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Constitutional Law and Bankruptcy Clause

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					   COMPARATIVE
CONSTITUTIONAL LAW
        Class 7
   September 13 2006
WRAP UP: We Compared Canada and
             US
• Separation of Powers (Canada: fusion of
  executive and legislative branches,
  convention of responsible government)
• Separation of Powers (Canada: judicial
  independence in s. 99 of Constitution Act
  1867 and s. 11(d) of Constitution Act
  1982, unwritten guarantees of judicial
  independence leading to implied
  requirement of judicial salary
  commissions)
• Separation of Powers (Canada: advisory
  opinions)
      WRAP UP: CANADIAN
         FEDERALISM
• Relationship between Canadian federal
  government and the provinces.
• Two lists of enumerated powers in s. 91
  and s. 92 of Constitution Act
• As the Canadian constitution was
  interpreted by the Privy Council (the
  “wicked stepfathers of confederation”),
  provincial powers were interpreted very
  broadly
   OVERLAPPING POWERS
• Do the federal and provincial powers
  overlap?
   OVERLAPPING POWERS
• Do the federal and provincial powers
  overlap?
• E.g. 92(13) provincial power over property
  and civil rights in the province; 91(2)
  federal power to regulate trade and
  commerce; 91(19) interest, 91(21)
  bankruptcy/insolvency
• How did Privy Council generally deal with
  overlap in its case law?
  BROAD INTERPRETATION OF
    PROVINCIAL POWERS
• Especially s. 92(13): In each Province
  the Legislature may exclusively make
  Laws in relation to Matters coming
  within the Classes of Subjects next
  hereinafter enumerated; that is to say, .
  . . property and civil rights in the
  province.
 DETERMINING WHICH LIST OF
   POWERS APPLIES TO A
     PARTICULAR LAW
• Pith and substance of the law
• Laws with a double aspect
  PARAMOUNTCY OF FEDERAL
           LAW
• If there is conflicting federal and state
  law, federal law prevails.
• Compare to Article VI
   PEACE, ORDER AND GOOD
        GOVERNMENT
• Paix, ordre, et bon gouvernement
• Preamble to Section 91: It shall be lawful for
  the Queen, by and with the Advice and
  Consent of the Senate and House of
  Commons, to make Laws for the Peace,
  Order, and good Government of Canada, in
  relation to all Matters not coming within the
  Classes of Subjects by this Act assigned
  exclusively to the Legislatures of the
  Provinces Was this interpreted broadly by
  the Privy Council? Like the N & P Clause in
  Art. I § 8?
   PEACE, ORDER AND GOOD
        GOVERNMENT
• Was section 91 this interpreted broadly by
  the Privy Council? In general, no
• Gap-filling (but only over incorporation of
  companies with non-provincial objects that
  did not fall w/in s. 92(11)
• Emergencies
• PROBLEMATIC LANGUAGE AND
  STRUCTURE IN sections 91 and 92
• Hogg suggests the language is the result of
  conflicting goals.
 Section 132 Constitution Act 1867
• The Parliament and Government of
  Canada shall have all Powers necessary
  or proper for performing the Obligations of
  Canada or of any Province thereof, as Part
  of the British Empire, towards Foreign
  Countries, arising under Treaties between
  the Empire and such Foreign Countries.
Labour Conventions [1937] AC
          326 (PC)
              • Lord Atkin: while the
                ship of state now sails
                on larger ventures and
                into foreign waters she
                still retains the
                watertight
                compartments which
                are an essential part of
                her original structure
              • Effect of this case? (still
                good law)
        F.R. Scott’s critique
• So long as Canada clung to Empire
  treaties and no doctrine of ‘watertight
  compartments’ existed; once she became
  a nation in her own right, impotence
  descended.
    EMERGENCY FEDERAL
         POWERS
• Did the Privy Council take the
  view that the POGG power of the
  federal government was broader
  power during emergencies?
• What about the Canadian
  Supreme Court?
          National Concern
• Another branch of POGG recognized by
  Supreme Court of Canada after 1949.
• For a matter to qualify as a matter of national
  concern, . . . It must have a singleness,
  distinctiveness and indivisibility that clearly
  distinguishes it from matters of provincial
  concern and a scale of impact on provincial
  jurisdiction that is reconciliable with the
  fundamental distribution of legislative power
  under the Constitution. EXAMPLES?
    Problems of Interpretation
• Structural: location of Residuary Clause
  (preamble to s. 91, s. 92(16)
• Interpretation of Two Lists
• Interpretation of Charter of Rights (rights
  are vague, override clause of s. 33,
  limitations clause of s. 1, state action in s.
  32, aboriginal rights in s. 35)
         Limitations Clause
• 1. The Canadian Charter of Rights and
  Freedoms guarantees the rights and
  freedoms set out in it subject only to such
  reasonable limits prescribed by law as can
  be demonstrably justified in a free and
  democratic society.
                  Override Clause
• 33. (1) Parliament or the legislature of a province may expressly
  declare in an Act of Parliament or of the legislature, as the case may
  be, that the Act or a provision thereof shall operate notwithstanding
  a provision included in section 2 or section 7 to 15 of this Charter.
• (2) An Act or a provision of an Act in respect of which a declaration
  made under this section is in effect shall have such operation as it
  would have but for the provision of this Charter referred to in the
  declaration.
• (3) A declaration made under subsection (1) shall cease to have
  effect five years after it comes into force or on such earlier date as
  may be specified in the declaration.
• (4) Parliament or the legislature of a province may re-enact a
  declaration made under subsection (1).
• (5) Subsection (3) applies in respect of re-enactment made under
  subsection (4).
                State Action
• 32. (1) This Charter applies
• (a) to the Parliament and government of Canada
  in respect of all matters within the authority of
  Parliament including all matters relating to the
  Yukon Territory and Northwest Territories; and
  (b) to the legislatures and governments of each
  province in respect of all matters within the
  authority of the legislature of each province.
• (2) Notwithstanding subsection (1), section 15
  shall not have effect until three years after this
  section comes into force.
 Remedies/Enforcement of Charter
   Rights – Too Much Judicial
            Activism?
• 24. (1) Anyone whose rights or freedoms, as guaranteed
  by this Charter, have been infringed or denied may apply
  to a court of competent jurisdiction to obtain such
  remedy as the court considers appropriate and just in the
  circumstances.
• (2) Where, in proceedings under subsection (1), a court
  concludes that evidence was obtained in a manner that
  infringed or denied any rights or freedoms guaranteed by
  this Charter, the evidence shall be excluded if it is
  established that, having regard to all the circumstances,
  the admission of it in the proceedings would bring the
  administration of justice into disrepute.
              Aboriginal Rights
• 35. (1) The existing aboriginal and treaty rights of the
  aboriginal peoples of Canada are hereby recognized and
  affirmed.
• (2) In this Act, "aboriginal peoples of Canada" includes
  the Indian, Inuit, and Metis peoples of Canada.
• (3) For greater certainty, in subsection (1) "treaty rights"
  includes rights that now exist by way of land claims
  agreements or may be so acquired.
• (4) Notwithstanding any other provision of this Act, the
  aboriginal and treaty rights referred to in subsection (1)
  are guaranteed equally to male and female persons.(17)

				
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