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

Moreover, by framing the problem in this manner, the judiciary will most likely tend to defer to the judgment of the political branches. The judiciary is ill suited to make an assessment of whether a particular social or economic problem is one of national as opposed to local significance. By choosing to enact legislation, Parliament or the provinces are reflecting the view of the policy makers in government that a particular problem merits their attention. How are the judges to disagree with the judgment of the legislators on this issue? By what right or mandate can the judges require that their opinion as to whether a particular problem is local as opposed to national be substituted for that of elected politicians? Precisely because there is no legitimate or widely acceptable answer to such a question, the aspect doctrine is a device that will inexorably pull the judiciary in the direction of upholding the validity of legislation enacted by both Parliament and the provin!

PART FOUR, THE COURTS AND CANADIAN FEDERALISM

It was obvious to all political leaders in Canada that fundamental changes were urgently required in the fiscal and constitutional framework of the country if the Canadian state was to be able to respond to the challenges posed by the Depression. In 1938 the federal government initiated discussions with the provinces over a constitutional amendment transferring exclusive jurisdiction over legislation on unemployment insurance from the provinces to Parliament. The provinces unanimously agreed to the transfer, although Quebec had been initially reluctant, and the amendment to the BNA Act was enacted by Westminster in 1940. But piecemeal reforms were clearly insufficient to deal with the crisis facing the Canadian state. In 1937 the federal government appointed the Rowell-Sirois Commission to undertake "a re-examination of the economic and financial basis of Confederation and of the distribution of legislative powers in the light of the economic and social developments of the!

education, recreation and sports, health, tourism, regional development, and the environment), federal involvement is based on the exercise of the spending power.

This chapter begins with an overview of the manner in which the JCPC interpreted the division of legislative powers in sections 91 and 92 of the 1867 Act up until 1949. I also explain how this body of jurisprudence contributed to a fiscal and constitutional crisis that emerged in the 1930s, a crisis that forced governments at both the federal and the provincial level to begin to search for new solutions. Finally, I anticipate the analysis of subsequent chapters by tracing the manner in which governments since 1949 have

He concluded that the national interest demanded recognition of federal authority in this area. [Note 27: Canada (A.G.) v. Alberta (A.G.) (1913), 48 S.C.R. 260 at 274.]

The point to be made here is more general. Canadian federalism in 1997 is radically different from that in 1949. The largest difference is the obvious growth in the size and scope of government. But a related difference is the fact that both levels of government are playing a role in most of the new social and economic policy fields that have emerged over the past fifty years. In Canada in the 1990s the watertight compartments that were idealized by the Privy Council have been supplanted by a norm of shared and divided jurisdiction. Wherever government is active - whether it involves stimulating the economy to overcome shortfalls in aggregate demand, regulating markets to protect consumers, imposing environmental controls, or retraining workers- both levels of government argue that they have a legitimate role and have a range of policy instruments at their disposal. [Note 28: For a general discussion that makes these points, see G. Stevenson, "The Division of Powers in Can!

Some common words found in the essay are:
Privy Council, Constitution Act, Montague Smith, Barnes Peacock, Expensive Chief, Public Policy, Allaire Report, Privy Council's, Lord Watson, Quebec Significantly, privy council, 1867 act, civil rights, trade commerce, property civil rights, property civil, canadian federalism, division powers, levels government, 91 92, aspect doctrine, sections 91 92, courts canadian federalism, constitution act 1867, trade commerce power,
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