Vaughan, Cairns & Russell After 1949: many academics condemned JCPC for bad jurisprudence, and decentralist tendencies. Browne defended JCPC as applying correct rules of construction. 1971: Alan Cairns defended results of JCPC decisions from a sociological perspective Peter Russell defended JCPC results from a “balance” perspective, & pointed out Fathers of Confederation had differing views Vaughan claims Browne, Cairns and Russell are all wrong; BNA Act was centralist, and JCPC guilty of bad jurisprudence

Vaughan’s argument G.P. Browne argues that the JCPC was correct in determining that there are 3 bases of power: POGG, list in s. 91, and s. 92. Vaughan: there are really just 2 (POGG & s.91 list are inseparable), and so JCPC was wrong. Browne: JCPC followed stare decisis. Vaughan: JCPC did not consist of fools or knaves, but politicians attempting to “enunciate a basis for provincial legislative authority.” JCPC ignored the intent Fathers of Confed., who created a centralist state in reaction to U.S. Civil War.

Section 91 It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, [29 enumerated heads] “deeming” paragraph: And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

Vaughan (continued) Danger of judges becoming legislators (eg. “Persons” case: Edwards v. A-G for Canada, 1930). Living tree. “large and liberal interpretation” for constitution Cairns: “rules of statutory construction are little more than a grab bag of contradictions.” Vaughan: JCPC smarter than to trip over vague rules of construction. The judges had a deliberate strategy in mind. Vaughan criticizes Russell’s approach in the case book from which your cases are taken: says Russell too sympathetic to decentralists. Vaughan claims most fathers of confederation wanted a unitary state. Couldn’t get it because of objections in Quebec; settled for a quasi-federal state. Vaughan examined transcripts of JCPC hearings: JCPC knew what it was doing politically. JCPC judges are the real Fathers of Confederation

Cairns & Russell Cairns: Criticizing JCPC had become “thought- stifling conventional wisdom. Doesn’t agree with JCPC reasoning, but thank goodness for the results. Russell: JCPC read classical federalism into BNA Act Fathers were not united in their views. Vaughan’s claim of original intent is too simplistic. Russell will approve activism “if based on principles that embody the wisdom of collective experience.” eg. Duff in Alta Press case (freedom of expression is life & breath of democracy), and Dickson in Hauser.

John Saywell: The Lawmakers (2002) John Saywell: distinguished York history professor. The Watson Era ( ) –Born 1827, Scotland –Civilian lawyer; didn’t have reputation as brilliant lawyer –Supported Conservatives Solicitor general in : MP for Aberdeen & Glasgow universities 1880: Scots Lord of Appeal in House of Lords Member of JCPC for civil law appeals from Quebec – the “Canadian specialist” on JCPC Watson –Said he believed in applying rules of statutory interpretation strictly –In practice, “indulged in wide- ranging conclusions and speculations about language, history, intentions and policy” –Impressed by arguments of Blake, the lawyer for Ontario –St. Catherine’s Milling case: when aboriginals give up title to land, it reverts to the provincial crown. (S. 109 – provs have nat resources) –Maritime Bank case: prov. Lieutenant-governors are equal in status with Governor General. –Local prohibition case: a re- interpretation of Russell to give more power to provinces.

Haldane

Haldane ( ) Born in Edingurgh in 1856 Studied philosophy; scholar of Hegel (decentralization) 1877: moved to London to study common law; QC in 1887 Worked as a junior in a number of Canadian constitutional cases. Great admirer of Watson Quotable quotes from Saywell: –Haldane was so good at most things yet not superlative in anything –Haldane wanted to focus on “big, working principles,” but insisted on positivist approach Haldane: – , participated in all but 63 of 204 appeals from Canada, and delivered decision in 24. –Admitted that the JCPC shaped the Canadian constitution – gave it its “federal” nature –Provinces are “independent kingdoms” that have delegated some powers to the central government. –Case in point: Haldane’s re- interpretation of Russell decision in Snider.