CML2117 Introduction to Law 2008, Lecture 13

Today:

Public Law:Constitutional Law:

Federalism

Public Lawvs.

Private Law

Constitutional Law

in Canada

Federalism(division of powers)

Charter Law (next week)

Entrenched statutes

Organic statutes

Court decisions

Unwritten aspects

Schedule of

entrenched statutes

Unwritten Aspects

* Principles (from the preamble to the 1867 Constitution) including:

* Federalism

* Democracy

* Rule of Law

* Judicial decisions (Privy Council and Supreme Court)

* Conventions

Division of Powers

Constitution Act, 1867, ss. 91 and 92.

Division of Powers

Feds: ss. 91, 96 and 101

Provs: ss. 92 and 93

Division of Powers

Feds: POGG + enumerated powers

Provs: only enumerated powers

Division of Powers

Conflicts

between the

jurisdictions

Division of Powers

•Watertight compartments approach

–e.g. s. 92(13) > s. 91(2)

–e.g. s. 92(16) > POGG

Division of Powers

• Living Tree doctrine–Contrasts with Watertight Compartments

–Contrasts with US Framers’ Intent

approach

–Comes from Privy Council in “Persons Case” , Edwards v. A.G. of Canada

Division of Powers

Double Aspect approach

Double Aspect approach

• In relation to what matter? consider “pith and substance”

• A matter may have fed and prov“aspects”

• Feds and Provs can both legislate in relation to a matter if they are addressing different aspects of it

• In case of contradiction, Federal legislation wins: doctrine of “paramountcy”

Double Aspect approach

• In relation to what matter? consider “pith and substance”

• A matter may have fed and prov“aspects”

• Feds and Provs can both legislate in relation to a matter if they are addressing different aspects of it

• In case of contradiction, Federal legislation wins: doctrine of “paramountcy”

Pith and Substance

Walter v. A.G. Alberta, 1947

• Land ownership or religion?

Pith and Substance

Ward v. Canada, 2002

• Contracts or fisheries?

Pith and Substance

Munro v. NCC, 1966

• Land use or something federal?

Pith and Substance

R. v. Morgentaler, 1993

• Health care or criminal law?

Next class…

• Federalism, constitutional reformand Quebec:

• Quebec Secession Reference, [1998] 2 S.C.R. 217