Canadian federalism

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Canadian federalism involves the current nature and historical development of federal systems in Canada. Canada is a federation with 11 jurisdictions of governmental authority: the country-wide federal Crown and 10 provincial Crowns. (Three territorial governments in the far north exercise powers delegated by the federal parliament.) Each, generally independent from the others in its realm of legislative authority,^[1] derives its authority from the Canadian Crown and includes the Queen-in-Parliament, the Queen-in-Council, and the Queen's Bench. Most sectors are under federal jurisdiction (such as foreign affairs and telecommunications) or that of the provinces, 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 in the Constitution of Canada.

The federal nature of the Canadian constitution was a response to the colonial-era diversity of the Maritimes and the Province of Canada, particularly the sharp distinction between the French-speaking inhabitants of Lower Canada and the English-speaking inhabitants of Upper Canada and the Maritimes. John A. Macdonald, Canada's first prime minister, originally favoured a unitary system; later, after witnessing the carnage of the American Civil War, he supported a federal system to avoid similar violent conflicts.^[2]

History

Before World War I

The foundations of Canadian federalism were laid at the Quebec Conference of 1864. The Quebec Resolutions were a compromise between those who wanted sovereignty vested in the federal government and those who wanted it vested in the provinces. The compromise based the federation on the constitution of the British Empire, under which the legal sovereignty of imperial power was modified by the conventions of colonial responsible government, making colonies of settlement (such as those of British North America) self-governing in domestic affairs. A protracted political process ensued before the Quebec Resolutions became the British North America Act of 1867. This process was dominated by John A. Macdonald, who joined British officials in attempting to make the federation more centralized than that envisaged by the Resolutions.^[3]

The complex resulting constitution was couched in more centralist terms than intended. As prime minister, Macdonald tried to exploit this discrepancy to impose his centralist ideal against chief opponent Oliver Mowat. In a series of political battles and court cases from 1872 to 1896,^{[lower-alpha 1]} Mowat reversed Macdonald's early victories and entrenched the co-ordinated sovereignty which he saw in the Quebec Resolutions.^[5] In 1888, Edward Blake summarized that view: "[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 Wilfrid Laurier as prime minister inaugurated a new phase of constitutional consensus, marked by a more-egalitarian relationship between the jurisdictions. The federal government's quasi-imperial powers of disallowance and reservation, which Macdonald abused in his efforts to impose a centralised government, fell into disuse.

1914–1960

During World War I the federal Crown's power was extended with the introduction of income taxes and passage of the War Measures Act, the scope of which was determined by several court cases.^{[lower-alpha 2]} The constitution's restrictions of parliamentary power were affirmed in 1919 when, in the Initiatives and Referendums Reference, a Manitoba act providing for direct legislation by way of initiatives and referendums was ruled unconstitutional by the Privy Council on the grounds that a provincial viceroy (even one advised by responsible ministers) could not permit "the abrogation of any power which the Crown possesses through a person directly representing it".^{[nb 11]} Social and technological changes also worked their way into constitutional authority; the Radio Reference found that federal jurisdiction extended to broadcasting,^{[nb 12]} and the Aeronautics Reference found the same for aeronautics.^{[nb 13]}

In 1926, the King–Byng Affair resulted in a constitutional crisis which was the impetus for changes in the relationship between the governor general and the prime minister. Although its key aspects were political in nature, its constitutional aspects continue to be debated.^[7] One result was the Balfour Declaration issued later that year, whose principles were eventually codified in the Statute of Westminster 1931. It, and the repeal of the Colonial Laws Validity Act 1865, gave the federal parliament the ability to make extraterritorial laws and abolish appeals to the Judicial Committee of the Privy Council. Criminal appeals were abolished in 1933,^{[na 1]} but civil appeals continued until 1949.^{[na 2]} The last Privy Council ruling of constitutional significance occurred in 1954, in Winner v. S.M.T. (Eastern) Limited.^{[nb 14]} After that, the Supreme Court of Canada became the final court of appeal.

In 1937, Lieutenant Governor of Alberta John C. Bowen refused to give Royal Assent to three Legislative Assembly of Alberta bills. Two would have put the province's banks under the control of the provincial government; the third, the Accurate News and Information Act, would have forced newspapers to print government rebuttals to stories the provincial cabinet considered "inaccurate". All three bills were later declared unconstitutional by the Supreme Court of Canada in Reference re Alberta Statutes, which was upheld by the Judicial Committee of the Privy Council.^{[nb 15]}

World War II's broader scope required passage of the National Resources Mobilization Act to supplement the powers in the War Measures Act to pursue the national war effort. The extent to which wartime federal power could expand was further clarified in the Chemicals Reference (which held that Orders in Council under the War Measures Act were equivalent to acts of parliament)^{[nb 16]} and the Wartime Leasehold Regulations Reference, which held that wartime regulations could displace provincial jurisdiction for the duration of an emergency.^{[nb 17]} Additional measures were required in order to secure control of the economy during that time. Jurisdiction over unemployment insurance was transferred permanently to the federal sphere;^{[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] and labour relations were centralized under federal control with the Wartime Labour Relations Regulations (lasting until 1948), in which the provinces ceded their jurisdiction over all labour issues.^[9]

Canada emerged from the war with better cooperation between the federal and provincial governments. This led to a welfare state, a government-funded health care system and the adoption of Keynesian economics. In 1951 section 94A was added to the British North America Act, 1867 to allow the Canadian parliament to provide for pensions.^{[na 4]} This was extended in 1964 to allow supplementary benefits, including disability and survivors' benefits.^{[na 5]} The era saw an increase in First Ministers' Conferences to resolve federal-provincial issues. The Supreme Court of Canada became the court of final appeal after the 1949 abolition of appeals to the Judicial Committee of the Privy Council and parliament received the power to amend the constitution, limited to non-provincial matters and subject to other constraints.^{[na 6]}

1960–1982

1961 saw the last instance of a lieutenant governor reserving a bill passed by a provincial legislature. Frank Lindsay Bastedo, Lieutenant Governor of Saskatchewan, withheld Royal Assent and passed Bill 56, An Act to Provide for the Alteration of Certain Mineral Contracts, to the federal Crown-in-Council for review. According to Bastedo, "[T]his 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 upheld in an Order in Council by the federal government.^{[10][na 7]}

Parliament passed the Canadian Bill of Rights, the first codification of rights by the federal government. Prime Minister Lester Pearson obtained passage of major social programs, including universal health care (a federal-provincial cost-sharing program), the Canada Pension Plan and Canada Student Loans. Quebec's Quiet Revolution encouraged increased administrative decentralization in Canada, with Quebec often opting out of federal initiatives and instituting its own (such as the Quebec Pension Plan). The Quebec sovereignty movement led to the victory of the Parti Québécois in the 1976 Quebec election, prompting consideration of further loosening ties with the rest of Canada; this was rejected in a 1980 referendum.

During the premiership of Pierre Trudeau, the federal government became more centralist. Canada experienced "conflictual federalism" from 1970 to 1984, generating tensions with Quebec and other provinces. The National Energy Program and other petroleum disputes sparked bitterness in Alberta, Saskatchewan and Newfoundland toward the federal government.^[11]

Patriation

Although Canada achieved full status as a sovereign nation in the Statute of Westminster 1931, there was no consensus about how to amend the constitution; attempts such as the 1965 Fulton-Favreau formula and the 1971 Victoria Charter failed to receive unanimous approval from both levels of government. When negotiations with the provinces again stalled in 1982, Trudeau threatened to take the case for patriation to the British parliament "[without] bothering to ask one premier". According to the federal cabinet and Crown counsel, if the British Crown (in council, parliament and on the bench) exercised sovereignty over Canada, it would do so only at the request of the federal ministers.^[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; the constitutionally-entrenched principle of responsible government meant that "Canada had not one responsible government but eleven."^[12] Officials in the United Kingdom indicated that the British parliament was under no obligation to fulfill a request for legal changes desired by Trudeau, particularly if Canadian convention was not followed.^[13] All rulings were appealed to the Supreme Court of Canada. In a decision later known as the Patriation Reference, the court ruled that such a convention existed but did not prevent the federal parliament from attempting to amend the constitution without provincial consent and it was not the role of the courts to enforce constitutional conventions.

The Canadian parliament asked the British parliament to approve the Constitution Act, 1982, which it did in passage of the Canada Act 1982. This resulted in the introduction of the Canadian Charter of Rights and Freedoms, the transfer of constitutional amendment to a Canadian framework and the addition of section 92A to the Constitution Act, 1867, giving the provinces more jurisdiction over their natural resources.

After 1982

The Progressive Conservative Party of Canada under Joe Clark and Brian Mulroney favoured the devolution of power to the provinces, culminating in the failed Meech Lake and Charlottetown accords. After merging in 2003 with the heavily-devolutionist Canadian Alliance, the Conservative Party of Canada under Stephen Harper has maintained the same stance. When Harper was appointed prime minister in 2006, the frequency of First Ministers' conferences declined significantly; inter-provincial cooperation increased with meetings of the Council of the Federation, established by the provincial premiers, in 2003.

After the 1995 Quebec referendum on sovereignty, Prime Minister Jean Chrétien limited the ability of the federal government to spend money in areas under provincial jurisdiction. 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 programmes across Canada.^[14] Former Prime Minister Paul Martin has used the phrase "asymmetrical federalism" to describe this arrangement.^[15][16] The Supreme Court of Canada currently upholds the concepts of flexible federalism (where jurisdictions overlap) and cooperative federalism (where they can favourably interact),^[17] as noted in Reference re Securities Act.

The Crown

As a federal monarchy, the Canadian Crown is present in all jurisdictions in the country,^{[nb 18]} with the headship of state a part of all equally.^[18] Sovereignty is conveyed not by the governor general or federal parliament, but through the Crown itself as a part of the executive, legislative and judicial branches of Canada's 11 (one federal and 10 provincial) legal jurisdictions; linking the governments into a federal state,^[19] the Crown is "divided" into 11 "crowns".^[20] The fathers of the Canadian Confederation viewed the constitutional monarchy as a bulwark against potential fracturing of the Canadian federation,^[21] and the Crown remains central to Canadaian 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 federal and provincial legislatures. These have been identified as exclusive to the federal or provincial jurisdictions or shared by all.

To rationalize how 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; the living tree; the purposive approach, and charter compliance (most notably through the Oakes test). Additionally, there is the implied Bill of Rights.

Section 91 of the Constitution Act, 1867, lists the major federal parliament powers, based on the concepts of peace, order, and good government. The act puts under the purview of the federal legislature remedial legislation on education rights, uniform laws relating to property and civil rights in all provinces other than Quebec, creation of a general court of appeal and other courts "for the better Administration of the Laws of Canada" (some aspects of the Supreme Court of Canada were elevated to constitutional status in 1982)^{[nb 19]} and implementing obligations arising from foreign treaties. The act lists the powers of the provincial parliaments, including the exploration, development and export to other provinces of non-renewable natural resources, forestry resources and electrical energy (subject to the federal parliament's authority to regulate inter-provincial movement). Education is under provincial jurisdiction, subject to the rights of separate schools. Old-age pensions, agriculture and immigration are within federal and provincial jurisdictions. One prevails over the other, however; for pensions, federal legislation will not displace provincial laws and for agriculture and immigration it is the reverse. The Constitution Act, 1871 allowed parliament to govern any territories not forming part of any province, and the Statute of Westminster 1931, gave parliament the ability to pass extraterritorial laws.

Taxation and spending

Taxation is a power of the federal and provincial legislatures; provincial taxation is more restricted, in accordance with sections 92(2) and 92(9) of the Constitution Act, 1867. In Allard Contractors Ltd. v. Coquitlam (District), provincial legislatures may levy an indirect fee as part of a valid regulatory scheme.^{[nb 20]} Gérard La Forest observed obiter dicta that section 92(9) (with 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]

Parliament has the power to spend money on public debt and property. Although the Supreme Court of Canada has not ruled directly about constitutional limits on federal spending power,^{[nb 21][24]} parliament can transfer payments to the provinces.^{[lower-alpha 3]} This arises from the 1937 decision of the Judicial Committee of the Privy Council on the Unemployment Insurance Reference, where Lord Atkin observed: "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 ... 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".^{[nb 23]} In Re Canada Assistance Plan, Justice Sopinka held that the withholding of federal money previously granted to fund a matter within provincial jurisdiction does not amount to the regulation of that matter.^{[nb 24]}

Jurisdiction over public property

Jurisdiction over Crown property is divided between the provincial legislatures and the federal parliament, with the key provisions Sections 108, 109, and 117 of the Constitution Act, 1867. Public works are the property of the federal Crown, and natural resources are within the purview of the provinces.^{[nb 25]} Title to such property is not vested in one jurisdiction or another, however, since the Canadian Crown is indivisible.^[25][26] Section 109 has been given a particularly-broad meaning;^[27] provincial legislation regulating labour used to harvest and the disposal of natural resources does not interfere with federal trade and commerce power,^{[nb 26][28][nb 27][28]} and royalties have been held to cover the law relating to escheats.^{[nb 28]} Canada cannot unilaterally create Indian reserves, since the transfer of such lands requires federal and provincial approval by Order in Council (although discussion exists about whether this is sound jurisprudence).^{[27][nb 29]}

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, since the land was vested in the federal Crown. It was vacated on some land (the Railway Belt and the Peace River Block) by British Columbia when it entered the 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, however; provincial Crown land may be regulated or expropriated for federal purposes.^{[nb 30][nb 31]} The administration of crown land is also subject to the rights of First Nations^{[nb 32]} (since they are a relevant interest),^{[nb 33]} and provincial power "is burdened by the Crown obligations toward the Aboriginal people in question".^{[nb 34]} Debate exists about whether such burdens apply in the same manner in the Western provinces under the Natural Resources Acts.^[29]

Management of offshore resources is complex; although management of the beds of internal waters is vested in the provincial Crowns, management of beds of territorial seas is vested in the federal Crown (with management of the continental shelf and the exclusive economic zone).^{[nb 35][nb 36][30]} The beds and islands of the waters between Vancouver Island and mainland British Columbia have been declared the property of the Crown in right of British Columbia.^{[nb 37]} Federal-provincial management agreements have been implemented concerning offshore petroleum resources in the areas aroundg Newfoundland and Labrador and Nova Scotia.^{[na 8][na 9]}

Federal legislative power

Much distribution of power has been ambiguous, leading to disputes which have been decided by the Judicial Committee of the Privy Council and (after 1949) the Supreme Court of Canada. The nature of the Canadian constitution was described by the Privy Council in 1913 as not truly federal (unlike the United States and Australia); although the British North America Act, 1867, states in its preamble that the colonies had expressed "their desire to be federally united into one Dominion", "the natural and literal interpretation of the word [federal] 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". The Privy Council determined that the Fathers of Confederation desired a "general Government charged with matters of common interest, and new and merely local Governments for the Provinces". Matters other than those listed in the British North America Act, 1867, as the responsibility of the federal or provincial parliaments fell to the federal legislature (the reverse of the arrangement between the federal and state congresses in the United States).^{[nb 38]}

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 not stated elsewhere (which has been 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.^{[nb 39][lower-alpha 4][lower-alpha 5]} The national-concern doctrine is governed by the principles stated by Mr Justice Le Dain in R. v. Crown Zellerbach Canada Ltd..^{[nb 41][lower-alpha 6]}

The federal government is partially limited by powers assigned 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 powers.

By 1896, the Judicial Committee of the Privy Council arrived at a method of interpretation, known as the "four-departments doctrine", in which 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. If not, it falls under Section 92, ss. 16.^[31]

By the 1930s, as noted in the Fish Canneries Reference and Aeronautics Reference, the division of responsibilities between federal and provincial jurisdictions was summarized by Lord Sankey.^{[lower-alpha 7]}

Although the Statute of Westminster 1931 declared that the Parliament of Canada had extraterritorial jurisdiction, the provincial legislatures did not achieve similar status. According to s. 92, "In each Province the Legislature may exclusively make Laws ...".

If a provincial law affects the 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 42]} 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 5][nb 43]}

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 on flights passing over (or through) a province, but the question of how far provincial jurisdiction can extend into a province's airspace was left undecided.^{[nb 44]} However, the property and civil rights power does allow for determining rules with respect to conflict of laws in civil matters.^{[na 10]}

National dimension

Federal jurisdiction arises in several circumstances:

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

The gap approach, employed sparingly, identifies areas of jurisdiction arising from oversights by the drafters of the constitution; 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 included in the terms of union of other territories that were subsequently incorporated into Canada.

The uniformity of laws in some areas of federal jurisdiction was significantly delayed. Offences under the Criminal Code were not made uniform until 1892, when common-law criminal offences were abolished.^[32] Divorce law was not made uniform until 1968, Canadian maritime law until not until 1971 and marriage law until 2005. Provisions of the Civil Code of Lower Canada, adopted in 1865 by the former Province of Canada, affecting federal jurisdiction continued to be in force in Quebec (if they had not been displaced by other federal Acts) until their repeal on 15 December 2004.^{[na 11][33]}

Interplay of jurisdictions

According to the Supreme Court of Canada, "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 45]} Chief Justice Dickson 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 46]}

Notable examples include:

• Although 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 federal law can determine the extent of federal and provincial involvement.^{[nb 47]} 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, as the federal police, contracts for the provision of many provincial and municipal police forces.
• Although the federal power to regulate fisheries does not override provincial authority to require a permit for catching fish in waters under provincial control,^{[nb 48]} the regulation of recreational fisheries has been partially delegated under the Fisheries Act^{[na 13]} to the provinces for specified species in specific provinces.^{[na 14]}
• Works affecting navigation are subject to federal approval under the Navigable Waters Protection Act^[34] and provincial approval, sinceas the beds of navigable waters are generally reserved to the Crown in right of the province.^[35][36][37]
• Although federal jurisdiction over broadcasting and most telecommunications is exclusive, the provinces may regulate advertising^{[nb 49]} and cable installation (above or underground).^{[nb 50][38]}
• Although 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 51]}
• 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 federal power cannot be used to create rules of private law in areas outside its jurisdiction.^{[nb 52][na 15]}
• In insolvency law, provincial statutes operate by 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 impose a moratorium on proceedings falling under provincial law.^{[nb 53]}

Delegation and cooperation

In 1899, Lord Watson asserted during the argument in CPR v Bonsecours^{[nb 54]} that neither the federal parliament nor the provincial legislatures could give legislative authority to the other level.^[39] 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 if it was ruled ultra vires. The Saskatchewan Court of Appeal ruled a federal and provincial Act ultra vires, voiding both as an attempt by the province to vest powers in parliament unauthorized by the BNA Act.^{[40][nb 55]}

The matter was addressed in 1950 by the Supreme Court,^[41] which held ultra vires a proposed Nova Scotia Act which would have authorized the inter-delegation of legislative and taxation authority between Parliament and the Nova Scotia legislature.^{[nb 56]} In that decision, Justice Rand explained the distinction between delegation to a subordinate body and that to a legislative body.^{[lower-alpha 8]}

Later attempts to achieve federal-provincial coordination have succeeded with other types of legislative schemes^[42] 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 Justice Rand 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 57]}
• Incorporation by reference or adoption (for example, 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]}
• Joint schemes with administrative cooperation, such as the administrative authority granted by federal law to provincial transport boards to license extraprovincial transport^{[na 19]}

Power to implement treaties

To understand how treaties can enter Canadian law, three significant cases must be considered: the Aeronautics Reference, the Radio Reference and the Labour Conventions Reference.^{[nb 58]} Although the reasoning behind the judgments is complex,^[43] it is considered to break down as follows:

• Aeronautics were held by the Aeronautics Reference to be within the authority of the Parliament of Canada under s. 132 governing treaties entered into by the British Empire. After that treaty was replaced, it was 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.
• Although an international agreement governing broadcasting was not a treaty of the British Empire, the Radio Reference held that it fell within federal jurisdiction; Canada's obligations under its agreements in this field required it to pass legislation applying to all Canadian residents, and the matter could be seen as analogous to telegraphs (already in the federal sphere).
• The Labour Conventions Reference dealt with labour relations (clearly within provincial jurisdiction); since 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 new legislative authority.

Although 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 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 left undecided the extent of federal power to negotiate, sign and ratify treaties dealing with areas under provincial jurisdiction, and has generated extensive debate about complications introduced in implementing Canada's subsequent international obligations;^[44][45] the Supreme Court of Canada has indicated in several dicta that it might revisit the issue in an appropriate case.^[46]

Limits on legislative power

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

• S. 96 has been construed to hold that neither the provincial legislatures nor Parliament can enact legislation removing part of the inherent jurisdiction of the superior courts.^{[nb 59]}
• 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, limits have 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 operating in the former Province, the Judicial Committee of the Privy Council held that such bodies cannot have "provincial objects" and only the Parliament of Canada had power to deal with such acts.^{[nb 60]} It has been held that this restriction exists for any Act applying equally to Upper and Lower Canada,^{[lower-alpha 9]} which became problematic when the Civil Code of Lower Canada was replaced by the Civil Code of Quebec.^[49]

Notes

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

Federalism in North America Sovereign states Antigua and Barbuda Bahamas Barbados Belize Canada Costa Rica Cuba Dominica Dominican Republic El Salvador Grenada Guatemala Haiti Honduras Jamaica Mexico Nicaragua Panama Saint Kitts and Nevis Saint Lucia Saint Vincent and the Grenadines Trinidad and Tobago United States Dependencies and other territories Anguilla Aruba Bermuda Bonaire British Virgin Islands Cayman Islands Curaçao Greenland Guadeloupe Martinique Montserrat Puerto Rico Saint Barthélemy Saint Martin Saint Pierre and Miquelon Saba Sint Eustatius Sint Maarten Turks and Caicos Islands United States Virgin Islands