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Constitutional Law.

Constitutional Law

by Patrick J. Monahan Patrick J. Monahan is the Dean of Osgoode Hall Law School of York University in Toronto, Canada, as well as an Affiliated Scholar with the law firm Davies Ward Phillips & Vineberg LLP.  

(Concord, Ontario: Irwin Books, 1997) pp.

xvii, 492.

A daunting task faces anyone hoping to write a useable textbook on Canadian constitutional law Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the Courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution , with the main difficulty lying in trying to be sufficiently comprehensive without producing a weighty tome that would daunt daunt  
tr.v. daunt·ed, daunt·ing, daunts
To abate the courage of; discourage. See Synonyms at dismay.

[Middle English daunten, from Old French danter, from Latin
 most students. Patrick Monahan has met the challenge with a great deal of success, but thanks largely to the complete exclusion of some significant areas of the constitution. Writing as part of the Essentials of Canadian Law series, published by Irwin Law, Monahan was able to leave the Charter of Rights and aboriginal issues to other books. Thus Monahan's text concentrates on the institutions of government and the division of powers, as well as the nature of the constitution and its amendment.

Constitutional Law is organized into six parts, which provide three separate views of the constitution and its operation. The first four parts comprise an introductory overview of the constitution. The various formal and unwritten components of the constitution are canvassed in Part One. The second part provides an interesting historical review of pre-Confederation constitutional developments, a brief summary of the legal framework of the executive and legislative branches of Canadian government, and a sketch of the division of powers between the federal and provincial governments. This part ends with a rather superficial chapter that mixes discussion of the judiciary with a thumbnail sketch of the federal-provincial division of powers. Part Three delves into some of the issues relating to constitutional amendment, with much of the discussion focusing on the various processes that have been tried or proposed for formal amendments. The three chapters of Part Four cover the legacy of the division of powers decisions of the Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom, established by the Judicial Committee Act 1833.[1] It replaced the Court of Delegates.
. The text then delves into a detailed discussion of the significant impact which the cases dealing with the Peace, Order and Good Government In Canada, the phrase "peace, order and good government" (in French, "paix, ordre et bon gouvernement"), often abbreviated POGG, is often used to describe the principles upon which that country's Confederation took place.  clause have had on the interpretation of the constitution, resulting in the divided jurisdiction over criminal matters and the complexities of regulating trade and commerce in Canada. Part Five provides two case studies--the environment and transportation--to illustrate how interwoven in·ter·weave  
v. in·ter·wove , in·ter·wo·ven , inter·weav·ing, inter·weaves
1. To weave together.

2. To blend together; intermix.

 federal and provincial jurisdiction are over such policy fields. Monahan then concludes the book in Part Six with a discussion that focuses largely on the political issues surrounding Canada's constitutional future. Overall, the book affords three views of the constitution through its various discussions: the substantive content of the constitution, the ongoing changes wrought to that substance by judicial interpretation and the political dynamics surrounding and propelling constitutional change.

A challenge for someone writing a text book on the constitution is to balance the need for writing in a 'reference' style while still providing enough insights into the controversies involved. In this regard Monahan has mixed success. He does provide some thought-provoking passages in which he offers personal reflections. For example, he argues that the federal-provincial division of powers does not need to be re-drawn, contrary to the views of many premiers: "Either level of government has sufficient constitutional authority to intervene in virtually any policy area that is deemed to be of significance in the 1990s" (220). Another example is found in his development of a fourth source of federal authority under the POGG power: "Parliament may enact legislation directed to persons, transactions, or activities within particular provinces, as long as it does so in order to remedy or deal with the interprovincial impacts or effects of such matters" (246). However, the author fails at times to draw attention to controversies or potential problems: The reach of the preamble to the Constitution Act, 1867 is only tangentially dealt with; the federal spending power The power of legislatures to tax and spend.

Spending power is conferred to state and federal legislatures through their constitution. Judicial Review of legislative spending varies from state to state, but the law of federal spending informs courts in all states.
 is assumed to be constitutional and its practical effects on provincial jurisdiction are largely left unexplored; and the political effects and constitutionality of the regional veto amending formula adopted in federal legislation are insufficiently scrutinized.

The only substantive weakness of this book lies in its organization as discussions of many topics are spread out over several chapters. Apart from that, a few minor quibbles arise: The book does not directly discuss interpretative principles used by the courts in division of powers cases, such as pith and substance Pith and substance[1] is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls. , double aspect, singling out and colourability; the delegation of legislative powers is touched on but not really dealt with outside the two case studies; and the complex interaction of constitutional conventions and their use in court cases are also unexplored in a text that ties many other political dimensions into the constitution.

Given the length of the book (minus appendices and notes, the text runs 374 pages), the author could not hope to exhaustively cover the topics which could be discussed, even within the limits of its stated purview. However, Monahan does; provide us with a book that sufficiently balances breadth and depth of coverage so that it should be of great use to classes on the Canadian constitution. It is a very welcome addition to Canadian constitutional literature that will be profitably read by political science and law students alike.

Andrew Heard

Political Science Department

Simon Fraser University Simon Fraser University, main campus at Burnaby, British Columbia, Canada; provincially supported; coeducational; chartered 1963, opened 1965. The Harbour Centre campus in downtown Vancouver opened in 1989.  
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Author:Heard, Andrew
Publication:Review of Constitutional Studies
Article Type:Book review
Date:Jan 1, 1999
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