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Chapter 18

PSCI 2003 Chapter Notes - Chapter 18: Constitution Act, 1982, Bailiwick, Byrsonima Crassifolia


Department
Political Science
Course Code
PSCI 2003
Professor
J Malloy
Chapter
18

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Wednesday, October 26, 2016
The Federal System
Reading Notes
-Federalism can be defined as division of powers between central and regional
governments such that neither is subordinate to the other.
-The federal character of Canada is designated in the Canadian constitution and can
be seen in almost every aspect of governance and society. The federal system is
closely related to regional economic cleavages and regional identities; it is important
for ethnic cleavages and identities; it influences the Canadian political culture and it
affects the operation of the electoral system, political parties, and advocacy groups.
Federalism also has a major impact on the institutions of the national government.
-Symmetrical federalism: When the provinces are all treated alike by the constitution
and by the federal government.
-asymmetrical federalism: when provinces are singled out for distinctive treatment.
THE CONFEDERATION SETTLEMENT
-Confederation settlement: The fundamentals of Canadian federalism.
-The Confederation Settlement Consisted of Five principle components:
the division of powers between the central and provincial governments
the division of financial resources
federal controls imposed on the provinces
provincial representation in the central institutions
certain cultural guarantees.
-The Fathers of Confederation gave the provinces 16 specific enumerated powers in
section 92 (e.g. hospitals and municipal institutions) and then left everything else - the
residual powers - to Ottawa, in section 91.
-Section 91 also included a list of 29 federal powers, such as trade and commerce and
national defence.
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Wednesday, October 26, 2016
-Two concurrent powers - agriculture and immigration - were listed in section 95, and
section 132 of provided the federal government with power to implement Empire
treaties.
-The power of Reservation: The power to reserve provincial legislation for the
consideration of the federal cabinet, which could then approve or reject it.
-The Power of Disallowance: Even if the lieutenant governor gave assent to a piece of
provincial legislation, however, the federal cabinet could disallow it.
-Declaratory Power: The federal government could declare any local work or
undertaking to be for the general advantage of Canada and thus place it within
federal jurisdiction.
-Intrastate Federalism vs interstate federalism
-To some extent, federal—provincial (or interstate) tensions can be reduced if
intrastate mechanisms are working effectively so that the people of all provinces feel
adequately represented within the national policymaking process.
-Rigid party discipline, representation by population in the House of Commons, and
unilateral federal appointment of senators and Supreme Court judges may diminish
such confidence, and, as a result, provincial premiers often come to be the principal
articulators of provincial interests.
-Cultural Guarantees (fifth aspect of a confederation) — Confederation was more than
just a union of provinces: it was also the uniting of a French culture with an English
population.
Federal Power
Provincial Powers
Concurrent Powers
Trade and Commerce
Direct taxation within the
province
Agriculture
Any form of taxation
Public lands
immigration
National Defence
Hospitals and health care
Old Age pension
Banking
municipal institutions
Aboriginals
Education
Criminal Law
Property and Civil rights
Interprovincial
Administration of justice
Transportation and
communication
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Wednesday, October 26, 2016
-Section 133 of the 1867 act, made french and english official languages in the federal
Parliament and federal courts.
EVOLUTION OF CANADIAN FEDERALISM TO 2000
DIVISION OF POWERS
CONSTITUTIONAL AMENDMENTS
-Five formal constitutional amendments have been adopted that directly affect the
division of powers.
In 1940, unemployment insurance was added to the list of federal powers in section
91 after courts had earlier declared it to2 belong the provinces.
In 1951, old age pensions were made a concurrent power, allowing the federal
government into this area as well.
In 1964, federal jurisdiction in the pensions field was enlarged to include widows’
and survivors’ benefits and disability pensions.
In 1949, the federal Parliament was allowed to amend the Constitution unilaterally
in areas of purely federal concern, a power previously held by Britain.
In the Constitution Act, 1982, the new section 92A increased provincial jurisdiction
over natural resources, while the Charter of Rights and Freedoms generally
reduced the powers of both levels of government.
JUDICIAL INTERPRETATION
-Before 1949, the Judicial Committee of the Privy Council (JCPC) in London was
Canada’s final court of appeal, and most constitutional decisions were rendered by
that body.
-The Peace, Oder and Good Government clause says that all powers not given to the
provinces in section 92 are left with the federal government. This is also known as
“POGG” or the residual clause.
-The judicial committee, drove a wedge between these two parts of section 91; it
decided that the list of 29 examples constituted the real federal powers; and it ignored
the Peace, Order and Good Government clause expect in time of national
emergency.
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