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CONSTITUTIONAL LAW 14 REGULATION OF TRADE AND COMMERCE: INTERNATIONAL AND INTERPROVINCIAL TRADE. Shigenori Matsui. INTRODUCTION. S. 91(2) of the Constitutional Act, 1867 “regulation of trade and commerce” What is the scope of the trade and commerce power?.
S. 91(2) of the Constitutional Act, 1867
“regulation of trade and commerce”
What is the scope of the trade and commerce power?
Citizen Insurance Company v. Parsons (1881)
It is settled that the Parliament can regulate international or interprovincial trade and commerce.
The question is often raised as to whether the Parliament should be allowed to regulate intraprovincial trade in order to regulate international or interprovincial trade.
“If the federal Parliament cannot regulate local trade because it would be more efficient to regulate it together with the extra-provincial trade, a fortiori a provincial Legislature cannot regulate interprovincial trade in a given product because this appears desirable for the effective control of intra-provincial trade.1 In other words, the direct regulation of interprovincial trade is of itself a matter outside the legislative authority of any province and it cannot be treated as an accessory of the local trade.”
It is axiomatic in constitutional law that the courts will look through any scheme in order to strike down all attempts to do indirectly what cannot be done directly: regard must be had to the substance and not to the mere form of the enactment, so that "you cannot do that indirectly which you are prohibited from doing directly" ... Being of opinion that adjustment levies are within provincial jurisdiction, it follows that federal legislation on the subject is invalid.
“In my view, the control of production, whether agricultural or industrial, is prima facie a local matter, a matter of provincial jurisdiction. Egg farms, … are local undertakings subject to provincial jurisdiction under section 92(10) B.N.A. Act…In my view the Carnation case …is conclusive in favour of provincial jurisdiction over undertakings where primary agricultural products are transformed into other food products. In that case, the major portion of the production was shipped outside the province... In view of the reasons given, the conclusion could not be different even if the whole production had been going into extraprovincial trade.”
To what extent provincial legislatures should be allowed to regulate interprovincial trade?