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Published online by Cambridge University Press: 10 November 2009
I appreciate the opportunity Professor Vaughan's article provides to clarify some of my thoughts on the Judicial Committee and constitutional interpretation.
Vaughan and I are in agreement on two broad points. First, the Judicial Committee of the Privy Council read a theory of classical federalism into the BNA Act. This theory of divided sovereignty was expressed most clearly by Lord Watson in the Maritime Bank case. Secondly, the BNA Act's treatment of federalism is highly centralist, both in the division of powers and in the federal government's imperial powers over provincial governments. Both these points are contained in the following passage from my introduction: “In their anxiety to preserve a division of powers appropriate for “classical federalism” and thereby resist the strongly centralizing tendencies of the constitutional text, the Judicial Committee developed an acute sensitivity to the competing claims of the provinces and the federal government.” I think Professor Vaughan would agree with that statement.
1 Liquidators of the Maritime Bank of Canada v. Receiver General of New Brunswick (1892) A.C. 437. See, Vaughan, Frederick, “Critics of the Judicial Committee: The New Orthodoxy and an Alternative Explanation,” this JOURNAL 19 (1986), 495–519Google Scholar.
2 Russell, Peter H., “Introduction,” Leading Constitutional Decisions (3rd ed.; Ottawa: Carleton University Press, 1982), 12Google Scholar.
3 Ibid., 12.
4 Ibid., 13.
5 Waite, P. B. (ed.), Confederation Debates (Toronto: McClelland and Stewart, 1963), 40–41Google Scholar.
6 Ibid., 41.
7 Quoted in Vipond, Robert C., “Constitutional Politics and the Legacy of the Provincial Rights Movement in Canada,” this JOURNAL 18 (1985), 271Google Scholar.
8 Russell, “Introduction,” 13.
9 (1878), 2 S.C.R. 70.
10 (1881), 7 App. Cas. 96.
11 Quoted in Waite, P. B., The Life and Times of Confederation (Toronto: University of Toronto Press, 1962), 139Google Scholar.
12 Ibid.
13 See Russell, , “The Supreme Court and Federal-Provincial Relations: The Political Use of Legal Resources,” Canadian Public Policy 11 (1985), 161CrossRefGoogle Scholar.
14 [1938] S.C.R. 100.
15 Russell, “Introduction,” 14.
16 [1979] 1 S.C.R. 984.