitution
Prof. Vuk Radmkovic
Page 1
POL 337Y1 Canadian Constitution
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Lecture 8
Territorial limitation is written in property and civil rights laws
Challenge
- Jurisdictional authorities are deemed to be exclusive. But they overlap with
one anther
- They face challenge in this process though. What should they do?
o Provide for exclusively so they decide particular subject of legislation
exclusively, for example alcohol or insurance?
o Or allow for overlap?
- Anything that goes beyond the line of exclusivity becomes invalidated
because the court is concerned with providing exclusivity
- Thus federal role is incidental or minor. Law is primarily concern with
provincial jurisdiction
- Doesn’t mean every single law that goes across this line is going to be
constitutional
- History of Canadian judicial review of federalism is a bit of both
Judicial committee of the privy council 1867 1949
- Key assumption: mutual exclusivity
- Through the process of mutual accommodation
o They made 3 key steps
o 1. Rights in the province, and has very broad interpretation so
anything can be in this category
o 2. 3 key doctrines
National Importance doctrine
Residual power logic is that only things that are truly not in
the constitution, that are not specifically listed will belong by
federal government
Emergency
o 3. It also receives narrow interpretation and has 2 main logics that
interpret this particular power
1. Interprovincial trade
2. General regulation of trade affecting the whole Dominion
- Examples
o PSQ: Policy status quo
o Pith and Substance Doctrine rules that alcohol was evil. Given that
implication it is ok for the federal government to make such decision.
And supreme court has approved the constitutionality of this
Ask what is the true character of legislation?
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Document Summary

Territorial limitation is written in property and civil rights laws. They face challenge in this process though. Anything that goes beyond the line of exclusivity becomes invalidated because the court is concerned with providing exclusivity. Thus federal role is incidental or minor. Doesn"t mean every single law that goes across this line is going to be constitutional. History of canadian judicial review of federalism is a bit of both. Judicial committee of the privy council 1867 1949. Through the process of mutual accommodation: they made 3 key steps, 1. Rights in the province, and has very broad interpretation so anything can be in this category: 2. Residual power logic is that only things that are truly not in the constitution, that are not specifically listed will belong by federal government. It also receives narrow interpretation and has 2 main logics that interpret this particular power. General regulation of trade affecting the whole dominion.

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