Canadian federalism

For the political ideology that favours Quebec remaining within the Canadian federation rather than pursuing independence, see Quebec federalist ideology.

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Canadian federalism is concerned with the nature and historical development of federal systems within Canada. Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten provincial governments. It has three territorial governments in the far north that exercise delegated powers under the authority of the Parliament of Canada. All three jurisdictions are linked together by the Canadian Crown, from which all derive their sovereignty and authority; each government includes the Queen-in-Parliament, the Queen-in-Council, and the Queen-on-the-Bench. The federal parliament and the provincial assemblies are generally independent of one another in their respective areas of legislative authority. 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 federal nature of the Canadian constitution was in 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 (Quebec) and the English-speaking inhabitants in Upper Canada (Ontario) and the Maritimes. Federalism enabled the co-existence of the French and English communities. John A. Macdonald, who became the first Prime Minister of Canada, at first opposed a federalist system of government, favouring a unitary system. He later supported the federal system after seeing the carnage of the American Civil War; he sought to avoid violent conflicts by maintaining a fusion of powers rather than a separation of powers.

The division of powers between the federal and provincial governments was initially outlined in the British North America Act, 1867 (now known as the Constitution 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.

History

See also: Constitutional history of Canada

Before World War I

See also: Canadian Confederation and Post-Confederation Canada (1867–1914)

Sir John A Macdonald

The relationship between Canada and the provinces has changed over time, with decentralization increasing as years passed. Throughout the Macdonald era (1867–1873, 1878–1891), the Confederation was described by political scientist K.C. Wheare and historian Paul Romney as "Quasi-Federalism". This meant that the 19th century political and judicial elites read the Constitution to give the federal parliament powers that made the provinces "subordinate to Ottawa". The structure within Canada was originally intended to be the same as that which existed between the English government and the governments of the British Empire's North American colonies. The Macdonald government's use of disallowance and reservation reinforced federal supremacy.

In 1875, the Parliament established the Supreme Court of Canada 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 Privy Council came to be viewed as more sympathetic to provincial interests, and appeals from the SCC to the Privy Council required leave, 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. The Parliament would not receive the authority to bar such appeals until 1931.

Beginning in the 1880s, first in Russell v. The Queen, and with later successful provincial challenges, notably those spearheaded by Ontario Premier Sir Oliver Mowat, federal power became significantly constrained. During that time, Citizen's Insurance Co. v. Parsons significantly affected the interpretation of the federal trade and commerce power, McLaren v. Caldwell effectively reduced the federal practice of disallowance and reservation of provincial statutes, Hodge v. The Queen introduced the double aspect doctrine into Canadian jurisprudence, and Cushing v. Dupuy introduced the ancillary effects doctrine (which noted that a federal power is able to interfere with a provincial power in order to achieve its purpose).

In 1888, the Canadian Parliament abolished appeals to the Judicial Committee of the Privy Council in criminal cases. That provision was later ruled by the Privy Council in 1926, in Nadan v The King, to be in conflict with the Colonial Laws Validity Act 1865, and was thus unconstitutional.

With the appointment of Sir Wilfrid Laurier came a new phase of Confederation that Rand Dyck refers to as "Classical Federalism". This was marked by a more equal relationship between the levels, as the Judicial Committee of the Privy Council settled several disputes in favour of the latter. 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.

In 1913, in Royal Bank of Canada v. The King, provinces were held not to possess the power to affect extraprovincial contract rights.

1914 – 1960

See also: Canada in the World Wars and Interwar Years and History of Canada (1945–1960)

Dominion-Provincial Conference, 1927

During each of the two world wars, Ottawa greatly expanded its powers. The most notable example was the passage in 1914 of the War Measures Act, which was held to be a constitutional use of its peace, order and good government power. In addition, during the First World War, Parliament extended its use of its taxation power by establishing income taxes.

the Board of Commerce case tested the limits of federal power (which established the national emergency aspect of peace, order and good government), Fort Frances Pulp and Paper v. Manitoba Free Press (which greatly extended it), Toronto Electric Commissioners v. Snider (which held that such emergencies could not be used to unreasonably intrude on the provinces' property and civil rights power). Federal jurisdiction was also determined to extend to broadcasting in the Radio Reference and aeronautics in the Aeronautics Reference.

In 1919's Initiatives and Referendums Reference, a Manitoba law that provided for direct legislation by way of initiatives and referendums was ruled unconstitutional by the Privy Council as only the provincial legislature could validly enact laws. As the passing of laws requires Royal assent, the provinces could not permit "the abrogation of any power which the Crown possesses through a person directly representing it". In 1926, Nadan v The King held that similar restrictions applied to Parliament.

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 1930 case of Edwards v. Canada (Attorney General), introduced the living tree doctrine. This influenced its interpretation, especially in post-Charter cases.

The Statute of Westminster 1931 replaced the Colonial Laws Validity Act 1865 giving the Parliament the ability to make extraterritorial laws and abolished appeals to the Judicial Committee of the Privy Council. Criminal appeals were abolished in 1933, while civil appeals continued until 1949. 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. The last Privy Council ruling of constitutional significance occurred in 1954, in Winner v. S.M.T. (Eastern) Limited. 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.

During the Second World War, the National Resources Mobilization Act was passed to supplement the War Measures Act in pursuing the national war effort. In addition:

• jurisdiction over unemployment insurance was transferred permanently to the federal level,
• 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.

In 1951, section 94A was inserted into the British North America Act, 1867 to allow the Canadian Parliament to make provision for pensions. This was later extended in 1964 to allow for supplementary benefits (including disability and survivors' benefits).

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. The practice of Keynesian economics was also introduced by the federal government during this time. The period also saw a rise in the use of First Ministers' conferences for resolving federal-provincial issues.

1960 – 1982

See also: History of Canada (1960–1981)

In 1961, 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 programs, including universal health care, the Canada Pension Plan and Canada Student Loans.

1961 also 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.

As a result of Quebec's Quiet Revolution, Canada increased administrative decentralization, with Quebec often opting out of important federal initiatives and instituting its own, as with the Quebec Pension Plan.

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. The National Energy Program sparked a great deal of bitterness against the federal government in Alberta; as well, the federal government involved itself in disputes over oil with Newfoundland and Saskatchewan.

In the lead up to the constitution in 1982, Trudeau had, when negotiations with the provinces stalled at one point, 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 Parliament of Canada then requested the British Parliament to approve the Constitution Act, 1982, which the latter did through passage of the Canada Act 1982. This resulted in:

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

After 1982

See also: History of Canada (1982–1992) and History of Canada (1992–present)

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 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 federal trade and commerce power has been 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., but the SCC's modern approach 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. In that regard, Multiple Access Ltd. v. McCutcheon has significantly strengthened the double aspect doctrine for assessing situations where jurisdictions overlap. Jurisprudence relating to the doctrine of interjurisdictional immunity has also been rationalized in Canadian Western Bank v. Alberta.

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 Crown

Main articles: Monarchy of Canada and Monarchy in the Canadian provinces

As a federal monarchy, the Canadian Crown is unitary throughout all jurisdictions in the country, 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.

• 

  The Queen

• 

  The Senate

• 

  The House of Commons

Distribution of legislative powers

See also: Canadian constitutional law

Front page of a copy of the Act from 1867

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.

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"
  • Section 106 – appropriation of funds for federal purposes
  • Section 132 – implementing obligations arising from treaties between the British Empire and foreign countries

It should be noted that no laws have ever been passed under ss. 93(4) or 94.

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

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

Powers exclusive to the provincial legislatures

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

Concurrent powers

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

Canadian Charter of Rights and Freedoms

Canadian Charter of Rights and Freedoms

In 1982 the Canadian Charter of Rights and Freedoms was brought into effect. This was not meant to affect the workings of federalism, though some content was moved from section 91 to section 4 of the Charter. Mainly, the Charter is meant to decrease powers of both levels of government by ensuring both federal and provincial laws respect Charter rights, under section 32.

The relationship between federalism and the Charter is directly dealt with in section 31, which declares that neither the federal nor provincial governments gain powers under the Charter.

In R. v. Big M Drug Mart Ltd., it was found that legislation whose purpose is found to violate the Charter cannot be saved even if its effects were found to be inoffensive. If a provision of law cannot be seen to constitute a reasonable limit, demonstrably justifiable in a free and democratic society, it cannot be saved pursuant to section 1 of the Charter.

However, the provincial education power under Section 93 of the Constitution Act, 1867 is plenary, and is not subject to Charter attack, so long as it does not extend beyond the confines of Section 93's mandate to fund Roman Catholic separate schools and public schools.

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.

National and provincial concerns

The preamble of Section 91 of the Constitution Act, 1867 states: "It shall be lawful for the Queen, [...] to make laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces;" In addition to assigning powers that are not otherwise stated elsewhere (which has been very narrowly interpreted), this has led to the creation of the national emergency and national concern doctrines.

The national emergency doctrine was described by Beetz J. in Reference re Anti-Inflation Act in these words:

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".

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

The national concern doctrine is governed by the principles stated by Le Dain J. in R. v. Crown Zellerbach Canada Ltd.:

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

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

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

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

Lord Sankey

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

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

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

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

• if it is, in pith and substance, provincial, ancillary effects on the rights of individuals outside the province are irrelevant, 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

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. However, the property and civil rights power does allow for determining rules with respect to conflict of laws in civil matters.

Attaining a national dimension

Federal jurisdiction therefore arises in several circumstances:

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

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

Uniformity of federal law

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

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

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

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

Interplay of jurisdictions

Supreme Court of Canada

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." 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.

”

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. Criminal procedure includes prosecution, and thus federal law can determine the extent of federal and provincial involvement in it. 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. However, the regulation of recreational fisheries has been partially delegated under the Fisheries Act to the provinces, with respect to specified species in specific provinces.
• 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 and whether cables may be installed above ground or underground
• 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 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), 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. Federal-provincial management agreements have been implemented with respect to offshore petroleum resources in the areas surrounding Newfoundland and Labrador and Nova Scotia.
• 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.
• 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
• 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.

The power to implement treaties

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

• the Aeronautics Reference,
• the Radio Reference, and
• the Labour Conventions Reference,

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.

It should be noted that 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.

Determining the constitutionality of legislation

Court doctrines

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

• pith and substance, including the nature of any ancillary powers and the colourability of legislation,
• double aspect,
• paramountcy, and
• interjurisdictional immunity

The pith and substance doctrine is founded on the recognition that it is in practice impossible for a legislature to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government.

Also, some matters are by their very nature impossible to categorize under a single head of power: they may have both provincial and federal aspects. The double aspect doctrine, which applies in the course of a pith and substance analysis, ensures that the policies of the elected legislators of both levels of government are respected, by recognizing that both Parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered (i.e., depending on the various aspects of the matter in question).

In certain circumstances, however, the powers of one level of government must be protected against intrusions, even incidental ones, by the other level. For this purpose, the courts have developed the doctrines of interjurisdictional immunity and federal paramountcy.

In Re Upper Churchill Water Rights Reversion Act, an Act of the Newfoundland legislature was held to be unconstitutional because of colourability. While its stated purpose was to cancel a long-term lease and to expropriate power generation assets located in the province, its real purpose was to interfere with civil rights existing outside the province. As noted by McIntyre J.:

Where the pith and substance of the provincial enactment is in relation to matters which fall within the field of provincial legislative competence, incidental or consequential effects on extra-provincial rights will not render the enactment ultra vires. Where, however, the pith and substance of the provincial enactment is the derogation from or elimination of extra-provincial rights then, even if it is cloaked in the proper constitutional form, it will be ultra vires. A colourable attempt to preserve the appearance of constitutionality in order to conceal an unconstitutional objective will not save the legislation.

Lord Haldane

Certain measures that would be constitutionally valid if enacted on their own are invalid if they are combined with other measures that invade unconstitutionally into the other jurisdiction. This is held to be overreach. As noted by Lord Haldane:

Within the spheres allotted to them by the (B.N.A.) Act the Dominion and the Provinces are rendered on general principle co-ordinate governments. As a consequence where one has legislative power the other has not, speaking broadly, the capacity to pass laws which will interfere with its exercise. What cannot be done directly cannot be done indirectly.

• In Reference re Assisted Human Reproduction Act, the federal use of the criminal law power was found in certain key aspects to overreach too far into the provincial hospitals power, as well as into the more familiar sphere of property and civil rights.
• In Reference re Securities Act, a proposed federal law for establishing a national securities regulator was held to overreach, as a whole, too far into the property and civil rights power, and was thus wholly unconstitutional.

Canadian Western Bank principles

The current approach to determining the constitutionality of legislation is founded in Canadian Western Bank v. Alberta, where the Supreme Court of Canada summarized the following principles:

• the pith and substance of the provincial law and the federal law should be examined to ensure that they are both validly enacted laws and to determine the nature of the overlap, if any, between them.
• the applicability of the provincial law to the federal undertaking or matter in question must be resolved with reference to the doctrine of interjurisdictional immunity.
• only if both the provincial law and the federal law have been found to be valid pieces of legislation, and only if the provincial law is found to be applicable to the federal matter in question, then both statutes must be compared to determine whether the overlap between them constitutes a conflict sufficient to trigger the application of the doctrine of federal paramountcy.

The burden of proof falls on the party that is alleging paramountcy. As Binnie and LeBel JJ. noted:

To sum up, the onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal and provincial laws are in fact incompatible by establishing either

• that it is impossible to comply with both laws or
• that to apply the provincial law would frustrate the purpose of the federal law.

Where the constitutionality of legislation is being questioned in relation to the division of powers under the Constitution Act, 1867, an analysis of its pith and substance must be undertaken. This analysis consists of an inquiry into the true nature of the law in question for the purpose of identifying the matter to which it essentially relates.

• If its pith and substance can be related to a matter that falls within the jurisdiction of the legislature that enacted it, the courts will declare it intra vires.
• If, however, it can more properly be said to relate to a matter that is outside the jurisdiction of that legislature, it will be held to be invalid owing to this violation of the division of powers.
• The corollary to this analysis is that legislation whose pith and substance falls within the jurisdiction of the legislature that enacted it may, at least to a certain extent, affect matters beyond the legislature’s jurisdiction without necessarily being unconstitutional. At this stage of the analysis, the dominant purpose of the legislation is still decisive.
• Merely incidental effects will not disturb the constitutionality of an otherwise intra vires law.

Ancillary powers under Lacombe

In Quebec (Attorney General) v. Lacombe, the nature of any ancillary powers arising from the pith and substance of a matter was considered. As noted by McLachlin C.J.:

• The degree of integration required increases in proportion to the seriousness of the encroachment.
• Where the impugned measure encroaches only slightly on the jurisdiction of the other level of government, a rational, functional connection is required.
• As the degree of intrusion grows more serious, the required degree of integration tends toward a test of necessity.
• To meet the test, a prima facie invalid measure must complement rather than merely supplement the legislative scheme. It must, both rationally and in its function, further the purposes of the valid legislative scheme of which it is said to be part.

Interjurisdictional immunity under PHS Community Services

Though there remains some debate, it has generally been accepted that interjurisdictional immunity applies equally to both the federal and provincial governments. Nevertheless, virtually all of the case law concerns situations where provincial laws encroach on federal matters. In PHS Community Services, the Supreme Court expressed caution in employing the doctrine in future cases because:

1. It is in tension with the dominant approach that permits concurrent federal and provincial legislation with respect to a matter.
2. It is in tension with the emergent practice of cooperative federalism.
3. It may overshoot the federal or provincial power in which it is grounded and create legislative “no go” zones where neither level of government regulates.

As McLachlin CJ explained:

[70] In summary, the doctrine of interjurisdictional immunity is narrow. Its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Quite simply, the doctrine is neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government.

Further reading

• Dyck, Rand (2012). Canadian Politics: Critical Approaches (Concise) (5th ed.). Toronto, Ontario: Nelson Education. ISBN 978-0-17-650343-7. OCLC 669242306. 
• Morris J. Fish (2011). "The Effect of Alcohol on the Canadian Constitution ... Seriously". McGill LJ (McGill Law Journal) 57 (1): 189–209. ISSN 1920-6356. Retrieved 2012-08-06. 
• Hogg, Peter W. (2007). Constitutional Law of Canada (loose-leaf) (5th ed.). Toronto, Ontario: Carswell. ISBN 978-0-7798-1337-7. ISSN 1914-1262. OCLC 398011547. 
• J. Noel Lyon (1976). "The Central Fallacy of Canadian Constitutional Law". McGill LJ (McGill Law Journal) 22 (1): 40–70. ISSN 1920-6356. Retrieved 2012-12-24. 
• Oliver, Peter C. (2011). "The Busy Harbours of Canadian Federalism: The Division of Powers and Its Doctrines in the McLachlin Court". In Dodek, Adam; Wright, David A. Public Law at the McLachlin Court: the First Decade. Toronto, Ontario: Irwin Law. pp. 167–200. ISBN 978-1-55221-214-1. OCLC 774694912. 
• Rocher, François; Smith, Miriam (2003). New Trends in Canadian Federalism (2nd ed.). Peterborough, Ontario: Broadview Press. ISBN 1551114143. OCLC 803829702. 
• Stevenson, Garth (2003). Unfulfilled union: Canadian federalism and national unity (4th ed.). McGill-Queen's University Press. ISBN 0-7735-2744-3. OCLC 492159067. 

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
• Atlantic Canada and Canadian Federalism
• Constitutional Law professor Hester Lessard on the Downtown Eastside and Jurisdictional Justice
• Canadian Governments Compared – ENAP