1. Today:
Public Law:
Constitutional Law:
Federalism

2. Public Law
vs.
Private Law

3. Constitutional Law
in Canada

4. Federalism
(division of powers)
Charter Law (next week)

5. Entrenched statutes
Organic statutes
Court decisions
Unwritten aspects

6. Schedule of
entrenched statutes

7. Unwritten Aspects
* Principles (from the preamble to the 1867 Constitution) including:
* Federalism
* Democracy
* Rule of Law
* Judicial decisions (Privy Council and Supreme Court)
* Conventions

8. Division of Powers
Constitution Act, 1867, ss. 91 and 92.

9. Division of Powers
Feds: ss. 91, 96 and 101
Provs: ss. 92 and 93

10. Division of Powers
Feds: POGG + enumerated powers
Provs: only enumerated powers

11. Division of Powers
Conflicts
between the
jurisdictions

12. Division of Powers
• Watertight compartments approach
–e.g. s. 92(13) > s. 91(2)
–e.g. s. 92(16) > POGG

13. Division of Powers
• Living Tree doctrine
–Contrasts with Watertight Compartments
–Contrasts with US Framers’ Intent
approach
–Comes from Privy Council in “Persons
Case”, Edwards v. A.G. of Canada

14. Division of Powers
Double Aspect approach

15. Double Aspect approach
• In relation to what matter? consider “pith
and substance”
• A matter may have fed and prov
“aspects”
• Feds and Provs can both legislate in
relation to a matter if they are addressing
different aspects of it
• In case of contradiction, Federal legislation
wins: doctrine of “paramountcy”

16. Double Aspect approach
• In relation to what matter? consider “pith
and substance”
• A matter may have fed and prov
“aspects”
• Feds and Provs can both legislate in
relation to a matter if they are addressing
different aspects of it
• In case of contradiction, Federal legislation
wins: doctrine of “paramountcy”

17. Pith and Substance
Walter v. A.G. Alberta, 1947
• Land ownership or religion?

18. Pith and Substance
Ward v. Canada, 2002
• Contracts or fisheries?

19. Pith and Substance
Munro v. NCC, 1966
• Land use or something federal?

20. Pith and Substance
R. v. Morgentaler, 1993
• Health care or criminal law?

21. Next class…
• Federalism, constitutional reform
and Quebec:
• Quebec Secession Reference, [1998] 2 S.C.R. 217