LW3182 Canadian Constitutional Law

Lecture 4: Introduction to Federalism & Judicial Review

- This lecture will cover background and basic concepts relating to federalism

a) Federalism
o Federalism as a definition (generic definition): government power is distributed between a
central authority and several regional authorities in such a way that every individual in the
state is subject to the law of both authorities
 Contrast federalism with unitary state
 Unitary state is where one governmental authority and all authority of the nation is
vested in that single governmental authority
 May be local governments, but they are subordinate to the single governmental or
national authority

o When thinking about federalism  which countries have a federal system? Canada
(provinces), USA (states), Switzerland (cantons), Germany (lander)
 Effectively, federal systems are able to organise differently
 Spectrum of federalism across different countries where some vest more power in
central authority, some vest more power in provincial/state authority  depends
highly on which federalism we’re talking about as power is allocated and distributed
differently (countries/constitutions are not all the same)
 i.e., Canada  drafters looked at US, wanted to avoid problems US was
having due to US constitution (US is a federal country as stated above, but if
there is a power that is not explicitly explained or allocated in the
constitution, the default or the residual power falls/belongs to the individual
states [ US constitution says so])  Canadian drafters did not want to
emulate that system, leaving the residual power to the federal government in
the form of what was called the Peace Order and Good Government
(POGG) clause
o POGG  is the residual power vested in the federal government
 Is one authority subordinary to the other in Canada? No. Neither power is
subordinate to the other.
 Must think of federalism as two orders of government (federal and
provincial orders of government are different; no hierarchy, but rather
distinct/equal in status – two authorities are coordinate in terms of their
relationship/nature)
o Equal in status, but not in wealth

o There have been different types of federalism in Canada

 Different kinds of governments and provinces have treated federalism differently
 Two types of federalism historically relevant to Canada
1. Executive federalism: executive branch of federal government dominates,
including dominating provinces (that’s the style of governing under Lester B.
Pearson [executive in nature], not written in constitution)
2. Co-operative federalism (relevant for case law when discussing main powers of
constitution): [DEFINITION PROVIDED LATER]

- How should federalism be organised in Canada? Should it be co-operative? Or executive?

 b) Confederation
- Confederation means something different to Canadians than it does to everyone else
- Multiple regional actors that joined together, confederated, and created a central entity, but this entity
is subordinate to the provinces (what it normally means)
- In Canada, confederation refers/means the process of union of various different provinces which
culminated in 1867
- In Canada, the union of provinces created the federal/central government and established, but no
sense a delegate of the provinces (federal government created and independent of the provinces,
coordinate with provincial powers)

c) Legislative Union
- Considered and rejected by provinces which created Canada in the confederation
- Legislative union would have meant that provinces would get together to form new unitary state that
incorporates former units/provinces into it, such that provinces are subject to laws of single/central
legislature
o Legislative union is equal to the idea of a unitary state… i.e., UK is an example of a
legislative union; UK is made up of unions of various different nations that have come
together (England, Wales, Scotland, Northern Ireland) and are subject to a central
authority/laws of a single/central legislature  Westminster Parliament
- Canada rejected the idea of a legislative union
- Who specifically rejected it (1867)?
o Quebec/lower Canada: rejected it because it wanted to protect its language and culture
o Maritime provinces (NS, PEI, NB): rejected because wanted to protect local traditions and
institutions which they thought would be imperiled if they had a legislative union

d) Special Status
- Term which has applied to proposals for constitutional change whereby one province would possess
larger powers than other provinces – provide province special status by providing extra
powers/recognitions on constitutional issues
- Although a number of provisions in the constitution presently apply to one province or a group of
provinces (i.e., some provisions in Constitution Act 1930 which discusses natural resources in
Alberta, Saskatchewan and Manitoba  it cannot be said that there is a special status for any
province; there is not a procedure by which a province has obtained special status in the constitution
at present  this is true even though provinces are not equal, we know Ontario is not equal to PEI –
either it comes to population, economics, demographics – equal in status, but different)
- Late 1980’s, Brian Mulroney (Quebecois) wanted to reconcile that Quebec never signed onto the
1982 Constitution (by which PET repatriated)  effectively, wanted to recognise that Quebec is
distinct from the rest of Canada in terms of culturally/linguistically/host of legal reasonings 
created the Meech Lake Accord (1987), tried to create a constitutional change, all provinces had to
agree, some would have to ratify, others would just have to agree
o Meech Lake Accord tried to do 4 things:
1. Recognise Quebec as a distinct society (provinces do not have special status in the
constitution, but this accord was arguably attempting to give Quebec special status as a
distinct society)
2. The Accord was supposed to give Quebec a veto over certain types of constitutional
amendments (Quebec asked for in 1982, to have veto under Victoria Charter, whereby
Trudeau said no [Ontario wanted on too, was declined])
3. Accord was going to give provinces a roll-over immigration so that provinces could
decide who comes and out of their province and who gets to reside and settle, especially
when there are different provincial needs
   i.e., Alberta – oil tar industry, might need immigrants who have a
willingness/understanding to work in that field…
  i.e., or other provinces who have aging populations that might need more care-
workers
4. Accord provided role in appointment of SSC Judges  SSC decided many issues for
country; Meech Lake Accord was giving Quebec role in appointing SSC Judges

- 1995, shortly after the Quebec referendum (narrowly lost) almost seceded: the rest of English-
speaking Canada breathed a sigh of relief because they did not want Quebec to leave
o Subsequent to what was knowing the Meech Lake Accord had failed in 1987 to recognise
Quebec as a distinct society
o In 1995, the HOC (one part of parliament) passed a resolution recognising Quebec as a
distinct society and would be “guided by this reality”  piece of law/resolution that
recognises Quebec as a distinct society  it is a statute, not a constitutional piece of
legislation  interesting to think about in terms of special status; what it does to
constitutional interpretation/or substantively

e) Dominions and the provinces

- Dominion gains currency in 1900’s, supposed to differentiate from concept of colony
- Dominion status was given to different colonies on the basis that they were more self-governing
- Also gives colonies given dominion status were white settler colonial colonies – run by white settlers
that came from UK, governing indigenous peoples
- Other countries were also given status of dominion: South Africa, Australia and New Zealand
- Dominions provided autonomy over colonies

f) Regions
- Has no precise meaning
- Used loosely, does not mean anything specific
- Can include the west, or prairie provinces, also could be Atlantic or maritime

g) Subsidiarity
- Is an EU term
- Simple idea: decisions that affect individuals should be decided to the government closest to the
individual
o An individual has an issue, local government should decide that issue, not the provincial or
federal because they’re further removed and may not know how to sufficiently or adequately
address the issue
- Better to have local needs addressed by local authority because they will have a better understanding
of those needs
- BNA 1867 tried to create a subsidiarity model of constitutionalism in the division of powers
(generally ss. 91, 92 which divide powers between two orders of government; federal (s.91) and
provincial order (s.92)  each have list of powers in terms of what they can legislate on)  BNA
1867 tried to give different powers to different orders of government under a subsidiarity principle
(i.e., provincial government is better at dealing with an issue because more local)
- Confederation also aimed to create an economic union between the provinces and federal
government  federal parliament vested some subject matters having to do with economic matters
of the nation, i.e. customs and excise, interprovincial and international trade and commerce/banking,
currency, taxation and national defence  under federal powers

The reasons for Federalism

- Why do we have a federal state?
o Advantages
 Federalism as an organising principle is able to cover a large country  Federalism
is very good at dealing with very large states that possess diverse regions and
populations (esp. if they are territorially confined) i.e., you’d want Quebec to be a
province of its own to deal with issues of language and culture without federal
government impeding – too much work for a unitary government
 Federalism offers efficiency in governance by dividing powers between national and
provincial governments  makes things easier to govern because you have two
orders of government, each responsible for certain issues (economies of scale) 
country is more efficient
 Provinces can be social laboratories and they can experiment and test legislative
programmes which are not imposed on the whole population  i.e., prior to
confederation, some provinces which had jurisdiction over health care, trying to
address various different health related issues differently  BC has tried different
attempts at intervening with drug abuse, as well as trial medication which is done
safely and accessibly (monitoring these programmes to see whether they are
successful or not)  experiment can be replicated and implemented throughout
other provinces  i.e., also possible in housing and employment
 Federalism prevents tyranny of centralised authority; dilutes the concentration of
power  in federalism if there is tyrannical authority in any place, whether it’s in
one province or in the federal government, there’s so much diffusion of power in
terms of where its located, that might not affect the running of the country

o Disadvantages
 Federal government might be a weak government; hard for federal government to
implement new or radical policies
 As much as there is innovation in social legislation provincially, the federal
government is restrained/unable to rule out something across the country and
experiment with house successful it is; limited to doing that

Constitution Act 1867, ss.91, 92

- What Ss. 91, 92 does is illustrates a division of powers  a division of powers of legislative
jurisdictional powers
o Sections dictate where orders of government have power to legislate on X topic
o Divides legislative jurisdiction  who can legislate, federal or provincial governments

POWERS OF PARLIAMENT S.91 EXCLUSIVE POWERS OF PROVINCIAL

Legislative Authority of Parliament of Canada
91. It shall be lawful for the Queen, by and with the Advice
and Consent of the Senate and House of Commons, 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; and for greater Certainty, but not so as to
restrict the Generality of the foregoing Terms of this Section,
it is hereby declared that (notwithstanding anything in this
Act) the exclusive Legislative Authority of the Parliament of
Canada extends to all Matters coming within the Classes of
Subjects next hereinafter enumerated; that is to say,
1.Repealed. (44)
LEGISLATURES
Subjects of exclusive Provincial Legislation
92. In each Province the Legislature may exclusively make
Laws in relation to Matters coming within the Classes of
Subjects next hereinafter enumerated; that is to say,
1. Repealed.
2. Direct Taxation within the Province in order to the raising
of a Revenue for Provincial Purposes.
3. The borrowing of Money on the sole Credit of the
Province.
4. The Establishment and Tenure of Provincial Offices and
the Appointment and Payment of Provincial Officers.
5. The Management and Sale of the Public Lands belonging
to the Province and of the Timber and Wood thereon.
1a. The Public Debt and Property. (45)
2. The Regulation of Trade and Commerce.
2A. Unemployment insurance. (46)
3. The raising of Money by any Mode or System of Taxation.
4. The borrowing of Money on the Public Credit.
5. Postal Service.
6. The Census and Statistics.
7. Militia, Military and Naval Service, and Defence.
8. The fixing of and providing for the Salaries and
Allowances of Civil and other Officers of the Government of
Canada.
9. Beacons, Buoys, Lighthouses, and Sable Island.
10. Navigation and Shipping.
11. Quarantine and the Establishment and Maintenance of
Marine Hospitals.
12. Sea Coast and Inland Fisheries.
13. Ferries between a Province and any British or Foreign
Country or between Two Provinces.
14. Currency and Coinage.
15. Banking, Incorporation of Banks, and the Issue of Paper
Money.
16. Savings Banks.
17. Weights and Measures.
18. Bills of Exchange and Promissory Notes.
19. Interest.
20. Legal Tender.
21. Bankruptcy and Insolvency.
22. Patents of Invention and Discovery.
23. Copyrights.
24. Indians, and Lands reserved for the Indians.
25. Naturalization and Aliens.
26. Marriage and Divorce.
27. The Criminal Law, except the Constitution of Courts of
Criminal Jurisdiction, but including the Procedure in
Criminal Matters.
28. The Establishment, Maintenance, and Management of
Penitentiaries.
29. Such Classes of Subjects as are expressly accepted in the
Enumeration of the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces.
And any Matter coming within any of the Classes of
Subjects enumerated in this Section shall not be deemed to
come within the Class of Matters of a local or private Nature
comprised in the Enumeration of the Classes of Subjects by
this Act assigned exclusively to the Legislatures of the
Provinces.  (b) development, conservation and management of non-
6. The Establishment, Maintenance, and Management of
Public and Reformatory Prisons in and for the Province.
7. The Establishment, Maintenance, and Management of
Hospitals, Asylums, Charities, and Eleemosynary
Institutions in and for the Province, other than Marine
Hospitals.
8. Municipal Institutions in the Province.
9. Shop, Saloon, Tavern, Auctioneer, and other Licences in
order to the raising of a Revenue for Provincial, Local, or
Municipal Purposes.
10. Local Works and Undertakings other than such as are of
the following Classes:
(a) Lines of Steam or other Ships, Railways, Canals,
Telegraphs, and other Works and Undertakings connecting
the Province with any other or others of the Provinces, or
extending beyond the Limits of the Province:
(b) Lines of Steam Ships between the Province and any
British or Foreign Country:
(c) Such Works as, although wholly situate within the
Province, are before or after their Execution declared by the
Parliament of Canada to be for the general Advantage of
Canada or for the Advantage of Two or more of the
Provinces.
11. The Incorporation of Companies with Provincial
Objects.
12. The Solemnization of Marriage in the Province.
13. Property and Civil Rights in the Province.
14. The Administration of Justice in the Province, including
the Constitution, Maintenance, and Organization of
Provincial Courts, both of Civil and of Criminal Jurisdiction,
and including Procedure in Civil Matters in those Courts.
15. The Imposition of Punishment by Fine, Penalty, or
Imprisonment for enforcing any Law of the Province made
in relation to any Matter coming within any of the Classes of
Subjects enumerated in this Section.
16. Generally all Matters of a merely local or private Nature
in the Province.
Non-Renewable Natural Resources, Forestry Resources
and Electrical Energy
Marginal note: Laws respecting non-renewable natural
resources, forestry resources and electrical energy
92A. (1) In each province, the legislature may exclusively
make laws in relation to
(a) exploration for non-renewable natural resources in the
province;
renewable natural resources and forestry resources in the
province, including laws in relation to the rate of primary
production therefrom; and
(c) development, conservation and management of sites and
facilities in the province for the generation and production of
electrical energy.
Marginal note: Export from provinces of resources
(2) In each province, the legislature may make laws in
relation to the export from the province to another part of
Canada of the primary production from non-renewable
natural resources and forestry resources in the province and
the production from facilities in the province for the
generation of electrical energy, but such laws may not
authorize or provide for discrimination in prices or in
supplies exported to another part of Canada.
Marginal note: Authority of Parliament
(3) Nothing in subsection (2) derogates from the authority of
Parliament to enact laws in relation to the matters referred to
in that subsection and, where such a law of Parliament and a
law of a province conflict, the law of Parliament prevails to
the extent of the conflict.
Marginal note: Taxation of resources
(4) In each province, the legislature may make laws in
relation to the raising of money by any mode or system of
taxation in respect of
(a) non-renewable natural resources and forestry resources
in the province and the primary production therefrom, and
(b) sites and facilities in the province for the generation of
electrical energy and the production therefrom,
whether or not such production is exported in whole or in
part from the province, but such laws may not authorize or
provide for taxation that differentiates between production
exported to another part of Canada and production not
exported from the province.
“Primary production”
(5) The expression “primary production” has the meaning
assigned by the Sixth Schedule.
Marginal note: Existing powers or rights
(6) Nothing in subsections (1) to (5) derogates from any
powers or rights that a legislature or government of a
province had immediately before the coming into force of
this section.