Canadian federalism

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Canadian federalism is concerned with the current nature and historical development of federal systems within Canada. Canada is a federation with 11 distinct jurisdictions of governmental authority: the country-wide federal Crown and the 10 provincial Crowns. (There are also three territorial governments in the far north that exercise delegated powers under the authority of the Parliament of Canada.) All are generally independent of one another in their respective areas of legislative authority^[1] and each derives its sovereignty and authority from the monolithic Canadian Crown; each jurisdiction includes the Queen-in-Parliament, the Queen-in-Council, and the Queen-on-the-Bench. Shared sectors include agriculture and immigration, but most are either entirely within federal jurisdiction, such as foreign affairs and telecommunications, or entirely within provincial jurisdiction, such as education and healthcare. The division of powers is outlined in the Constitution Act, 1867 (formerly the British North America Act 1867), a key document within the Constitution of Canada.

The federal nature of the Canadian constitution was a response to the colonial-era diversity among the Maritimes and the Province of Canada, in particular the strong distinction between the French-speaking inhabitants of Lower Canada and the English-speaking inhabitants in Upper Canada and the Maritimes. John A. Macdonald, Canada's first prime minister, at first favoured a unitary system, but later, after witnessing the carnage of the American Civil War, supported the federal system; he sought to avoid violent conflicts by maintaining a fusion of powers rather than a separation of powers.^[2]

History

Before World War I

The foundations of Canadian federalism were laid at the Quebec Conference of 1864. The Quebec Resolutions represented a compromise between those who wanted sovereignty vested in the federal government and those who wanted it vested in the constituent provinces. The compromise consisted in basing the federation on the constitution of the British Empire, under which the legal sovereignty of the imperial power was modified by the conventions of colonial Responsible government, making colonies of settlement such as those of British North America effectively self-governing in domestic affairs. A protracted political process ensued before the Quebec Resolutions were rendered into statutory form as the British North America Act of 1867. This process was increasingly dominated by John A. Macdonald, who connived with British officials in an attempt to make the federation more centralized than the Resolutions envisaged.^[3]

Owing to the complexities of its genesis, the resulting constitution was couched in terms that were more centralist than the constitution was supposed to be in practice. As prime minister of Canada, Macdonald tried to exploit this discrepancy to impose his centralist ideal. His chief opponent was Oliver Mowat. In a series of political battles and court cases between 1872 and 1896,^{[lower-alpha 1]} Mowat managed to reverse Macdonald's early victories and entrench the co-ordinate sovereignty which, in his view, was enshrined in the Quebec Resolutions.^[5] In 1888, Edward Blake summarized that view, saying, "[it is] a federal as distinguished from a legislative union, but a union composed of several existing and continuing entities... [The provinces are] not fractions of a unit but units of a multiple. The Dominion is the multiple and each province is a unit of that multiple..."^[6] The accession of Sir Wilfrid Laurier as prime minister inaugurated a new phase of constitutional consensus marked by a more equal relationship between the jurisdictions. The federal government's quasi-imperial powers of disallowance and reservation, which Macdonald had abused in his efforts to impose central dominance, fell into disuse.

1914–1960

During the First World War, the federal Crown's power was extended via the introduction of income taxes and the passage of the War Measures Act, the scope of which was determined by several court cases.^{[lower-alpha 2]} The constitution's restrictions on parliamentary power were affirmed in 1919 when, in the Initiatives and Referendums Reference, a Manitoba Act that provided for direct legislation by way of initiatives and referendums was ruled unconstitutional by the Privy Council on the grounds that a provincial viceroy, even on the advice of responsible ministers, could not permit "the abrogation of any power which the Crown possesses through a person directly representing it."^{[nb 11]} In 1926, Nadan v The King held that similar restrictions applied to parliament.

Social and technological changes also worked their way into the scope of constitutional authority:

• Edwards v. Canada (Attorney General),^{[nb 12]} introduced the living tree doctrine, which has significantly influenced subsequent constitutional interpretation,
• the Radio Reference found that federal jurisdiction extended to broadcasting,^{[nb 13]} and
• the Aeronautics Reference held the same for aeronautics.^{[nb 14]}

In 1926, the King-Byng affair resulted in a constitutional crisis that permanently affected the relationship of the Governor General of Canada with the Prime Minister of Canada. While its key aspects were political in nature, its constitutional aspects continue to be argued.^[7]

The Statute of Westminster 1931 replaced the Colonial Laws Validity Act 1865 giving the Parliament the ability to make extraterritorial laws and to abolish appeals to the Judicial Committee of the Privy Council. Criminal appeals were abolished in 1933,^{[na 1]} while civil appeals continued until 1949.^{[na 2]} As such abolition did not affect active appeals, the last Privy Council ruling did not take place until 1959, in Ponoka-Calmar Oils v Wakefield.^{[nb 15]} The last Privy Council ruling of constitutional significance occurred in 1954, in Winner v. S.M.T. (Eastern) Limited.^{[nb 16]} Afterwards, the Supreme Court of Canada effectively became the final court of appeal.

In 1937, the last instance of reservation with respect to legislation occurred when John C. Bowen, Lieutenant Governor of Alberta, refused to give Royal Assent to three bills of the Legislative Assembly of Alberta. Two of the bills would have put the province's banks under the control of the provincial government, while a third, the Accurate News and Information Act, would have forced newspapers to print government rebuttals to stories the provincial cabinet deemed "inaccurate". All three bills were later declared unconstitutional by the Supreme Court of Canada in Reference re Alberta Statutes, and that ruling was upheld by the Judicial Committee of the Privy Council.^{[nb 17]}

The broader scope of the Second World War required the passage of the National Resources Mobilization Act in order to supplement the powers contained in the War Measures Act in pursuing the national war effort. The extent to which federal power could expand during time of war was further clarified in:

• the Chemicals Reference^{[nb 18]} (which held that Orders in Council under the War Measures Act were equivalent to an Act of Parliament), and
• the Wartime Leasehold Regulations Reference^{[nb 19]} (which held that wartime regulations were capable of displacing provincial jurisdiction for the duration of the emergency).

Additional measures were also required in order to secure control of the economy during that time:

• jurisdiction over unemployment insurance was transferred permanently to the federal level,^{[na 3]}
• the provinces surrendered their power to levy succession duties and personal and corporate income taxes for the duration of the war (and for one year afterwards) under the Wartime Tax Rental Agreement,^[8]
• labour relations were centralized under federal control through the passing of the Wartime Labour Relations Regulations, to which the provinces ceded their jurisdiction (which lasted until 1948) over all labour matters falling neither under federal jurisdiction nor directly essential to the war effort.^[9]

Canada emerged from the Second World War with more association and cooperation between the federal and provincial levels of government. This led to the rise of the welfare state and the establishment of a government-funded health care system, and the federal government introduced the practice of Keynesian economics. In 1951, section 94A was inserted into the British North America Act, 1867 to allow the Canadian Parliament to make provision for pensions.^{[na 4]} This was later extended in 1964 to allow for supplementary benefits (including disability and survivors' benefits).^{[na 5]} The period also saw a rise in the use of First Ministers' conferences for resolving federal-provincial issues.

The Parliament of Canada also received power to amend the Constitution, limited to matters other than those affecting the provinces, and subject to certain other constraints.^{[na 6]}

1960–1982

1961 saw the last instance of a lieutenant governor reserving a bill passed by a provincial legislature, where Frank Lindsay Bastedo, Lieutenant Governor of Saskatchewan, did so on Bill 56, An Act to Provide for the Alteration of Certain Mineral Contracts. At the time, Bastedo issued a statement that "this is a very important bill affecting hundreds of mineral contracts. It raises implications which throw grave doubts of the legislation being in the public interest. There is grave doubt as to its validity." The Act was subsequently upheld through the passage of an order in council by the federal government.^{[10][na 7]}

John Diefenbaker arranged for the Canadian Parliament to pass the Canadian Bill of Rights. which was the first time that such rights were placed on a statutory footing at the federal level. Lester Pearson, during his term as Prime Minister, obtained passage of major social spending programs, including:

• universal health care (a federal-provincial cost-sharing program),
• the Canada Pension Plan (from which Quebec opted out to form its own Quebec Pension Plan, and
• Canada Student Loans.

Quebec's Quiet Revolution encouraged increased administrative decentralization within Canada, with Quebec often opting out of other federal initiatives and instituting its own. The Quebec sovereignty movement lead to the victory of the Parti Québécois in the 1976 Quebec election, prompting consideration of further loosening ties with the rest of Canada. That was rejected in the 1980 referendum on the subject.

Under the leadership of Prime Minister Pierre Trudeau, the federal government became more centralist in ideology, and Canada entered a stage of "conflictual federalism" that lasted from 1970 to 1984, generating tensions not just with Quebec, but with other provinces as well. The National Energy Program and other disputes over oil sparked a great deal of bitterness against the federal government in Alberta, Saskatchewan, and Newfoundland.^[11]

Patriation

Although Canada had achieved full status as a sovereign nation under the Statute of Westminster 1931, there was still no consensus as to a proper general amending formula for inclusion within its Constitution. Various attempts, such as the Fulton-Favreau formula in 1965 and the Victoria Charter in 1971, failed to obtain unanimous approval from both levels of government.

When negotiations with the provinces stalled once more in 1982, Pierre Trudeau threatened to take the case for patriation straight to the British parliament "[without] bothering to ask one premier." The federal Cabinet and Crown counsel took the position that if the British Crown— in council, parliament, and on the bench— was to exercise sovereignty over Canada, it did so at the request of the federal ministers only.^[12]

Manitoba, Newfoundland and Quebec posed reference questions to their respective courts of appeal, in which five other provinces intervened in support. In his ruling, Justice Joseph O'Sullivan of the Manitoba Court of Appeal held that the federal government's position was incorrect, as the constitutionally entrenched principle of responsible government meant that "Canada had not one responsible government but eleven."^[12] Further, officials in the United Kingdom indicated that the British parliament was under no obligation to fulfill any request for legal changes made by Trudeau, particularly if Canadian convention was not being followed.^[13] The rulings from all courts were appealed to the Supreme Court of Canada. In a decision that came to be known as the Patriation Reference, the Court ruled that such a convention did exist, but it did not legally prevent the Parliament from unilaterally seeking to amend the Constitution without provincial consent. In addition, it was not the role of the courts to enforce constitutional conventions.

The Parliament of Canada then requested the British Parliament to approve the Constitution Act, 1982, which the latter did through passage of the Canada Act 1982. This resulted in:

• the introduction of the Canadian Charter of Rights and Freedoms,
• transferring the procedure of constitutional amendment to a solely Canadian framework, and
• the addition of section 92A to the Constitution Act, 1867, which gave the provinces more power with respect to their natural resources.

After 1982

The Progressive Conservative Party of Canada under Joe Clark and Brian Mulroney favoured devolution of powers to the provinces, culminating in the failed Meech Lake and Charlottetown accords. After a merger with the heavily devolutionist Canadian Alliance, the new Conservative Party of Canada under Stephen Harper has continued the same stance.

After the 1995 Quebec referendum on Quebec sovereignty, one of several actions by then Prime Minister Jean Chrétien was to limit the ability of the federal government to spend money in areas of provincial jurisdiction. Thus, in 1999, the federal government and all provincial governments except Quebec's agreed to the Social Union Framework Agreement, which promoted common standards for social programs across Canada.^[14] Former Prime Minister Paul Martin has used the term^[15] asymmetrical federalism^[16] to describe this arrangement.

The frequency of First Ministers' conferences declined significantly in the early part of the 21st century, but interprovincial cooperation notably increased through meetings of the Council of the Federation established by the provincial premiers in 2003.

The court system of Canada has undertaken significant unification, arising from:

• the Supreme Court of Canada becoming the sole court of final appeal, following the abolition of appeals to the Judicial Committee of the Privy Council in 1949,
• jurisprudence arising from the interpretation of the Canadian Charter of Rights and Freedoms after 1982, and
• the rise of the concept of comity between the courts of the different provinces, emerging from the judgment of Morguard Investments Ltd. v. De Savoye and enlarged in Hunt v. T&N plc.

The various doctrines for constitutional interpretation saw significant clarification during the period:

• the federal trade and commerce power was strengthened through the Supreme Court of Canada's decisions in General Motors of Canada Ltd. v. City National Leasing and Kirkbi AG v. Ritvik Holdings Inc.,
• the SCC still tends to favour the concepts of flexible federalism (where jurisdictions overlap) and cooperative federalism (where they can favourably interact),^[17] as noted most recently in its opinion in Reference re Securities Act
• Multiple Access Ltd. v. McCutcheon has significantly strengthened the double aspect doctrine for assessing situations where jurisdictions overlap
• the doctrine of interjurisdictional immunity has also been rationalized in Canadian Western Bank v. Alberta, Quebec (Attorney General) v. Canadian Owners and Pilots Association ("COPA") and Canada (Attorney General) v. PHS Community Services Society, and
• the nature of ancillary powers has been further clarified in Quebec (Attorney General) v. Lacombe.

The Crown

As a federal monarchy, the Canadian Crown is unitary throughout all jurisdictions in the country,^{[nb 20]} with the headship of state being a part of all equally.^[18] As such, the sovereignty of the each is passed on not by the governor general or federal parliament, but through the overreaching Crown itself as a part of the executive, legislative and judicial operations in Canada's 11 (one federal and 10 provincial) legal jurisdictions; though singular, linking the various governments into a federal state,^[19] the Crown is thus "divided" into 11 "crowns".^[20] The Fathers of Confederation viewed the system of constitutional monarchy as a bulwark against any potential fracturing of the Canadian federation,^[21] and the Crown remains central to Canada's federalism.^[22]

• 

  The Queen

• 

  The Senate

• 

  The House of Commons

Distribution of legislative powers

The federal-provincial distribution of legislative powers (also known as the division of powers) defines the scope of the power of the federal parliament of Canada and the powers of individual provincial legislatures/assemblies. These have been identified as being either exclusive to a particular level or shared.

In order to rationalize how far each jurisdiction may use its authority, certain doctrines have been devised by the courts:

• pith and substance, including the nature of any ancillary powers and the colourability of legislation,
• double aspect,
• paramountcy,
• inter-jurisdictional immunity,
• Implied Bill of Rights,
• the living tree,
• purposive approach, and
• Charter compliance (most notably through the application of the Oakes test)

Powers exclusive to parliament

• Constitution Act, 1867
  • Section 91 – main listing of powers, based upon the power known as peace, order and good government
  • Section 93(4) – remedial legislation with respect to education rights
  • Section 94 – uniformity of laws relating to property and civil rights in all provinces other than Quebec
  • Section 100 – creation of a General Court of Appeal and other courts "for the better Administration of the Laws of Canada" (but certain aspects relating to the Supreme Court of Canada were elevated to constitutional status in 1982)^{[nb 21]}
  • Section 106 – appropriation of funds for federal purposes
  • Section 132 – implementing obligations arising from treaties between the British Empire and foreign countries

No laws have ever been passed under s. 93(4) — although a bill was presented in 1896 in relation to the Manitoba Schools Question — or s. 94.

• Constitution Act, 1871
  • Section 4 – governing any territories not forming part of any province

• Statute of Westminster 1931
  • Section 3 – laws having extraterritorial operation

Powers exclusive to the provincial legislatures

• Constitution Act, 1867
  • Section 92 – main listing
  • Section 92A – exploration, development, taxation and export to other provinces of non-renewable natural resources, forestry resources and electrical energy (subject to Parliament's authority under section 91(2) to regulate interprovincial movements)
  • Section 93 – education (subject to any rights to separate schools)

Concurrent powers

• Constitution Act, 1867
  • Section 94A – old age pensions (but federal legislation will not displace provincial laws)
  • Section 95 – agriculture and immigration (federal laws being paramount to conflicting provincial laws)

Taxation powers

Under the Constitution Act, 1867, taxation powers are vested in the Parliament of Canada under s. 91(3) for:

“

3. The raising of Money by any Mode or System of Taxation.

”

The provincial legislatures have a more restricted authority under ss. 92(2) and 92(9) for:

“

2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes. ... 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.

”

There has been extensive litigation as to what constitutes direct vs indirect taxation, as well as to what is a tax. In Westbank First Nation v. British Columbia Hydro and Power Authority, the SCC declared that a government levy would be in pith and substance a tax if it was "unconnected to any form of a regulatory scheme."^{[nb 22]} In 620 Connaught Ltd. v. Canada (Attorney General), the Westbank framework was qualified to require "a relationship between the charge and the scheme itself."^{[nb 23]} This has resulted in situations where an imposition can be characterized as neither a valid regulatory charge nor a valid tax.

In addition, Allard Contractors Ltd. v. Coquitlam (District) has held that:

• provincial legislatures may charge a fee that is of an indirect nature, where it is supportable as ancillary or adhesive to a valid regulatory scheme under a provincial head of power.^{[nb 24]}
• in obiter, Mr Justice La Forest's observation was cited with approval that s. 92(9) (together with the provincial powers over property and civil rights and matters of a local or private nature) allows for the levying of license fees even if they constitute indirect taxation.^[23]

The spending power

The Parliament of Canada has power to spend money under s. 91(1A) for:

“

1A. The Public Debt and Property.

”

While the Supreme Court of Canada has never ruled directly on the matter,^[24] the Alberta Court of Appeal in Winterhaven Stables Limited v. Canada (Attorney General) characterized it as possessing the following nature:

Parliament has the authority to legislate in relation to its own debt and its own property. It is entitled to spend the money that it raises through proper exercise of its taxing power in the manner that it choses to authorize. It can impose conditions on such disposition so long as the conditions do not amount in fact to a regulation or control of a matter outside federal authority. The federal contributions are now made in such a way that they do not control or regulate provincial use of them. As well there are opting out arrangements that are available to those provinces who choose not to participate in certain shared-cost programs.^{[nb 25]}

This arises from the decision of the Judicial Committee of the Privy Council on the Unemployment Insurance Reference,^{[nb 26]} where Lord Atkin observed:

But assuming the Dominion has collected by means of taxation a fund, it by no means follows that any legislation which disposes of it is necessarily within Dominion competence.

It may still be legislation affecting the classes of subjects enumerated in s. 92, and, if so, would be ultra vires. In other words, Dominion legislation, even though it deals with Dominion property, may yet be so framed as to invade civil rights within the Province, or encroach upon the classes of subjects which are reserved to Provincial competence. It is not necessary that it should be a colourable device, or a pretence. If on the true view of the legislation it is found that in reality in pith and substance the legislation invades civil rights within the Province, or in respect of other classes of subjects otherwise encroaches upon the provincial field, the legislation will be invalid.

In Re Canada Assistance Plan, Mr Justice Sopinka held that the simple withholding of federal money that had been previously granted to fund a matter within provincial jurisdiction does not amount to the regulation of that matter. He declared that supervision of the spending power is not a separate head of judicial review:

If a statute is neither ultra vires nor contrary to the Canadian Charter of Rights and Freedoms, the courts have no jurisdiction to supervise the exercise of legislative power.^{[nb 27]}

However, in Finlay v. Canada (Minister of Finance), Mrs Justice McLachlin indicated that the Court has yet to consider a direct challenge in the matter:

In arriving at these conclusions, I have not considered the constitutional limits, if any, on the federal spending power. That issue was not raised before us and should, in my view, be left to another day.^{[nb 28]}

Jurisdiction over public property

Proprietorial jurisdiction of Crown property is divided between the Provincial legislatures and the Parliament of Canada. The key provisions are ss. 108, 109 and 117:

“

108. The Public Works and Property of each Province, enumerated in the Third Schedule to this Act, shall be the Property of Canada. 109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same. 117. The several Provinces shall retain all their respective Public Property not otherwise disposed of in this Act, subject to the Right of Canada to assume any Lands or Public Property required for Fortifications or for the Defence of the Country.

”

In St. Catherines Milling v. The Queen, Lord Watson noted that this did not mean that title to such property vested in one level or the other, as Crown title was indivisible:

“

There was no transfer to the Province of any legal estate in the Crown lands, which continued to be vested in the Sovereign; but all moneys realized by sales or in any other manner became the property of the Province.

”

In particular, s. 109 has been given a broad meaning:^[25]

• an Ontario Act which provided for all pine cut under licence on Crown lands to be sawn into lumber in Canada was held not to interfere with the federal trade and commerce power, as it pertained to a condition attached to the disposal of the lumber in question^{[nb 29][26]}
• a British Columbia Act stipulating that no Chinese or Japanese labour be employed in cutting lumber was similarly held to be a legitimate condition^{[nb 30][26]}
• "Royalties" have been held to cover the law relating to escheats^{[nb 31]}
• the Parliament of Canada has been held unable to grant leases relating to fishing rights, as the fish themselves are considered to be provincial property^{[nb 32]}
• similarly, Canada cannot unilaterally create Indian reserves, as the transfer of such lands requires both federal and provincial approval by order in council^{[nb 33]} (although there is discussion as to whether this is still sound jurisprudence)^[25]

The provincial power to manage Crown land did not initially extend to Manitoba, Alberta and Saskatchewan when they were created from part of the Northwest Territories, as such land continued to be vested in the federal Crown. It was vacated on some land^[27] by British Columbia upon entering Confederation. Title to this land was not vested in those provinces until the passage of the Natural Resources Acts in 1930.

The power is not absolute:

• A federal Act providing for orders in council to be issued to authorize the taking of Crown land in order to construct railways was held to be constitutional, as the Parliament had "full power, if it thought fit, to authorize the use of provincial Crown lands by the company for the purposes of this railway."^{[nb 34]}
• Provincial Crown land may be subjected to regulation, or expropriated, for federal purposes.^{[nb 35]}
• The administration of crown lands is subject to any rights accruing to First Nations^{[nb 36]} as they represent a relevant "Interest",^{[nb 37]} because the provincial power "is burdened by the Crown obligations toward the Aboriginal people in question."^{[nb 38]} There is debate as to whether such burdens apply in the same manner in the Western provinces under the terms of the Natural Resources Acts.^[28]
• Although the Crown acquired radical title (burdened by Aboriginal title) at the time of assertion of sovereignty, its extent where aboriginal title has not been relinquished through a treaty or other settlement is confined to the Crown's fiduciary duty to aboriginal peoples, as well as the right to encroach on Aboriginal title where it can be justified.^{[nb 39][29]}

The management of offshore resources is complex: while the beds of internal waters vest in the provincial Crown, beds of territorial seas vest in the federal Crown (together with management of the continental shelf and the exclusive economic zone),^{[nb 40][nb 41][30]} but the beds and islands of the waters between Vancouver Island and the mainland of British Columbia have been declared to be the property of the Crown in right of BC.^{[nb 42]} Federal-provincial management agreements have been implemented with respect to offshore petroleum resources in the areas surrounding Newfoundland and Labrador and Nova Scotia.^{[na 8][na 9]}

Nature of the legislative power within the federal structure

Much of the distribution of power has been ambiguous, leading to disputes that have been decided by the Judicial Committee of the Privy Council and, after 1949, the Supreme Court of Canada. The fundamental nature of the Canadian constitutional structure was described by the Privy Council in 1913 as not being truly federal (unlike the United States of America or Australia):

“

The British North America Act of 1867 commences with the preamble that the then Provinces had expressed their desire to be federally united into one Dominion with a Constitution similar in principle to that of the United Kingdom. In a loose sense the word "federal" may be used, as it is there used, to describe any arrangement under which self-contained States agree to delegate their powers to a common Government with a view to entirely new Constitutions even of the States themselves. But the natural and literal interpretation of the word confines its application to cases in which these States, while agreeing on a measure of delegation, yet in the main continue to preserve their original Constitutions. Now, as regards Canada, the second of the Resolutions, passed at Quebec in October 1864, on which the British North America Act was founded, shows that what was in the minds of those who agreed on the Resolutions was a general Government charged with matters of common interest, and new and merely local Governments for the Provinces. The Provinces were to have fresh and much restricted Constitutions, their Governments being entirely remodelled. This plan was carried out by the Imperial Statute of 1867. By the 91st section a general power was given to the new Parliament of Canada to make laws for the peace, order, and good government of Canada without restriction to specific subjects, and excepting only the subjects specifically and exclusively assigned to the Provincial Legislatures by sec. 92. There followed an enumeration of subjects which were to be dealt with by the Dominion Parliament, but this enumeration was not to restrict the generality of the power conferred on it. The Act, therefore, departs widely from the true federal model adopted in the Constitution of the United States, the tenth amendment to which declares that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to their people. Of the Canadian Constitution the true view appears, therefore, to be that, although it was founded on the Quebec Resolutions and so must be accepted as a treaty of union among the then Provinces, yet when once enacted by the Imperial Parliament it constituted a fresh departure, and established new Dominion and Provincial Governments with defined powers and duties both derived from the Act of the Imperial Parliament which was their legal source.[nb 43]

”

National and provincial concerns

The preamble of section 91 of the Constitution Act, 1867 states: 'It shall be lawful for the Queen, [...] 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'. In addition to assigning powers that are not otherwise stated elsewhere (which has been very narrowly interpreted), this has led to the creation of the national emergency and national concern doctrines.

The national emergency doctrine was described by Mr Justice Beetz in Reference re Anti-Inflation Act in these words:^{[nb 44]}

But if one looks at the practical effects of the exercise of the emergency power, one must conclude that it operates so as to give to Parliament for all purposes necessary to deal with the emergency, concurrent and paramount jurisdiction over matters which would normally fall within exclusive provincial jurisdiction. To that extent, the exercise of that power amounts to a temporary pro tanto amendment of a federal Constitution by the unilateral action of Parliament. The legitimacy of that power is derived from the Constitution: when the security and the continuation of the Constitution and of the nation are at stake, the kind of power commensurate with the situation "is only to be found in that part of the Constitution which establishes power in the State as a whole".^{[nb 45]}

The extraordinary nature and the constitutional features of the emergency power of Parliament dictate the manner and form in which it should be invoked and exercised. It should not be an ordinary manner and form. At the very least, it cannot be a manner and form which admits of the slightest degree of ambiguity to be resolved by interpretation. In cases where the existence of an emergency may be a matter of controversy, it is imperative that Parliament should not have recourse to its emergency power except in the most explicit terms indicating that it is acting on the basis of that power. Parliament cannot enter the normally forbidden area of provincial jurisdiction unless it gives an unmistakable signal that it is acting pursuant to its extraordinary power. Such a signal is not conclusive to support the legitimacy of the action of Parliament but its absence is fatal.

The national concern doctrine is governed by the principles stated by Mr Justice Le Dain in R. v. Crown Zellerbach Canada Ltd.:^{[nb 46]}

1. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature;
2. The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern;
3. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution;
4. In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern it is relevant to consider what would be the effect on extra‑provincial interests of a provincial failure to deal effectively with the control or regulation of the intra‑provincial aspects of the matter.

The federal government of Canada is partly limited by the powers assigned exclusively to the provincial legislatures. For example, the Canadian constitution created broad provincial jurisdiction over direct taxation and property and civil rights. Many disputes between the two levels of government revolve around conflicting interpretations of the meaning of these two powers.

By 1896, the Judicial Committee of the Privy Council arrived at a method of interpretation that has been called the "four departments doctrine", where the allocation of jurisdiction over a matter is determined, in the following order:

1. does it fall under Section 92, ss. 1–15?
2. can it be characterized as falling under Section 91, ss. 1–29?
3. is it of a general nature, bringing it within Section 91's residuary clause
4. otherwise, it falls under Section 92, ss. 16^[31]

By the 1930s, as noted succinctly in the Fish Canneries Reference and then subsequently in the Aeronautics Reference, the division of responsibilities between federal and provincial jurisdictions was summarized as follows by Lord Sankey:

1. The legislation of the Parliament of the Dominion, so long as it strictly relates to subjects of legislation expressly enumerated in section 91, is of paramount authority, even if it trenches upon matters assigned to the Provincial Legislature by section 92.
2. The general power of legislation conferred up on the Parliament of the Dominion by section 91 of the Act in supplement of the power to legislate upon the subjects expressly enumerated must be strictly confined to such matters as are unquestionably of national interest and importance, and must not trench on any of the subjects enumerated in section 92, as within the scope of Provincial legislation, unless these matters have attained such dimensions as to affect the body politic of the Dominion.
3. It is within the competence of the Dominion Parliament to provide for matters which though otherwise within the legislative competence of the Provincial Legislature, are necessarily incidental to effective legislation by the Parliament of the Dominion upon a subject of legislation expressly enumerated in section 91.
4. There can be a domain in which Provincial and Dominion legislation may overlap, in which case, neither legislation will be ultra vires if the field is clear, but if the field is not clear and the two legislations meet, the Dominion legislation must prevail.^{[nb 47]}

While the Statute of Westminster 1931 declared that the Parliament of Canada possessed extraterritorial jurisdiction, the provincial legislatures did not achieve similar status. Instead, s. 92 states that "In each Province the Legislature may exclusively make Laws...".

If a provincial law affects rights of individuals outside the province:

• if it is, in pith and substance, provincial, ancillary effects on the rights of individuals outside the province are irrelevant,^{[nb 48]} but
• where it is, in pith and substance, legislation in relation to the rights of individuals outside the province, it will be ultra vires the province^{[nb 6][nb 49]}

In addition, in The Queen (Man.) v. Air Canada, it was held that the s. 92(2) power providing for "Direct Taxation within the Province" does not extend to taxing sales occurring in flights passing over or through a province as there was no substantial connection to it, but the question as to how far provincial jurisdiction can extend into a province's airspace was expressly left undecided.^{[nb 50]} However, the property and civil rights power does allow for determining rules with respect to conflict of laws in civil matters.^{[na 10]}

Attaining a national dimension

Federal jurisdiction therefore arises in several circumstances:

• under the national emergency doctrine for legislation that is of a temporary nature (ie, the former War Measures Act)
• under the national concern doctrine for:
  • new matters which did not exist at Confederation (ie, radio and television)
  • matters of a local or private nature in a province that have since, in the absence of national emergency, become matters of national concern (such as what can accrue to the general regulation of trade and commerce)
• matters where the grant is exclusive under Section 91 (ie, criminal law)
• matters where authority may be assumed (as with works for the general advantage of Canada)

In addition, the gap approach (which is employed sparingly) identifies areas of jurisdiction arising from drafting oversights only, being things the drafters of the Constitution forgot to think about but would unambiguously have allocated to Parliament if they had. For example, federal jurisdiction to incorporate companies is inferred from the power provinces have under Section 92 for "The Incorporation of Companies with Provincial Objects."

Uniformity of federal law

Section 129 of the Constitution Act, 1867 provided for laws in effect at the time of Confederation to continue until repealed or altered by the appropriate legislative authority. Similar provisions were incorporated in the terms of union of other territories that were subsequently incorporated into Canada.

Uniformity of laws in some areas of federal jurisdiction was delayed for a significant length of time:

• offences under the Criminal Code were not made uniform until 1955, and common-law criminal offences were only abolished at that time as well
• divorce law – not until 1968
• Canadian maritime law – not until 1971
• marriage law – not until 2005

In addition, the provisions of the Civil Code of Lower Canada adopted in 1865 by the former Province of Canada that affected federal jurisdiction continued to be in force in Quebec (insofar as they had not been displaced by other federal Acts) until they were finally repealed on 15 December 2004.^{[na 11][32]}

Interplay of jurisdictions

The Supreme Court of Canada noted, "our Constitution is based on an allocation of exclusive powers to both levels of government, not concurrent powers, although these powers are bound to interact in the realities of the life of our Constitution."^{[nb 51]} In that regard, Dickson CJ observed the complexity of that interaction:

“

The history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers. It is true that doctrines like interjurisdictional and Crown immunity and concepts like "watertight compartments" qualify the extent of that interplay. But it must be recognized that these doctrines and concepts have not been the dominant tide of constitutional doctrines; rather they have been an undertow against the strong pull of pith and substance, the aspect doctrine and, in recent years, a very restrained approach to concurrency and paramountcy issues.[nb 52]

”

Among notable examples of this:

• While the provinces have the power to create criminal courts, only the federal government has the power to determine criminal procedure and to appoint those courts' judges.^{[na 12]} Criminal procedure includes prosecution, and thus federal law can determine the extent of federal and provincial involvement in it.^{[nb 53]} On the other hand, the provinces' power over the administration of justice includes the organization of courts and police forces, which determines the level of law enforcement. The Royal Canadian Mounted Police, however, as the federal police, also contracts for the provision of many provincial and municipal police forces.
• The federal power to regulate fisheries does not override the provincial authority to require a permit for catching the fish within the waters under provincial control.^{[nb 54]} However, the regulation of recreational fisheries has been partially delegated under the Fisheries Act^{[na 13]} to the provinces, with respect to specified species in specific provinces.^{[na 14]}
• Works that affect navigation are subject to federal approval under the Navigable Waters Protection Act,^[33] as well as provincial approval (as the beds of navigable waters are generally reserved to the Crown in right of the province)^[34][35][36]
• Although federal jurisdiction over broadcasting and most telecommunications is exclusive, the provinces may still regulate the type of advertising that is acceptable^{[nb 55]} and whether cables may be installed above ground or underground^{[nb 56][37]}
• While the concept of marriage is under federal jurisdiction, the solemnization of marriages is controlled by the provinces.
• The provincial power to regulate security interests under the property and civil rights power will be displaced by security interests created under a federal head of power – most notably under the banking power – but only to the extent that federal law has covered the field.^{[nb 57]}
• Similarly, laws arising from the property and civil rights power will be used to complement the interpretation of federal legislation where the federal Act has not provided otherwise, but the federal power cannot be used to create rules of private law in areas outside its exclusive jurisdiction^{[nb 58][na 15]}
• In the area of insolvency law, provincial statutes continue to operate by way of federal incorporation into the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act. However, where a stay under federal law has been lifted in order to allow proceedings to take place, a province can still impose a moratorium on such proceedings that fall under provincial law^{[nb 59]}

Delegation and cooperation

As early as 1899, Lord Watson asserted (during the argument in CPR v Bonsecours^{[nb 60]}) that neither the federal parliament nor the provincial legislatures could give legislative authority to the other level.^[38] Subsequent attempts to dovetail federal and provincial legislation to achieve certain ends met with difficulty, such as an attempt by Saskatchewan to ensure enforcement of a federal statute^{[na 16]} by enacting a complementary Act^{[na 17]} declaring that the federal Act would continue in force under provincial authority should it be held to be ultra vires. The Saskatchewan Court of Appeal, after so ruling with respect to the federal Act, held the provincial Act to be ultra vires as well, being void as an attempt by the Province to vest powers in Parliament that were not authorized by the BNA Act.^{[39][nb 61]}

The matter was addressed directly in 1950 by the Supreme Court,^[40] in holding ultra vires a proposed Nova Scotia Act that would have authorized interdelegation of legislative and taxation authority between Parliament and the Nova Scotia Legislature.^{[nb 62]} In that decision, Rand J discussed the distinction between delegation to a subordinate body and that to a legislative body:

“

In the generality of actual delegation to its own agencies, Parliament, recognizing the need of the legislation, lays down the broad scheme and indicates the principles, purposes and scope of the subsidiary details to be supplied by the delegate: under the mode of enactment now being considered, the real and substantial analysis and weighing of the political considerations which would decide the actual provisions adopted, would be given by persons chosen to represent local interests. Since neither is a creature nor a subordinate body of the other, the question is not only or chiefly whether one can delegate, but whether the other can accept. Delegation implies subordination and in Hodge v. The Queen, the following observations ... appear:— Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect.... It was argued at the bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into his own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature, and not for Courts of Law, to decide.

”

Later attempts to achieve federal-provincial coordination have proved successful with other types of legislative schemes,^[41] involving:

• conditional legislation (such as a federal Act providing that it will not apply where a provincial Act has been enacted in a given matter). As Rand J declared in 1959, "That Parliament can so limit the operation of its own legislation and that it may do so upon any such event or condition is not open to serious debate.^{[nb 63]}
• incorporation by reference or adoption (eg, a federal regulation prohibiting vehicles from operating on a federal highway except "in accordance with the laws of the province and the municipality in which the highway is situated.").^{[na 18]}
• conjoint schemes with administrative cooperation (such as the administrative authority granted by federal law to provincial transport boards to license extraprovincial transport undertakings).^{[na 19]}

The power to implement treaties

In order to understand how treaties can be entered into Canadian law, there are three significant cases that must be considered:

• the Aeronautics Reference,
• the Radio Reference, and
• the Labour Conventions Reference,^{[nb 64]}

The reasoning behind the judgments is complex,^[42] but it is considered to break down as follows:

• Aeronautics were held by the Aeronautics Reference to be within the exclusive authority of the Parliament of Canada by virtue of the power under s. 132 governing treaties entered into by the British Empire and it thus ousted any question of possible provincial jurisdiction (although, after the underlying treaty was replaced by one not entered into by the British Empire, it was subsequently held in Johannesson v. West St. Paul that, in accordance with Ontario v. Canada Temperance Federation, the field continued to be within federal jurisdiction under the power relating to peace, order and good government, as by then it had attained a national dimension).
• Although an international agreement governing broadcasting was not a treaty of the British Empire, the Radio Reference held that it fell within federal jurisdiction, as Canada's obligations under its agreements in this field required it to pass legislation that would apply to all the dwellers in Canada, and the matter could be seen as being analogous to telegraphs, which already was in the federal sphere.
• The Labour Conventions Reference dealt with labour relations (a matter that was plainly within provincial jurisdiction), and as the conventions were not treaties of the British Empire and no plausible argument could be made for the field attaining a national dimension or becoming of national concern, the Canadian Parliament was unable to exercise any new legislative authority.

Even though the Statute of Westminster 1931 had made Canada fully independent in governing its foreign affairs, the Judicial Committee of the Privy Council held that s. 132 did not accordingly evolve to take that into account. As noted by Lord Atkin at the end of the judgment,

It must not be thought that the result of this decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and Provincial together, she is fully equipped. But the legislative powers remain distributed and if in the exercise of her new functions derived from her new international status she incurs obligations they must, so far as legislation be concerned when they deal with provincial classes of subjects, be dealt with by the totality of powers, in other words by co-operation between the Dominion and the Provinces. While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure.

This case expressly left undecided the question as to the extent of the federal power to negotiate, sign and ratify treaties that deal with areas falling within provincial jurisdiction.

This judgment has generated extensive debate about the complications that were introduced in implementing Canada's subsequent international obligations,^[43][44] and the Supreme Court of Canada has indicated in several dicta that it may be ready to revisit the issue in an appropriate case.^[45]

Limits on legislative power

Outside of the questions of ultra vires and compliance with the Canadian Charter of Rights and Freedoms, there are only a few absolute limits on what the Parliament of Canada and the various provincial legislatures can legislate. In the Constitution Act, 1867:

• S. 96 has been construed to hold that neither the provincial legislatures nor Parliament can enact legislation that removes part of the core or inherent jurisdiction of the superior courts.^{[nb 65]}
• S. 121 states, "All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces."
• S. 125 states, "No Lands or Property belonging to Canada or any Province shall be liable to Taxation."
• Under s. 129, certain limits have also been placed on the ability of the legislatures of Ontario and Quebec to amend or repeal Acts of the former Province of Canada. Where such an Act created a body corporate that operated throughout the former Province, the Judicial Committee of the Privy Council held that such bodies cannot have "provincial objects," and therefore only the Parliament of Canada had power to deal with such Act.^{[nb 66]} It has also been held that such a restriction exists for any Act that applied equally to both Upper Canada and Lower Canada.^{[lower-alpha 3]} This jurisprudence proved to be problematic when the Civil Code of Lower Canada was being replaced by the Civil Code of Quebec.^[48]

Notes

Citations

References

Acts and other instruments

Case citations

Further reading

External links

• Federalism in Canada: Basic Framework and Operation
• Federalism-e – published by Queen's University Institute of Intergovernmental Relations
• Canadian Federalism
• Studies on the Canadian Constitution and Canadian Federalism
• Constitutional Law professor Hester Lessard on the Downtown Eastside and Jurisdictional Justice
• Canadian Governments Compared – ENAP

Constitution of Canada List of Constitutional Documents   Pre-Confederation constitutional documents Iroquois constitution Mi'kmaq constitution Constitution of New France Royal Proclamation of 1763 Quebec Act of 1774 Constitutional Act of 1791 Declaration of Independence of Lower Canada (1838) Report on the Affairs of British North America (1839) Act of Union 1840   Confederation Charlottetown Conference, 1864 Quebec Conference, 1864 Quebec Resolutions London Conference, 1866 Fathers of Confederation Constitution Act, 1867 Canadian federalism Preamble Section 121 Section 125 Powers under Section 91 Peace, order, and good government Trade and commerce Criminal law Matters excepted from s. 92 Powers under Section 92 Licensing Works and undertakings Property and civil rights Administration of justice Fines and penalties for provincial laws Matters of a local or private nature   Amendments and other constitutional documents 1867–1982 British North America Acts, 1867–1982 Manitoba Act, 1870 Alberta Act, 1905 Saskatchewan Act, 1905 Statute of Westminster, 1931 Newfoundland Act, 1949   Patriation Fulton–Favreau formula Victoria Charter Constitution Act, 1982 Part I – Canadian Charter of Rights and Freedoms Preamble 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Part II – Rights of the Aboriginal peoples of Canada 35 Part III – Equalization and regional disparities 36 Part VII – General 52 59   Conventions At Her Majesty's pleasure Cabinet collective responsibility Disallowance and reservation Equal authenticity rule Responsible government Fusion of powers Queen-in-Parliament Individual ministerial responsibility Interpellation Question period Parliamentary privilege Parliamentary sovereignty Reserve power Royal prerogative   Constitutional debate since 1982 Triple-E Senate Meech Lake Accord Charlottetown Accord Calgary Declaration Other unsuccessful amendments   Interpretation of the Constitution Aboriginal self-government Pith and substance Double aspect Paramountcy Living tree Implied Bill of Rights Interjurisdictional immunity Purposive theory Dialogue principle   Provincial constitutional law Constitution of Alberta Constitution of Quebec Constitution Act (British Columbia) Category WikiProject

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