Impugned legislation:  federal Industrial Disputes Investigation Act of 1907.

Viscount Haldane wrote the decision of the JCPC.  (You can guess the result.)  He wrote that the subject-matter of the legislation, labour legislation, clearly falls
under s. 92(13).

Keep in mind that this case concerned a municipal transportation agency -- clearly an industry falling under provincial jurisdiction.

After determining that the subject matter fell under 92(13), Haldane then needed to ask whether it also fell under POGG, the federal crim power, or the federal
Trade and Commerce power.   His answer was no.  The federal POGG power can be used as a residual power, or emergency power.  The "national concern"
branch of POGG seemed to have disappeared, for Haldane.  Becauase the subject-matter falls under 92(13), the residual power is not relevant.  And there's no
emergency.

Haldane tries to reconcile this decision with Russell v. Queen.  Was there an emergency concerning drinking in 1882?  Haldane writes that  the "_evil of
intemperance [was] one so great" that parliament intervened to "protect the nation from disaster" back in 1882!
 
Employment & Soc Ins Ref (1937)

Impugned legislation:   Employment & Soc Ins Act, 1935.  (part of the "new deal" legislation to get Canada out of the depression).  It created an unemployment
insurance program in Canada, for the first time.

Oppostion Leader Mackenzie King:  it's good legislation, but ultra vires.  When he became Prime Minister later in 1935, he referred the question of the validity of the
Act to the SCC, which ruled the legislation ultra vires.

This decision was appealed to the Judicial Committee of the Privy Council.  Lord Atkin, writing for the JCPC,  agreed with the SCC.  He wrote that the subject
matter, "Unemployment insurance," falls under s. 92(13).  Therefore, POGG and T&C can't be used to justify the legislation as federal.

Louis St. Laurent was the lawyer for the federal crown.  He argued that the impugned legislation can support under fed. taxation and spending power.  Atkin did not
agree.

The result of the JCPC decision was a constitutional amendment, supported by all the provincial premiers and the federal Parliament, which gave the federal
government the power to create an unemployment insurance program.
 
A.G. Ont. V. Canada Temperance Fed., 1946

Impugned:  Canada Temperance Act, 1927
Ref to Ont CA.  Lost in SCC, app to JCPC by Ont (supp. By AB & NB)
Given Snider decision, should JCPC overrule Russell (1882)?
1927 CT Act essentially same as 1882 CT Act.

Snider:  must have been emerg in 1882.  Ont:  no emerg in 1946.
Vis. Simon:  "decision firmly embedded in Can con law"
Haldane's expl in Snider:  "too narrowly expressed."  1878 Act permanent.  Subject really a matter of inherent national concern.
 
Johannesson v. West St. Paul, 1952 (SCC)

Impugned:  part of Man. Mun. Act allowing mun's to regulate aerodromes.
J needed location to repair bush planes
Aeronautics case (1932) upheld fed reg under S. 132.
Current fed regs under Chicago Convention (1947), not Br Empire Tr

Does aeronautics fall under S. 92 (13) or (16)?  Yes, but transcends them as a matter of national concern under POGG.
Five decisions:  Kerwin, Locke, Rinfret, Kellock & Estey.  Two others concurred.
Ratio:  imp'd leg ultra vires.
(What does inter alia mean?)

                                             Ref re Offshore Min Rights of BC (1967)

Ref to SCC from fed cabinet:  who owns & can exploit ocean floor below low water mark to 3 mile limit?
Opinion of "the court."
S. 109:  prov's own "lands, mines & minerals."
Where was BC boundary in 1971?  Conflicting precedents.

Br Cr retained control over Canada's territorial sea until Statute of Westminster
Now territorial sea part of territory of Canada, not BC
1972-1980:  Que & Atl prov's applied pressure
1984:  SCC-Canada owns Hibernia.
"Atlantic accord:" Nfld offshore treated like land-based resources by feds.

                                         Ref re Anti-Inflation Act (1976)

Trudeau campaigned against wage & price controls.  After elect. victory, reversed.
All prov's cooperated.  Ont pub empl unions challenged in ct, so ref.
AG defended under nat concern branch of POGG, and also ec crisis = emerg
Laskin (+3):
Had been law prof
Reviewed history of POGG

 -Const must capable of adapting to change.
 -If can defend as crisis, not nec to look at national concern argument.
Evidence shows there is a rational basis for believing a crisis exists (Stats Can)
Lipsey & 39:  not a crisis.  Not up to court to decide.  Beginning of use of soc sci evidence in court.
Fed power supported by 91(14-21 ex 17), & T&C.
Ont. Reg. Ultra vires; needs primary legislation.

Ritchie (+2):
Rejects Laskin's crisis doctrine.
There is evidence of an emergency (white paper).
An emergency can occur in peace time.
Therefore, impugned anti-inflation act intra vires.

Beetz (+1):
Anti-inflation act invades 92(13).
Parliament has not declared an emergency, so there's no emergency.
Not a matter of national concern.
Legislation is ultra vires.

                                                Queen v. Crown Zellerbach (1988)

Impugned:  federal Ocean Dumping Control Act, pursuant to int. treaty of 1972.
C.Z. dumped wood waste in "internal" salt waters in a strait on Vancouver Island
CZ claims fed legis overbroad because wood waste did not pollute.
Feds:  defend under POGG "national concern"
Le Dain (+3):
"provincial inability" test:  ocean pollution is a matter of national concern that can't be regulated by provinces.
Fed regulator should decide what does or does not pollute
 La Forest (+2):
dissents; agrees with CZ.  No evidence that it's necessary to monitor everything dumped.
 
Citizens Insurance Co. v. Parsons, 1881

Impugned legislation:  Ontario Fire Insurance Policy Act.
There was a fire in Parsons' warehouse; Parsons wanted insurance.
Ins Co argued that Parsons didn't observe the fine print.
Parsons argued that the fine print didn't conform to the Act.
The Insurance Company argued that the Act is ultra vires the legislative powers of Ontario, because only the federal government can regulate insurance companies
under the Trade and Commerce power - S. 91(2).

Sir Montague Smith, who wrote the decision for the JCPC, discusses how ss. 91 & 92 overlap.  He indicates that the JCPC will interpret the BNA Act as an
ordinary statute.

He Invokes the presumption that specific parts of the law take precedence over general parts.  Which is more specific:  "property and civil rights," or "trade and
commerce."  Because property and civil rights is more specific, it takes precedence.

Following the "cubby hole" doctrine, he askes whether the subject matter (regulation of insurance) falls under S. 92(13)?  Yes it does.  Does it also fall under S.
91(2)-T&C?  No.  The federal government can incorporate companies with national objectives?  (Why?  Because the provinces, under S. 92(11), can incorporate
companies with provincial objectives.  Because "national objectives" wasn't mentioned here, the framers must have meant that the incorporation of companies with
national objectives must be a federal power.)  But this doesn't prevent provinces from regulating the intraprovincial transactions, even of companies that are federally
incorporated, as the Citizens Insurance Co. was.

Smith concludes that there are three aspects of T&C:  international, interprovincial and general.  He doesn't say much to define these three aspects; that will be for
later court decisions.
 

                                  Leading T&C cases after Parsons, and before Chicken & Egg case

Proprietary Articles Trade Assoc ref. (1931)

Impugned:  federal anti-combines legislation (akin to Bd of Commerce case)
Lord Atkin for JCPC.
Intra vires under fed. Criminal power (91[27])
Test:  penal consequences
Bd of Commerce case distinguished.  Proper due process safeguards in instant (this) case.
Haldane wrong (Bd of Com & Snider) that T&C is subordinate

Natural Products Marketing Act Ref, 1937

Impugned:  fed marketing legis as part of "new deal"
All provinces supported and had dovetailing legislation
Lord Atkin:  ultra vires because it trenches on intra-provincial marketing in 92(13)
But provincial marketing legis had also been struck down as trenching in interprovincial T&C power.
Can no marketing legislation be intra vires?

Ontario farm products marketing case (1957)

Fed gov't referred Ontario marketing legislation to SCC.  Majority:  intra vires, if extra-provincial trade not affected.
Judges explored the reality of the movement of produce being traded more than previous courts.
Invoked "aspect" doctrine:  trade can be a provincial matter for one purpose, and a federal matter for another.
Judges seemed to want to find a way out of the stalemate created by the Natural Products reference of 1937.

                                                Chicken & Egg Reference (1971)

In 1970, Que gov't authorized Quebec egg marketing agency to restrict import of eggs from out of province.
Ont and Man were suppliers of eggs to Quebec.
Que supplied chickens to other provinces; in retaliation, the other provinces restricted Quebec chickens.  Thus, there was a "chicken and egg war."
Man passed egg marketing legis identical to Quebec's and referred it to Manitoba Court of Appeal.  Because Manitoba couldn't refer the Quebec legislation to its
own court, it enacted idential legislation to the Quebec legislation (even though Manitoba didn't import eggs) and referred that legislation to its Court of Appeal.  The
government hoped to lose, and then appeal the decision to the SCC.

The Man legis was struck down, as hoped by the Manitoba government, by the Manitoba CA.  Manitoba appealed to SCC. (What could Manitoba have done if
the legislation had been upheld by the Man. Ct?  The strategy would have been foiled.)

9 judges on panel:  three concurring decisions 6 + 2 + 1 (all agreed that the legislation is ultra vires).
-Martland:  Pith and substance:  interprovincial T&C.

This was Bora Laskin's first major decision after his appointment to the SCC.  He is obviously annoyed that case is fabricated.  Why?  Judges need to base their
decisions on factual evidence.  For example, if Manitoba imported very few eggs, then perhaps the legislation could be described as primarily intraprovincial.

He claims that obiter in many decisions since Parsons has led to attenuation of the (from his perspective proper) literal interp of T&C.
Prov. Marketing legislation OK if producers in other provinces treated the same a local producers.
Purpose of this legislation:  to control the import of eggs.  Therefore it is ultra vires; trenches in fed control over interprovincial T&C.
Laskin provides a scholarly analysis both of case law and realities of trade in eggs & other goods.  As well, he says that it's not necessary to invoke s. 121, because
Trade and Commerce settles the issue.  Why did he even mention S. 121?  Because he thinks it's important and wants to signal to lawyers that he wants to hear
arguments on S. 121 in future cases.

                                        Significant Cases after Chicken and Egg Reference:

Labatt v. A.-G. Canada (1980)

Impugned legis:  Fed food & drug act reg's setting standards for "light beer."
In several recent cases, SCC failed to allows feds to use "general" aspect of T&C to regulate fair practice, or regulate grades of apples.
Estey:  impugned legis. Really local in character.
Not international, and not really interprovincial
Laskin:  dissents.  Feds can equalize  competitive advantage under interprov T&C.  Also, S. 121 prohibits interprov trade barriers.

Delegation
Primary & subordinate legislation
Delegation to cabinets, reg. Agencies, municipalities
Delegation to another sovereign legislative body:  interdelegation
Avoid overbroad delegation
Manitoba initiative and referendum Act, 1916
Alberta initiative and referendum act, 1913 (tested in 1916)
Senate reference:  1979
Depression:  all gov'ts wanted old-age pensions
Rowell-Sirois Report:  interedelegate (1939)
Nova Scotia first prov to pass necessary interdelegation legislation.  Referred to SCC.
 

                                             Nova Scotia Interdelegation Case (1951)
 

7 judges wrote separate opinions.  Decisions of Rinfret and Taschereau presented
Rinfret:  right not to be subjected to laws unless passed by appropriate legislature (specificity rule)
Lord Atkin in Labour Conventions:  "shop of state_watertight compartments."
Taschereau:  if interdelegation possible, everything might get interdelegated.
 
 
PEI Potato Marketing Bd v Willis (1952)

Fed Ag Products Marketing Act (1949) was impugned legislation.
Feds could delegate power to reg interprov marketing to a prov bd
Federal Order in Council in 1950 delegated interprov power to reg PEI pot's to PEI Potato Marketing Board
PEI ref'd Q of validity to PEI Sup Ct in banco.  Conclusion:  ultra vires, following NS InterDel.
In SCC:  NS InterDel disginguished. 9 js participated and they wrote 6 dec's.
Rinfret:  Act clearly in fed juris (T&C: int, Ag)
NS Case just applies to del to legislatures.
Feds can choose own board or agency (precedents)
Praises fed-prov cooperation
PEI Potato Marketing Bd cont'd
Rand:  would be valid if Feds created a separate interprov marketing bd, and appointed same people to it as on PEI Bd.
"Twin phantoms of ths nature must, for practical purposes, give way to realistic necessities."
 

Last JCPC decision:  Winner (1954) (The appeal was initiated before appeals to JCPC were abolished in 1949).  It declared that only feds can license vehicles for
interprovincial purposes.  Feds delegated interprov transport regs to prov. transport boards.

Couglin (1968):  Fed transport delegation upheld.

As a result of the Willis and Coughlin decisions, there was no need for a const amen't re interdelegation.
 
Treaty-Making Cases

The treaty-signing power, and treaty-implementation power, are two different powers.  The feds had them both until 1926, under S. 132 of the BNA Act.  In 1926,
Canada became equal to Great Britain in handling foreign affairs (Balfour Declaration, later confirmed by Statute of Westminster, 1931), and so S. 132 became
obsolete.

Aeronautics Case (1932):  Canada was implementing a British Empire Treaty, but federal gov't has the power to implement a treaty on aeronautics under several
heads of S. 91, such as defence, post office.

Radio Case (1932):  Section 132 is now obsolete.  Therefore, the treaty-making and treaty-implementation powers are new, and fall under POGG.

Labour Conventions Case (1937)
Lord Atkin - wrote decision
Distinguished Aeronautics and Radio cases.  He said that the Radio case decided that power to regulate radio transmissions is new, and therefore falls under
POGG.  The treaty-signing power falls to the feds under POGG, but the treaty-implementation power depends on the subject-matter of the treaty.  Matters that fall
under S. 92 can only be implemented by the provinces.

Important terms to know:
Extraterritorality
  Federal
  Provincial
Types of treaties:
  Head of states
  Intergovernmental
  Exchange of notes
 
Can. Ind Gas & Oil v. Sask, 1977 (CIGOL)
1973:  OPEC inc'd world price of oil
Windfall gains by oil companies in Canada
Sask gov't wanted diff between old price and new price
Expropriated oil & gas land tracts, and imposed royalty surcharge equal to diff
7-2:  Sask leg ultra vires
 

Martland + 6:
Indirect tax, because paid for by consumers
Tax really an export tax; 98% of Sask oil exported to US, E Can
Dickson:  S. 109
Price sets the tax, so tax paid by the companies, not consumers
Decision led to S. 92A (amendment in 1982)
Section 109, CA 1867
 

S.109
All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or
payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick
in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.

                                             Cent Can Potash & AG Can v Sask, 1979
Background
1960s:  potash mines developed in Sask; Sask can supply world for 1500 years.
Other major producer:  New Mexico, but mines less efficient
By 1967, Sask potash selling in US at well below NM prod price
Most NM companies had interests in Sask mines

NM and Sask worked out a pro-rationing scheme to restrict Sask output so that NM mines could operate Gov't in Ottawa not opposed, so no court challenge
1971:  Sask changed pro-rationing formula;
Cent Can Potash tried to force gov't to honour old plan through mandamus.
CCP went to court; Ottawa intervened against Saskatchewan.

All 7 judges on panel, led by Chief Justice Laskin, found the Sask scheme unconstitutional.  Provinces own natural resources, but this does not give them the power
to control interprovincial or international trade and commerce.  Any legislation that is in pith and substance an attempt to regulate interprovincial and international
trade and commerce is ultra vires provincial powers.

These two decisions led to a great deal of resentment on the part of the Western provinces, and led directly to the demand to include S. 92A in the constitutional
package agreed to in November, 1981.  (See Section 92A above under "Constitution Acts, 1867 to 1982.")
 

                                                   R. v. Hydro-Quebec (1997)
Impugned:  Canadian Environmental Protection Act, SC 1988, ss 34-35, and regulations issued by L. Bouchard in 1989.
Hydro Quebec charged in 1990 with releasing PCBs contrary to regs.  HQ claimed Act and regs ultra vires.  Claim:  don't fall under any heads in s. 91. Won at trial
and Q Ap Ct.  Granted leave to appeal to SCC in 1995.

5-4 decision:  leg and regs intra vires.
Majority:
La Forest, L'Heureux-Dube, Gonthier, Cory, McLachlin.
"Environment" is not a distinct subject-matter that falls under ss. 91 or 92.  If "pith and substance" of leg falls under s. 91 or 92, legislation is valid.  (Do you see
"double aspect" doctrine here?)
Hydro Quebec (2)
Does leg fall under 91(27) [crim law]?
Feds can decide what "evils" they want to supress, with penal sanction.
Fed criminal power subject to "fundamental justice" safeguards in Charter; higher level of "mens rea" required for "true" (serious) crimes.

Criminal power may not be employed "colourably" (used as an excuse to invade provincial powers.)  Test:  does a "legitimate public purpose" underly the
prohibition?
Protection of environment is a legitimate public purpose for criminal law.
Prot of Environ is an "international problem," requiring action by all gov'ts.
Provinces are not precluded from acting as well.
 
 

Hydro Quebec argued that the legislation is regulatory, not criminal.  Crim. Leg. simply prohibits.
Majority:  the prohibition is limited and targeted and "avoids resort to unnecessarily broad prohibitions."
Impugned sections of Act do not deal with prot of environment generally, but control of toxic substances.  This requires precision because of complexity of subject.
Act targets only subjects dangerous to the environment.
Therefore, individual assessment of dangers is needed.
Regulations are appropriate because of complexity, and need for ongoing assessment and fine-tuning.
Because intra vires under 91(27), not necessary to consider POGG argument.

Dissent
Lamer, Sopinka, Iacobucci, Major
Criminal power argument:  prot of environment is a legit public purpose under crim law under prot of human health, but this leg goes well beyond the goal of
protecting health.
Regs are not really intended merely to protect health, but to regulate environmental pollution.
A valid criminal law must establish a prohibition.  Ss 34-35 don't; they regulate.
Ministers of Health & Envirnoment can, through reg (OC), place specific substances on a list, and regulate their use.
It's an "odd crime" where a Minister has discretion to prohibit certain conduct from time to time.
 
Provinces can be exempted from leg if they have the same regulations.  Prov. Legislation cannot be criminal.
Giving feds the power to define "toxic" and thus regulate allows feds to invade prov jurisdiction unfairly.
POGG national concern?
Must be a "new" matter with "singleness, distinctiveness and indivisibility."  Dn of "toxic substance" is too broad to meet this test.
POGG National Concern? The dn includes substances that cross prov boundaries, but also includes substances that don't.  Provincial control is possible.  Therefore,
"Prov inability" test (Cr Zellerbach) not met.
T&C:  no.
 
Main Events surrounding Patriation controversy
Balfour declaration:  1926
Statute of Westminster:  1931
Quiet Revolution:  1960 +
Trudeau becomes PM 1968
Victoria Charter:  1971
Senate reference:  1979
Quebec referendum:  1980
Negotiations re patriation & Charter, 1980-81
Unilateral attempt to patriate, 1981

Patriation reference (1981)
Would the proposed amendments affect provincial powers:  Yes (unanimous)
Is there a convention of provincial consultation?
Yes:  Martland, Ritchie, Dickson, Beetz, Chouinard & Lamer (substantial, not unanimous)
No:  Laskin, Estey & McIntyre:  No
Has the convention hardened into constitutional law?
No:  Laskin, Dickson, Beetz, Estey, McIntyre, Chouinard & Lamer
Yes:  Martland & Ritchie

Agreement of Nov. 5, 1981 (Que not inc'd)
Canada Act signed, April 1982
Quebec veto ref, 1982

Meech Lake Acc, 1987-1990
 "distinct society" clause
"constitutionalize" immigration agreements
Provinces submit names for vacancies to SCC
Any province can opt out of a shared cost program in areas of prov. jurisdiction & receive compensation if the province operates a similar program that meets
"national standards."
Compensation provided for any province opting out of any constitional amenendment under 7-50 formula that transfers prov powers to Ottawa.
Additions:  to original accord to try to bring in Manitoba, Nfld and NB:
Senate reform:  prov's nominate Senators to begin with
First ministers conf on economy annually
Annual constitutional conferences to discuss Senate reform, fisheries and other matters.

Charlottetown Accord, 1992
Contained everything in Meech Lake plus:
Canada Clause
Aboriginal rights strengthened, including right to negotiate self-government
Non-justiciable social charter
Measures to strengthen s. 121
Senate reform:  6 elected senators from each province, and 1 from each Territory, plus Aboriginal representation
SCC appointments:  feds can appoint if provinces don't nominate.
Guarantee of 25% of seats in H of C for Quebec
Prov. authority in areas of prov. Jurisdiction strengthened.
Fed powers of disallowance and reservation repealed
Fed declaratory power limited; require prov. consent.

Social Union Framework Agreement (1999)
All Canadians are equal
Needs must be met everywhere
Social programs should be adequate and sustainable
Promote mobility within Canada
Public accountability and transparency
Evaluate results of programs
Participative democracy
Funding predictability
Fed-prov consultation, not unilateral action

Quebec referendum:  1995
 

Main events (2)
Resolution on recognition of Quebec as a Distinct Society (1995)
Act respecting constitutional amendment (1996)
Calgary Declaration (1997)
Quebec secession reference (1998)
Social Union Framework Agreement (1999)
 

Alan Cairns:  three equalities
Citizens
Provinces
Two nations

Debate over assymetrical federalism
Charter:  is it a constraint on federalism?
Charter's current popularity in Quebec
 
Québec Secession Reference (1998)
Stéphane Dion
Critical of "yes" side in 1995 referendum
Asked by PM to become Min of Intergovernmental Affairs in 1996 & context by-election
Proponent of "Plan B:"  fed gov't should be active in opposing Québec separatism.
 Guy Bertrand (a former sovereignist leader in Québec turned federalist)
 began a litigation process in which challenged the Québec government's attempts to institute sovereignty on Charter of Rights grounds.
Québec government tried to block Bertrand's challenge, so fed gov't continued the litigation through the reference (part of "Plan B")
Québec Secession Reference (2)
Argued in Feb, 1998
Québec gov't wouldn't participate, so SCC appointed André Joli-Cour as amicus curiae.
Amicus argued that reference jurisdiction of SCC is ultra vires.
Can an appeal court be given original jurisdiction?  Yes.
Can an appeal court advise?  In Canada, yes (despite rule about no specific mention).
 

Justiciability:
Too theoretical?
Too political?
Not ripe?
Canada does not have as strict a separation of powers as U.S.
Advisory opinion different from a litigated case.
Québec Secession Reference (3)
Questions:
1. Under Can Const, can Québec secede unilaterally, without a constitutional amendment?
2.  Under Int law, can Québec secede unilaterally?
3.  If conflict between (1) and (2), which takes precedence?
Why did SCC write such a lengthy judgment?
1.  Can Québec secede unilaterally under constitution?
Arguments in favour based on democracy.
What is democracy?
Our democracy is based on shared values, and unilateral secession puts these at risk.  Thus, duty to negotiate.
Was SCC too activist, or not activist enough re "clear question" and "clear majority"?

Québec Secession Reference (4)
2.  Does international law give Québec the right to secede unilaterlally?
Amicus:  right to self-determination belongs to all "peoples."
Do Québeckers constitute a "people"?
SCC:  not necessary to decide, because even if yes, the right only exists where a "people" is mistreated.

right to only arises under international law where "a people" is governed as part of a colonial empire, "is subject to alien subjugation, domination or exploitation; and
possibly where `a people' is denied any meaningful exercise of its right to self-determination within the state of which it forms a part."
Québec Secession Reference (5)
Spring of 2000:  Bill C-20:  "An Act to give effect to the requirement for clarity_."
Within 30 days of a prov legislature tabling a referendum question, Ho f C must declare whether question is "clear."
If question considered "clear," and a majority votes in favour, H of C must determine whether majority is "clear."  Consider:
Size of majority
Proportion voting
Views of political parties
View of Senate
Québec Secession Reference (6)
After SCC decision:  PQ gov't seemed to support decision.
Jacques-Yvan Morin (former Québec intergovernmental affairs minister):  SCC decision means feds can't refuse to negotiate, but can put up many obstacles to
Quebec secession.
Kenneth McRoberts:  The Trudeau strategy for Canadian unity has failed.
Hogg:
Québec can no longer claim that it can secede unilaterally.
The "duty to negotiate" secession in face of a "clear majority" vote in favour in a province is unprecedented in world history.
Garth Stevenson
Fed'ism & IntGov Rels

Is decentralization only a result of JCPC?
Since 1949, SCC balanced

Prov revenues
5.9% of GNP (1960)
17.1% GNP (1995)
Feds: 16.5 - 19.1% increase during same period

Causes of decentralization:
Institutions
Geography
Cultural diversity
Quebec nationalism
Party system
Jurisdictional conflict
Immigration, pensions, fisheries, ab land claims, prosecutions, training programs
Fiscal conflict
Free trade, tax collection, cond grants, energy, trans payments

Intergovernmental mechanisms for dispute resolution
Judicial review
Cooperative federalism (WWII - 1960)
Executive federalism (1960 - present)
Central agencies
Intergovernmental affairs departments
First Ministers Conferences

Why is Canada the most decentralized country in the industrialized world?
 
 
The JCPC and its critics

                                                          Vaughan
After 1949:  many academics condemned JCPC for bad jurisprudence, and decentralist tendencies.
Browne defended JCPC as applying correct rules of construction.
1971:  Alan Cairns defended results of JCPC decisions from a sociological perspective
Peter Russell defended JCPC results from a "balance" perspective, & pointed out Fathers of Confed had differing views
Vaughan claims Browne, Cairns and Russell are all wrong; BNA Act was centralist, and JCPC guilty of bad jurisprudence
Vaughan's argument
G.P. Browne argues that the JCPC was correct in determining that there are 3 bases of power:  POGG, list in s. 91, and s. 92.
 Vaughan:  there are really just 2 (POGG & s.91 list are inseparable), and so JCPC was wrong.
Browne:  JCPC followed stare decisis.
Vaughan:  JCPC did not consist of fools or knaves, but politicians attempting to "enunciate a basis for provincial legislative authority."
JCPC ignored the intent Fathers of Confed., who created a centralist state in reaction  to U.S. Civil War.
 

Section 91
It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good
Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces;
and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this
Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is
to say, [29 enumerated heads]
"deeming" paragraph:
And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or
private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

Danger of judges becoming legislators (eg. "Persons" case:  Edwards v. A-G for Canada, 1930).  Living tree.  "large and liberal interp." for const.
Cairns:  "rules of statutory construction are little more than a grab bag of contradictions."  Vaughan:  JCPC smarter than this.
Vaughan criticizes Russell's approach in the case book that didn't come.
Most fathers of confederation wanted a unitary state; couldn't because of objections in Quebec; settled for a quasi-federal state.
Vaughan examined transcripts of JCPC hearings
JCPC -- real Fathers of Confederation

                                                       Cairns & Russell
Cairns: Criticizing JCPC had become "thought-stifling convention wisdom.
Doesn't agree with JCPC reasoning, but thank goodness for results.
"Judge and company"
Russell:  JCPC read classical federalism into BNA Act
Fathers were not united in views
Will approve of activism "if based on principles that embody the wisdom of collective experience."  eg. Duff in Alta Press, and Dickson in Hauser.
 
Gall – last chapter
 • New directions:
  – Is law the best way to implement a public policy?
  – If so, think about federalism issues in potential litigation.  What mechanisms are there for cooperation?
  – Technology
  • A tool for judges
  • Education for lawyers and judges
  • Electronic law library
 • Public image of legal profession
  – Public education
  – Legal accountability
  – Case management, ADR, mediation
  – Legal fees
  – Legal insurance
  – Continuing education (prof. Dev. LLM at Osgoode)
  – Alternative careers for lawyers
  – Law reform (Canada Law Commission)
 

W.A. Bogart, Courts & Country, Ch 4

 • Do courts promote a fairer society, or act as a roadblock to advancement?
  – Federal administrative agencies (eg. CRTC, Hum Rts Comm):  640.
  – Ontario:  36 reg bodies (eg. Lab rels bd,WSIB – ½ million claims/yr), 44 licensing appeal tribunals, 8 compensation boards, 19 arbitration agencies, 95 advisory boards.
 • Leg’s try to keep courts from supervising admin agencies too closely.  Why?
 • Should courts intervene in admin trib’s rarely, when there are clear issues of fairness?
 • Bogart:  courts may be good, at times, in signaling unfairness, but are not usually good at finding solutions.