January 6th, 2011
In 2007, the Supreme Court of Canada (“SCC”) seemed to suggest that the utility of interjurisdictional immunity had been nearly exhausted. Justices Binnie and LeBel, in Canadian Western Bank v Alberta,  2 SCR 3, made reference to the doctrine’s asymmetrical application, propensity to create legal vacuums, and general superfluity. These are not trivial concerns. The court recognized significant problems with the application of interjurisdictional immunity and provided a framework for a more appropriate response to division of powers disputes: “If a case can be resolved by the application of a pith and substance analysis, and federal paramountcy where necessary, it would be preferable to take that approach” (para 77).
However, just three years later, the court hesitated to implement this strategy in the twin cases of Quebec (Attorney General) v Canadian Owners and Pilots Association,  2 SCR 536 [COPA], and Quebec (Attorney General) v Lacombe,  2 SCR 453 [Lacombe]. I argue that the doctrine of paramountcy could have been, and should have been, used to reach the conclusions in Pilots if the SCC truly wanted to support the “national interest in a unified system of aeronautical navigation” [COPA, para 2] without sacrificing legal certainty. Although my proposal is also applicable to Lacombe, for purposes of brevity I will restrict my analysis to the COPA case.
Chief Justice McLachlin, writing for a majority of seven in COPA, exercised significant, and, I argue, excessive, judicial restraint in finding that the purpose of the Aeronautics Act was insufficiently frustrated in order to invoke paramountcy. She argued that “permissive federal legislation, without more, will not establish that a federal purpose is frustrated when provincial legislation restricts the scope of the federal permission” [COPA, para 66].
I contend, somewhat in line with the Attorney General of Canada’s submissions [COPA, para 71] that there was adequate evidence to establish the “something more” demanded here. As noted by the Chief Justice, s. 301.03(1) of the Canadian Aviation Regulations, SOR/96-433, provides that the Minister shall register aerodromes that comply with certain safety regulations. She then concluded that “because the Minister is obliged to register an aerodrome under these circumstances, registration does not signify a federal intention that an aeronautics facility should be located in a given area” [COPA, para 72, emphasis added].
But this is not enough. Though there is no apparent intention to situate a facility in a particular location, there is ample reason to deduce an intention to situate a facility in any location that conforms to the prescribed safety regulations, an intention that is equally frustrated by the Quebec zoning law (Act respecting the preservation of agricultural land and agricultural activities, RSQ, c P-41.1 [ARPALAA]).
In effect, it is the very nature of the obligation that generates this conclusion. While the Chief Justice justifiably rejects the Attorney General of Canada’s submission that federal intention is established through the Minister, since the obligation precludes a finding that the Minister had a specific intention, it can nonetheless be established: it is to be found in the Governor in Council’s drafting of the obligation. Thus, it can persuasively be argued that Parliament intended, albeit indirectly, to allow the construction and presence of an aerodrome on the owners’ land, an intention that was frustrated by ARPALAA.
Further, the regulatory framework that gave rise to the above-mentioned regulation demonstrates a federal intention to conclusively legislate in this area. In Law Society (British Columbia) v Mangat,  3 SCR 113 [Mangat], Justice Gonthier, writing for the court, concluded that because s. 114(1)(v) of the Immigration Act granted the Governor in Council the power to make regulations restricting the ability of non-lawyers to act as counsel for a fee, a power that had not been used at the time of the decision, Parliament had “explicitly and definitively legislated in the area” (para 62). Though this type of judicial analysis was available to the court in COPA, as I will demonstrate, Chief Justice McLachlin elected not to invoke it.
Section 4.9(e) of the Aeronautics Act provides that the Governor in Council may make regulations regarding “activities at aerodromes and the location, inspection, certification, registration, licensing and operation of aerodromes” [emphasis added], and, given Justice Gonthier’s reasoning in Mangat, one could deduce from this that Parliament had conclusively legislated in the area. In effect, it was open to the court to argue that the ARPALAA trenched on s. 4.9(e) to such an extent that the right of the Governor in Council to regulate the location of aerodromes contained within it “would no longer be cognizable as such” (see Bank of Montreal v Hall,  1 SCR 121, para 62) rendering the provincial legislation inoperative. This, as I have mentioned, they declined to do.
It may be said that my support for the use of paramountcy in this case relies upon a rather liberal interpretation of the doctrine. Perhaps this is a valid point; since one can comply with both the federal and provincial legislation by failing to construct aerodromes, a conflict can only be established by reference to a frustration of a federal intention. Thus, a broad definition of “conflict” forces courts to make inquiries into the intentions of Parliament, a task at which they have not always excelled. So, while the doctrine of interjurisdictional immunity has been criticized, and rightfully so, for pressing courts to engage in abstract determinations of “core” areas of heads of power (see Canadian Western Bank, para 43), similar problems of indeterminacy may arise from paramountcy analysis.
It is clear that an adoption of an expansive conception of paramountcy is not unproblematic. But, as an alternative to the application of interjurisdictional immunity, it is reasonable. The SCC has noted the troubles associated with the latter doctrine, but failed to take their mandate to limit it seriously. A liberal interpretation of paramountcy in COPA would have allowed the court to retreat from interjurisdictional immunity and its tendency to create legal vacuums and inhibit co-operative federalism without forfeiting the ability to address real conflicts, whether express contradictions or frustrations. More specifically, in this case, such an approach would still have enabled the court to reach the desired state of affairs in which the federal government has total control over aviation. Finally, and perhaps most importantly, it would have avoided the serious affront to legal certainty that has been inflicted by the SCC.
 Consider, for example, Rothmans, Benson & Hedges Inc v Saskatchewan,  1 SCR 188, where provincial legislation that prohibited the display of tobacco to youths was found operative because it furthered Parliament’s intention of protecting the health of young persons, despite the inclusion of a provision in the federal act which permitted such displays. The reasoning was unsatisfactory because it would equally support the operability of a provincial law that outright banned tobacco use, since such a law would also protect the health of young persons. Parliament certainly could not have been imputed with the intention of curbing access to tobacco in an unconstrained manner. If this was the intention, it would have been made clear. The Tobacco Act, SC 1997, c 13, demonstrated Parliament’s measured response to health issues, and this response was frustrated by provincial legislation.
 Justice Lebel, in his dissenting reasons in Lacombe (para 119), justifiably noted that the benefits obtained from limiting interjurisdictional immunity can be mitigated by lax or vague constructions of conflict; it is certainly true that paramountcy will become susceptible to many of the same criticisms targeted at interjurisdictional immunity if it is expanded excessively. However, a slightly liberal reading in COPA would have enabled the SCC to begin a relatively smooth departure from interjurisdictional immunity and maintain consistency with the suggestions in Canadian Western Bank.[filed: Canadian Western Bank (2007) Quebec (Attorney General) v. Canadian Owners and Pilots Association (2010) Quebec (Attorney General) v. Lacombe (2010)]