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RESIDUARY NATURE OF POWER Section 91 of Constitution Act, 1867 gives federal parliament the power to make laws for the eace, !rder and "ood "overnment#, matters which doesn$t come with in the provincial heads, will fall under the federal power% &n the democratic government it was designed to create stronger central government% 'ut section 92 (13) Property and civil rights of the province and (92(16) Matters merely of local and private nature in the province are the sweeping heads of province, )ecause most of the matters )eing covered under these heads or it can )e descri)es as a actual residuar* power in the hands of the province% !$Connor +eport ,19-9. refused to agree with the !"" as a residuar* power, &t was descri)ed in the report that enumerated heads of federal power are merel* the e/amples of the !"", the are listed for the greater certaint*% 0owever, & disagree with the view of !$Conner report, m* view is similar to % 0ogg that it is clear from the opening words of the of section 91 that enumerated heads are not the e/amples of the !"", )ecause if these topics are considered to )e merel* e/amples then the topics given under federal power e%g% 1rade and Commerce, 'anking, 'ill of e/change and romissor* note, Cop*right, 2arriage and 3ivorce would pro)a)l* fall under the section 94,1-. ropert* and civil right of the province% &t was the historical necessit* of descri)ing these heads under the section 91, for limiting the )road scope of S%94,1-.% Another reason for not agreeing with the !$Conner report, )ecause courts under the practice does not consider the enumerated head as merel* e/amples% 1hese heads to )e considered as e/clusive power of central government% GAP BRANCH 5nder the !"", gap )ranch is the wa* to fill the gap )etween the distri)ution of powers )etween provincial heads and federal heads, there are the few gaps in distri)uting the powers )etween and province and federal e%g% section 94,11. empowers the provincial legislature to make laws in relation to incorporation of companies with provincial o)6ect% 7uestion arises

what a)out those companies who as o)6ect to work in more than one state, the gap is covered under the !"" power% Another e%g% Section 1-4 of constitution act 1867 gives power to federal parliament to enact the laws for the o)ligations arising out as a part of 'ritish 8mpire and treaties signed )* the 'ritish 8mpire on the )ehalf of Canada% 'ut Section 1-4 is silent a)out the treaties signed )* the Canada )* its own as an international person% 8ven it does not mention an*where in S% 91 or S% 94% 1he gap is covered under the !"" power% 2atter like Aeronautics, Atomic energ* and 9ational Capital region does not come with in the an* enumerated heads of power and covered under the !"" power% HISTORY ON NATIONAL CONCERN BRANCH Russell V. The Queen !""#$ %C% upheld , y !ir Montague !mith. the statute ("anada #emperance $ct) on the )asis that it did not fall within an* of the provincial heads of legislature% $ ove Russell case later e/plained )* %C% in L%&'l P(%h)*)+)%n C'se !",-$ y %ord &atson and first time 9ational Concern 'ranch defined in the definition of !"" that no dou)t some matters are local and provincial in nature, which affects the whole )od* politic of dominion% "reat caution must )e o)served )* Canadian arliament )efore passing the law and the matter ceasing to )e local or provincial and )ecome and national concern% Although 'ussell "ase was e/plained in the %ocal Prohi ition "ase, )ut the decision of local prohi)ition case was different from the +ussell case, court upheld the provincial statute ,:ocal;!ption 1emperance Scheme, which was similar to federal law. under the propert* and the civil rights of the province S% 94,1-.% 1his time court also esta)lished the dou le aspect doctrine, which allows the )oth governments to enact the same law in the same field% V)s&%un+ H'l.'ne came into the priv* council in 1911 and died in 1948, under the tenure of <iscount 0aldane priv* council ignored the 9ational 3imension dictum, and insisted onl* the emergenc* )ranch of the !"" power% Russell case was again challenged in A./G. On+. V. C'n'.' Te01e('n&e A&+ !,2-$ two arguments was presented

!. =hether the +ussell case was wrongl* decided !+ #. &f the 'ussell "ase was )ased on the emergenc*, the alleged emergenc* of drunkenness had now passed awa*% Court didn$t answer the >uestions and riv* Council through <iscount Simon refused to overrule the +ussell case and said it$s )een 6? *ears and case is firml* rooted in the Constitution on Canada and held that +ussell was not decided on the )asis of 8mergenc* and !"" is not onl* confined to emergencies% (iscount !imon gave the ne) test@ that the real su)6ect matter goes )e*ond the local and provincial interest and )ecome the concern of dominion as whole% 3%n'nness%n V. Wes+ S+. P'ul satisfied the national concern test% !,4#$ S%C% held that 'e(%n'u+)&s

Mun(% V. N'+)%n'l C'1)+'l C%00)ss)%n !,--$ 7ue)ec and !ntario )ecame unsuccessful in settling the n'+)%n'l &'1)+'l (e5)%n area trough cooperation and S.C. held that 9ational Capital region satisfied the national concern test% R. V. C(%6n 7elle(*'&h !,""$ S%C% upheld the Aederal !cean 3umping Act and 0'()ne 1%llu+)%n satisfied the 9ational concern test, )ecause it effects the international waters and it is the matter of Canada as whole% On+'()% H8.(% V. On+'()% !,,9$ S%C% upheld the federal 6urisdiction over '+%0)& ene(58 under Aederal Atomic 8nerg* Control Act under S%94,1?.,c. and also the production, use and application of atomic energ* is the matter of national concern% A$ DEFINITION OF NATIONAL CONCERN

7% =hen does the su)6ect matter of legislation satisfies the national concern testB !. N'+)%n6).e )01%(+'n&e of the su)6ect of the legislation, )ut the argument raised against onl* nationwide importance, )ecause some nationwide importance matter i%e% :aw of contract, propert*, education, etc% all are within the provincial 6urisdiction% #. Ge%5('1h)& D)0ens)%n can also )e a factor, )ut cannot )e a sole factor for satisf*ing the national concern )ranch% 1here are some cases where uniform laws are not desired, )ut it$s essential, )ecause it$s )e*ond the provincial a)ilit* to deal with it%

9. P(%:)n&)'l In'*)l)+8 Tes+@ Aailure of one province to take preventive measures% 8%g% &n Munro case failure of 7ue)ec and !ntario to cooperate on 9ational +egion matter% B$ DISTINCTNESS

!nl* distinctness is not sufficient to satisf*, )ut provincial ina)ilit* test is re>uired the matter to )e admitted under the national concern )ranch of !"", otherwise the matter will fall under the provincial power of 94,1-. or 94,16.% Anti-Inflation Reference (1976) S%C% upheld the federal wage and price control under the 8mergenc* 'ranch of !""% 'ut *eet+ ,- denied on the national concern )ranch, )ecause wages and price control is too )road topic and under the national concern )ranch and matter must )e a distinct# for passing under the national concern )ranch % 1his opinion was supported )* the ma6orit* and court upheld the federal wage and price control under the emergenc* )ranch% C$ NEWNESS

1he matters which were not e/isted during the confederation and now the* cannot )e put la)eled under the provincial or central power and the matter is clearl* new in nature will )e dealt as a new pro)lem and comes under the !"" power of central government% &n #he .ueen (- /auser(1909) 3ue to the new su)6ect matter S%C% held the federal 9arcotic Control Act as a valid e/ercise of !"" power% &n m* view the matter of drugs ma* also come under the criminal power of the Central government% At that time federal power to prosecute under the criminal law was in dou)t, that$s wh* the courts tendenc* to move the laws into another categor*% :ater on in 2113 '- (- Malmo2%evine S%C% held the possession of marihuana was a valid law power of criminal law and overruled the decision of 0auser case% EMERGENCY BRANCH V)s&%un+ H'l.'ne came into the priv* council in 1911 and died in 1948, under the tenure of <iscount 0aldane priv* council ignored the 9ational 3imension dictum, and insisted onl* the emergenc* )ranch of the !"" power%

&n #oronto 3lectric "ommissioner (- !nider (1924) riv* council through <iscount 0aldane said that !"" power was availa)le onl* in the cases arising out of some e/traordinar* peril to the national life of Canada, such as the cases arising out of a 6'(#% Anti;&nflation +eference ,1976. After the Act had )een in force for si/ months, the federal government referred the act to the supreme court of Canada for a decision as to its constitutionalit* and Court upheld the act as an emergenc* measure% Te01%('(8 &h'('&+e( %; l'6 is the limitation on the federal emergenc* power% riv* Council struck down most of the new deal legislation due to the permanent nature of the new deal measures%