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Peace, Order and Good Government

Peace, Order and Good Government. January 31, 2002. POGG. Opening words of s.91 expressed as a general power all matters “not coming within” s.92 are federal enumerated classes were included in s.91 “for greater certainty” (see Lysyk p.416) S.92 enumerates 16 provincial classes. POGG.

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Peace, Order and Good Government

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  1. Peace, Order and Good Government January 31, 2002

  2. POGG • Opening words of s.91 expressed as a general power • all matters “not coming within” s.92 are federal • enumerated classes were included in s.91 “for greater certainty” (see Lysyk p.416) • S.92 enumerates 16 provincial classes

  3. POGG • Methodology proposed in Parsons (see p.422) for determining validity: • look first to s.92 enumerated • if not in s.92, then must be federal, either under POGG or s.91 enumerated • if in s.92, then consider whether also in s.91 enumerated power

  4. POGG • if also in s.91, then must resolve conflict • Parsons methodology applied in Russell (1882) • federal temperance legislation does not fall within s.92 • subject treated “as one of general concern”

  5. POGG • problem exists in more than one province • since it did not fall within s.92 it must fall within 91 • unnecessary to determine whether it fell within POGG or criminal law power

  6. POGG • However by 1896 JCPC had begun to restrict POGG • Local Prohibition Reference held that matters in enumerated classes of s.91 might incidentally affect s.92 • however, POGG could not be used in this way (p.426)

  7. POGG • “…some matters in their origin local and provincial might attain such dimensions as to affect the body politic of the Dominion…and become a matter of national concern…” (p.427) • note reference to gun control on p.427

  8. POGG • Passage on p.427 origin of ‘national dimensions’ doctrine • however early 20th century cases adopt even narrower approach to POGG • Lord Haldane develops “emergency theory” of POGG

  9. Emergency Doctrine • Board of Commerce (1922) says that POGG might be relied upon “in special circumstances, such as those of a great war…” • no such exceptional circumstances present here • legislation ruled invalid

  10. Emergency Doctrine • Fort Francis case upheld emergency legislation, but it was clear that this was an exceptional, time-limited authority • Federal powers under POGG restricted to extremely narrow grounds • Russell case explained as an anomaly, due to a crisis of intemperance in Canada in late 19th century

  11. Criticism of JCPC • Critics argued that JCPC ignored BNA Act plain meaning • also argued that JCPC ignored social realities • federal government had fiscal resources but no jurisdiction • provinces had jurisdiction but no resources

  12. New Deal Legislation • 1930’s Parliament passed legislation to respond to depression • Canadian “new deal” • legislation struck down by JCPC • POGG not useful • movement to abolish appeals to JCPC gains strength

  13. Abolition of JCPC Appeals • 1935 appeals in criminal cases had been abolished • move to abolish appeals in civil cases put on hold during War • 1949 Canadian Parliament passes legislation abolishing appeals • last appeal decided in 1954

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