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Transcript of Federalism
1. Distribution of powers
2. Entrenched regional representation Distribution of Powers Entrenched regional representation (cc) photo by tudor on Flickr Reason for Federalism Reason against Federalism Challenge of federalism Relevancy of federalism Ref Re Amendment of the Constitution (Part I) Laskin CJC, Dicson, Beetz, Estey, McIntyre, Chuinard and Lamer JJ: The provinces sough to argue that the distribution of powers ought to be protected by law from being changed without provincal consent. "The law knows nothing of any requirement of pincipal consent, either to a resolution of federal Houses or as a condition of the exerce of United Kingdom legislative power." Ref Re Amendment of the Constitution (Part I) Martland an Ritchie JJ [dissenting on this part] "[T]he federal Parliament ... legislative authority is limited to the matters defined in s. 91 of the BNA Act. [A r]esolution of its two houses, to effect an amendment to the BNA Act which would offend against the basic principle of the division of powers ... is ... contrary to the federal system created by the BNA Act ..."
“[S]ince it is beyond the power of the federal Parliament to enact such an amendment [in law], it is equally beyond the power of its two Houses to effect such an amendment through the agency of the Imperial Parliament.”
“The two Houses of the Canadian Parliament claim the power unilaterally to effect an amendment to the BNA Act which they desire, including the curtailment of provincial legislative powers. This strikes at the basis of the whole federal system. It asserts a right by one part of the Canadian governmental system to curtail, without agreement, the powers of the other part.” Ref Re Amendment of the Constitution (Part II) Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ: The provinces argued that the distribution of powers ought to be protected by convention from being changed without provincial consent. “The purpose of this conventional rule is to protect the federal character of the Canadian Constitution and prevent the anomaly that the House of Commons and Senate could obtain by simple resolutions what they could not validly accomplish by statute.” “It is true that Canada would remain a federation if the proposed amendments became law. But it would be a different federation made different at the instance of a majority in the House of the federal Parliament acting alone. It is this process itself which offends the federal principle.” Ref Re Amendment of the Constitution (Part II) Laskin CJC, Estey ad McIntyre JJ [dissenting in Part] The incidents of Canadian federalism demonstrate a primacy to the federal government. This weakens the argument that there is a rule requiring provincial consent for amendment. Furthermore, here, the legislative distribution of powers between the federal Parliament and provinces was not being affected. Drones: Ought the regulation of unmanned drones within Canada fall within federal legislative jurisdiction by virtue of s. 91(7)?
Polygamous marriages: Ought the regulation of polygamous arrangements, which, according to the federal government, do not even qualify as “marriages”, fall within federal jurisdiction by virtue of s. 91(26)?
Marijuana: Ought the right to de-criminalize the use of marijuana fall within federal jurisdiction by virtue of s. 91(27)?
Tar sands: Ought the regulation of the tar sands, with the sale of tar sands oil within Canada, fall within provincial jurisdiction by virtue of s. 92A?
Online courses: Ought the regulation of new, free online courses fall within provincial legislative jurisdiction by virtue of s. 93?
Algae fuels: Ought the regulation of the growth of algae fuels fall within federal jurisdiction by virtue of s. 95?