Transcript CONSTITUTIONAL LAW 1 What is the Constitution?

CONSTITUTIONAL LAW
07 FEDERALISM:
HISTORICAL
BACKGROUND II
Shigenori Matsui
INTRODUCTION

What happens to the federalism jurisprudence
during the early 20th century and during the
new deal?

What is the current framework?
I EARLY 20TH CENTURY
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Reference re The Board of Commerce Act,
[1922]
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Fort Frances Pulp and Paper Company v.
Manitoba Free Press Company, [1923]
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Toronto Electric Commissioners v. Snider,
[1925]
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The King v. Eastern Terminal Elevator Co.,
[1925]
II NEW DEAL
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Some signs of change?
Proprietary Articles Trade Association v. AG
Canada [1931]
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Reference re the Regulation and Control of
Aeronautics in Canada, [1932]
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Reference re Regulation and Control of Radio
Communication in Canada, [1932]
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No significant change
AG Canada v. AG Ontario, [1937] (Labor
Conventions)
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AG Canada v. AG Ontario, [1937]
(Employment and Social Insurance Act)
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AG British Columbia v AG Canada, [1937]
(Natural Products Marketing Act)
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Framework established by the Privy Council
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Need to see whether the subject falls within s. 92
Broad interpretation of property and civil rights in
the province
Narrow interpretation of pogg in s. 91
Narrow interpretation of power over trade and
commerce
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Pogg power

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mo pogg power if the subject falls within one of s.
92
Broad interpretation of property and civil rights
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Parsons case
Emergency (Manitoba Free Press case)
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National Concern
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Russell case
Followed by AG Ontario case
Narrowly construed by Board of Commerce Act case
and Syner case
Still possibility AG BC case
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Trade and commerce power
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Narrowly limited to regulation of international and
interprovincial trade and general regulation of
trade affecting the whole Dominion (Parsons
case, followed by AG Ontario case)
Stripped of its substance by Board of Commerce
Act case and Snyder case
Resurrected by the Proprietary Articles Trade
Association case
Still limited scope AG BC case
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Criminal law power

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Public order and safety (Russell case)
Narrowly construed by Board of Commerce Act
case and Snyder case
Resurrected by the Proprietary Articles Trade
Association case
III COMPARISON WITH THE
U.S.
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The United States Constitution vests the
power to regulate interstate commerce to the
Congress
The United States used to interpret this
power broadly to allow the Congress to
regulate activities in the states.
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During the early 20th century, the Court came
to distinguish commerce and production and
deny the power of the Congress to regulate
production in the states.
The New Deal and proliferation of economic
regulations
Strong criticisms against the Court
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The Court came to reverse its attitude and
adopt hand-off attitude toward economic
regulation.

The Court will uphold economic regulation of
the Congress

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If it regulates interstate movement of goods or
services,
If it regulates the intrastate activities which will
affect the interstate commerce, and
If the regulation of intrastate activities is
necessary to implement the regulation of
interstate commerce

The power of the Congress can reach into
local matters inside the state
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Constitutional revolution
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Why such constitutional revolution did not
happen in Canada?
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Should the Supreme Court reconsider the
whole federalism jurisprudence and go back
to the original intent of giving predominant
power to the federal Parliament?