CML2117 Introduction to Law 2008, Lecture 13

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CML2117 Introduction to Law 2008, Lecture 13

  1. 1. Today: Public Law: Constitutional Law: Federalism
  2. 2. Public Law vs. Private Law
  3. 3. Constitutional Law in Canada
  4. 4. Federalism (division of powers) Charter Law (next week)
  5. 5. Entrenched statutes Organic statutes Court decisions Unwritten aspects
  6. 6. Schedule of entrenched statutes
  7. 7. Unwritten Aspects * Principles (from the preamble to the 1867 Constitution) including: * Federalism * Democracy * Rule of Law * Judicial decisions (Privy Council and Supreme Court) * Conventions
  8. 8. Division of Powers Constitution Act, 1867, ss. 91 and 92.
  9. 9. Division of Powers Feds: ss. 91, 96 and 101 Provs: ss. 92 and 93
  10. 10. Division of Powers Feds: POGG + enumerated powers Provs: only enumerated powers
  11. 11. Division of Powers Conflicts between the jurisdictions
  12. 12. Division of Powers • Watertight compartments approach –e.g. s. 92(13) > s. 91(2) –e.g. s. 92(16) > POGG
  13. 13. 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
  14. 14. Division of Powers Double Aspect approach
  15. 15. 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”
  16. 16. 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”
  17. 17. Pith and Substance Walter v. A.G. Alberta, 1947 • Land ownership or religion?
  18. 18. Pith and Substance Ward v. Canada, 2002 • Contracts or fisheries?
  19. 19. Pith and Substance Munro v. NCC, 1966 • Land use or something federal?
  20. 20. Pith and Substance R. v. Morgentaler, 1993 • Health care or criminal law?
  21. 21. Next class… • Federalism, constitutional reform and Quebec: • Quebec Secession Reference, [1998] 2 S.C.R. 217

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