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POL316Y1 (31)
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Department
Political Science
Course
POL316Y1
Professor
Michael Stein
Semester
Fall

Description
incomplete 3. Later historical trends and issues in the judicial review of federalism: the Supreme Court of Canada (JCC) as the final court of appeal in distribution of power cases, 1949 to the present - The “balancing” role of the Supreme Court in quantitative terms: percentage of federal and provincial “victory ratios” o Prior to 1949, Supreme Court was under the shadow of JCPC and never defined a distinct position for itself o In contrast to JCPC after 1882, JCPC wanted to help rebalance o Supreme Court was bypassed on appeals by JCPC, with respect to POGG clause and trade and commerce clause o Supreme Courts role was to interpret what the JCPC said (stare decisis) not what the constitution said, it was therefore perceived during those years, late 1870’s to 1949, a captive court (Russell, 1989) o When it became a court if final appeal, at first for the first 20 years it interpreted both POGG clause and trade and commerce in a centralist manner o The federal government victory ratio for the first 20 years from 1949-1969 was 54.7%, it was slightly better – halted pro- provincialist judgments o Supreme Court broadened federal government provisions in the POGG clause o 1970 – uncanny balance (Russell, 1985)  Sometimes the Supreme Court favored the federal government and sometimes it favored the provinces  Patrick Monahan argued that in all but two federal statutes were upheld during this period  1970-1983: victory ration went down to 53.9% o unconscious desire to even things up, and one can detect this in the most important cases involving the POGG clause and the trade and commerce clause - The “balancing role of the Supreme Court qualitatively: o The Anti-Inflation Case, 1975  Trudeau government…  Challenged by provinces for acting beyond its controls  Objectives for wage and price control was to curb inflation  Supreme Court ruled that the federal government had the right to impose controls under the POGG clause but not on the grounds it could generally…, but rather to be a perceived action to combat a national economic emergency  o The Senate Reference Case, 1978
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