Canadian Constitutional Law/Distribution of powers


From 1867 until 1982, the Division of Powers was the most important issue in Canadian constitutional law.

Upon reading s. 91 and 92 of the BNA Act (renamed the Constitution Act, 1867 in 1982), it becomes clear that much of what a government does today was not envisaged in 1867. The welfare state, electricity, air and space travel, telecommunications, the automobile, and industrial pollution are of major importance to modern governments. Yet none of these things existed in 1867, and so nothing was mentioned about them in the BNA Act division of powers.

However, as seen in the last lesson on the Unwritten Constitution, a constitutional principle exists that full sovereignty is vested in the two levels of government, i.e., anything that can be thought of is either in the jurisdiction of the federal government or the provincial government. Therefore, for a century and a half, Canadian (and British) courts have been stretching the meaning of the words of the BNA Act to extend to cover all of these new areas of society. The British North America Act, 1867,(BNA ACT) which established a federal Constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within its competence, the legislature is, in truth, making a law on a subject beyond its competence. But where that is not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment. Vide Citizens Insurance Company of Canada v. William Parsons (1881) 7 AC 96; The Attorney-General for Ontariao v. Attorney-General for the Dominion of Canada 1894 A.C. 189; The Attorney General of Ontaria v. Attorney-General for the Dominion (1896) AC 348; Union Colliery Company of British Columbia v. Bryden (1899) AC 580; Attorney-General for Canada v. Attorney-General for Ontaria (1937) AC 355; Attorney-General for Alberta V. Attorney-General for Canada (1939) AC 117 and Board of Trustees of Letherbridge Northern Irrigation District v. Independent Order of Foresters (1940) AC 513.

Peace, Order, and Good GovernmentEdit

The Fathers of Confederation believed at the time that they had covered every possible new area of law with a clause in the BNA Act. The first paragraph of section 91 of the BNA Act states that the federal government has the power "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 the powers specifically listed as federal. Thus, any new areas of law would become federal.

It quickly became apparent, however, that the "Peace, Order and Good Government" (POGG)section, if interpreted too broadly, could effectively rob the provinces of most of their powers. For instance: the invention of the automobile. The automobile could have been seen as a new jurisdiction, under the complete control of the federal government. But if so, the province's jurisdiction over roads, cities, intra-provincial transportation, and land would become effectively meaningless.

The Judicial Committee of the Privy Council (JCPC) is a court run by the House of Lords in London. It was the highest court in Canada from 1867 to 1949, and heard Canada's important division of powers cases from that era. It could overrule the Supreme Court of Canada; many important cases bypassed the Supreme Court altogether and went directly to the JCPC.

The JCPC developed a doctrine called "pith and substance". This meant that, whenever a government's legislation was challenged for being outside its jurisdiction, the JCPC would examine the "pith and substance" of the legislation. The court would try to figure out what the law was "really about". Once the JCPC had figured out the legislation's "pith and substance," it would decide which one of the listed powers mentioned in s. 91 or 92 of the BNA Act most closely corresponded with that "pith and substance", to see if the government had jurisdiction. If the pith and substance of the law was substantially within the government's jurisdiction, then any incidental effects the law had on another government's jurisdiction were permissible.

This doctrine greatly increased the importance of the listed powers in s. 91 and 92, consequently decreasing the importance of the POGG clause. The power that the JCPC found most often corresponded to the "pith and substance" of contested legislation was s. 92(13), the provincial jurisdiction over "Property and Civil Rights."

"Civil Rights" is a term of art in Canadian law. Unlike in the United States, where "civil rights" is synonymous with "human rights", civil rights in Canada means the ability of a person to make contracts (including marriage contracts), to buy, sell, and use property, to have parental authority, and to sue and be sued; one can think of them as the rights one attains upon adulthood.

The JCPC found that the pith and substance of most disputed laws related to property and civil rights. In Toronto Electric Commissioners v. Snider (1925), the JCPC struck down the federal Industrial Disputes Investigation Act. It was a law giving the federal government certain authority over certain labour disputes. The JCPC rejected the federal government's argument that such a law was for the Peace, Order, and Good Government of Canada, holding that the POGG power really just gave the federal government the power to act during emergencies. Rather, since labour disputes are contract disputes, such a law is in pith and substance about Civil Rights, a provincial jurisdiction. Therefore, the federal law was struck down as unconstitutional.

The POGG power never really recovered from the rulings of the JCPC. Eventually, the federal government abolished appeals to the JCPC, making the Supreme Court of Canada truly the supreme court. The Supreme Court of Canada has interpreted the POGG power slightly more broadly. In the Anti-Inflation Reference (1975), the federal government asked the Supreme Court whether the federal government could fight inflation by imposing wage and price controls (usually in provincial jurisdiction) using its POGG power. The majority of Supreme Court justices agreed, but for differing reasons. Most felt that POGG was an emergency power, and that the Court should be deferential in letting the federal government decide whether inflation was a "national emergency" or not. This is the "national emergency" doctrine of POGG. A smaller group of judges felt that another doctrine of POGG was also valid: the "national concern" doctrine. This doctrine means that where a new type of jurisdiction emerges, which does not correspond to any of the listed jurisdictions of the BNA Act, AND if it is of "national concern", then it falls under POGG.

The Supreme Court clarified the "national concern" doctrine in R. v. Crown Zellerbach, [1988] 1 S.C.R. 401. The Supreme Court stated that the "National Concern" doctrine is valid, and has the effect of essentially adding a new category to the list of federal powers, if one can answer "yes" to all of these questions:

  1. Is the jurisdiction in question a single, distinct, and indivisible jurisdiction?
  2. Is it impossible for the provinces to deal with this jurisdiction on their own?
  3. Does it have ascertainable and reasonable limits, so that it does not remove large areas of jurisdiction from the provinces?

Despite these decisions, the POGG power has very rarely justified the federal government exercising jurisdiction. Much more common is the politically controversial "Spending Power". Using its taxing power under s. 91(3) of the Constitution Act, 1867, the federal government collects more tax revenue than it needs in order to exercise the areas under its own jurisdictions. It gives the extra money to the provinces to spend on their jurisdictions, providing that the provinces meet certain conditions required by federal laws. This gives the federal government varying amounts of influence over areas of provincial jurisdiction, such as health and education. and its all ???

Interjurisdictional ImmunityEdit

As seen previously, if the government has jurisdiction over the "pith and substance" of the law it has enacted, then any "incidental effects" on other governments' jurisdictions are acceptable. For instance, the federal Divorce Act is valid legislation because the federal government has jurisdiction over divorce (s.91(26)), even though the Divorce Act has some incidental effects on child custody, which is usually considered to be within the provincial jurisdictions of "Civil rights" (s.92(13)) and "Matters of a private nature" (s.92(16)).

In a few rare instances, the Supreme Court of Canada has ruled that the federal government's jurisdiction (up until now, never the provincial government's jurisdiction) had "Inter-Jurisdictional Immunity." Provincial government legislation could have no effect on these jurisdictions, not even incidentally.

There are two cases where this has happened. The first is federal election postering. In McKay v. the Queen (1965), the Supreme Court of Canada held that municipal by-laws could not be enforced to prevent the posters of federal political parties from being put up during election periods. This was because federal election postering has Inter-Jurisdictiona Immunity from provincial government legislation. Since municipalities get their authority to make by-laws from provincial legislation (see BNA Act s. 92(8)), such by-laws had no effect on federal election posters. This did not mean that the municipal by-law was rendered invalid; it maintained its effect on every type of postering except federal election posters.

The other case were the Supreme Court has recognized Inter-Jurisdictional Immunity is in Federal Works and Undertakings. This federal power oddly comes from BNA Act s.92(10)(a). The provincial government has jurisdiction over "works and undertakings" except the ones listed. One of these exceptions is "telegraphs". Consequently, the major telephone companies are all under the jurisdiction of the federal government.

Worker health and safety is a provincial jurisdiction ("Civil rights"). So, if the province passes a law which, in pith and substance, regulates worker health and safety, can it have incidental effects of the major telephone companies? No, according to the Supreme Court decision in Bell Canada v. Quebec (C.S.S.T.), [1988] 1 S.C.R. 749. The Supreme Court laid out the following test:

  1. If the purpose of the provincial law is to regulate a federal work/undertaking, then it is unconstitutional.
  2. If the provincial law directly affects a vital part of the federal work/undertaking, then interjurisdictional immunity applies (the law has no effect on the federal work/undertaking).
  3. If the provincial law has an indirect effect which impairs the operation of the federal work/undertaking, then interjurisdictional immunity applies.

On the facts of the case, the Supreme Court ruled that occupational health and safety directly affected the vital management decisions of Bell Canada, and therefore the law had no effect on the company.

The Interjurisdictional Immunity doctrine has a very limited application; for the mostpart, provincial legislation applies to companies that are usually under the jurisdiction of the federal government.

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