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Some Problems of Canadian Federalism
Published online by Cambridge University Press: 02 September 2013
Extract
The Civil War in the United States was a sobering object lesson to the fathers of Canadian federation. In drafting the British North America Act of 1867, they sought to forestall the development of those problems which the experience of their neighbor to the south had shown to be incidental to the federal system of government. The division of powers between central and local governments has been the rock on which most federations, sooner or later, have foundered, and Canadians sought to escape a similar fate by three different political devices.
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- Foreign Governments and Politics
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- Copyright © American Political Science Association 1933
References
1 British North America Act, sec. 91, par. 2.
2 Ibid., sec. 91, par. 2.
3 Ibid., sec. 65.
4 Ibid., sec. 91.
5 British North America Act, sec. 92.
6 Ibid., sec. 92, par. 13.
7 Ibid., sec. 92, par. 16.
8 On this point of constitutional law, see Clement, , Canadian Constitution (3d ed.), pp. 452–453Google Scholar.
9 B. N. A. Act, sec. 95.
10 Clement, op. cit., p. 453.
11 B. N. A. Act, sec. 95.
12 Canadian Annual Review, 1923, p. 47Google Scholar.
13 Union Colliery Company v. Bryden (1899), A.C. 580.
14 R. v. Mee Wah, 3 B.C. 403.
15 Keith, A. B., Responsible Government in the Dominions (1912), Vol. II, p. 1075Google Scholar.
16 Tamey Homma's Case (1903), A.C. 151.
17 Revised Statutes, 1923, Chap. 38, sec. 5.
18 Acts of B.C., 1925, c. 32.
19 Field v. International Lumber Company, 1928, S.C.R. 564.
20 Lefroy, A. H., Leading Cases in Canadian Constitutional Law, p. 46Google Scholar.
21 Sec. 132.
22 Attorney-General of B.C. v. Attorney-General of Canada, 1923, 4 D.L.R. 698.
23 Revised Statutes of Canada, 1913, Chap. 27.
24 Queen v. Robertson, 3 M.R. 613.
25 King v. Stuart, 1925, 1 D.L.R. 12. This treaty created a similar problem in federal relations in the United States, which was decided likewise in favor of the central government in the case of Missouri v. Holland, 252 U.S. 416.
26 1925 S.C.R. 505.
27 See “The Provinces and the Supremacy of the Treaty-Making Power,” Queen's Quarterly, Aug., 1930, p. 543Google Scholar.
28 As a result of the provincial attitude, Premier King, at an informal conference with representatives of Quebec and Ontario, agreed that any development of the St. Lawrence which infringed upon the property rights of the provinces could be made the subject of special agreement in each case. Canadian Annual Review, 1929–1930, p. 105Google Scholar.
29 These resolutions are included in the Statute of Westminster as Section 7:
(1) Nothing in this Act shall be deemed to apply to the repeal, amendment, or alteration of the British North America Acts, 1867–1930, or any order, rule, or regulation made thereunder.
(2) The provisions of section two of this Act shall extend to laws made by any of the provinces of Canada and to the powers of the legislatures of such provinces.
(3) The powers conferred by this Act upon the parliament of Canada or upon the legislatures of the provinces shall be restricted to the enactment of laws in relation to matters within the competence of the parliament of Canada or of any of the legislatures of the provinces respectively.
30 Canadian Annual Review, 1930–1931, p. 79Google Scholar.
31 Attorney-General of Canada v. Attorney-General of Ontario, 1930, S.C.R. 663.
32 1913 W.N. 225. See Fortnightly Law Journal, Dec. 1, 1931, p. 103Google Scholar.
33 On this point of constitutional law, Professor Munro says: “The doctrine of ‘all-residuary power in the Dominion’ received a rude jolt a few years ago when the decision of the Judicial Committee of the Privy Council in the Toronto Hydro-Electric Case was handed down (Toronto Hydro-Electric Commission v. Snider et al. [1925] A.C. 412). The decision clearly intimates that the so-termed general residuary legislative power of the Dominion parliament to ‘make laws for the peace, order, and good government of Canada’ is restricted to cases arising out of some extraordinary peril to the national life, where the required legislation is of a character which obviously transcends provincial competence, and that under normal conditions, the residuum belongs to the field of ‘property and civil rights’ which is vested in the provinces.” American Influences on Canadian Government, p. 28.
34 1931, S.C.R. 541.
35 While the question of the legal power to regulate radio remained uncertain, radio development in Canada was virtually at a standstill. The government would announce no policy until the legal issue was settled, nor would it permit private companies to enlarge their activities until some policy could be formulated.