1 CONSTITUTIONAL LAW 06 FEDERALISM: HISTORICAL BACKGROUND I Shigenori Matsui
2 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?
3 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
4 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.
5 Article 1, section 8, list the subject matters the federal Congress can legislate on The interstate commerce
6 The Framers of the Constitution Act, 1867, were convinced of the necessity to establish stronger federal government in Canada
7 1 S. 91 grants residual power of legislating for the peace, order, and good government of Canada to the federal Parliament.
8 The power to enact criminal law to the federal Parliament
9 2. appointment of lieutenant governor by the Governor General
10 3. The power of the lieutenant governor to disallow provincial legislation and reserve the assent to the provincial legislation
11 4. the power of Governor General to appoint superior court judges
12 5. the power of Parliament to enact remedial legislation on education
13 The reality
14 II GENERAL FRAMEWORK S. 91 the power over peace, order, and good government
15 Exclusive federal power over listed classes of subjects
16 S. 92 exclusive powers of the province
17 S. 92A, added in 1982, grants exclusive provincial power over non-renewable natural resources.
18 S. 93 grants exclusive power of the province on education.
19 S. 94 grants the power of the Parliament to enact laws providing for the uniformity of laws in Ontario, New Brunswick and Nova Scotia.
20 S. 94A, added in 1951, grants Parliament concurrent power to enact laws in relation to old age pension.
21 S. 95 grants Parliament and provincial legislatures concurrent power over agriculture and iimigration
22 The possible conflict with respect to exclusive jurisdiction of Parliament and provincial legislatures
23 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?
24 Citizens Insurance Company v. Parsons (1881)
25 Russel v. The Queen, (1882)
26 Hodge v. The Queen, (1883)
27 AG Ontario v. AG Canada, [1896]
28 Was it appropriate for the Privy Council and the Supreme Court of Canada to intervene in the disputes between the Parliament and provincial legislatures?
29 What was the framework established by these decisions of the Privy Council?
30 Was it the appropriate framework?
31 What had happened to the living tree doctrine?