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Dr. B.W. Miller Law 101 2010-2011 FEDERALISM II Lecture #4 Sept 30 I. INTRODUCTION a. what do we do when there is a disagreement between the provinces and the federal government about who has jurisdiction to enact a piece of legislation? 1. in the old days, the federal government could just disallow the provincial law. Can’t really do that anymore. 2. so, there has to be a referee, and that referee is the courts. Today we will look at (1) the concept of judicial review; (2) the techniques of judicial review. I. JUDICIAL REVIEW - BACKGROUND a. recall that s. 52 of the Constitution Act, 1982 makes any law that is inconsistent with the constitution of Canada invalid. b. i) Feds given power to make laws for the POGG in relation to all matters not assigned exclusively to the provinces, including the enumerated grounds. (1) So remember that this basket clause makes the federal power open-ended; (2) Note also that the types of matters enumerated tend to be matters for which a national standard is required for a truly national economy (currency, weights & measures, postal service, banks, shipping). Also other things for which a national standard is desirable: marriage & divorce, 1
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Dr. B.W. Miller Law 101 2010-2011 criminal law, immigration. ii) Provinces given exclusive jurisdiction over certain enumerated grounds thought to be local matters, such as to give the provinces control over local culture and affairs (hospitals (which tended to be religious institutions), education (which tended to be religious), local works, solemnization of marriage (which was religious), property and civil rights, and 92(16) generally matters of a local or private nature. c. determining the content of these heads of powers is often more difficult than might first appear. In some cases it’s easy (eg “laws relating to banking”). In others it has been to the judiciary to give concrete meaning to general phrases like “property and civil rights in the province”, “trade and commerce”, “matters of a local nature”. d. some of the powers are potentially very broad (criminal law, POGG residuary power). There was the potential for an expansive reading of these to result (effectively) in the extinguishment of provincial power. e.
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