POLS 6100 Week 2 _3 2010

POLS 6100 Week 2 _3 2010 - PPAL 6100 Canadian...

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PPAL 6100 Canadian Constitutional and Administrative Law – Russell v. the Queen – Local Prohibition Case – Board of Commerce – TEC v Snider – AG Ont. v. Can Temperance Federation – Johannesson v. West St. Paul – Ref re Offshore Min Rights of BC – Ref re Anti-Inflation Act – Queen v. Crown Zellerbach
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What Does Court Look For in Constitutional Cases Involving Division of Powers? -Is the challenged law intra or ultra vires the authority of the government which enacted it? -Can the law unambiguously be assigned to one or other heading in Sections 91, 92, 93, 94 or 95 of the BNA (the so-called cubby-hole doctrine ) -What is the pith and substance of the law? -purpose? -effect? -is it colourable? -Does it have more than one aspect ? If so what is the dominant aspect ? -Can it have a dual aspect? -Federal supremacy in cases of conflict
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Presumption of Constitutionality and Remedies In division of powers case court presumes impugned legislation is constitutional—burden of proof lies with challenger. Remedies for laws that are ultra vires Declare whole law unconstitutional and of no force and effect Severance (more likely in Charter cases) Reading Down
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Russell v. The Queen, 1882 Impugned legislation: Canada Temperance Act, 1878 ¼ of electors in a “county or city” may petition for a plebiscite on prohibition. Fredericton went dry Charles Russell: Fredericton pub owner, convicted Previous SCC decision: City of Fr. v. Queen: intra vires under JCPC decision: Sir Montague Smith. Russell’s lawyer: delegation argument – Parliament can’t delegate its powers. JCPC says no delegation involved cubby hole ” doctrine Is subject-matter of impugned legislation in s.92? If so, is it also in 91? If not in s. 92, it must be in s. 91 Russell’s lawyer: argued legis. Falls in s. 92: 9, 13 or 16 pith and substance Smith: Nearly anything could fall Central subject matter is public order & Not local because of local option. (analogy: health orders) Therefore, not under s.92. No comment on SCC’s decision in Fredericton re s. 91(2), but seems to emphasize POGG Gap (residual) branch of POGG
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Citizens Insurance Co v Parsons, 1881 Impugned: Ontario Fire Insurance Policy Act. Fire in Parsons’ warehouse. Parsons wanted insurance payment Ins Co : you didn’t observe the fine print. Parsons : the fine print didn’t conform to the Act. Ins Co : The act is ultra vires Ontario. Sir Montague Smith discusses how s. 91 & 92 overlap. JCPC will interpret the BNA Act as an ordinary statute. Smith Invokes presumption that specific takes precedence over general.
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POLS 6100 Week 2 _3 2010 - PPAL 6100 Canadian...

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