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Chapter 5-3

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Department
Political Science
Course
POLSCI 3NN6
Professor
Greg Flynn
Semester
Fall

Description
November 11, 13 C HAPTER NOTES FOR 3NN6 C HAPTER 5 – JCPC AND E ARLY F EDERALISM Summary - Before 1949 the highest tribunal was the Judicial Committee of the Privy Council, based in London, England o Interest of historical and legal o Played a role in the formative period of Canadian federalism o As the first ultimate constitutional tribunal, the Judicial committee provides a useful starting point for comparison and contrast wit the present court of last resort (The Supreme Court of Canada) o Challenge of making sense of the British North American Act 1867 was transferred to the Judiciary o Final decades of the 19 century and up until the depression there was pressure to construe provincial power to help provinces cope; most of the Judicial committee‟s earliest and formative decisions on Canadian federalism seemed to point to a centralist direction - Three challenges; of the British North American Act 1867 o (1) Necessary to determine how to characterize the legislation being challenged on constitutional grounds  Main aspect or any aspect of a challenged constitution? o (2) Necessary to decide on a consistent approach to interpreting ss. 91 and 92 of the Act  Where should a court look first? 91 or 92?  How should overlaps be resolved?  How should apparent conflict be resolved?  What about jurisdiction? How should it be resolved? o (3) Finding an underlying theme to make sense of the division of powers and providing rational basis for the answers to questions above PEACE, ORDER AND GOOD GOVERNANCE - Federal Power - Section 91 - Catches all subject matter not in 92 - Broadest possible kind of law - Catches all subject matter related to peace, order and good governance regardless of whether it would otherwise fall under s.92 - However, the phrase has a literal meaning broad enough to extent all the heads of power conferred to the provinces in s.92. If given its literal meaning, Canada would be a UNITARY rather than a FEDERAL state. TRADE AND COMMERCE - If stood alone in the act, would be very broad - No restrictions alone; - In Canada, stipulated that provincial articles of trade must be „admitted‟ free into other provinces (without tariffs) - Entrusting the movement of goods to the government for the country as whole, to ensure movement - But section 91(2) does not stand in isolation o Provinces have significant power within their boundaries Angie © McMaster University 1 Fall 2013 November 11, 13 CRIMINAL LAW - Extremes PROPERTY AND CIVIL RIGHTS IN THE PROVINCE - General structure of the Act imposed potential limits on provincial powers that do not have federal counterparts - Section 92(13) – The power in relation to property and civil rights in the PROVINCE; o Given the wide interpretation, property and civil rights could undermine many of the economic and financial powers assigned to parliament; - Property and Civil rights in S.92(13) had a special meaning in earlier Canadian history. o After conquest of New France in 1760 – British concluded that under secure loyalty of their new subjects, their laws and customs would be protected. Quebec Act of 1774 – while criminal law would be British, Quebec property and civil rights were to be determined by the “Laws and Customs of Canada”  Magna Carta of French Canada – Recognition of French Canadian culture; o Constitutional act of 1791 – continued the policy, providing that laws of Quebec would continue to apply t the new colonies of upper and Lower Canada unless either legislature should change them. - Property and Civil rights was NOT a new jurisdictional grant, but the CONTINUATION of a historical safeguard. EARLY KEY DECISIONS (a) Citizens Insurance (William Parsons) – CASE AND EXTRACT - ISSUE: Parsons asked Citizen‟s insurance for compensation when his hardware store was lost in a Blaze on August 3, 1877 o Citizen‟s insurance refused because he had failed to comply with a condition they had written into the fire insurance o Parsons replied the condition to be invalid because it had not been written in the form required by the Ontario Fire Insurance Policy Act (provincial) o Citizens claimed that the Constitution Act gives jurisdiction over fire insurance policy contracts to PARLIAMENT and not to PROVINCE - Members of the committee had to decide how courts should approach ss.91 and 92 of the Constitution act of 1867 o Section 91 – To give dominion parliament authority to make laws for the good government of Canada in all matters not coming within the classes assigned to the provincial legislature.  Section 91 is for Federal whereas section 92 is for Provincial… - Issues of conflict o Marriage and divorce in section 91, however it is also enumerated within provincial legislature. o Constant issues of jurisdiction (1) First question to be decided is, whether the Act impeached in the present appeals falls within any of the classes of subjects enumerated in section.92  Main contention on behalf of respondent (PARSON), was that the Ontario Act had relation to matters coming within the class of PROPERTY and CIVIL RIGHTS  Appellant (CITIZENS INSURANCE) – contended that civil rights meant only rights as flowed from the law Angie © Mc
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