Legislative Jurisdiction Research Articles

Constitutional Change and Public Policy: The Impact of the Resource Amendment (Section 92A)

AbstractThis article examines the effect of the resource amendment (section 92A) on Canada's political economy. The analysis of the consequences of section 92A moves beyond the immediate changes in the distribution of legislative jurisdiction to examine the broader political implications. It is argued that the resource amendment is politically significant in several respects. It removes certain irritants from federal-provincial relations. By augmenting and clarifying provincial powers, the provinces' role in resource development is strengthened. The expansion of provincial legislative capacity gives the provinces more legitimacy and power at the political bargaining table.

The New Canadian Charter of Rights and Freedoms as Compared and Contrasted with the American Bill of Rights

Since 17 April 1982, Canada has, for the first time, a constitutionally entrenched Bill of Rights-the Canadian Charter of Rights and Freedomsapplying equally to all legislatures. Prior to that time there was a Canadian Bill of Rights, enacted in 1960,1 but confined to the federal (national) sphere of legislative jurisdiction, and the British North America Act, 1867, neither entrenched nor part of the basic constitutional instrument.2 There were, as well, three provincial Bills of Rights-that of Saskatchewan, first enacted in 1947;3 that of Alberta, enacted in 1972;4 and the Quebec Charter, enacted in 1975.s5 All four covered the fundamental freedoms of speech, press, religion, assembly, and association. However, only the Canadian and Alberta Bills included clauses guaranteeing due process and equality before the law. Also, only the Canadian Bill and the Quebec Charter included a detailed list of legal rights, i.e., protection of the rights and liberties concerned with the

Duff Pattullo and the Yukon Schools Question of 1937

ALTHOUGH THE FATHERS OF CONFEDERATION delineated the responsibilities of the federal and the provincial governments in the British North America Act, conflict over legislative jurisdiction has proved to be an enduring theme in Canadian history. Built into the federal system from the beginning has been a tension between two fundamental rights the right of the provinces to legislative authority over the jurisdictions assigned to them in the act, and the right of the national government o protect minority rights when these were threatened by the exercise of provincial powers. The greatest potential for conflict has lain in the volatile mixture of language, religious denominations, and education. During the half century from • 867 to x 9 x 7, conflicts which threatened to tear the country apart erupted in Manitoba, the Northwest Territories, and Ontario. In all cases, provincial rights ultimately prevailed over minority rights, reflecting the growth in the power of the provinces after •867. After the elimination of French-language instruction in Manitoba and Ontario during the First World War, no new 'schools question' troubled federal-provincial relations. Only once did the old conflict threaten to emerge, in the unlikely combination of British Columbia and Yukon in the late x93os. British Columbia had entered Confederation with a single, unilingual public school system in •87•. Yukon, in contrast, had a more complex legacy. It was originally part of the vast 'Northwest Territory' which Great Britain transferred to Canada in x87o. In •895, Ottawa demarcated a 'Yukon district' within the Territories and put the small population of the district under the administration of a Northwest Mounted Police inspector. Three years later, as a result of the Gold Rush, Yukon was detached from the NWT and established as a separate administrative unit. One effect of this process was that, unless

Legislative Jurisdiction, State Policies and Post-Occurrence Contacts in Allstate Insurance Co. v. Hague

Legislative Jurisdiction, State Policies and Post-Occurrence Contacts in Allstate Insurance Co. v. Hague

Political Constraints and the Province-Building Objective

The terms of the British North America Act of 1867 provide little indication of the role that has been assumed in practice by Canadian provincial governments. Section 92 of the Act, and the fragmentary records that survive from the conferences that drafted the terms of Confederation, suggest the limited, although not unimportant, role that was envisaged for them, a role mainly concerned with the regulation of private, family and social relationships, the control of municipal institutions, the administration of justice (but excluding the procedure in criminal matters) and 'Generally all Matters of a merely local or private Nature in the Province.' The constant repetition, throughout the sub-sections of Section 92, of the phrase, 'in the Province' suggests a deliberate intention to prevent provincial authorities from exercising powers that would have consequences outside the provincial boundaries, an intention also suggested by certain of its other terms, such as the prohibition of indirect taxation. There is little in the Act to suggest that provincial governments were intended to enjoy much jurisdiction over economic matters, for the major tools of economic policy at the time were confined almost exclusively to the central government. Provincial governments were admittedly given two related but distinct responsibilities that have proved to be of major economic significance: namely legislative jurisdiction over public lands and timber, and ownership of public lands and resources. However, these powers were apparently viewed more as sources of revenue for provincial treasuries than as powerful implements of economic policy. Even the revenues were expected to be modest, and remained so for many years after Confederation. In practice, as is generally known, provincial governments have acquired vast powers and responsibilities, particularly with regard to economic matters. In fact there is no other industrialized state, with the possible exception of Australia, in which a sub-national level of government enjoys as much power, or the central government as little, as is true in Canada today.

Legislative Jurisdiction

Legislative Jurisdiction

Industry opposes economic planning bill

Two weeks from now the Congressional Joint Economic Committee will hold two days of hearings on an innocuous sounding bill called the Balanced Growth & Economic Planning Act of 1975. Innocuous though it may sound, the bill (S. 1795) ignited a controversy when it was introduced earlier this year by two of the most formidable members of the Senate, Sen. Hubert H. Humphrey (D.-Minn.) and Sen. Jacob K. Javits.(R.-N.Y.). The controversy has died down since then, but it is certain to be re-ignited at the economic committee hearings. And it probably will erupt into a flaming debate if the Senate Government Operations Committee schedules hearings on the bill before year's end. The Government Operations Committee, not the Joint Economic Committee, has legislative jurisdiction over the bill. Calling the issue a debate is no exaggeration. The week after the economic committee hearings, the Institute for Interindustry Data and the New York District Office of the Department ...

The growth of federal power in the West German University system

Article 5 (3) of the Grundgesetz , which is the federal German constitution, guarantees the freedom of teaching and research. Enacted in 1949, it provides a legal basis for academic autonomy {akademische Selbstverwaltung).1 No legislative act which aims at the regulation of the internal organisation of a university may infringe on this basic right. A further article of the Grundgesetz, article 12, has a bearing on universities: " All Germans have the right to choose their trade or profession, their place of work and their place of training." It guarantees, under normal circumstances, the right to attend a university to every qualified school leaver. For many years the Grundgesetz contained no further provisions which were directly applicable to universities. The entire field of education was omitted from the extensive catalogues which define the exclusive and concurrent legislative and administrative jurisdictions of the federal republic,2 nor was any aspect of education included within article 75, which grants to the federation the power to make " general rules " in a number of specified fields. This meant that until recently education, including the planning, financing and administration of universities, fell wholly within the legislative and administrative competence of the constituent states of the federal republic. Universities, in their turn, have dealt exclusively with their regional governments, e.g., those in Hamburg, Dusseldorf or Stuttgart, and not within the federal government in Bonn.

The Role of the Prosecutor in Canada

With Confederation in 1867, criminal law and procedure was designated by the British North America Act as being within federal competence.' The Attorney-General of Canada was to regulate, conduct, and defend all criminal proceedings for the Crown or any federal department with respect to any subject matter, apart from the criminal code, and within the legislative jurisdiction of the federal government. The provinces through their own Attorneys-General assumed responsibility for the constitution of the criminal courts and the administration of criminal justice. Their jurisdiction included the regulation of provincial courts and law enforcement within the province as well as the prosecution of provincial and criminal code offences and the appointment of local Crown prosecutors and magistrates.2 Private prosecutions and those brought by municipal and federal government departments are conducted by specially retained lawyers.3 The prosecutor specially retained by a federal government department to prosecute locally generally remains remote from the investigatory and charging procedures, and prosecution, based as it is on individual case retainers, resembles English practice.4 Federal prosecutions represent only a small portion of the criminal prosecutions in Canada. But even in these the Provincial Attorney-General, through his provinciallyappointed Crown prosecutor, may intervene where, in the interests of justice, he deems it appropriate to do so.' In Canada, there has been a tradition of part-time Crown prosecutors, often lawyers appointed as a result of political patronage who, in addition to their private practice of law, assume prosecutorial duties. The employment of part-time prosecutors has become untenable in the face of growing urban crime and the resulting administrative

Congress and Research: Experience in Atomic Research and Development

Congress has delegated much of its work in rela tion to atomic research and development to the Joint Congres sional Committee on Atomic Energy. The Joint Committee has certain advantages for dealing vigorously with atomic re search, including its ability to act for both Houses as a unit, its right to be kept fully informed by the Atomic Energy Commission, and its legislative jurisdiction including annual authorization legislation. The role of the Joint Committee has been evolving from an interest primarily in the weapons program and security to an equal emphasis on peacetime re search and development, international co-operation, and de classification. Recently the Joint Committee has tended to stress its informational function through the conduct of various public hearings and dissemination of reports. Of particular importance in recent years has been its policy-making function in atomic power development, basic research facilities, and research in atomic hazards.

Hospital examination of adult offenders.

625 In Canadian jurisprudence the subject of insanity as a defence in a criminal prosecution is within the legislative jurisdiction of the federal government. The legislation is contained in section i#{231} of the Criminal Code and is a codification of the M’Naghten rules. The law is similar to that which obtains in the 29 states in the United States which abide by the M’Naghten rules. The irresistible impulse test used in the District of Columbia and 17 states does not obtain in Canada.3 Where insanity is pleaded as a defence, the trial is conducted by a Supreme Court

Jurisdiction in Bankruptcy

The following study was undertaken for the purpose of describing the judicial business which is imposed upon the lower federal courts in the administration of the Bankruptcy Act of i898, as revised by the Chandler Act of I938.1 Our concern here is with the problems centering around judicial as distinguished from legislative jurisdiction,2 the latter dealing only with the powers of Congress under the bankruptcy clause of the Constitution.3 The history of bankruptcy in the United States4 has been summarized by Justice Cardozo as that of an expanding concept that has had to fight its way.5 Congressional legislation has taken the path of progressive liberalization.6 While, in the words of the Supreme Court, the subject of bankruptcy is incapable of final definition,7 it may be stated generally that it covers the liquidation or rehabilitation of embarrassed estates.8 At any rate, this is the scope of bankruptcy under the present act.

A New Type of Faculty Organization

N JUNE of last year, the Board of Trustees of the University of New Hampshire gave its approval to a new constitution drawn by the University Faculty for the purpose of securing a more democratic government of educational policy and student activities. Built about a Senate of fifty-nine members, the new organization includes a system of rotating memberships, a paucity of standing committees, and has as a corporate part a University Council of twentyone members to which is delegated advisory authority, executive power in emergencies, but no jurisdiction. On July first the constitution took effect with the beginning of the fiscal year of the University. The New Hampshire Faculty (one hundred and twenty-seven members in I936) for years has been vested by the governing board (subject always to its approval) with legislative jurisdiction in all matters of student government and educational policy. The Faculty has consisted of the president of the University; the dean of the faculty (now dean emeritus); the deans of the three colleges of the University-liberal arts, agriculture, and technology; the deans of men and women; the professors, the associate professors, the assistant professors, the instructors of two or more years service; the director of the experiment station and the extension service; and the librarian, the registrar, the assistant to the president, and the treasurer. The Faculty has met regularly at the beginning of each semester and on the Friday preceding commencement day in June. Special meetings were provided for in the discarded constitution, but in recent years have been rarely held. Nine standing committees have been employed to recommend and in some cases to execute legislation, though in recent years because of the unwieldiness of the body, the committees have increasingly taken unto themselves both the business of making policy and of executing or of supervising its execution, usually with the approval of the president but seldom with the approval of the Faculty of which they were the agents. Their gradual assumption of power was never openly challenged but more because the Faculty as a whole was ignorant of the misuse of power than because of

A New Type of Faculty Organization

N JUNE of last year, the Board of Trustees of the University of New Hampshire gave its approval to a new constitution drawn by the University Faculty for the purpose of securing a more democratic government of educational policy and student activities. Built about a Senate of fifty-nine members, the new organization includes a system of rotating memberships, a paucity of standing committees, and has as a corporate part a University Council of twentyone members to which is delegated advisory authority, executive power in emergencies, but no jurisdiction. On July first the constitution took effect with the beginning of the fiscal year of the University. The New Hampshire Faculty (one hundred and twenty-seven members in I936) for years has been vested by the governing board (subject always to its approval) with legislative jurisdiction in all matters of student government and educational policy. The Faculty has consisted of the president of the University; the dean of the faculty (now dean emeritus); the deans of the three colleges of the University-liberal arts, agriculture, and technology; the deans of men and women; the professors, the associate professors, the assistant professors, the instructors of two or more years service; the director of the experiment station and the extension service; and the librarian, the registrar, the assistant to the president, and the treasurer. The Faculty has met regularly at the beginning of each semester and on the Friday preceding commencement day in June. Special meetings were provided for in the discarded constitution, but in recent years have been rarely held. Nine standing committees have been employed to recommend and in some cases to execute legislation, though in recent years because of the unwieldiness of the body, the committees have increasingly taken unto themselves both the business of making policy and of executing or of supervising its execution, usually with the approval of the president but seldom with the approval of the Faculty of which they were the agents. Their gradual assumption of power was never openly challenged but more because the Faculty as a whole was ignorant of the misuse of power than because of

Parliament and the British Empire: Some Constitutional Controversies concerning Imperial Legislative Jurisdiction

Parliament and the British Empire: Some Constitutional Controversies concerning Imperial Legislative Jurisdiction

Parliament and the British Empire: Some Constitutional Controversies concerning Imperial Legislative Jurisdiction

Parliament and the British Empire: Some Constitutional Controversies concerning Imperial Legislative Jurisdiction

Parliament and the British Empire: Some Constitutional Controversies Concerning Imperial Legislative Jurisdiction

Parliament and the British Empire: Some Constitutional Controversies Concerning Imperial Legislative Jurisdiction

In the Matter of Legislative Jurisdiction over Hours of Labour.

International Labour Organisation — Draft Convention — Duty of Members to Bring it before the Competent National Authority — Federal Constitution — Dominion of Canada.