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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 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. Federalism is one of the three pillars of the constitutional order, along with responsible government and the Canadian Charter of Rights and Freedoms.
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.
- 1 History
- 2 The Crown
- 3 Distribution of legislative powers
- 4 Nature of the legislative power within the federal structure
- 5 Notes
- 6 Citations
- 7 Further reading
- 8 External links
Before World War I
The federal structure of Canada was originally intended to be the same as that which existed between the British government and the governments of the British Empire's North American colonies. Political scientist K.C. Wheare and historian Paul Romney described confederation during the time John A. Macdonald served as prime minister as "Quasi-Federalism", meaning 19th century political and judicial elites read the constitution as giving the federal parliament powers that made the provinces "subordinate to Ottawa", a relationship reinforced by the Macdonald government's use of disallowance and reservation.
In 1875, the federal parliament created the Supreme Court of Canada (SCC) as a general court of appeal. This did not, however, bar appeals of rulings from the various provincial courts of appeal directly to the Judicial Committee of the Privy Council. As the imperal Privy Council came to be viewed as more sympathetic to provincial interests and appeals from the SCC to the Privy Council required leave,[nb 1] that option encouraged forum shopping in key cases, whether arising from stated reference questions from federal or provincial governments or by intervention in certain appeals. In 1888, the Canadian parliament abolished appeals to the Privy Council in criminal cases,[na 1] a provision that was in 1926 ruled by the Privy Council, in Nadan v The King, to be in conflict with the Colonial Laws Validity Act 1865 and thus unconstitutional.[nb 2] The federal parliament would not receive authority to bar appeals until 1931.
The provinces did not view the structure of the federation in the same way as the federal government did. In his 1888 argument to the Privy Council in St. Catherines Milling v. The Queen, Edward Blake summarized the provinces' view of the federation: "[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..." The outcome of some provincial court challenges, notably those spearheaded by Ontario Premier Sir Oliver Mowat, led to significant constraints on federal power.[a] Not all rulings, however, went in the provinces' favour.[b]
With the appointment of Sir Wilfrid Laurier as prime minister came a new phase of confederation that Rand Dyck referred to as "Classical Federalism". This was marked by a more equal relationship between the jurisdictions, as the Judicial Committee of the Privy Council settled several disputes in favour of the provinces and the federal government's disallowance and reservation powers fell into disuse. This continued throughout the early years of the leadership of Prime Minister William Lyon Mackenzie King.
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.[c] 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 13] 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 14] introduced the living tree doctrine, which has significantly influenced subsequent constitutional interpretation,
- the Radio Reference found that federal jurisdiction extended to broadcasting,[nb 15] and
- the Aeronautics Reference held the same for aeronautics.[nb 16]
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.
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 2] while civil appeals continued until 1949.[na 3] 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 17] The last Privy Council ruling of constitutional significance occurred in 1954, in Winner v. S.M.T. (Eastern) Limited.[nb 18] 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 19]
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 20] (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 21] (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 4]
- 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,
- 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.
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 5] This was later extended in 1964 to allow for supplementary benefits (including disability and survivors' benefits).[na 6] 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 7]
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.[na 8]
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:
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.
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.
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." 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. 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 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. Former Prime Minister Paul Martin has used the term asymmetrical federalism 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), 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.
As a federal monarchy, the Canadian Crown is unitary throughout all jurisdictions in the country,[nb 22] with the headship of state being a part of all equally. 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 eleven (one federal and ten provincial) legal jurisdictions; though singular, linking the various governments into a federal state, the Crown is thus "divided" into eleven "crowns". The Fathers of Confederation viewed the system of constitutional monarchy as a bulwark against any potential fracturing of the Canadian federation, and the Crown remains central to Canada's federalism.
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,
- interjurisdictional 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 23]
- 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)
- 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)
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 24] 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 25] 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 26]
- 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.
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, 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 27]
- 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:
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 30]
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.
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:
- 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 31]
- 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 32]
- "Royalties" have been held to cover the law relating to escheats[nb 33]
- 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 34]
- similarly, Canada cannot unilaterally create Indian reserves, as the transfer of such lands requires both federal and provincial approval by order in council[nb 35] (although there is discussion as to whether this is still sound jurisprudence)
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 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 36]
- Provincial Crown land may be subjected to regulation, or expropriated, for federal purposes.[nb 37]
- The administration of crown lands is subject to any rights accruing to First Nations[nb 38] as they represent a relevant "Interest",[nb 39] because the provincial power "is burdened by the Crown obligations toward the Aboriginal people in question."[nb 40] 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.
- 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 41]
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 42][nb 43] 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 44] Federal-provincial management agreements have been implemented with respect to offshore petroleum resources in the areas surrounding Newfoundland and Labrador and Nova Scotia.[na 9][na 10]
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 45]
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.
- 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 47]
- 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 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;
- 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;
- 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;
- 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, 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:
- does it fall under Section 92, ss. 1–15?
- can it be characterized as falling under Section 91, ss. 1–29?
- is it of a general nature, bringing it within Section 91's residuary clause
- otherwise, it falls under Section 92, ss. 16
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:
- 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.
- 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.
- 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.
- 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 49]
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:
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 52] However, the property and civil rights power does allow for determining rules with respect to conflict of laws in civil matters.[na 11]
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:
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 12]
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 53] 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 54]
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 13] Criminal procedure includes prosecution, and thus federal law can determine the extent of federal and provincial involvement in it.[nb 55] 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 56] However, the regulation of recreational fisheries has been partially delegated under the Fisheries Act[na 14] to the provinces, with respect to specified species in specific provinces.[na 15]
- Works that affect navigation are subject to federal approval under the Navigable Waters Protection Act, as well as provincial approval (as the beds of navigable waters are generally reserved to the Crown in right of the province)
- Although federal jurisdiction over broadcasting and most telecommunications is exclusive, the provinces may still regulate the type of advertising that is acceptable[nb 57] and whether cables may be installed above ground or underground[nb 58]
- 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 59]
- 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 60][na 16]
- 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.
Delegation and cooperation
As early as 1899, Lord Watson asserted (during the argument in CPR v Bonsecours[nb 61]) that neither the federal parliament nor the provincial legislatures could give legislative authority to the other level. 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 17] by enacting a complementary Act[na 18] 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.[nb 62]
The matter was addressed directly in 1950 by the Supreme Court, 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 63] 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:—
Later attempts to achieve federal-provincial coordination have proved successful with other types of legislative schemes, 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 64]
- 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 19]
- conjoint schemes with administrative cooperation (such as the administrative authority granted by federal law to provincial transport boards to license extraprovincial transport undertakings).[na 20]
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 reasoning behind the judgments is complex, 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, and the Supreme Court of Canada has indicated in several dicta that it may be ready to revisit the issue in an appropriate case.
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. 121 states:
121. 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:
125. No Lands or Property belonging to Canada or any Province shall be liable to Taxation.
The first provision has been narrowly construed in the Canadian courts, but the second has received a broad interpretation.
- Trade and commerce was affected by Citizen's Insurance Co. v. Parsons,[nb 3] disallowance and reservation of provincial statutes was curtailed by McLaren v. Caldwell,[nb 4] and the double aspect doctrine was introduced into Canadian jurisprudence via Hodge v. The Queen.[nb 5]
- The "national concern" doctrine with respect to the peace, order and good government was introduced in Russell v. The Queen,[nb 6] the ancillary effects doctrine (which noted that a federal power is able to interfere with a provincial power in order to achieve its purpose) was brought about by Cushing v. Dupuy,[nb 7] and in Royal Bank of Canada v. The King the provinces were held not to possess the power to affect extraprovincial contract rights.[nb 8]
- The Board of Commerce case established the national emergency aspect of peace, order and good government),[nb 9] subsequently expanded by Fort Frances Pulp and Paper v. Manitoba Free Press,[nb 10] and was held to even include amending Acts of Parliament itself through regulations.[nb 11] However, Toronto Electric Commissioners v. Snider,[nb 12] held that such emergencies could not be used to unreasonably intrude on the provinces' property and civil rights power.
- Banting, Keith G.; Simeon, Richard (1983). And no one cheered: federalism, democracy, and the Constitution Act. Toronto: Methuen. pp. 14, 16. ISBN 0-458-95950-2.
- as the term is used in books such as Harman Bakvis and Grace Skogstad, ed. (2002). Canadian Federalism: Performance, Effectiveness, and Legitimacy. Don Mills, Ontario: Oxford University Press. ISBN 0-19-541598-1.
- "Federalism". Canadian Encyclopedia.
- "John A. Macdonald on the Federal System". The Historica-Dominion Institute. Retrieved 24 December 2012., quoting Parliamentary Debates on the Subject of the Confederation of the British North American Provinces—3rd Session, 8th Provincial Parliament of Canada. Quebec: Hunter, Rose & Co. 1865. pp. 29–45.
- Romney, Paul (1999). Getting it wrong: how Canadians forgot their past and imperilled Confederation. Toronto: University of Toronto Press. p. 272. ISBN 0-8020-8105-3.
- Edward Blake (1888). The St. Catharine's Milling and Lumber Company v. the Queen: Argument of Mr. Blake, of counsel for Ontario. Toronto: Press of the Budget. p. 6.
- Forsey, Eugene (1 October 2010), "As David Johnson Enters Rideau Hall...", in Forsey, Helen, The Monitor (Ottawa: Canadian Centre for Policy Alternatives), retrieved 2012-08-08
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- "Ontario Labour Relations Board: History". Retrieved 2012-01-20.
- Mallory, J.R. (1961). "The Lieutenant-Governor's Discretionary Powers: The Reservation of Bill 56". Canadian Journal of Economics and Political Science 27 (4): 518–522. JSTOR 139438.
- Dyck 2012, pp. 416–420
- Romney 1999, pp. 273–274
- Heard, Andrew (1990), "Canadian Independence", Vancouver: Simon Fraser University, retrieved 25 August 2010
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- Smith, David E. (10 June 2010), The Crown and the Constitution: Sustaining Democracy?, Kingston: Queen's University, p. 6, retrieved 18 May 2010
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- Karine Richer. "PRB 07-36E: The Federal Spending Power". Library of Parliament.
- Laura Bowman. "Constitutional "Property" and Reserve Creation: Seybold Revisited". Manitoba Law Journal (University of Manitoba, Robson Hall Faculty of Law) 32 (1): 1–25. Retrieved 17 September 2013.
- Hogg 2007, par. 29.2.
- the Railway Belt and the Peace River Block
- Kirk Lambrecht (30 July 2014). "The Importance of Location and Context to the Future Application of the Grassy Narrows Decision of the Supreme Court of Canada". ABlawg.ca.
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- "Canada’s Ocean Estate – A Description of Canada’s Maritime Zones". Fisheries and Oceans Canada. Retrieved 2012-09-04.
- for example, Claude Bélanger. "Theories and Interpretation of the Constitution Act, 1867". Marianopolis College. Retrieved 2012-10-09.
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- La Forest 1975, p. 134.
- La Forest 1975, p. 135.
- La Forest 1975, pp. 135–137.
- La Forest 1975, p. 137–143.
- Cyr, Hugo (2009). "I – The Labour Conventions Case". Canadian Federalism and Treaty Powers: Organic Constitutionalism at Work. Brussels: P.I.E. Peter Lang SA. ISBN 978-90-5201-453-1. Retrieved 2012-08-29.
- Zagros Madjd-Sadjadi, Winston-Salem State University. "Subnational Sabotage or National Paramountcy? Examining the Dynamics of Subnational Acceptance of International Agreements". Southern Journal of Canadian Studies, vol. 2, 1. Retrieved 2012-01-12.
- H. Scott Fairley (1999). "External Affairs and the Canadian Constitution". In Yves Le Bouthillier; Donald M. McRae; Donat Pharand. Selected Papers in International Law: Contribution of the Canadian Council on International Law. London: Kluwer International. pp. 79–91. ISBN 90-411-9764-8.
- Canadian Interpretation and Construction of Maritime Conventions, at note 25
Acts and other instruments
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- Criminal Code Amendment Act, S.C. 1932–33, c. 53, s. 17
- Supreme Court Amendment Act, S.C. 1949 (2nd. session), c. 37, s. 3
- British North America Act, 1940, 3–4 Geo. VI, c. 36 (U.K.)
- British North America Act, 1951, 14–15 Geo. VI, c. 32 (U.K.)
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- Live Stock and Live Stock Products Act, R.S.C. 1927, c.120
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- Minister and Trustees of St. Andrews Church Montreal v James Johnston  UKPC 48 (10 December 1877), Judicial Committee of the Privy Council (on appeal from Canada)
- Frank Nadan v The King  UKPC 13,  AC 482 (25 February 1926), Judicial Committee of the Privy Council (on appeal from Alberta)
- The Citizens Insurance Company of Canada and The Queen Insurance Company v Parsons  UKPC 49, (1881) 7 A.C. 96 (26 November 1881), Judicial Committee of the Privy Council (on appeal from Canada)
- Caldwell and another v McLaren  UKPC 21, (1884) 9 A.C. 392 (7 April 1884), Judicial Committee of the Privy Council (on appeal from Canada)
- Hodge v The Queen (Canada)  UKPC 59, 9 App Cas 117 (15 December 1883), Judicial Committee of the Privy Council (on appeal from Ontario)
- Charles Russell v The Queen (New Brunswick)  UKPC 33,  7 App Cas 829, 8 CRAC 502 (23 June 1882), Judicial Committee of the Privy Council (on appeal from Canada)
- Cushing v Dupuy  UKPC 22, (1880) 5 AC 409 (15 April 1880), Judicial Committee of the Privy Council (on appeal from Quebec)
- The Royal Bank of Canada and others v The King and another  UKPC 1a,  A.C. 212 (31 January 1913), Judicial Committee of the Privy Council (on appeal from Alberta)
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- The Fort Frances Pulp and Paper Company Limited v The Manitoba Free Press Company Limited and others  UKPC 64,  A.C. 695 (25 July 1923), Judicial Committee of the Privy Council (on appeal from Ontario)
- In Re George Edwin Gray 1918 CanLII 86, 57 SCR 150 (19 July 1918)
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- In the matter of The Initiative and Referendum Act being Chapter 59 of the Acts of Legislative Assembly of Manitoba 6 George V.  UKPC 60,  AC 935 (3 July 1919), Judicial Committee of the Privy Council (on appeal from Manitoba)
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- The Attorney-General Canada v The Attorney-General of Ontario and others ("Aeronautics Reference")  UKPC 93,  A.C. 54 (22 October 1931), P.C. (on appeal from Canada)
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- Reference as to the Validity of the Regulations in Relation to Chemicals Enacted by Order in Council and of an Order of the Controller of Chemicals Made Pursuant Thereto (The "Chemicals Reference") 1943 CanLII 1,  SCR 1 (5 January 1943), Canada)
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- Reference re Supreme Court Act, ss. 5 and 6 2014 SCC 21 (21 March 2014)
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- 620 Connaught Ltd. v. Canada (Attorney General) 2008 SCC 7 at par. 27,  1 SCR 131 (29 February 2008)
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- Reference Re Canada Assistance Plan (B.C.) 1991 CanLII 74 at par. 93,  2 SCR 525 (15 August 1991)
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- Smylie v. The Queen (1900), 27 O.A.R. 172 (C.A.)
- Attorney-General for British Columbia and the Minister of Lands v. Brooks-Bidlake and Whitall, Ltd. 1922 CanLII 22, 63 SCR 466 (7 February 1922)
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- The Attorney General for the Dominion of Canada v The Attorneys General for the Provinces of Ontario, Quebec and Nova Scotia ("Fisheries Case")  UKPC 29,  AC 700 (26 May 1898), P.C. (on appeal from Canada)
- The Ontario Mining Company Limited and The Attorney General for the Dominion of Canada v The Attorney General for the Province of Ontario ("Ontario Mining Co. v. Seybold")  UKPC 46,  AC 73 (12 November 1902) (on appeal from Canada)
- The Attorney General of Quebec v The Nipissing Central Railway Company and another ("Railway Act Reference")  UKPC 39,  AC 715 (17 May 1926), P.C. (on appeal from Canada)
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- R. v. Sparrow 1990 CanLII 104,  1 SCR 1075 (31 May 1990), Canada)
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- Grassy Narrows First Nation v. Ontario (Natural Resources) 2014 SCC 48 at par. 50 (11 July 2014)
- Tsilhqot’in Nation v. British Columbia 2014 SCC 44 (26 June 2014)
- Reference Re: Offshore Mineral Rights 1967 CanLII 71,  SCR 792 (7 November 1967), Canada)
- Reference re Newfoundland Continental Shelf 1984 CanLII 132,  1 SCR 86 (8 March 1984), Canada)
- Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas 1984 CanLII 138,  1 SCR 388 (17 May 1984), Canada)
- The Attorney-General for Commonwealth of Australia and others v The Colonial Sugar Refining Company Limited and others  UKPC 76,  AC 237 (17 December 1913), P.C. (on appeal from Australia), and stated again in The Bonanza Creek Gold Mining Company Limited v The King and another  UKPC 11,  1 AC 566 (24 February 1916), P.C. (on appeal from Canada)
- Reference re Anti-Inflation Act 1976 CanLII 16,  2 SCR 373 (12 July 1976), Canada), 463–464
- Viscount Haldane in Fort Frances, p. 704
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- Aeronautics Reference at p. 8
- Edgar F. Ladore and others v George Bennett and others  UKPC 33,  3 D.L.R. 1,  AC. 468 (8 May 1939), P.C. (on appeal from Ontario)
- Re Upper Churchill Water Rights Reversion Act 1984 CanLII 17,  1 SCR 297 (3 May 1984), Canada)
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- Attorney General of Quebec v. Kellogg's Co. of Canada 1978 CanLII 185,  2 SCR 211 (19 January 1978), Canada)
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- Bank of Montreal v. Innovation Credit Union 2010 SCC 47,  3 SCR 3 (5 November 2010)
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