Political Class terms and review

the old flag was when?

1867- 1965 (unoffical)

the old flag 1867-1965 was?

offical

preamble to the constitutuion act 1867 was?

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed

their Desire to be federally united into One Dominion under the Crown of the United

Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of

the United Kingdom:

And whereas such a Union would conduce to the Welfare of the Provinces and promote

the Interests of the British Empire:

And whereas on the Establishment of the Union by Authority of Parliament it is

expedient, not only that the Constitution of the Legislative Authority in the Dominion be

provided for, but also that the Nature of the Executive Government therein be declared:

And whereas it is expedient that Provision be made for the eventual Admission into the

Union of other Parts of British North America:

preamble to the us declaration of independence

When in the course of human events, it becomes necessary for one people to dissolve

the political bands which have connected them with another, and to assume among the

powers of the earth, the separate and equal station to which the Laws of Nature and of

Nature's God entitle them, a decent respect to the opinions of mankind requires that

they should declare the causes which impel them to the separation…..

things to consider

the supreme court is contemplated but not in existence

only limitied thought is given to articulating what federalism really means

amedning the document is a much simpler affair

sovereignty is still in London

what occured in 1982?

charter of rights and freedom

charter revolution was?

Section 15 - (1) Every individual is equal before and under the law and has the right to

the equal protection and equal benefit of the law without discrimination and, in

particular, without discrimination based on race, national or ethnic origin, colour,

religion, sex, age or mental or physical disability.

 Section 27 - This Charter shall be interpreted in a manner consistent with the

preservation and enhancement of the multicultural heritage of Canadians.

charter revolution part 2 was?

 Section 28 - Notwithstanding anything in this Charter, the rights and freedoms referred

to in it are guaranteed equally to male and female persons.

 Section 35(1) – The existing aboriginal and treaty rights of the aboriginal peoples of

Canada are hereby recognized and affirmed. (Not in Charter, but in the Constitution).

what is a constitution made up of?

Entenched documents

formal amendments to BNA Act

British Statues/orders-in-council (statue of westminster, 1931)

“organic” canadian statues (supreme court act, bill of rights, 1960)

court decisions

conventions

what ‘constitutues’ the state?

When deciding whether something is “constitutional” in nature, ask yourself “Does

‘Canada,’ as we currently understand it as a state, make sense without this idea,

institution, law or principle?”

did 1867 truly matter much?

Yes, it created “Canada” – but colonies had been merged and separated many times

up to that point.

 The democratic principles that undergird the constitution were already pretty well

established.

 Canadians were still British, had no international personality, no power to settle

treaties, and very few symbols of their own.

pre- confederation doucments were?

Royal Proclamation of 1763

 Quebec Act, 1774

 Constitution Act, 1791

 Act of Union, 1840

“entrenchment” of some constitutional acts

This means that other acts must be consistent with it.

Provisions are not conventional.

It’s listed in Section 52 as being part of the Constitution.

Cannot be changed by ordinary legislation.

some similar principles to the UK const

Not identical, mind you

Also this point is made in the preamble – not the same as a provision.

Partially unwritten constitution, clearly, but many elements are integrated into

the constitution that are foreign to the UK – ie, federalism and later,

obviously, Aboriginal rights.

executive power- queen are?

King is the head of state. NOT the head of the government.

Sections 9, 10 of the BNA Act are the operative provisions.

Technically really broad, in reality really not

 Appointments to Senate, SCC etc. (really PM advising GG)

 The Prerogative (Mostly statute. Otherwise, really PM advising GG)

king of canada - not UK since 1982

Reigns, but does not rule.

The Crown is legally distinct from the UK monarchy.

He is not, strictly speaking, acting in his British capacity in Canada.

Occasionally this has been referred to as the “Maple Throne.”

executive power - governor general

King’s Representative – NOT the head of state, NOT the head of

government.

Created by letters patent in 1867, since 1947 further letters patent establish

that the GG can exercise all the powers of the Crown.

Appointed by the King, on advice of the PM

executive power - pm and gg

GG appoints PM based on who has the confidence of the House.

Must follow directions of PM/Cabinet

Usually, the only time the GG acts without advice is when appointing the PM

(no one to advise)

appointing pm - ‘wrinkles’ re; ‘confidence’ which means?

Technically, the PM only has to be the one best able to command the

confidence of the House.

Usually, that’s just done by appointing the leader of the majority party. There

are exceptions and complications.

 Minority government

 Peterson/Rae coalition, Miller out (quite rare in Canada).

 Confidence and Supply Agreement (Trudeau/Singh)

confidence convention cont

Looser around the edges.

Much stronger in Canada than in other places on account of rigid party

discipline.

Not unprecedented to debatably lose it, or lose it by accident.

 Martin in 2005 – motion to a committee appears to cost PM confidence.

 Pearson lost it by accident. Stanfield let him off the hook (But see Clark).

ggs and pms who don’t go quietly the king byng affair

1925 – King gets 101 seats, Meighen 116. But the Progressives (28) agree

to support King. Byng - OK, fine, whatever. But if this falls apart, Meighen

gets a shot.

Kinda works, for a year, til 1926….then scandal!

Headed for defeat, King tells Byng, dissolve parliament. Byng – no, too soon

and Meighen should get a kick at the can.

Meighen can’t put it together and loses confidence. Election sets precedent

for GG given King returns

the prorogation crisis (ggs and pms who wont go quietly)

Harper wins minority. Dion’s Liberals crash and burn, and he resigns.

Cons. introduce some measures, and an economic update. The latter removes a

subsidies for votes scheme, and does not provide a stimulus

Liberals and NDP announce a coalition, BQ to support until June.

Harper asks for Prorogation for 6 weeks for new budget; gets it. Coalition collapses.

lieutenant governors are

Crown has a role in the provinces too.

This was not immediately clear in 1867.

They are appointed by the federal Cabinet, but they follow the provincial

government’s advice.

executive power - privy council office

Quite old, based on medieval council to advise the monarch.

Really the historical and constitutional basis for the Cabinet and the PM.

Cabinet is a committee of this more ceremonial body.

That said, PCO is still very much on the scene

caretaker convention

When the House dissolves, the Government still in Charge

Issue: No House – PCO must distance itself from the Gov. of the day.

More serious in cases when government is actually defeated.

Gov. can continue routine governing, but major contracts or policies should not be

introduced.

Mostly self-reinforcing

exectuive power - PM

This is the person with the most power in the executive branch.

Selects the Cabinet. Must be from the Parliament, but some wiggle room.

Even in Parliament, by convention the H of C.

If PM is defeated in his own seat, he/she gets another from the ranks of the

party.

other conventions re executive

There are conventions surrounding the role of the military and the executive

in constitutional democracies.

It would be inappropriate for a uniformed officer to assume elected office in

the Cabinet

It would also be inappropriate for the military to challenge the cabinet

what about the abc?

More difficult to find a true convention in other areas that are organizationally

distinct from the government.

i.e. CBC? Bank of Canada?

No. But a much bigger deal with some than others.

legislative power in canada

parliament of canada includes":

queen

house of commons

senate

parliamentary supremacy

Two traditional meanings:

 It is the supreme lawmaker in the country on all subjects;

 No parliament can bind a successor parliament.

Little different in Canada. Sure, it means these things in the context of:

 Federalism.

 Charter.

 Aboriginal Rights

senate is?

House of “Sober Second Thought.”

Based on the H of L, (need $4000 to get in) but was really about trying to

offer a regional basis of representation.

Politically however, it has lost almost all legitimacy.

Still, has come back to try to reassert itself

house of commons?

Elected, rep by pop, it has 338 seats.

Holds the government to account, also responsible for supply (money bills).

Really the most important of the Chambers.

legislative process is

Each House theoretically co-equal

Three readings x 2 (House/Senate)

 First reading (pro forma)

 Second (approve of the principle)

 Committee

 Third Reading (do or die.)

 Crown.

Major bills bring down the government on confidence.

parliamentary privilege

Preservation of the rights of parliament to do their work without interference

from other branches of government.

Mostly known for the idea that you cannot sue for liable or defamation for

something said in Parliament

Really broader – whatever is needed to ensure that the work continues.

fusion of the branches

The key point of the two branches is that they are not separated.

They are not the same; but they are not truly separate.

This is different in the United States – “invitation to struggle.”

Here they are reinforcing

constitutional foundations are

BNA Act

 Preamble

 Sections 92(14), 96-101 [i.e. Part VII Judicature], 129)

Charter section 11(d)

Case law (i.e. Nadon Reference)

Conventions

Statutes (SCA)

jurisdiction is?

Unlike the United States, the superior courts in Canada have a unified

jurisdiction over subject matter.

This is not true of the inferior courts, which are given specific jurisdiction over

an area/subject matter

 Small claims court

 Traffic court

 Family courts

In the United States, there is more of an emphasis on federalism.

the jcpc

Originally the court of highest appeal in Canada.

It is a committee of the PC, somewhat analogous to the basis for the

Cabinet.

Currently still sits in London for a number of former colonial jurisdictions

Appeals effectively stopped in 1949, but there was a long run-up to it.

the supreme court of canada

Not part of the original BNA Act

Created in 1875 by Ottawa as a “general court of appeal for Canada.”

Primarily interested in appeals that are national in scope

appointments to the scc

There are 9 judges on the court.

Sometimes has less if a vacancy, but usually 9

3 come from Quebec as specified in the SCA, by convention 3 Ontario, 2

West, and 1 from Atlantic Canada.

Appointment process has varied – often criticized as opaque

the supreme court of canada

How do you get to the SCC? Three ways

 “As of right” – mostly abolished at this time but still plays some role.

 “by leave” – Mostly the way that this works now.

 By reference – (section 53 of the SCA).

division of the courts section 96

The judicial system came to Canada during the colonial era, and predates

the unification of the colonies in 1867

Section 96 courts have two levels, the superior courts of unlimited jurisdiction

and the provincial courts.

The former are appointed by Ottawa.

the inferior courts are

Inferior Courts (92(14)) are appointed by the provinces. More limited.

Tend to deal with criminal jurisdiction, but also family and what are called the

“provincial offenses.”

They have been through a period of reorganization over the years.

secttion 101 courts

Federally constituted courts

 Federal Court, Federal Court of Appeal

 Tax Courts

 Courts martial

The FC and FCA are the most important.

Limited to federal jurisdiction only.

administrative tribunals

Justice is not always the province of the courts. There are a number of other

adjudicative fora in this county.

Some are just administrative decision makers.

 i.e. – taxes – I need a boat to do business, so I will write off some of the expenses on my

taxes - the assessor says yay/nay.

Some are more adjudicative

 CIRB (in the states the NLRB), IRBC, PAB, etc…….

governed by principles of proc. fairness

These include

 Notice

 Nemo judex in sua causa

 Audi Alteram Partem

 Independence

 Bias

 Etc.

judical independence

Really means three things (book lists two, DOJ sys three, they amount to the

same thing)

 Security of tenure

 Financial security

 Administrative independence

rule of law is

This idea holds really two concepts:

 That the government is run according to the laws; and

 That those laws are themselves consistent with the constitution.

Judicial review is largely aimed at ensuring that the rule of law is followed in

Canada.

judicial review

There has been no shortage of times in which the government has sought to

limit or oust the jurisdiction of the courts

This can happen for a number of reasons, not all of them are totally wrong

 For one, the state is much more complicated than it once was and there is a need for

specialized expertise

 For another, the courts have not always been the most sympathetic to the policy aims of

some jurisdictions

privative clauses

A “Privative Clause” is a clause that is aimed at insulating a tribunal from the

courts.

This is not possible to do entirely.

But it is not like the political branches don’t try.

reference re remuneration of judges

Preamble key on independence – inherited from the UK

Importantly, the constitution has evolved to protect judicial independence in a

way that was not initially contemplated by resting on unwritten principles.

Judicial impendence is both 3 (tenure, financial indep. and administrative

indep.) AND immunity of judges while working in the course of their job.

This was a leading case on the “constitutionalization” of judicial

independence.

Really two issues:

 This was directed at the lower courts, not the superior courts

 Concerned the financial security of the judges

Not really covered in BNA Act/Charter section 11.

the nadon reference

Key decision on the question of the constitutional status of the Supreme

Court Act, sections 5 and 6

It was also particularly vital in articulating a constitutional view about the

importance of Quebec and of duality at the heart of the constitution

federalism is

The powers between the different governments are mostly divided between section

91 of the BNA Act (federal) and section 92 of the BNA Act (provincial)

 The division of powers section has been the subject of the most litigation and

controversy in the document, especially since it has often been alleged that the

document was mutilated by JCPC

 The argument goes that what the FOC wanted was strong central government and

weak provinces – but that we ended up with the opposite.

declaratory power

 91(10)(c) – Feds can declare a local work to be for the general good of Canada or two

or more provinces.

 Very rare today, despite some limited recent exceptions done with provincial consent.

 Today, it’s truly inconsistent with the constitutional idea of federalism.

russell v. the queen (1881) - pith and substance

This involved the Canada Temperance Act

 Facts

 Ottawa told local areas if you want to ban booze, go ahead.

 Fredericton -> Votes - > Ban booze.

 Charles Russell had a saloon -> Serves booze -> b-b-b-busted.

 Claims law ultra vires the feds -> JCPC says no, it’s a national issue in Canada.

 “pith and substance” to the fron

hodge v the queen (1883) - double aspect doctrine

Alcohol and Billiards.

 Ontario delegates authority over licences to municipalities -> in Toronto, to the Toronto

Licence Commissioners.

 TLC -> Drinking ALCOHOL while playing BILLIARDS? - > Appalling. Absolutely appalling.

 Mr. Hodge -> Owns a saloon -> Allows alcohol + billiards…together! - > Someone calls the

cops (obv.) - > b-b-b-Busted!

 Challenged, booze is federal, see Russell.

 JCPC -> It’s ok to delegate but more importantly, the aspect regulated here is of provincial

natur

local prohibition case (1896) - cutting pogg down

Ontario has an identical act of the feds on banning liquor -> there was a conviction ->

SCC had come down with conflicting judgements

 JCPC - Yes, provinces could enact this under 92(13 ) and the double aspect doctrine.

 More critically POGG

 Only applies to federal matters with a national dimension

 Pith/Substance and DA doctrines remain of foremost importance

 POGG can’t be used to infringe laws under section 92, that can only be done under section

91 enumerated powers

jcpc begins to show that 91 is limited because?

POGG is limited.

 Trade and Commerce is read somewhat narrowly (91(2)).

 Property and Civil Rights is read quite broadly (92(13)).

POGG

Fewer applications, such as:

 “National Emergency” (Anti-Inflation case)

 Residual Powers (Reference re: Seabed when NFLD joined)

 National Concern (Crown Zellerbach, Ref re GGPP Act)

 Messy. Must be something of sufficient concern to the country, have a singleness to them, and an

impact on the provinces that is reconcilable with the DofP. (But how decide? ie. Newness? Provincial

inability? How distinct must it be?).

 Maybe matters of Interprovincial Concern

 (Like the environment or conflict of laws. Different from the one above because it arises out of

interprovincial matters that can’t otherwise be regulated under s. 91. Environment, also, perhaps

here

Paramountcy

So what happens when BOTH orders of government are legislating correctly?

 Multiple Access v. McCutcheon is the leading case – “operational incompatibility”

 But, there is a second branch where a provincial law might frustrate a federal purpose

interjurisdictional immunity

The doctrine renders legislation that is otherwise intra vires “inapplicable” to

operations that are also intra vires another order of government. The basic idea is that

once a government has the right to do something, they can do it without interference

from the other order of government.

 Holds that there are “cores” of jurisdiction.

 Example – Pearson airport is federal. Provincial minimum wage requirements don’t

apply.

 Weirdly, only applies to the feds – bit of a controversy there.

the criminal law is

Technically the criminal law in Canada is federal (91(27))

 That said, it can be easy to lose sight of that fact given that many quasi-criminal laws

can be passed by the provinces

 It is also the case that the administration of justice is a provincial responsibility –

Section 92(14)

defintion of what is “criminal”

The Margarine Reference remains the starting place for how to identify what is a

criminal law statute.

 A three part test:

 A prohibition;

 Backed by a penalty;

 With a valid criminal law purpose.

 The third element is not as limiting as it might seem.

background of “criminal law”

There was a long debate about what could be considered criminal.

 Re Board of Commerce Act 1919 and the Combines and Fair Prices Act 1919 – Lord

Haldane appeared to freeze the criminal law as to what was criminal in 1867.

 Proprietary Articles Trade Association v Canada (AG) (1931) – “Criminal law connotes

only the quality of such acts or omissions as are prohibited under appropriate penal

provisions by authority of the state. The criminal quality of an act cannot be discerned

by intuition; nor can it be discovered by reference to any standard but one: Is the act

prohibited with penal consequences?

the maragarine refernce based on criminal law

Technically Reference re Validity of Section 5 (a) Dairy Industry Act

 “No person shall manufacture, import into Canada, or offer, sell or have in his

possession for sale, any oleomargarine, margarine, butterine, or other substitute for

butter, manufactured wholly or in part from any fat other than that of milk or cream.“

 From 1886-1948 it was illegal to buy margarine at all. After that it was illegal to buy

yellow margarine in many provinces. Quebec only lifted the restrictions in 2008.

limits on the criminal law power

The big question then became, “what is a valid criminal law?”

 “…public peace, order, security, health, morality: These are the ordinary though not

exclusive ends served by that law

the criminal code is only a statue because?

The Criminal Code was set up to consolidate the Criminal law in Canada. But it is only

reflective of the underlying idea of what is criminal. Other acts include:

 The Controlled Drugs and Substances Act

 The Firearms Act

 The Canada Evidence Act

 The Food and Drugs Act

provinces and the criminal law

The provinces cannot themselves decide what is the content of the criminal law, but it

can be easy to miss.

 They are responsible for the administration of justice, so that’s why there is the OPP

(and guess who pays for the courts….).

 But they do regulate obviously, so those laws clearly have consequences.

 The key idea here is that the regulation has to be rooted in a provincial power (i.e.

cannot be a “colourable” attempt at the criminal law

punishments

You can be incarcerated for a provincial offense (so don’t try anything).

 Municipal by-laws

 Trespass to Property Act

 Liquor Licenses Act

 And the time you can serve in jail is limited, as is the place.

 Less than two years, provincial institution. More than two years, federal penitentiary.

trade and commerce section 91(2)

This was supposed to be one of the main powers of the federal government, but it was

read quite narrowly by the JCPC.

 It has not had the power that the commerce clause has had in the United States.

 That said, since the JCPC has been kicked off the top of the heap, the SCC has

begun to give it a more generous reading.

citizens insurance v. parsons (1881)

This was the case at the JCPC that really began to narrow the scope of the 91(2).

 Essentially, the JCPC found that if you read it too broadly, then you would wash away

the provinces.

 In the end it was limited to three things

 That the feds could regulate T&C between provinces,

 In matters that affected the whole country; and

 Internationally.

 But it did not extend to trade only in the province.

interprovinical and internat’l trade

The feds have authority to regulate the trade between provinces and between

countries.

 Margarine Reference – feds cannot ban the local production but they could ban the

importation of the stuff from overseas.

 Similarly R v. Dominion Stores and Labatt Breweries:

 In the former the feds could not regulate grading of produce only sold in a province, but you

could if it crosses provincial or international boundaries, sure.

 Ditto for light beer – that is regulated locally, but if it starts moving outside of the provinces, Ottawa can act

regulation of voluntary trade

Motor Vehicle Safety Act – if you decide to sell a car that is going to cross borders,

you have to attach a federal seal certifying it complies with federal standards, even

thought it is “voluntary” if you only want to make and sell it in the province.

 Car manufacturers have the option to not affix the federal seal, but you can’t then

drive that car out of the province. To get the seal, you have to comply with regulations

that are really only local in nature – so they call it “voluntary.”

 R v. Dominion Stores and Labatt Breweries however also stand for the limits that are

placed on this idea

cooperative marketing schemes

Egg reference.

 The federal legislation on local producers was part of a wider scheme for regulating

the manufacture and supply of eggs.

 While most of the federal laws were concerned with the overall interprovincial and

international picture, there were some local regulations.

 Court said that was fine.

laws that incidentally affect trade in the provinces

Key cases are Global Securities and Asbestos Minority leaving us with in really two

grounds:

 If a regulation is in pith and substance related to international or interprovincial trade (Global

securities); or

 If the law is incidental or auxiliary to international or interprovincial trade (Asbestos Minority).

trade affecting the whole dominion

This was the second branch in Parsons

 There is a distinction here – it’s not just about crossing boundaries, but looking at the

whole country.

 Had been neglected but in the Anti-inflation Reference the SCC seems to invite

Ottawa to take it for a spin (this is also where POGG got a bit more life).

general motors v. city national leasing test

The impugned legislation must be part of a regulatory scheme;

2. The scheme must be administered by the continuing oversight of a regulatory

agency;

3. The legislation must be concerned with trade as a whole rather than with a

particular industry;

4. The legislation should be of a nature that the provinces jointly or severally would be

constitutionally incapable of enacting;

5. The failure to include on or more provinces or localities in a legislative scheme

would jeopardize the successful operation of the scheme in other parts of the

country.

general motors

The factors that are listed in the test need not all be met.

 They are important to consider when deciding whether or not the feds have the

authority to regulate under T and C.

 But they represent a broadening of the power for Ottawa.

the economic union

The key cases here are Morguard and Hunt. Neither are that old.

 The court looks that the constitution as a whole to say that the promotion of an

economic union was clearly a federal matter when you look at key aspects of it. To wit:

 Common Citizenship

 Interprovincial Mobility

 Common Market

 The judicial system, which is unitary and critical to an economy

transportation

This area is a little broad.

 The constitution was more concerned with types of transit and infrastructure than it

was with the overall field.

 Think 19th century. The constitution is really into bridges, steamships…and railways.

Loves trains.

 Generally however, if it is national in scope, it will be federal.

pogg and transportation

POGG has been quite useful to the federal government in expanding its powers in the

aeronautics field.

 For the most part, there is little to talk about here given the overwhelming federal

dominance of the field.

 Most of the litigation involves subsidiary issues (i.e. services in the airports and the

laws that govern them).

regulatory framework

Air transport – almost entirely federal, some provincial role in airports

 Marine transportation – Mostly federal, regulated under the Canada Shipping Act

 Rail – Again, mostly federal, regulated under the Transportation Ac

obligations

The constitution does have a number of provisions that require Ottawa to facilitate

some transportation links.

 The most famous of these was the ferry to PEI, which has now been amended to

reflect the fact that there is a bridge to get you there.

 BC was promised a railway to join Canada, which it got (But Ottawa is not required to

actually operate it.)

Canada’s international personality

Canada did not have the power to settle its own international treaties in 1867, and that

was OK

 Ideally, the whole British Empire was bound by the same commitments and

international agreements

 This did not last over time however.

section 132

The Parliament and Government of Canada shall have all Powers necessary or

proper for performing the Obligations of Canada or of any Province thereof, as Part of

the British Empire, towards Foreign Countries, arising under Treaties between the

Empire and such Foreign Countries.

ww1 changes matter

Treaty of Versailles (1919) – Canada signs on its own.

 Britain is accepting of the new dynamics in the Empire.

 By the mid 1920s there is a convention that Canada can sign its own

treaties and London won’t interfere.

the halibut treaty

By convention, Canada soon began to negotiate its own treaties when they only

concerned the Canada and one other country.

 There were colonial instances of these, although the British signed off.

 The first truly independent treaty was about fish, with the United States in 1923.

statute of westminster 1931

This document codifies the Balfour Declaration, among other things.

 From this point on, the dominions can run their own shows, UK law has no effect in

the Dominions.

 Starting in 1928, the GG is no longer the UK ambassador to Canada, these are

replaced with “High Commissioners.”

the labour conventions case

The Halibut treaty suggested that Ottawa was going to be able to expand the treaty

power into a muscular power to legislate.

 That came to naught with the JCPC in the Labour Conventions Case a few years later

in 1937

FTA and ISDR panels

Among the most controversial elements of free trade deals are the arbitration and

investor state dispute resolution panels.

 These are tribunals provided by trade agreements that let states or investors sue

governments for regulations that interfere with their business.

 They hold an interesting position in the constitution, because they involve outsiders

adjudicating Canadian law.

property and civil rights

This turned into one of the most expansively read provisions of the BNA Act

 It was used not just to build up the competences of the provinces, but in some ways

was read so broadly as to be viewed as akin to a kind of “residual power” for the

provinces (somewhat akin to what POGG was supposed to be)

 More recent jurisprudence has put some limits on it though.

civil rights pre-charter

 First, lets take a second to reflect on the fact that this was all that the constitution

really had, at least in its entrenched form, on civil rights prior to the Charter.

 They were, in essence, what the provinces said they were

 That is not inconsistent with the idea of parliamentary supremacy.

natural resources were?

There was a line of cases in the 1970s that basically restricted the types of business

that the provinces could do when it came to their natural resources. The Court found

you had to look at the purpose of the legislation to decide if it was really aimed at

P&CR “in the province.”

 As part of the bargain in 1982, the West picked up more control over NR in sections

92(A).

 The definition of “in the province” has become a little less restrictive

how does the state raise and spend money?

 Arguably, taxes have been the issue, more than any other that has driven the west

towards democracy

 Consider why it is only the lower house, the elected house, that is permitted to raise money

taxes and civil rights

Although we normally think of “rights” as being based on ascriptive characteristics

(race, gender, etc) they were really initially based on limiting government action in the

private sphere, and in particular the economic sphere.

 You might remember the American phrase “No taxation without representation!” from

the 1770s.

 It’s actually a lot older than that.

taxes and civil rights overview

LONG history here. A good place to start is with with Charles I and the Thirty Years

War.

 James I dies - > Charles I in charge, now must continue to fight 30 years war -> goes

badly, needs money -> Parliament says no, and actually, lets investigate your ally the

Duke of Buckingham while we’re at it -> Charles freaks - > introduces “forced loans”

on land owners.

 That triggers a backlash -> Eventually the Petition of Right 1628 -> English Civil War

comes soon after (Charles I doesn’t make it through this) -> English Bill of Rights

1689 really cements the idea no taxation without representation.

is there taxation without representation?

This is the reason why all money bills must go through the lower house (section 53,

and also need the Royal Recommendation via Section 54) .

 It’s also why money bills are considered matters of confidence – if a government

cannot raise and spend money, then it really does not have the confidence of the

Commons, and has to resign.

 But there are substantive provisions here to

taxes on a jurisdictional basis?

 In Canada, there is the added problem of federalism. Both orders of government have

the right to tax, but not equally.

 It was a reflection of the worries of the 1860s. The expensive fields were given to

Ottawa (think national defence) less expensive areas were given to the provinces (at

the time, hospitals.)

 It did not work out that way of course.

direct and indirect taxes

The F of C made a distinction between Direct and Indirect taxes. The distinction goes

back to JS Mill.

 A direct tax is something that is supposed to be paid by the final user. An indirect tax

can be something a little further up the value chain, like a customs duty. It’s reflective

of the fact that most taxes at the time were excise taxes.

 The distinction can be tough to see.

consolidated revenue fund

 Money can’t be raised for a single purpose. It has to go into a single fund first, from

which the government spends it.

 This fund is provided for in Section 102 of the Constitution Act, 1867. The provinces

also have similar funds.

 Without it, it would be hard to have accountability.