Vaughan, Cairns

1
Vaughan, Cairns Russell

• After 1949 many academics condemned JCPC for
  bad jurisprudence, and decentralist tendencies.
• Browne defended JCPC as applying correct rules of
  construction.
• 1971 Alan Cairns defended results of JCPC
  decisions from a sociological perspective

• Peter Russell defended JCPC results from a
  balance perspective, pointed out Fathers of
  Confederation had differing views
• Vaughan claims Browne, Cairns and Russell are all
  wrong BNA Act was centralist, and JCPC guilty of
  bad jurisprudence

2
Vaughans argument

• G.P. Browne argues that the JCPC was correct in
  determining that there are 3 bases of power
  POGG, list in s. 91, and s. 92.
• Vaughan there are really just 2 (POGG s.91
  list are inseparable), and so JCPC was wrong.
• Browne JCPC followed stare decisis.

• Vaughan JCPC did not consist of fools or
  knaves, but politicians attempting to enunciate
  a basis for provincial legislative authority.
• JCPC ignored the intent Fathers of Confed., who
  created a centralist state in reaction to U.S.
  Civil War.

3
Section 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, 29 enumerated heads

• deeming paragraph
• 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.

4
Vaughan (continued)

• Danger of judges becoming legislators (eg.
  Persons case Edwards v. A-G for Canada,
  1930). Living tree. large and liberal
  interpretation for constitution
• Cairns rules of statutory construction are
  little more than a grab bag of contradictions.
  Vaughan JCPC smarter than to trip over vague
  rules of construction. The judges had a
  deliberate strategy in mind.

• Vaughan criticizes Russells approach in the case
  book from which your cases are taken says
  Russell too sympathetic to decentralists.
• Vaughan claims most fathers of confederation
  wanted a unitary state. Couldnt get it because
  of objections in Quebec settled for a
  quasi-federal state.
• Vaughan examined transcripts of JCPC hearings
  JCPC knew what it was doing politically.
• JCPC judges are the real Fathers of Confederation

5
Cairns Russell

• Cairns Criticizing JCPC had become
  thought-stifling conventional wisdom.
• Doesnt agree with JCPC reasoning, but thank
  goodness for the results.
• Russell JCPC read classical federalism into BNA
  Act

• Fathers were not united in their views.
  Vaughans claim of original intent is too
  simplistic.
• Russell will approve activism if based on
  principles that embody the wisdom of collective
  experience. eg. Duff in Alta Press case
  (freedom of expression is life breath of
  democracy), and Dickson in Hauser.

6
John Saywell The Lawmakers (2002)

• John Saywell distinguished York history
  professor.
• The Watson Era (1889-1912)
• Born 1827, Scotland
• Civilian lawyer didnt have reputation as
  brilliant lawyer
• Supported Conservatives
• Solicitor general in 1874
• 1876 MP for Aberdeen Glasgow universities
• 1880 Scots Lord of Appeal in House of Lords
• Member of JCPC for civil law appeals from Quebec
• 1888-1899 the Canadian specialist on JCPC

• Watson
• Said he believed in applying rules of statutory
  interpretation strictly
• In practice, indulged in wide-ranging
  conclusions and speculations about language,
  history, intentions and policy
• Impressed by arguments of Blake, the lawyer for
  Ontario
• St. Catherines Milling case when aboriginals
  give up title to land, it reverts to the
  provincial crown. (S. 109 provs have nat
  resources)
• Maritime Bank case prov. Lieutenant-governors
  are equal in status with Governor General.
• Local prohibition case a re-interpretation of
  Russell to give more power to provinces.

7
Haldane
8
Haldane (1911-1928)

• Born in Edingurgh in 1856
• Studied philosophy scholar of Hegel
  (decentralization)
• 1877 moved to London to study common law QC in
  1887
• Worked as a junior in a number of Canadian
  constitutional cases. Great admirer of Watson
• Quotable quotes from Saywell
• Haldane was so good at most things yet not
  superlative in anything
• Haldane wanted to focus on big, working
  principles, but insisted on positivist approach

• Haldane
• 1911-1928, participated in all but 63 of 204
  appeals from Canada, and delivered decision in
  24.
• Admitted that the JCPC shaped the Canadian
  constitution gave it its federal nature
• Provinces are independent kingdoms that have
  delegated some powers to the central government.
• Case in point Haldanes re-interpretation of
  Russell decision in Snider.