CONSTITUTIONAL LAW
06 FEDERALISM:
HISTORICAL
BACKGROUND I
Shigenori Matsui
1
INTRODUCTION




The federalism
S. 91 & s. 92 of the Constitutional Act, 1867
What was the overall design for federalism in
Canada?
What was the difference from other federal
states like the United States?
2
I FRAMEWORK OF
FEDERALISM

Contrast with the U.S.
 13 states declared independence from
 13 states ratified articles of confederation and
established the United States of America
 After independence, the Founding Fathers
gathered to talk about the amendment to the
articles of confederation yet the convention
adopted the new constitution and submitted it
to states for ratification
3

American federalism
 States have constitution to regulate state
government, while the federal constitution was
designed to control the federal government.
 Federal constitution merely lists the power of
the federal government, while placing some
limits on the states.
 All the powers not delegated to the federal
government belong to state and people.
4
 Article
1, section 8, list the subject matters the
federal Congress can legislate on

The interstate commerce
5

The Framers of the Constitution Act, 1867,
were convinced of the necessity to establish
stronger federal government in Canada
6

1 S. 91 grants residual power of legislating
for the peace, order, and good government of
Canada to the federal Parliament.
7

The power to enact criminal law to the federal
Parliament
8

2. appointment of lieutenant governor by the
Governor General
9

3. The power of the lieutenant governor to
disallow provincial legislation and reserve the
assent to the provincial legislation
10

4. the power of Governor General to appoint
superior court judges
11

5. the power of Parliament to enact remedial
legislation on education
12

The reality
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II GENERAL FRAMEWORK

S. 91

the power over peace, order, and good
government
14

Exclusive federal power over listed classes of
subjects
15

S. 92 exclusive powers of the province
16

S. 92A, added in 1982, grants exclusive
provincial power over non-renewable natural
resources.
17

S. 93 grants exclusive power of the province
on education.
18

S. 94 grants the power of the Parliament to
enact laws providing for the uniformity of laws
in Ontario, New Brunswick and Nova Scotia.
19

S. 94A, added in 1951, grants Parliament
concurrent power to enact laws in relation to
old age pension.
20

S. 95 grants Parliament and provincial
legislatures concurrent power over agriculture
and iimigration
21

The possible conflict with respect to exclusive
jurisdiction of Parliament and provincial
legislatures
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III DEVELOPMENT OF FEDERALISM
JURUSPRUDENCE



The creation of federalism jurisprudence
What is the basic framework established by the
Supreme Court and Privy Council?
Was it a natural understanding or simple
misunderstanding?
23

Citizens Insurance Company v. Parsons
(1881)
24

Russel v. The Queen, (1882)
25

Hodge v. The Queen, (1883)
26

AG Ontario v. AG Canada, [1896]
27

Was it appropriate for the Privy Council and
the Supreme Court of Canada to intervene in
the disputes between the Parliament and
provincial legislatures?
28

What was the framework established by
these decisions of the Privy Council?
29

Was it the appropriate framework?
30

What had happened to the living tree
doctrine?
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