FOR THE PURPOSES OF ASSIGNMENT 3, PLEASE ASSUME THAT FICTIONAL PROPOSAL BELOW IS AN ACCURATE (IF INCOMPLETE) REPRESENTATION OF THE CURRENT FEDERAL GOVENRMENTS PLAN TO ADDRESS AFFORDABLE HOUSING. Background While speaking to the Federation of Canadian Municipalities before the last federal election, Justin Trudeau described affordable housing as a key area in the Liberal infrastructure platform: [Housing is] one of the most important challenges, because it really has to do with our sense of home and place. Today, Canadians from all across the economic spectrum are finding affordable housing in short supply. Our platform will include measures to encourage the construction of new, affordable, purpose-built rental housing. It will outline what we see as a renewed federal role in housing. It will include investments in innovative programs for supportive housing, as well as predictable and sustained new funding for affordable housing. Imagine that the Liberal Government has initiated a proposal to address some aspects of affordable housing through the adoption of new legislation (An Act to Address Affordable Housing), with the following proposed preamble: WHEREAS housing is a national concern and causes enormous human cost to those without a home; WHEREAS those costs are equivalent, at the individual level, to the kind of costs suffered by individuals in other great crises such as the Great Depression of the 1930s, and deserves a similar vigorous and urgent response; and WHEREAS this Parliament is of the opinion that it is a matter of fundamental Canadian citizenship that all Canadians should have access to decent housing. NOW THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: The legislation then sets out several measures to start to address the housing problem, which the Government of Canada intends will form part of an integrated response designed to deal with affordable housing concerns, including homelessness. Among the measures the Government of Canada is considering adopting are the following: 1. A significant expansion in the use of federal funds to directly subsidize the construction of low-income housing; 2. A requirement that those seeking approval to build new construction multi-unit buildings must provide a (to be stipulated) percentage of low-income units in those buildings and legislative provisions that control the rents in those designated low-income units; and 3. An amendment to the Canada Health Act to require provinces to provide a (to be stipulated) number of hospital beds and programs for mentally ill patients as a condition of federal funding to provincial health insurance schemes. The Government of Canada realizes that at least some of the provinces may view the proposed Act and these measures as a serious intrusion on provincial jurisdiction but nonetheless sincerely believes that the affordable housing situation in Canada is so serious and has such an impact on the social dimension of Canadian citizenship that it must act vigorously and immediately. The Government of Canada wonders, however, whether the measures might be more palatable to the provinces if they were limited in the initial instance to three years in order to make a dramatic and immediate change to the present intolerable situation. After those initial three years, the Government of Canada could decide whether Parliament could retreat to its former role, renew the measures for another limited period of time, or make them permanent. Your task: Provide a brief paper that advises the Government of Canada on the constitutionality of its proposed housing legislation, discussing only those grounds relating to the federal/provincial division of powers and not Charter related issues. Assume that there are no issues with the executives ability to bind parliament or to bind future governments. In accomplishing your task and discussing the grounds on which the legislation may be valid or invalid, please consider and refer to three cases. The following (non-exhaustive) list of decisions that deal with the division of powers under ss. 91 and 92 of the Constitution Act, 1867 will help you get started: R v. Morgentaler (1993) Reference Re: Same Sex Marriage Reference Re: Anti-Inflation Act (Canada) (1976) R v. Crown Zellerbach Canada Ltd (1984) Canada Mortgage and Housing Corporation v. Iness (2004) Feel free to consider and refer to cases not included on this list. Good Luck! NOTE: In this assignment description, text that is italicized and in quotation marks reflects real statements and is provided as background for the assignment the proposal itself is fictitious.
[Housing is] one of the most important
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