CONSTITUTIONAL LAW

07 FEDERALISM: HISTORICAL

BACKGROUND IIShigenori 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

Reference re The Board of Commerce Act, [1922]

Fort Frances Pulp and Paper Company v. Manitoba Free Press Company, [1923]

Toronto Electric Commissioners v. Snider, [1925]

The King v. Eastern Terminal Elevator Co., [1925]

II NEW DEAL

Some signs of change? Proprietary Articles Trade Association v. AG

Canada [1931]

Reference re the Regulation and Control of Aeronautics in Canada, [1932]

Reference re Regulation and Control of Radio Communication in Canada, [1932]

No significant change AG Canada v. AG Ontario, [1937] (Labor

Conventions)

AG Canada v. AG Ontario, [1937] (Employment and Social Insurance Act)

AG British Columbia v AG Canada, [1937] (Natural Products Marketing Act)

Framework established by the Privy Council 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

Pogg power mo pogg power if the subject falls within one of s.

92 Broad interpretation of property and civil rights

Parsons case Emergency (Manitoba Free Press case)

National Concern Russell case Followed by AG Ontario case Narrowly construed by Board of Commerce Act case

and Syner case Still possibility AG BC case

Trade and commerce power 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

Criminal law power 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.

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.

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

The Court came to reverse its attitude and adopt hand-off attitude toward economic regulation.

The Court will uphold economic regulation of the Congress 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

Constitutional revolution

Why such constitutional revolution did not happen in Canada?

Should the Supreme Court reconsider the whole federalism jurisprudence and go back to the original intent of giving predominant power to the federal Parliament?