Constituituinal Law

A. INTRODUCTION

Sir John A. Macdonald believed that the Constitution Act, 1867, had been drafted in such a manner as to ensure that "'all conflict of jurisdiction' had been avoided" and that the courts would therefore assume a relatively minor role in the evolution of Canadian federalism. [Note 1: As quoted in W.P.M. Kennedy, "The Interpretation of the British North America Act" (1943) 8 Cambridge L.J. 146 at 151.] Sir John A.'s prediction proved to be wildly off the mark. In part this change was a product of the fact that the language used in the 1867 Act, although apparently clear to its drafters, turned out to be ambiguous and open ended in practice. But, more significantly, the division of responsibilities envisaged by the drafters of the 1867 Act was structured to respond to an era in which government played a modest and limited role. Within a matter of decades, the entire conception of the role of the state in Canada had changed, with governments being called upon to intervene in areas !

of economic regulation and social policy that were simply unknown in 1867. The drafters of the 1867 Act had failed to address the question of how these new roles and responsibilities should be shared between

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Most significant social and economic problems are multi- faceted and have both local and national impact. The twentieth century witnessed a dramatic expansion in the role of government, with the state assuming responsibilities in social and economic policy that would have been unheard of in 1867. ] providing administrative arrangements for specifying a minimum wage, [Note 16: The Minimum Wages Act, S. The provinces have power to regulate trade within the province, while Parliament has power to regulate trade between provinces or with foreign states. " Lord Watson acknowledged that it was possible that certain matters "in their origin local and provincial, might attain such dimensions as!

to affect the body politic of the Dominion," and in such instances Parliament could rely upon POGG. Bennett's government put forward a significant legislative package, including legislation regulating hours of work, [Note 15: The Limitation of Hours of Work Act, S.

In the Local Prohibition Reference Lord Watson clearly opted for the latter, narrower view. ) For the JCPC, any open assessment of the relative importance of a particular statute, or of its necessity to the economic and political life of the nation, was anathema. ]

If the provinces have exclusive power to enact laws dealing with civil rights, then, the JCPC reasoned, it must follow logically that Parliament lacked such power. ] was the first watershed in the attempt by the Privy Council to narrow the scope of federal POGG power. This overlapled to a growing recognition that no single level of government can deal comprehensively with most of the major social and economic problems facing government today. If a federal law is in pith and substance in relation to a federal head of power (or a provincial law in pith and substance in relation to a provincial head of power), then the law may have incidental effects on other matters that fall within the jurisdiction of the other level of government without thereby being rendered invalid. Under this doctrine, the court determines the pith and substance of a law by ascertaining its main or dominant feature.

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