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CONSTITUTIONAL LAW

06 FEDERALISM: HISTORICAL

BACKGROUND IShigenori Matsui

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INTRODUCTION

The federalism S. 91 & s. 92 of the Constitutional Act, 1867 What was the overall design for federalism in

Canada? What was the difference from other federal

states like the United States?

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I FRAMEWORK OF FEDERALISM

Contrast with the U.S. 13 states declared independence from 13 states ratified articles of confederation and

established the United States of America After independence, the Founding Fathers

gathered to talk about the amendment to the articles of confederation yet the convention adopted the new constitution and submitted it to states for ratification

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American federalism States have constitution to regulate state

government, while the federal constitution was designed to control the federal government.

Federal constitution merely lists the power of the federal government, while placing some limits on the states.

All the powers not delegated to the federal government belong to state and people.

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Article 1, section 8, list the subject matters the federal Congress can legislate on

The interstate commerce

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The Framers of the Constitution Act, 1867, were convinced of the necessity to establish stronger federal government in Canada

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1 S. 91 grants residual power of legislating for the peace, order, and good government of Canada to the federal Parliament.

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The power to enact criminal law to the federal Parliament

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2. appointment of lieutenant governor by the Governor General

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3. The power of the lieutenant governor to disallow provincial legislation and reserve the assent to the provincial legislation

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4. the power of Governor General to appoint superior court judges

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5. the power of Parliament to enact remedial legislation on education

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The reality

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II GENERAL FRAMEWORK

S. 91 the power over peace, order, and good

government

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Exclusive federal power over listed classes of subjects

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S. 92 exclusive powers of the province

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S. 92A, added in 1982, grants exclusive provincial power over non-renewable natural resources.

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S. 93 grants exclusive power of the province on education.

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S. 94 grants the power of the Parliament to enact laws providing for the uniformity of laws in Ontario, New Brunswick and Nova Scotia.

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S. 94A, added in 1951, grants Parliament concurrent power to enact laws in relation to old age pension.

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S. 95 grants Parliament and provincial legislatures concurrent power over agriculture and iimigration

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The possible conflict with respect to exclusive jurisdiction of Parliament and provincial legislatures

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III DEVELOPMENT OF FEDERALISM JURUSPRUDENCE

The creation of federalism jurisprudence What is the basic framework established by

the Supreme Court and Privy Council? Was it a natural understanding or simple

misunderstanding?

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Citizens Insurance Company v. Parsons (1881)

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Russel v. The Queen, (1882)

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Hodge v. The Queen, (1883)

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AG Ontario v. AG Canada, [1896]

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Was it appropriate for the Privy Council and the Supreme Court of Canada to intervene in the disputes between the Parliament and provincial legislatures?

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What was the framework established by these decisions of the Privy Council?

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Was it the appropriate framework?

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What had happened to the living tree doctrine?