Canadian Constitutional Law. February 11, 2012 Ian Greene. Preliminary. Assignments handed in today Will have them graded by March 24; if sooner will send you individual comments. Presentations today
February 11, 2012
Patrick J. Monahan
1. Is there sufficient merit to develop a new Federal-Provincial collaborative framework?
2. Given fiscal realities, is it feasible for Canadian orders of government to maintain their present level of involvement in our daily lives?
-Case 1, Citizens Insurance Co. v. Parsons (fed/prov powers over business, 1881) Pooja Sihra
Townships, towns, villages (& cities)
Appeal from SCC reference re validity of Ont Local Proh. Act
Feds (under POGG) can trench on s.92 only if incidental to a legitimate fed purpose; otherwise, all of s.92 would fall under s. 91.
s.94 issue (power to unify common law in anglophone provs): meaningless if POGG interpreted broadly.
Ontario argued that legis. falls under 92(8): (municipalities). Watson: not a convincing argument
Pith & substance: vice of intemperance at local level
92(16): (local) yes.
92(13): no; the law prohibits rather than regulates
if conflict: fed. law is paramount
conflict of laws: no conflict if strictest obeyed
“aspect” (or double aspect) doctrine: a legislative subject-matter can fall under s. 91 for one purpose, and s. 92 for another.
National dimension or national concern doctrine of POGG hinted at: a subject matter can become a matter of national concern and then feds can regulate under POGG.Case 4: Local Prohibition Case, 1896 (Ian Greene)
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.Treaty-Making Cases (prelude to Case 9): Ian Greene
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. (Is that what you think was decided?) 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.
Head of states
Exchange of notesCase 9, AG Canada v. AG Ontario, Labour Conventions Case (restriction of federal power over international affairs,1937) Ian Greene