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Adelaide
12-04-2013, 03:02 PM
Powers of Parliament (FEDERAL)


91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,


1. Repealed
1A. The Public Debt and Property
2. The Regulation of Trade and Commerce
2A. Unemployment insurance
3. The Raising of Money by any Mode or System of Taxation
4. The Borrowing of Money on the Public Credit
5. Postal Service
6. The Census and statistics
7. Militia, Military and Naval Service, and Defence
8. The fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada
9. Beacons, Buoys, Lighthouses, and Sable Island
10. Navigation and Shipping
11. Quarantine and Establishment and Maintenance of Marine Hospitals
12. Sea Coast and Island Fisheries
13. Ferries between any province and any British or Foreign Country or between two provinces
14. Currency and Coinage
15. Banking, Incorporation Banking, and the issue of paper money
16. Savings Banks
17. Weights and Measures
18. Bills of Exchange and Promissory Notes
19. Interest
20. Legal Tender
21. Bankruptcy and Insolvency
22. Patents of Invention and Discovery
23. Copyrights
24. Indians, and Lands reserved for the Indians
25. Naturalization and Aliens
26. Marriage and Divorce
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure of Criminal Matters
28. The Establishment, Maintenance and Management of Penitentiaries
29. Such classes of subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.





Exclusive Powers of Provincial Legislatures


92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,


1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of the Lieutenant Governor
2. Direct taxation within the Province in order to the raising of a Revenue for Provincial purposes
3. The borrowing of money on the sole credit of the province
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers
5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood therein
6. The Establishment, Maintenance and Management of Public and Reformatory Prisons in and for the Province
7. The Establishment, Maintenance and Management of Hospitals Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
8. Municipal Institutions in the Province
9. Shop, Saloon, Tavern, Auctioneer, and other licenses in order to for the raising of a Revenue for Provincial, Local or Municipal Purposes
10. Works and Undertakings other than such as are of the following Classes:
(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
(b) Lines of Steam Ships between the Province and any British or Foreign Country:
(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
11. The Incorporation of Companies and Provincial Objects
12. The Solemnization of Marriage in the Province
13. Property and Civil Rights in the Province
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and Criminal Jurisdiction, and including Procedure in Civil Matters in those courts.
15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any Classes of Subjects enumerated in this Section
16. Generally all matters of a merely local or private Nature in the Province.




Energy and Renewable Resources (92A), Education (93), Old Age Pensions (94) and Agriculture and Immigration (95) are long-winded and complicated but can be found here (http://laws-lois.justice.gc.ca/eng/const/page-4.html)



Miscellaneous Provisions


109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
121. All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.
125. No Lands or Property belonging to Canada or any Province shall be liable to Taxation.
132. The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.


Marginal note: Use of English and French Languages

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.



Thought it might be interesting for non-Canadians to see how we divide up the powers of Government based on the Constitution Act, 1867. Also, you'll note that there are certain parts that are fairly antiquated such as section 132 where we are "Part of the British Empire" with treaties with the "Empire" (which explains why we went to war a couple times when we really weren't 100% sold on it). I cut out some of the more boring portions of this section of our constitution, which are basically about our waters and canals considered property of the Government of Canada.

So, what do you think? How does this compare to the US Constitution when it comes to Federal versus State powers? I'm probably going to post another on the Bill of Rights versus our Charter of Rights and Freedoms. Takes time - I copied most of this out of my Constitutional law textbook, the rest from the source I cited further above which is a Government of Canada site.

Peter1469
12-04-2013, 03:10 PM
And because of the precise grammar used by the Canadians, there isn't much of an argument that powers are not clearly separated between the federal and state governments.

Adelaide
12-04-2013, 03:57 PM
And because of the precise grammar used by the Canadians, there isn't much of an argument that powers are not clearly separated between the federal and state governments.

So why doesn't the US outline powers more clearly?

Peter1469
12-04-2013, 03:59 PM
So why doesn't the US outline powers more clearly?

We could if we wanted to go through the amendment or convention process. If we did that we would likely have 7 different versions that are the real one. :smiley:

jillian
12-04-2013, 04:00 PM
So why doesn't the US outline powers more clearly?

because the point was not to rigidly adhere to some literal view of the document and to allow government to operate as it needed to within the broad perameters set forth by the document.

Adelaide
12-04-2013, 04:03 PM
We could if we wanted to go through the amendment or convention process. If we did that we would likely have 7 different versions that are the real one. :smiley:

7 different versions that are the real one? How do you mean?

Adelaide
12-04-2013, 04:06 PM
because the point was not to rigidly adhere to some literal view of the document and to allow government to operate as it needed to within the broad perameters set forth by the document.

Doesn't seem to be working out so well from what I'm hearing/seeing. You've got people who think the constitution means the states have all the power and then people who take a more moderate approach... is the document too vague?

Peter1469
12-04-2013, 04:07 PM
7 different versions that are the real one? How do you mean?

All that I mean is that if we open the Constitution to a rewrite, only to make the grammar modern, we would have lots of people insisting their "version" was correct.

Adelaide
12-04-2013, 04:09 PM
All that I mean is that if we open the Constitution to a rewrite, only to make the grammar modern, we would have lots of people insisting their "version" was correct.

That doesn't make sense to me. Is this like a pocket constitution thing?

Peter1469
12-04-2013, 04:10 PM
Doesn't seem to be working out so well from what I'm hearing/seeing. You've got people who think the constitution means the states have all the power and then people who take a more moderate approach... is the document too vague?

I don't think that anyone believes the states have all the power, it is the opposite. The main split is people who believe the states only gave the federal government power in the enumerated powers of Art. 1, sec. 8, US Const. versus the federal government has most if not all power.

Chris
12-04-2013, 04:11 PM
I think our division of powers is clear, but our political class likes to obfuscate and push boundaries.



Anyway, interesting OP.

I don't see any judiciary powers. (I started reading that book on Canadian law but) what are the powers of that branch of government.

It is interesting that "It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order and good Government of Canada". Could you explain that a bit. So if she decides a law is needed, she, what, submits it to parliament and they, on advice and consent, legislate it? What are some laws that have derived from the Queen?

Adelaide
12-04-2013, 04:14 PM
I don't think that anyone believes the states have all the power, it is the opposite. The main split is people who believe the states only gave the federal government power in the enumerated powers of Art. 1, sec. 8, US Const. versus the federal government has most if not all power.

Alright, but if you assume that everything not listed or covered is a state power, shouldn't that be documented somewhere with a list or something?

Peter1469
12-04-2013, 04:21 PM
Alright, but if you assume that everything not listed or covered is a state power, shouldn't that be documented somewhere with a list or something?


9th and 10th Amendments. Also, the states were sovereigns prior to the Constitution. The United States didn't exist. The Constitutional Convention was called by the states to create something that would provide more powers to the federal government- but not too much. The creation of the Constitution was the states ceding a limited amount of their sovereignty to the newly created federal government.

Peter1469
12-04-2013, 04:22 PM
Alright, but if you assume that everything not listed or covered is a state power, shouldn't that be documented somewhere with a list or something?

The only list was the enumerated powers ceded by the States to the federal government.

Adelaide
12-04-2013, 04:24 PM
I think our division of powers is clear, but our political class likes to obfuscate and push boundaries.



Anyway, interesting OP.

I don't see any judiciary powers. (I started reading that book on Canadian law but) what are the powers of that branch of government.

It is interesting that "It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order and good Government of Canada". Could you explain that a bit. So if she decides a law is needed, she, what, submits it to parliament and they, on advice and consent, legislate it? What are some laws that have derived from the Queen?

The Queen is ceremonial; she's represented by the Governor General who is a Canadian picked by the Prime Minister. Prior to probably the 50s it was always a member of the royal family or British peerage who held the seat of GG. He/she officially gives royal assent to laws passed by our government (ceremonial), can prorogue parliament when asked or forced, can call an election if a vote of non-confidence passes with a majority, and other things. Queen Elizabeth II is technically head of state and commander-in-chief but those powers come back to our government. She herself would never insert herself into our politics. Many existing portions of our constitution are antiquated and by the language and phrasing you can tell that they remain from BNA Act.

I guess the only example of a law that would be derived by the Queen that I can think of would be our high treason laws. But that's more necessity. Essentially, you commit treason against our country the same way you would in the US but an effort to kill our Queen or to wage war against her (which would technically include an attack on Britain, Australia and other 'true' Commonwealth countries that share our monarch) would be high treason and it depends on whether it's war or not or whether we are currently at war. It's complicated.

Peter1469
12-04-2013, 04:25 PM
That doesn't make sense to me. Is this like a pocket constitution thing?


Take the second amendment as an example. Is it a collective right, or an individual right?


"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Adelaide
12-04-2013, 04:29 PM
9th and 10th Amendments. Also, the states were sovereigns prior to the Constitution. The United States didn't exist. The Constitutional Convention was called by the states to create something that would provide more powers to the federal government- but not too much. The creation of the Constitution was the states ceding a limited amount of their sovereignty to the newly created federal government.

Those amendments aren't lists though - it's very non-specific. It seems as though your supreme court would have an immense amount of power in deciding what is or isn't a state/federal issue and given that the US Supreme Court is kind of politicized, that's a little scary to think about.

Peter1469
12-04-2013, 04:37 PM
Those amendments aren't lists though - it's very non-specific. It seems as though your supreme court would have an immense amount of power in deciding what is or isn't a state/federal issue and given that the US Supreme Court is kind of politicized, that's a little scary to think about.

The only list needed was what specific powers the states were giving to the feds. The states retain all other power. So if you don't see it in Art 1, sec 8, assume it is a state issue. I don't think that the Court has had a serious issue determining what is a state versus federal issue.

jillian
12-04-2013, 04:38 PM
The only list needed was what specific powers the states were giving to the feds. The states retain all other power. So if you don't see it in Art 1, sec 8, assume it is a state issue. I don't think that the Court has had a serious issue determining what is a state versus federal issue.

you're ignoring the commerce clause, the general welfare clause and the supremacy clause.

Adelaide
12-04-2013, 04:39 PM
The only list needed was what specific powers the states were giving to the feds. The states retain all other power. So if you don't see it in Art 1, sec 8, assume it is a state issue. I don't think that the Court has had a serious issue determining what is a state versus federal issue.

It just seems really vague. Easy to interpret differently.

Peter1469
12-04-2013, 04:45 PM
you're ignoring the commerce clause, the general welfare clause and the supremacy clause.

No I am not. First the General Welfare Clause is the entire list of enumerated powers along with the preamble to Art. 1, sec. 8. Second the supremacy clause basically says that if the states try to legislate in the enumerated powers, they are wrong, because the states ceded their authority to the feds in those areas. Lastly, the Commerce Clause is nowhere near as broad as it began to be interpreted as seen in the Obamacare case.

jillian
12-04-2013, 04:49 PM
No I am not. First the General Welfare Clause is the entire list of enumerated powers along with the preamble to Art. 1, sec. 8. Second the supremacy clause basically says that if the states try to legislate in the enumerated powers, they are wrong, because the states ceded their authority to the feds in those areas. Lastly, the Commerce Clause is nowhere near as broad as it began to be interpreted as seen in the Obamacare case.

that isn't how it's been construed. that's how the right wants it to be construed. general welfare means general welfare. that issue has been decided and is done and dusted.

as for the ACA i disagree wholeheartedly. roberts court was the first to diminish the bredth of the commerce clause... well, ever. these issues were fought during the civil war. and again after the new deal. it's time for the states' rights types to accept that we don't live under the articles of confederation and they lost the civil war.

i understand you don't like that and that you'd prefer a more limited federal government. but that isn't our system. it isn't what the constitution established. and it certainly isn't possible to allow any state to limit constitutional rights because they don't like the rulings of the federal bench and legislation that came down from congress.

Peter1469
12-04-2013, 04:55 PM
It just seems really vague. Easy to interpret differently.

Vagueness hasn't been the center of debate, at least not overtly. The big divide is between originalists (which really has two subdivisions) and "living document" types. Originalists basically believe that the Founders meant something with the words they wrote. The living document crowd says that times change and the meaning of the text must keep up. So they tend to agree with significant changes in what a particular clause means with no legal process. While Originalists believe that the documents in really mostly about timeless principles of good governance and if something must be changed, use one of the two procedures that were written into the document.

Peter1469
12-04-2013, 04:58 PM
The Roberts court was not the first to pull back on the powers of the commerce clause- I mentioned the case before.

Do you think the existing states would have ratified the Constitution had they thought they were ceding most of their sovereign powers to the federal government? There never would have been a United States in that case.


that isn't how it's been construed. that's how the right wants it to be construed. general welfare means general welfare. that issue has been decided and is done and dusted.

as for the ACA i disagree wholeheartedly. roberts court was the first to diminish the bredth of the commerce clause... well, ever. these issues were fought during the civil war. and again after the new deal. it's time for the states' rights types to accept that we don't live under the articles of confederation and they lost the civil war.

i understand you don't like that and that you'd prefer a more limited federal government. but that isn't our system. it isn't what the constitution established. and it certainly isn't possible to allow any state to limit constitutional rights because they don't like the rulings of the federal bench and legislation that came down from congress.