Wednesday, January 03, 2007

Daily Digest January 3, 2007

Joe Hueglin wrote:
The DAILY DIGEST: INFORMATION and OPINION from ST. JOHN’S to VICTORIA.

EDITORIALs

CHARLOTTETOWN GUARDIAN - Home ownership within reach
With Habitat for Humanity, no one has to leave dignity at the door
http://www.theguardian.pe.ca/index.cfm?sid=5240&sc=7

HALIFAX NEWS - Reserving judgment on urban reserves
http://www.hfxnews.ca/index.cfm?sid=10511&sc=7

HALIFAX HERALD - Justice tainted
http://thechronicleherald.ca/Editorial/550540.html

MONTREAL GAZETTE - Are CEOs really worth so much?
http://www.canada.com/montrealgazette/news/editorial/story.html?id=08c039ae-9524-4530-8672-27da55d073a1

OTTAWA CITIZEN - Paying debts, owing thanks
http://www.canada.com/ottawacitizen/news/editorials/story.html?id=1598a1e1-2f2a-4bb3-9be6-e63aed60e123

TORONTO STAR - New UN leader sets the right tone
http://www.thestar.com/opinion/article/167242

TORONTO SUN - Saddam's hanging a circus show
http://www.torontosun.com/Comment/Commentary/2007/01/03/3153113.html

LONDON FREE PRESS - Support for troops still strong
http://lfpress.ca/newsstand/Opinion/Editorials/2007/01/03/3153110.html

K-W RECORD - Saddam's death resolves nothing
http://www.therecord.com/NASApp/cs/ContentServer?pagename=record/Layout/Article_Type1&c=Article&cid=1167778214921&call_pageid=1024322168441&col=1024322320546

WINDSOR STAR - Green light: Party earns right to debate
http://www.canada.com/windsorstar/news/editorial/story.html?id=0d2f44a0-e0ab-44fa-8044-406da40496db

WINDSOR STAR - Playing waiting games
http://www.canada.com/windsorstar/news/editorial/story.html?id=60d25e96-c813-4e90-9778-f1e34ea07a03

SUDBURY STAR - Saddam's justice; Portrayal of Iraqi tyrant as a victim of inept trial laughable 
http://www.thesudburystar.com/webapp/sitepages/content.asp?contentid=342691&catname=Editorial&classif =

CALGARY HERALD - Urban reserves can be a win-win
Advantages to aboriginals escape majority of Canadians polled
http://www.canada.com/calgaryherald/news/theeditorialpage/story.html?id=3abcb971-74cb-49fa-afce-8ca2c329e50f

CALGARY SUN - Green deserves day
http://www.calgarysun.com/cgi-bin/publish.cgi?p=167433&x=articles&s=comment

EDMONTON SUN - Changing world
http://www.edmontonsun.com/Comment/Commentary/2007/01/03/3153102.html

LETHBRIDGE HERALD - Fitting end to dictator rings hollow still
http://www.lethbridgeherald.com/article_5428.php

Cowichan News Leader - Fertility rates mean a new Canada is coming
http://www.cowichannewsleader.com/portals-code/list.cgi?paper=9&cat=48&id=804678&more =

Cowichan News Leader - Our prime minister giving away the farm
http://www.cowichannewsleader.com/portals-code/list.cgi?paper=9&cat=48&id=804677&more =

VANCOUVER SUN - Superbug' scare surfaces again; your best defence is washing your hands
http://www.canada.com/vancouversun/news/editorial/story.html?id=18a8e5f4-e092-4fc4-b375-1bf886cecd1e

VANCOUVER PROVINCE - We hail passion of 'Saint Stephen' in battle against AIDS
http://www.canada.com/theprovince/news/editorial/story.html?id=bca99c7f-5dc8-4836-a44c-d28ea432f0ee


ISSUES

CANADIAN FORCES
Expect Canada’s Afghan mission to continue to make headlines
http://thechronicleherald.ca/Opinion/550596.html

Latest campaign a success, Canadian commander says
Brig.-Gen. credits Intelligence From Village Elders http://www.canada.com/nationalpost/news/story.html?id=eef88660-18ed-4cbb-8025-f4101c5b9f2c

Lives riding on wheels of war
http://www.thestar.com/News/article/167346

Civilians deaths in Afghanistan too high: official
http://cnews.canoe.ca/CNEWS/War_Terror/2006/10/27/2144823-ap.html

Relief worker makes waves
Former Sask. resident living in Afghanistan has military brass mad
http://www.canada.com/saskatoonstarphoenix/news/world/story.html?id=c763e2c4-37d6-4485-b174-526dfd0eb4c3


ECONOMIC AFFAIRS
Professor gives Canada failing grade for innovation
http://www.canada.com/montrealgazette/news/business/story.html?id=b162c86f-f64c-4805-9579-8a9c6438898f

Cow waste Processor Puts Gas In Pipeline
http://www.canada.com/nationalpost/financialpost/story.html?id=11b5ad0d-c203-4ab2-bc1b-e42925e8acf7

Quebec, Nova Scotia remove barriers to beer
http://www.canada.com/nationalpost/financialpost/story.html?id=24adece6-894d-4109-b810-5d188f00b451

Free trade long forgotten for Canadian lumber producers.
http://www.canada.com/topics/finance/story.html?id=7a8d1a01-75ad-438c-a68b-2f396992de7a&k=36589


FOREIGN AFFAIRS
Al-Qaeda refines its new fighting spirit
http://www.atimes.com/atimes/South_Asia/IA04Df02.html

Ignoring the real enemy in Iraq
http://www.atimes.com/atimes/Middle_East/IA04Ak07.html

More fuel on Iraq's spreading flames
http://www.atimes.com/atimes/Middle_East/IA03Ak01.html

Why Saddam should have lived
The hasty trial of the Iraqi dictator only further cheapened life in that country and proved a serious setback to the cause of international justice
http://www.canada.com/ottawacitizen/news/opinion/story.html?id=f3cf43a3-a600-40e2-9973-909a0a18e92c


HEALTH CARE RELATED
New debate emerges over stem cells
Use of 'fresh' embryos at centre of controversy
http://www.canada.com/nationalpost/news/story.html?id=d0b5dce4-5e06-4991-82f9-2a480d256de9

Threat returns later for ex-soldiers with stress disorder
http://www.theglobeandmail.com/servlet/story/RTGAM.20070102.hheart03/BNStory/specialScienceandHealth/home

New rules for Chinese meds
http://www.ottawasun.com/News/National/2007/01/03/3153409-sun.html


JUSTICE SYSTEM
Ruling may redefine family
Ontario court gives boy two mothers
http://www.canada.com/nationalpost/news/story.html?id=f0d64498-3fbb-43cc-940e-b2fc29e30736

Delays in terrorism trial a concern, judge asserts
http://www.theglobeandmail.com/servlet/story/RTGAM.20070103.wterror03/BNStory/National/home


POLITICS IN THE PROVINCES
Ontario gets access to training funds
Canada-Ontario Labour Market Development Agreement
http://www.theglobeandmail.com/servlet/story/LAC.20070103.NATS03-6/TPStory/TPNational/Politics/

Managing the Boom
A special five-part Herald series looks at the strains created by a red-hot economy
Frenetic pace seen as rivalling China's -
http://www.canada.com/calgaryherald/news/story.html?id=f9c86a52-42de-4a82-bc8c-ad32e63211b7


POLITICS
New poll suggests Conservatives, Liberals in political dead heat
http://www.macleans.ca/topstories/politics/news/shownews.jsp?content=n01039A

Truth might be a winner in 2007
http://www.thestar.com/opinion/article/167212

Election financing comes clean
http://www.thestar.com/columnists/article/167240

Rumours of shuffle teem in Ottawa
PM may fine-tune cabinet rather than try major overhaul
http://www.thestar.com/News/article/167371

Prentice's plate too full to take environment post, insiders suggest
http://www.canada.com/nationalpost/news/story.html?id=1896d2b4-7069-4b20-a406-9586e3fd3ed4

Dion moves key allies into top positions
http://www.theglobeandmail.com/servlet/story/LAC.20070103.LIBERALS03/TPStory/TPNational/Politics/

Dear Jim Flaherty ... 
http://www.canada.com/nationalpost/news/editorialsletters/story.html?id=27174c26-b5d2-4874-af06-75663e6cf7f0


PROGRAMMES
Wheat board battle a titanic ideological struggle
http://www.winnipegfreepress.com/westview/story/3829735p-4431039c.html

DND pushes quick plane deal
http://www.theglobeandmail.com/servlet/story/RTGAM.20070103.waircraft03/BNStory/National/?cid=al_gam_nletter_newsUp

Ottawa seeks advice on green plan
http://www.theglobeandmail.com/servlet/story/RTGAM.20070103.wshuffle03/BNStory/National/home

Politicians must make the environment a top priority
http://www.winnipegfreepress.com/westview/story/3829736p-4431045c.html


PRESSURE POINTS
New CWB Boss Issues Statement
http://www.discovermoosejaw.com/index.php?option=com_ezine&task=read&page=11&category=3&article=1340&Itemid=237

RCMP spent $5 million on Arar affair: report
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20070103/Maher_arar_070103/20070103?hub=Canada

A lesson in respect
http://www.torontosun.com/News/Columnists/Copps_Sheila/2007/01/03/3153120.html


OPINION AND INFORMATION
Canadian sitcom: Allah in the family
http://ca.news.yahoo.com/s/reuters/070103/canada/canada_canada_sitcom_col

An all-too familiar tune
http://www.thestar.com/opinion/article/167213

Conservatives' accountability act has failed Canadians
http://www.therecord.com/NASApp/cs/ContentServer?pagename=record/Layout/Article_Type1&c=Article&cid=1167778214924&call_pageid=1024322168441&col=1024322597709

Junk-food ban, booster seat law long overdue
http://thechronicleherald.ca/Opinion/550456.html

On the road to Epiphany
http://thechronicleherald.ca/Opinion/550539.html


INFOS

Des rumeurs de remaniement ministériel circulent sur la colline parlementaire
http://mesnouvelles.branchez-vous.com/Nationales/070102/N010274U.html

Autre achat sans appel d'offres?
http://www.radio-canada.ca/nouvelles/National/2007/01/03/002-avion-spartan-ottawa.shtml

Guerre en Afghanistan - Les principaux objectifs de l'opération Baaz Tuska ont été atteints
http://www.ledevoir.com/2007/01/03/126272.html

Sortons nos troupes offensives d'Afghanistan
Le Nouvelliste
Après cinq années d'intervention militaire en Afghanistan, le bilan demeure désastreux. Les insurgés et les talibans regagnent du terrain et de l'influence partout dans le pays. Human Rights Watch estime que 60 % du Parlement afghan est constitué d'anciens seigneurs de guerre. L'insécurité de la population grandit et le nombre de victimes civiles n'a jamais été aussi élevé. http://www.cyberpresse.ca/article/20070103/CPOPINIONS/701030625/1025/FRONTPAGE

Rester en santé pour travailler à sa retraite
http://argent.canoe.com/lca/infos/canada/archives/2007/01/20070103-123113.html


BELOW(30)(30)(30)(30)(30)30)(30)(30)(30)(30)(30)30)(30)(30)(30)(30)(30)30)(30)(30)(30)(30)(30)(30)(30)(30)30)(30)(30)(30)(30)30)30)(30)(30)(30)(30)(30)(30)(30)

On the road to Epiphany
        
        In Egypt, Coptic Christians, like their Orthodox brothers and sisters in the faith, will also celebrate Christmas this week. They’ll commemorate
        not just the birth of Jesus and the voyage of the wise men, but also the journey of the holy family from Bethlehem into Egypt, where they fled to       escape Herod’s persecutions. They’ll celebrate Christmas on the road, honouring the Christ child as a traveller, too.

        As tired as I am of sweeping up spruce needles, I’ll practise solidarity with Orthodox and Coptic Christians by leaving my Christmas decorations
        up for another few days http://thechronicleherald.ca/Opinion/550539.html

         Yesterday a nurse at Sunnybrook Hospital was doing pre-surgery tests on Aase.  One involved attaching many tabs to her.  The nurse was of East Asian
         origin.  The many tabs made me think of how Brahman is seen as having many emanations - I asked if she was Hindu.  "No, Muslim" was the reply.

        My next question, "Sunni or Shia?" "Shia', she said "A follower of the Aga Khan"

        Why do I relate this to you? Well, the article "On the road to Epiphany" points out that for Orthodox and other Christians the celebration of the birth of the Christ
        is not yet come. This led me to reflect that the views held by many on Moslems are largely based on TV clips and ought to be balanced by reality.

        What is reality? All religions have those who are followers of light (Ahura Mazda) and of darkness (Ahriman) in relationships with those differing from their views.

        The woman with whom I spoke is a follower of light as shown by the following news release in which her spiritual leader and the leader of our country shared a  podium in the process of establishing in Canada that for which we as Canadians all ought to welcome with humble pride.

        I bet you few are aware, and I was not until to-day, that Canada was chosen to be where the Global Centre for Pluralism is being established.

                  Joe
____________________________________________________________________________________
Canada’s New Government joins with the Aga Khan to create the Global Centre for Pluralism
http://www.pm.gc.ca/eng/media.asp?category=2&id=1381


25 October 2006
Ottawa, Ontario

PLEASE CHECK AGAINST DELIVERY

Good afternoon ladies and gentlemen.

Thank you Minister Oda for your kind introduction.

And thank you Rahim for all your work in making this day possible.

Your Highness, honoured guests and colleagues, I extend a warm Canadian welcome on this important occasion. 

This day has been a long time coming.

On behalf of Canada’s New Government, it gives me great pleasure to announce Canada’s partnership with His Highness, the Aga Khan, in creating the Global Centre for Pluralism.

In addition to making a substantial financial contribution to the centre’s endowment fund, the government also intends to conclude a lease agreement making the former home of the Canadian War Museum the world headquarters for the centre.

In a way, I suppose, we are beating swords into ploughshares.

This fine national heritage building is on historic Sussex Drive.

Its neighbours include the embassies of several of the world’s most important countries, the Prime Minister’s and Governor General’s residences, our magnificent National Art Gallery, The Royal Canadian Mint, and most appropriately, the soon-to-be-completed delegation of The Ismaili Imamat.

I think I can speak for all the neighbours in welcoming the Global Centre for Pluralism to our neighbourhood.

Just as I can speak for all Canadians in welcoming the centre to our country.

We are honoured that His Highness, leader of the world’s Ismaili Muslims, and one of the world's best known philanthropists, has chosen Canada as the home of this global institution.

Honoured, but not surprised.

The Aga Khan once described Canada as “the most successful pluralist society on the face of our globe.”

Canadians wear that label with pride, Your Highness. Pluralism is not merely an ambition or ideal for Canadians.

We actually walk the talk.

Pluralism is the principle that binds our diverse peoples together.

It is essential to our civil society and economic strength.

It evolved out of our foundational values:  freedom, democracy, human rights and the rule of law.

Generations of immigrants from all over the world have found peace and prosperity here.

They have found equality of opportunity, appreciation for differences and openness to change.

They have found a country in which where you’re going and what you’ve done matters more than where you’re from or who you know.

A country where people from every conceivable cultural background have bonded together to create one of the most diverse, harmonious and successful societies on earth. 

Most of the world's nations are, like Canada, composed of diverse ethnic, cultural, linguistic and religious populations.

But too many are ruled by regimes which achieve political hegemony by fostering division and strife among their different communities.

They play favourites, rewarding some groups and ignoring or punishing others.

Their policies fuel domestic instability and conflict. Taken to the extreme, this can lead to civil war or even genocide.

Successful pluralist societies foster the equal participation of all people in political, economic, educational and socio-cultural life.

Pluralism allows individuals to retain their cultural, linguistic and religious heritage within a framework of shared citizenship.

It starts at the grassroots level, with healthy families and healthy neighbourhoods.

Children of different cultural backgrounds strike up friendships on playgrounds and sports fields, and their parents build relationships through community groups and business associations.

Preserving the ethno-cultural traditions that so enrich our society is the right of all individuals in the context of their families, religious congregations and cultural associations, and does not, in and of itself, detract in any way from our shared Canadian citizenship.

Hosting the Global Centre for Pluralism can only complement our efforts to advance the values of freedom, democracy, human rights and the rule of law, and make them the common destiny of all people everywhere.

I believe very strongly that Canada has much to share with other countries in their efforts to achieve and preserve harmony among diverse cultural groups.

This institution will serve the global community as an international centre of excellence for the study, practice and teaching of pluralism.

It will export the successful models of pluralism to other countries.

Canada's decision to support this new institution builds on the productive collaboration that Canada and the Aga Khan Development Network have enjoyed for over two decades. 

We are working together on projects around the world, including in Afghanistan, where Canada is funding community-based, integrated rural development in four provinces.

The Global Centre for Pluralism will only deepen and enrich this partnership there and around the world. 

And now it is my great honour to offer the podium to one of the world’s great philanthropists, a man who has dedicated his life to the promotion of peace, and who is a beacon of hope and good will toward all humanity. His Highness the Aga Khan.

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Ron Thornton

Hi Joe:

From the January 2 D.D., I notice that Bob Taubman is afraid of Harper and Co. decentralizing the Canadian government.  Bob points out that our founding fathers envisioned something different for Canada.  My first thought was that we needed were some new founding fathers.  Central Canada is far too dominating in this nation, as there are more than a few of us who see Canada as 10 equal provinces along with three territories, rather than 2 super states and a bunch of colonial dwarves.  Of course, Sir John A. and company gave us that mistake early, with Ontario (82 MPs, 24 Senators) , Quebec (65 MPs, 24 Senators), Nova Scotia (19 MPs, 12 Senators), and New Brunswick (15 MPs, 12 Senators), and this concentration of power in Central Canada on a federal level has remained unequal and unbalanced.  Somewhat like our good first PM was from time to time on the floor of the House.

Bob hates to think what our nation would be like if the Conservatives ever got a majority.  I hate to think of the result if they do not.

Ron.

===================================
Stephen(dot)Leacock
c/o Ed E.Trebor
http://stephenleacock.blogspot.com/

Ain't the DD's compilation of news and comment just about the best there is?

Niagara Joe has his pets, peeves and projects like the rest of us, but he often is ahead of the crowd and many times Socratic- ly engages us with questions-for-comment.

In this case, 'our Joe', (just after including Mr. Bob Taubman's excerpt from , "Dixie and the Dominion, Canada, the Confederacy, and the War for the Union", by Adam Mayers. "For Brown [of the Globe and Mail], this states' rights was "a great evil" and so the Canadians should ensure that any "implied" (ed. we call it residual) power rested with the federal government. The Civil War had proved this all too well. In the Canadian model there could never be a civil war, because there would be no basis to secede: the federal government would control the whole nation. ..." ) posed

"Two questions at this point:
(1) what do you believe was the "original deal" (struck in the British North American Act);
(2) what competencies/powers/jurisdictions ought to be transferred to the provincial governments and limitations placed on the federal?"

Word for consideration:
su·ze·rain
1.a sovereign or a state exercising political control over a dependent state.
2.History/Historical. a feudal overlord. –adjective
3.characteristic of or being a suzerain.

su·ze·rain·ty
1.the position or authority of a suzerain.
2.the domain or area subject to a suzerain.

IMHO, much discussion on the 'original 1867 intentions', (muddled and muddied by several, subsequent UK Privy Council decisions) can be avoided if the student of today starts with an examination of the Distribution of EXECUTIVE Powers in Canada i.e. in contrast to the written (and amended) BNA1867, Part VI, ss.91-95, Distribution on LEGISLATIVE Powers - NB make sure your reference copy has s.93A.)

This same student will see that there never was written and never has been any distribution of Executive Powers.

The only changes to the Executive Powers in Canada since 1867 are the Letters Patent 1947, re-stating the BNA1867, s.12 powers of the Governor General to Act on behalf of the Monarch-in-Council (also adding the role as Commander-in-Chief to reflect the independent foreign policy granted by the Statute of Westminster in 1931) and the Canada Act 1982,( U.K.) 1982, c.11 that excised the power of the UK Lords & Commons over Canada.

In other words, notwithstanding any prevarications, mis-informations or dis-informations that were widely circulated regarding " patriation" in 1982, TODAY, the Monarch still holds all the ultimate power and the Executive is just as superior to the Legislative as in 1867.

The Monarch (as an individual) holds suzerainty over Canada, albeit with most of those powers delegated to the Governor General (as an individual)

The General/Dominion government, through the Governor General IN COUNCIL holds suzerainty over the provinces.

Don't feel badly if this seems awkward or wrong ... with same-day news about Parents without children and Children with 3 parents - it's truly no wonder 21st Century Canadians cannot figure out what the 'Fathers' of Confederation intended.

Also, IMHO, until Canadians get a handle on how NOT-equal-to-the Dominion gov't the provinces are, (never mind the blatant inequality of their sizes, strengths, histories and futures) there is no point talking about transferring legislative powers.

S(dot)Leacock

Specifically,

-The Monarch is the Sovereign and the source of all Authority(s.9)
-The Monarch is the 'highest' office within our triune "One Parliament" s.17
-The Gov General holds all the Monarch's powers (save s.56's Imperial 2 yr Disallowance and the s.26 'GST senator' appointment-on-the-GG's-recommendation power) (s.12, Letters Patent)
-The Gov Gen chooses, appoints, removes members of the Executive's Privy Council s.11
-The Gov Gen assents to all of the General/Dominion/Federal Government's Bills and Orders
-The Gov Gen may withhold assent or reserve any Bill (s.55) "as an individual"(s.12)
-The Gov Gen appoints the Senators
-The Gov Gen must recommend any "Money" Bill before the Commons can adopt or pass such a measure (s.54)
-The Gov Gen IN COUNCIL (i.e. "by & with" the advice of the Privy Council for Canada s.13 ) appoints the Lieutenant Governors
-The Gov Gen IN COUNCIL may disallow any provincial Bill within 1 yr. (s.90)
-The Lt Governors assent to all provincial Bills & Orders and may withhold assent or reserve any Bill ( s.90) "as an individual"(s.65)

Nowhere in the BNA/Constitution sections concerning the Executive is there one reference to Prime Minister, since that office is a creation of the House of Commons and the only source of that Office's power.

--
Stephen(dot)Leacock
c/o Ed E.Trebor
http://stephenleacock.blogspot.com/

===================================
Real Gagne

Joe:

Regarding your questions in the January 2nd Daily Digest, I have a question:

"Why not follow the Constitution we already have?

As it has been amended from time to time, it seems to me lay out pretty clearly the roles and responsibilities of each order of government.  Why not live up to its provisions?

Real

=====

. . . indeed "follow the constitution we have" but according to which
interpretation thereof?

        Joe
____________


History

http://en.wikipedia.org/wiki/Canadian_federalism

The relationship between Canada and the provinces has changed throughout time, with an increasing amount of decentralization taking place as years passed. Throughout the Macdonald era (1867-1873, 1878-1891), the Confederation was such that it has been described by political scientist Rand Dyck as "Quasi-Federalism". This meant that the political and judicial elites of the 19th century read the Constitution of Canada in a way that gave the federal Parliament extensive powers that essentially made the provinces "subordinate to Ottawa." The Macdonald government's use of disallowance and reservation also reinforced the supremacy of the federal government at that time.

With the election of Sir Wilfrid Laurier came a new phase of Confederation that Dyck refers to as "Classical Federalism". This was marked by a more equal relationship between the federal government and the provinces, as the Judicial Committee of the Privy Council settled several disputes in favour of the latter. The federal government also allowed its disallowance and reservation powers to fall into disuse. This style of governance continued throughout the early years of the leadership of Prime Minister William Lyon Mackenzie King (although legislation from Alberta was disallowed in the 1930s).

During the two world wars, Ottawa expanded its powers greatly. This was done through the War Measures Act and constitutionally justified by the peace, order and good government clause. During the First World War, Parliament increased its taxation powers by establishing income taxes. Finally, during the Second World War, the federal government convinced the provinces to transfer jurisdiction over unemployment insurance to Ottawa.

Canada emerged from the Second World War with more association or cooperation between federal and provincial levels of government. This owed to the rise of the welfare state and the health care system (as the Canadian government acted to ensure that Canadians as a people had some common quality of service), to the fact that many of the jurisdictions of the two levels of government were closely related, and to the fact that this allowed the federal government to retain a great deal of control that they had enjoyed during World War II. Keynesian economics were also introduced by the federal government through this system. The period was also marked by a number of First Ministers meetings (ie., meetings between the prime minister and the provincial premiers).

After 1960 and Québec's Quiet Revolution, Canada moved toward a greater degree of administrative decentralization, with Quebec often opting out of important federal initiatives, such as the Canada Pension Plan (Québec created its own pension plan). As the federal government became more centralist in ideology (under the leadership of Prime Minister Pierre Trudeau, Canada entered a stage of "conflictual federalism" that could be said to have lasted from 1970 to 1984. The National Energy Program sparked a great deal of bitterness against the federal government in Alberta; indeed, the federal government was also involved in disputes over oil with Newfoundland and Saskatchewan at this time. (These culminated in the addition of section 92A to the Constitution Act, 1867, by the Constitution Act, 1982; the new section gave the provinces more power with regard to these resources). [2]

The Progressive Conservative Party of Canada under Joe Clark and Brian Mulroney favoured devolution of powers to the provinces, culminating in the failed Meech Lake and Charlottetown accords. After a merger with the heavily devolutionist Canadian Alliance, the new Conservative Party of Canada under Stephen Harper has continued the same stance.

After the 1995 Quebec referendum on sovereignty, Prime Minister Jean Chretien became interested in repairing Canadian federalism by establishing a "social union." In 1999, the federal government and all provincial governments except Quebec's agreed to the Social Union Framework Agreement, which promoted common standards for social programs across Canada. [3]

_____________________________________________
Theories and Interpretation of the Constitution Act, 1867
http://www2.marianopolis.edu/quebechistory/federal/interpret.htm

Claude Bélanger,
Department of History,
Marianopolis College

The courts have followed a certain number of principles in interpreting the Constitution Act and other statutes. These are: 1) The meaning of a statute is primarily to be obtained from the words of a statute and not from what might have been said in the Legislature when the statute was discussed. 2) If the words of a statute are ambiguous, recourse should be had to the context and scheme of the Act. 3) That in the case of continued ambiguity, reference may be made to the surrounding circumstances existing when the statute was adopted. 4) That where the provisions of a statute are in apparent conflict, the conflicting provisions must be read together and a reasonable reconciliation must be made. Thus, there is an initial assumption that the two sections of a statute are not in contradiction. 5) That the parliamentary history (such as the various drafts) of a statute is not to be used to explain its meaning. 6) That, nevertheless, the court may use historical knowledge in construing the meaning of a statute, but can only attach relative importance to it. 7) That the powers granted the federal and provincial governments, between them, are exhaustive. There is no legislation that cannot be passed by one or the other. This last point is not valid since 1982 when a Charter of Rights was included in the Canadian constitution.

Courts are also aided, in reaching their decisions, by the doctrine of Stare Decisis (jurisprudence). Particular interpretations that have been tested over a period of time and have been held valid constitute a strong presumption that a similar statute presented to a court will be held valid. For the purpose of the good functioning of Society it has been thought unwise for courts to reverse trends of decisions that have been tested by time. In practical terms, a lower court is always bound by the decision of a higher court and by its own decisions. Binding jurisprudence only exists when a majority of a Court has clearly pronounced.

In the course of interpreting the Constitution of Canada, the Judicial Committee of the Privy Council and the Supreme Court of Canada have given birth to many doctrines of constitutional interpretation. The most important are: 1) The ancillary powers; 2) Double aspect; 3) Emergency; 4) National dimensions; 5) Two compartments doctrine; 6) Three compartments doctrine; Four compartments doctrine; 8) The Living tree analogy; 9) Paramountcy; 10) Watertight compartments doctrine.

Ancillary powers: Powers granted to the federal and provincial governments are said to be mutually exclusive (see the introductory and concluding paragraphs of s. 91 and the introductory paragraph of s. 92). Ancillary powers are powers that are necessarily incidental. Governments may legislate on matters that normally fall under the jurisdiction of the other level of government if such legislation is only incidental and absolutely necessary to render the legislation efficient. For example, the J.C.P.C. sustained the validity (see G.T.R. v. A.G. Can. 1907) of federal legislation prohibiting railways under federal jurisdiction from contracting out of liability to their employees for personal injuries. The court felt that such legislation was necessarily incidental to the powers of the federal government to regulate railways despite the fact that it dealt with a civil rights issue that normally would be under provincial legislation.

Aspect doctrine: The Constitution Act, 1867, contains no interpretation section to assist the courts in defining the range of matters bound up in each class of subject contained in sections 91 and 92. By the Constitution Act, 1867, the two levels of government were given the authority to legislate "in relation to matters" falling within various "classes of subjects". The content of these classes had to be determined by the courts. In Hodge v. the Queen (1883) it was determined that subjects which in one aspect and for one purpose fall within s. 92 of the Constitution Act, 1867, may for another aspect and purpose fall within s. 91. It thus becomes necessary for the courts to determine the aspect of legislation, its pith, substance, character and purpose to see if a particular legislation "comes within" section 91 or 92. Each legislation may have a double aspect: it may be legislation "affecting" or "in relation to" a specific subject matter. For example, the federal government is permitted to pass legislation "affecting" property and civil rights (after all, legislation of a repressive character does incidentally affect civil rights) but not legislation "in relation to" civil rights.

Emergency doctrine: (see Emergency Federalism) Under "Peace, Order and good Government," the federal government may pass legislation that overrides the terms of s. 91 and 92 when an emergency such as war, pestilence or famine exists. Such circumstances must be exceptional and are necessarily temporary in nature.

National dimensions doctrine: Theory sustained in the last generation by he federal government that stipulates the federal legislation enacted to deal with problems that have a "national dimension" should be held valid by the courts under "Peace, Order and good Government" even if it infringes upon provincial subjects of jurisdiction. The theory has received some recognition from a minority on the Supreme Court in particular in the Anti-Inflation case of the 1970’s.

Two compartments doctrine: In the terminology used originally by the Judicial Committee of the Privy Council, there were only two possibilities or "compartments" for the division of powers between the federal and provincial governments. Once the possibilities of s. 92 were exhausted, there was no need to go any further since all jurisdiction not given specifically to the provinces falls automatically under the "Peace, Order and-good Government" clause. In this interpretation, the 29 categories listed under s. 91 had no independent vitality and were only included, as the preamble states "for greater certainty" to illustrate the type of powers not given to the provinces by s. 92.

Three compartments doctrine: By the end of the 19th century the J.C.P.C. began to depart from the two compartments doctrine. In the Local Prohibition case (1896) the court introduced the doctrine of three compartments to interpret the division of powers in the Constitution Act, 1867. There was first s. 92. If a specific subject of jurisdiction did not fall under s. 92, then did it fall under the enumerated classes of s. 91? If it did not, then it would fall under the Peace, Order and Good Government clause and be federal. In this interpretation, the residual clause had a purely supplementary character. The listed subjects of jurisdiction of s. 91 had to compete with those of s. 92 with the residuary clause functioning as a small compartment for "leftovers." This decision marked the end of the federal judicial predominance that had been based on a wide interpretation of the preamble to s. 91.

Four compartments doctrine: From 1896 on, there evolved in the J.C.P.C. a new vision which would ascribe to s. 91 and 92 not three, but four compartments. These were:

1- section 92, ss. 1-15

2- section 91, ss. 1-29

3- the residuary clause under s. 91

4- section 92-16 "generally all matters of a merely local or private nature in a province."

A rather important number of subject matters has been deemed to fall under this fourth compartment; in particular: local prohibition, certification of unions, insolvency of local governments, professional association, etc. (for a list and reference to specific

cases see W.H. McConnell , Commentary on the British North America Act, pp. 287-288.

The Living Tree Analogy: In the early 1930's, the J.C.P.C. briefly discarded the literal interpretations that it had, earlier, given to the Constitution Act, 1867. The occasion was the famous persons case when women were declared "persons" and thus capable of sitting in the Senate. On this occasion, Lord Stankey wrote: " The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention: Canadian Constitutional Studies, Sir Robert Borden (1922), p. 55. Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire - to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dminion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs." This view was very favourable to enlarge the powers of the federal government and has been quoted extensively by Canadian centralists.

Paramountcy: The aspect doctrine inevitably led the courts to elaborate the doctrine of federal paramountcy. Since the two levels of government can make laws in relation to certain subject matters that in one aspect and for one purpose might be federal while in another aspect and for another purpose it might be provincial, it became imperative to work out a way of resolving the dilemma that would occur if the two legislations clashed. The courts have held that in such a case the federal law would be paramount (would win). Article 95 of the Constitution Act, 1867, also stipulates that federal legislation in the fields of agriculture and immigration has priority over the provincial legislation in these fields. Conversely, article 94A provides for provincial paramountcy over old age pensions.

Waterthight Compartments doctrine: In 1937, in deciding the issue of the constitutionality of Bennett's New Deal, Lord Atkin of the J.C.P.C. declared that the mere assumption by Ottawa of an international obligation under a treaty (the federal government had signed international agreements regarding the working conditions of labor and had claimed that the power to sign treaties necessarily implied the power to implement them) did not alter the distribution of powers in the Constitution. He added: "While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure."

© 2001 Claude Bélanger, Marianopolis College

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