3NN6 Hypothetical Question 2013.docx

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McMaster University
Political Science
Greg Flynn

Started on: 11/28/2013 12:34:00 PM C LASS N OTES FOR : 3NN6 McMaster University, Fall 2013 T HURSDAY , NOVEMBER 28, 2013 Exam Question 2 HYPOTHETICAL ISSUE: Does the federal have jurisdiction PURPOSE: What is the purpose of the legislation? - Conservation of the forest industry - Preventing the spread of the pine beetles (kill bugs) - Economic preservation PARSONS TEST: - Check section 92  Then 91 o Assuming that it does not fall under section 92 we go to section 91 - 92 (13) – Property and Civil Rights o Yoni and Jean-Marc entered into a CONTRACT so it falls under section 92. - According to Parsons we also see under section 91 o Does it fall under 91 (2) Trade & Commerce or Criminal Law/POGG o TRADE AND COMMERCE  How do we decide whether something falls under the trade and commerce? INTERNATIONAL AND INTER-PROVINCIAL TRADE (PARSONS, BORDER REGULATIONS)  – Does the trade of Yoni and Marc international or interprovincial?  - What about the Caloil case? Primary purpose is the primary enactment, but it has an incidental impact. CONSIDERING INCIDENTAL IMPACT on the provincial rights.  TRADE AFFECTING THE DOMINION AS A WHOLE (LASKIN)  Were part of a general regulatory scheme o A plan in place that sets out rules as to how something is governed (pine beetle control act is!)  That was monitored and had continuing oversight by a regulatory agency o Yes, it is called the Canada Lumber Agency  Must be concerned with trade affecting the country as a whole, not just a specific industry o The nature of the problem suggests that it’s a single industry; but it can be the country as a whole, because it covers everyone who might use LUMBER (e.g. building, transportation, etc.)  ADDING 2 MORE: to ensure that there is a BALANCE between 91 and 92, does not want to go far to upset the balance between the two Angie © McMaster University 1 Fall 2013 Started on: 11/28/2013 12:34:00 PM  Fourth, the legislation should be of a nature that the provinces would be unconstitutionally capable of enacting. o How would a province enforce outside of the jurisdiction if it needed to do? ; In this case, provinces are incapable YES;  Fifth, that the failure to include a pr
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