In its 2007 ruling, the Supreme Court of Canada addressed the controversies regarding interjurisdictional immunity in Canadian Western Bank v The Queen in Right of Alberta (“CWB“), [2007] 2 SCR 3, by narrowing the doctrine to a twofold test. After identifying a “core” established by precedent, the Court then decided whether an impugned provision impaired either the core competency or an undertaking of that core competency (at para 48). Given the judicial discrepancies that arose over this second condition (see Quebec (Attorney General) v Lacombe (“Lacombe“), [2010] 2 SCR 453, Quebec (Attorney General) v Canadian Owners and Pilots Association, [2010] 2 SCR 536), the recent case of Canada (Attorney General) v PHS Community Services Society (“Insite“), 2011 SCC 44, presented an opportunity for clarification. The Court unanimously ruled that interjurisdictional immunity was inapplicable to provincial healthcare because, among other considerations, these undertakings were too broad for “the restrained application of the doctrine called for by the jurisprudence” (para 68). This essay will explore the aspects of the twofold test left unanswered by the Court and argue that these have implications for the doctrine and federalism broadly.

As the case of Lacombe demonstrates, it is no trivial concern that the second part of the test leaves questions unanswered. Writing for the majority, Chief Justice McLachlin appeared to favour the application of impairment to the core competency approach. According to the majority, a possible prohibition on aerodromes would clearly impair the core of the federal power over aeronautics (at para 66). Dissenting, Justice Deschamps preferred to apply impairment to the core competency’s undertaking. She states, the “test is that of the impairment of activities, not that of merely affecting the core of the protected power,” (para 114) since the latter created confusion between the issue of validity and applicability (para 115). Despite the divergence of opinion, both views are in keeping with the doctrine outlined in CWB. Additional jurisprudence is therefore required to provide the courts with the necessary tools to determine under which circumstances either approach should be applied.

In the Supreme Court’s application of interjurisdictional immunity in Insite, the twofold approach was neither addressed nor clarified by the Court. In her ruling, Chief Justice McLachlin dismissed interjurisdictional immunity as an established core of provincial healthcare as it lacks precedent, is too “broad and extensive,” and is not exclusive (paras 67-68). Introducing the doctrine here would be “neither necessary nor helpful” (para 70). Regrettably, her analysis and discussion of interjurisdictional immunity’s background and drawbacks make no reference to the twofold method outlined in CWB despite the discussion in Lacombe. Failure to articulate the twofold method raises the question of whether the Court recognizes the significance of this debate or whether the majority in Lacombe is the approach to follow. Although the Court did not wish to “disturb settled competencies and introduce uncertainties” (para 70) it would have been helpful if it had provided clarification.

Following the Insite decision, there are important implications for both interjurisdictional immunity and federalism. The broad interpretation of the doctrine is “antithetical to co-operation between the levels of government” and the ideals of cooperative federalism as outlined by Justices Binnie and Lebel in CWB (at para 116). Likewise, this approach overemphasizes the notion of “watertight compartments” while ignoring the reality that most social problems are interconnected and require creative solutions (see Bruce Ryder, “The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations”). On the other hand, the narrower approach of focusing on the activities of the core competency risks the creation of numerous smaller exceptions that frustrate uniformity. This is consistent with allowing overlap in modern cooperative federalism. Applying one or the other in isolation has, as Ryder says, broad centralizing or narrow decentralizing impacts on federalism. A balance of both approaches applied correctly and with reciprocity has the potential to maximize the legislative powers for federal and provincial governments alike. Unfortunately, for our purposes, the Court does not address which method should be adopted. More importantly, no attention is given to find a balance between the two or identify circumstances where one approach is favoured over the other. This issue has yet to be resolved.

Chief Justice McLachlin’s application of interjurisdictional immunity with respect to Insite did not address the doctrine’s remaining uncertainties. A balance must be achieved between the broad core competency approach that creates a more dualistic version of federalism and the narrow undertaking approach which fosters a more cooperative form (CWB at para 116). While some clarity to the doctrine has been achieved in recent years, the courts still need to address key remaining questions: do we apply impairment to the core competency or to the narrow undertaking; or are there circumstances when we should favour one approach over the other?

The doctrine of interjurisdictional immunity, which can be used to challenge statutes on the ground of division of powers, seeks to limit the applicability of valid statutes. This contentious doctrine is

premised on the idea that there is a “basic, minimum and unassailable content” to the heads of powers in ss. 91 and 92 of the Constitution Act, 1867 that must be protected from impairment by the other level of government. (Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, at para 58 (“Insite“))

In the Insite case, the claimants argued that interjurisdictional immunity should be applied to provide exemption for the Insite safe injection facility from federal criminal laws that prohibit the possession and trafficking of controlled substances on the grounds that Insite is a health facility within the exclusive jurisdiction of the Province. While the Supreme Court found a Charter-based exemption for Insite, it determined that interjurisdictional immunity was “neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government” (Insite at para 70). This brief post will attempt to demonstrate that this ruling has problematic implications for the division of powers in Canada by arguing that it perpetuates the centralization of powers without providing any clarification or instruction as to how interjurisdictional immunity could be applied in a way to protect provincial heads of power.

Central to the Supreme Court’s decision as to the inapplicability of interjurisdictional immunity in Insite is the idea that the doctrine has recently been narrowed (see Canadian Western Bank v The Queen in Right of Alberta, 2007 SCC 22, at para 47, where the Court stated that it “does not favour an intensive reliance on the doctrine of interjurisdictional immunity”). In citing reasons for this narrowing, however, the Court overlooks a crucial concern: interjurisdictional immunity’s “unintentional centralizing tendency” that has resulted from its “asymmetrical” application in protecting federal heads of power from provincial intrusion (Western Bank at para 45). This asymmetrical application has also served to undermine the principle of subsidiarity, as decisions “are often best [made] at a level of government that is not only effective, but closest to the citizens affected” (see 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40, at para 3, cited in Western Bank at para 45). By overlooking this concern, the Court has missed an opportunity to apply the doctrine in a way that, contrary to its historical use, would help to rectify this centralizing tendency and would allow a local issue to be dealt with by those most proximate to the problem. In addition, it would give credibility to the critical assertion in Western Bank that, in principle, interjurisdictional immunity is applicable to both federal and provincial heads of authority (Western Bank, para 67). What may be more problematic, however, is that the Insite ruling further promotes the centralization of powers by refusing to apply the doctrine in a case that essentially begs for its application; as Huddart J.A. of the British Columbia Court of Appeal stated (and the Supreme Court subsequently quoted):

If interjurisdictional immunity is not available to a provincial undertaking on the facts of this case, then it may well be said the doctrine is not reciprocal and can never be applied to protect exclusive provincial powers. (Insite at para 33)

After all, the provincial undertaking, Insite, would not simply be impaired or sterilized, but entirely shut down.

The rationale behind the Supreme Court’s decision to exclude the application of interjurisdictional immunity presents further issues. The Court asserts that “courts are reluctant to identify new areas where interjurisdictional immunity applies” (Insite at para 67). Given the relatively recent affirmation that the doctrine also protects provincial heads of power, these established areas are primarily federal. This arbitrarily privileges areas of federal power such as aviation, distinguishing them from areas of provincial power solely because they were previously established as areas of exclusive jurisdiction to which interjurisdictional immunity applies (see Insite at para 60). While this reluctance could impact both federal and provincial heads of power, it would certainly have an uneven effect on provincial jurisdictions because federal heads of power have already been protected by interjurisdictional immunity. In addition, the Court argues that the claimants have failed to establish a “delineated ‘core’ of an exclusively provincial power” (Insite at para 68) and that interjurisdictional immunity has never been applied to a “broad and amorphous area of jurisdiction” (Insite  at para 60). The Court, however, does not explain why the area of provincial healthcare is more amorphous than the areas of federal jurisdiction, such as Aboriginal peoples, to which the doctrine has already been applied.

Moreover, it is unclear why the delineated core could not be narrowed specifically to safe injection sites necessary for public health and safety. In fact, at the British Columbia Court of Appeal, Huddart J.A. established a possible core of the provincial healthcare powers, stating that the immunity created by using interjurisdictional immunity in this case “would apply only to exempt a health care service considered essential by a provincial agency with the authority to make that decision under provincial legislation” (Insite at para 33). This ambiguity provides no assistance for future courts in determining when a provincial head of power should be protected through interjurisdictional immunity, which could serve to further the asymmetrical application of the doctrine.

In the end, the Supreme Court’s ruling in the Insite case has served to further the centralization of powers by overlooking the asymmetrical application of interjurisdictional immunity as a justification for the doctrine’s narrowing scope, declining to apply the doctrine in a case where a federal law would shut down a critical provincial undertaking and by providing little to no framework for future application of the doctrine as it relates to the protection of provincial heads of power.

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 (“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, [2001] 3 SCR 113, 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” [at 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, [1990] 1 SCR 121 at 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.[1] 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 at 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.[2] 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.

[2] Justice Lebel, in his dissenting reasons in Lacombe (at 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.

But it’s sometimes hard to keep soldiering on defending the Court. How, for instance, does one deal with the fact that it abandoned a legal concept and then, just under three years later, spectacularly brings back the same concept as if nothing ever happened? It’s a little like remaining loyal to a sports team such as the Maple Leafs (for the last 40 plus years) or Liverpool FC (20 plus) and thinking at the beginning of each season, “This year, it will be different.” I am not sure if my health can take it.

Unfortunately, resurrecting a concept most thought was moribund is exactly what seems to have happened in the recent twin cases of Quebec (A.G.) v. Canadian Owners and Pilots Association, 2010 SCC 39 (“Canadian Owners and Pilots“), and Quebec (A.G.) v. Lacombe, 2010 SCC 38 (“Lacombe“). In both cases, private citizens attempted to situate aerodromes on land that was provincially designated for other uses. In both cases, the Supreme Court of Canada allowed the aerodromes to remain. In both cases, the Court upheld the federal regulatory power over airports under the Aeronautics Act in the face of provincial legislation attempting to preserve agricultural land. In both cases the two dissenting judges, from Quebec, wanted to uphold the provincial law. And in both cases it turns out that interjurisdictional immunity is alive and well in 2010 – and that news of its demise turns out to be premature.

Here’s what I mean. In two 2007 cases on interjurisdictional immunity (“IJI”), Canadian Western Bank v. Alberta, 2007 SCC 22 (“Canadian Western Bank“), and British Columbia (A.G.) v. Lafarge, 2007 SCC 23 (“Lafarge“),  the Court more than hinted that the time to move away from federal immunity is nigh. In a case where banks are subject to provincial insurance regulation (Canadian Western Bank) and where the building of a cement facility in the heart of a busy international port is opposed (Lafarge), paramountcy is to be the preferred approach where federal and provincial legislation conflict and are intra vires. As an example, take a look at a number of quotations from the Canadian Western Bank case:

The Dominant Tide of Constitutional Interpretation Does Not Favour Interjurisdictional Immunity. (para. 34)

Although the doctrine of interjurisdictional immunity has a proper part to play in appropriate circumstances, we intend now to make it clear that the Court does not favour an intensive reliance on the doctrine, nor should we accept the invitation of the appellants to turn it into a doctrine of first recourse in a division of powers dispute. (para. 47)

Despite the efforts to find a proper role for the doctrine, the application of interjurisdictional immunity has given rise to concerns by reason of its potential impact on Canadian constitutional arrangements. (para. 35)

A doctrine [that is] “not . . . particularly compelling” (quoting OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2) (para. 36)

A court should favour, where possible, the ordinary operation of statutes enacted by both levels of government. (para. 37)

The court should try to restrict itself to the lesser but still important role of interpreting statutes of different jurisdictions in the same area, in order to avoid conflict, and applying a doctrine of paramountcy in the few situations which are left. (Ibid)

There are “dangers [in] allowing the doctrine of interjurisdictional immunity to exceed its proper (and very restricted) limit.” (para. 38)

[IJI] is based on the attribution to every legislative head of power of a “core” of indeterminate scope — difficult to define, except over time by means of judicial interpretations triggered serendipitously on a case-by-case basis. (para. 43)

The asymmetrical effect of interjurisdictional immunity can also be seen as undermining the principles of subsidiarity, i.e. that decisions “are often best [made] at a level of government that is not only effective, but also closest to the citizens affected.” (para. 45)

Finally, the doctrine would seem as a general rule to be superfluous. (para. 46)

Although it is true that the Court left the doctrine intact for situations already covered by precedent – such as federal things, persons or undertakings – it seemed henceforth that, if anything, IJI should be considered last in a division of powers analysis, only where it is “absolutely indispensable or necessary” for a legislature to “achieve its purpose” and then only where it is does not make any sense to resolve a matter by a pith and substance analysis followed by paramountcy.

Without saying it explicitly, the entire tenor of the decisions of Lafarge and Canadian Western Bank seemed clear: no more shall the Court entertain new IJI arguments. Instead, it will probably just wither away. So have we gone back to the future in Canadian Owners and Pilots and Lacombe? Or, to put it another way, why is air travel different from banking or port land development?

The majority of the Court, in essence, relies on past precedent to claim air transport’s uniquely federal nature. As the Chief Justice writes on behalf of the majority:

Air transportation is an indispensable part of modern life… Aircraft must take off and land.  For this they need soil or water.  The soil or water they use is not available for other purposes. (Canadian Owners and Pilots, para. 1)

A long line of cases tells us that air travel and the location of aerodromes lies at the core of federal competence over aeronautics.

I can accept that airline travel is different. It is different from, as faced the Court in Canadian Western Bank, the types of products banks offer customers. Airline travel must be regulated federally to make sense of it all. I’d certainly not want a patchwork of federal and provincial legislation dealing with air travel – just because someone is flying a float plane from Lake Muskoka to Buttonville airport shouldn’t mean that they can ignore federal regulation over commercial and international flights. The fact is that planes mix in the sky, just as kayaks, canoes, sailboats, cruise ships and supertankers all mix around the Toronto harbour. I’m glad one authority looks over much of it.

So what’s my concern? It’s one simple thing. It is all about situating an aerodrome – I learned from those cases that private persons apply for such a thing. I even tried it myself, but after spending a good hour or two trolling around the Department of Transport’s website, I failed to locate the appropriate application form. So I asked Kevin Psutka, the President and CEO of the Canadian Owners and Pilots Association (who, understandably, was arguing for immunity from provincial laws in these cases) for help. He kindly sent me a link to a Quebec application form. It’s an interesting read. You can try it yourself.

Basically, anyone can apply to have an aerodrome anywhere. On agricultural land, glaciers, lakes, swamps or anything else. In fact, my guess is that I could send in an application for a Toronto street, say, Roncesvalles Ave., to become an airstrip, with my abutting house as the aerodrome. I hope it wouldn’t be granted.

But the fact is, you and I apply for the license. It isn’t up to the federal government to initiate the matter. In other words, the federal government doesn’t have any grand plan about where aerodromes and airfields should be. They are passive participants in this process. They don’t plan; they react.

Provincial governments, on the other hand, are very active in setting out zoning restrictions, managing urban and rural planning, deciding whether areas should be designated off limits to development, protected habitats, etc. etc. It is clearly a matter within their domain of property and civil rights in a province. In fact, it seems to me to be awfully similar to the debate over who has exclusive authority over “port lands” as in Lafarge.

And that’s one of the problems with IJI – it asks the wrong questions. Whether a provincial law “impairs” the operation of a federal law may be useful to know, but it ignores a host of other important policy objectives and motivations. For one, I think that a scheme of planning is better policy than a scheme of ad hoc decision making, no matter which level of government is involved. If Transport Canada wished to develop a planned approach to aerodromes, that would signal something – and it would then allow them to rely on the more coherent doctrine of paramountcy, as suggested in Canadian Western Bank and Lafarge, to render inoperable any conflicting legislative enactments.

In the end, I want the federal government to have exclusive control over the airways, air traffic control, flight routes, pilot licensing, etc., for both intraprovincial and international flights – and for everything from hang gliders and one seater ultralights to the new Airbus A380. I wouldn’t feel safe otherwise. But I remain unconvinced that they should control legitimate provincial interests in planning, zoning and control of the landscape unless they show their own interest in such things.

More importantly, if the Supreme Court of Canada would only just hold off on the surprises, I think I’ll live longer. Maybe even long enough to see Liverpool win the League (I almost wrote “the Leafs win the Cup” instead, but I didn’t).

Richard Haigh is a Visiting Professor and the Director of the Public Interest Requirement program at Osgoode Hall Law School. He has been a Senior Advisor at the National Judicial Institute in Ottawa, a Senior Lecturer at Deakin University in Melbourne, Australia, and is currently working on his doctoral degree at the University of Toronto in the area of freedom of conscience and religion. His research and teaching interests include Constitutional Law, Public Law, and Equity and Trusts.

Introduction

A profound change of thinking on constitutional design is evident in the Supreme Court’s recent jurisprudence –  a change made manifest in the Court’s evolving approach to the doctrines used to determine division of powers cases.

Rather than using paramountcy to protect occupied federal fields through negative implication or engaging in the fiction of partially-occupied fields, the courts have come to reject “virtual federal paramountcy” altogether.  Examples of these three alternatives can be found in Robinson v Countrywide Factors Ltd., [1978] 1 S.C.R. 753, as per Laskin C.J.C. dissenting, Spence J., and Beetz J., respectively.  Indeed, courts have chosen to address actual repugnancies, operational conflicts (Multiple Access v McCutcheon, [1982] 2 S.C.R. 161), and the frustration of constitutionally-valid purposes of Parliament (Rothmans, Benson & Hedges Inc. v Saskatchewan, 2005 SCC 13).

Further, instead of using interjurisdictional immunity to defend a nebulous “core” of federal powers in Canadian Western Bank v Alberta, 2007 SCC 22 and British Columbia (Attorney General) v Lafarge Canada Inc., 2007 SCC 23, the courts decided to use this doctrine only to protect such aspects of legislative powers as are vital or essential to a legislature’s jurisdiction over any person, thing or activity.

The Supreme Court has underlined the importance of avoiding regulatory vacuums and achieving, wherever possible, of the policy objectives of both levels of government. In other words, to expand upon the language of Ont. (A.G.) v Chatterjee, 2009 SCC 19: administrative cooperative federalism. The purpose of this posting is two-fold: to reflect further on the Court’s decision in Consolidated Fastfrate Inc. v Western Canada Council of Teamsters, 2009 SCC 53, commented on here, with that evolution in mind; and, to muse about what may happen next as the Court deliberates on the division of powers in other contexts.

The decision in Consolidated Fastfrate

Neither the majority nor minority opinion in Consolidated Fastfrate breaks new constitutional ground; indeed, the case seems to reflect a hiatus in the development of new approaches to the division of powers. The Court primary concern appears to be simply reconcile conflicting authorities on interprovincial freight-forwarding. The division of the Court in the result, however, may yet signal a split in fundamental constitutional thinking going forward: Justices Binnie and LeBel, who jointly authored the pivotal decisions in Canadian Western Bank and Lafarge, appear to have parted company.

The simple difference between the majority and minority decisions in Consolidated Fastfrate lies in how each defined the company’s “undertaking” for purposes of section 92(10)(a) of the Constitution Act, 1867.

The majority, per Rothstein J. for himself and five others, defined the undertaking by reference to the “services” Fastfrate provides – i.e. freight-forwarding, or the consolodation and de-consolidation of freight (at para. 2). Those services were provided entirely within the province from which freight is shipped or in which freight is received. The majority specifically rejected a shift in focus “from the nature of the operations of the undertaking to the nature of the contractual service it provides” (at para. 59). The majority noted that “the ‘dominant purpose test’ in DHL – measured in terms of the contractual service offered rather than the actual operations of the undertaking – has the potential to sweep under federal jurisdiction many enterprises that heretofore have been understood as being subject to provincial jurisdiction based on their actual operations” (at para. 62).

The minority, per Binnie J. for himself, McLachlin C.J.C. and Fish J., defined the undertaking by reference to the “service” Fastfrate provided (at para. 82). Whatever the modalities used, that service was “to move freight from the hands of a customer in one part of the country to the hands of a customer in another part of the country” (at para. 118) – i.e., freight pick-up and delivery. In support of its approach, the minority quoted from Public Service Board et al. v Dionne, [1978] 2 S.C.R. 191, that, “[i]n all these cases, the inquiry must be as to the service that is provided and not simply as to the means through which it is carried on”, and suggested that the test proposed by the majority in the current case “stands [that] proposition on its head …” (at para. 107). On that basis, the minority would have found that Fastfrate was engaged in an undertaking connecting with other provinces and/or extending beyond the limits of a province, even though Fastfrate did not perform interprovincial carriage itself.

At various points in its reasons, the majority sought to express a principled basis for its narrower approach to section 92(10)(a) and to distinguish prior case law. For its part, the minority was quick to criticize much of that reasoning and some of its criticisms may appear penetrating. However, even as the majority struggled to articulate why an undertaking should be defined by reference to what a company actually does, the minority never really met that point but instead sought to rebut a test based on how the company does it. The minority’s failure to do so makes its criticisms of the majority seem rather pedantic.

The majority reasons express a touchstone for determining which is the better approach to characterization of an undertaking for purposes of section 92(10(a). In the constitutional characterization process, courts appropriately consider the reason why certain local undertakings require federal regulation. The majority observed that, originally, the defining character of such undertakings was to further the general interest of the country (at para. 33) and be of sufficient national importance to the development and continued flourishing of the Canadian nation (at para. 36) such that, without federal regulation, the achievement of national goals would be stymied (see para. 37). The minority sought to diminish the force of the majority’s reasoning by terming it “originalism” (at para. 89). Hearing in that term an echo of ‘creationism’, one may wonder whether this is to be seen as a rebuke of the first-principles approach taken in Canadian Western Bank.

Justice Binnie also utilized a new metaphor for Canadian constitutional development: the constitutional “coat”. Even while impugning “originalism”, however, he rightly conceded that the coat remains “of the same design” even though now a different size. While business realities and modalities have indeed changed since 1867, the question of whether an undertaking can be said to connect or extend beyond the limits of a province should still be determined by reference to the original design of the Constitution and the rationale for its division of powers. The constitutional “coat” metaphor therefore supports the majority’s approach, including its reliance on history, rather than the other way around.

As Professor Hogg has noted,

the distribution of legislative powers in a federal system necessarily involves a substantial subordination of the value of uniformity to that of provincial autonomy even where there is no objective necessity for regional variations. In legislative fields which are entrusted to the provinces, it is for the provinces to decide whether or not they desire uniformity: they can achieve it whenever they wish through the enactment of uniform laws. (Peter W. Hogg, Constitutional Law in Canada (5th suppl.), p. 17-13 and 17-16).

Uniformity is not a constitutional imperative. In any division of powers case, the advantages of uniformity and efficiency are properly weighed against the deeper and more substantive sets of values that underlie Canadian federalism. Those values include ideas of community and democratic theory recognized by the Supreme Court of Canada in the Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, and again in Canadian Western Bank.

In particular, as in Consolidated Fastfrate, the constitutional question is not determined by whether a company’s own unified, cross-Canada business objectives would be stymied without single regulation by the federal government. The test is whether the reasons for making interprovincial transportation constitutionally federal would be frustrated by the operation of provincial legislation in the particular case. That approach was affirmed by the Privy Council decision in the Empress Hotel case (Canadian Pacific Railway Co. v Attorney General for British Columbia, [1950] A.C. 122).

The point is, neither wished-for business goals nor more advantageous labour relations outcomes (see, for instance, Ontario Hydro v Ontario (Labour Relations Board), [1993] 3 S.C.R. 327) properly determine constitutional characterization. Constitutional first principles, as expressed in Canadian Western Bank, favour the majority’s more narrow and specific approach to the exceptions in section 92(10(a) – an approach based on the work actually done in the course of an undertaking – rather than the minority’s more pragmatic ‘top-down’ approach based on what is intended to be accomplished by the business entities involved. Cooperative federalism encourages inter-governmental cooperation, but not the abandonment of interjurisdictional lines whenever there may be perceived economic or social advantages to the nation as a whole.

What happens next?

In October, 2009, the Court heard argument in Attorney General of Quebec v Laferriere and Attorney General of Quebec v Lacombe, a pair of cases involving the federal power to legislate with respect to aeronautics and the effect of that power on provincial laws regulating the location of local unregistered aerodromes in the province of Quebec. Judgment was reserved.

Those cases have already been the subject of a prior posting on this site: “An Invitation to Revisit Interjurisdictional Immunity”, The Court, October 19, 2009. Both to avoid repetition and to comply with site policy against counsel re-arguing their own cases, there will be no further substantive comment on my part. We will all just have to wait and see. In the meantime, if you view the video of oral argument in those cases (webcast archived on the Supreme Court website: Lacombe and Laferriere), I think you will see the same apparent division in the constitutional thinking of the Court as was reflected in the result in Consolidated Fastfrate.

Justices LeBel, Deschamps and Charron seemed to ask questions from the point of view of sustaining and advancing the thinking in Canadian Western Bank, even to the point of wondering whether counsel was suggesting that the Court resile from that decision and its premises. On the other hand, Justice Binnie and Chief Justice McLachlin asked questions suggesting a strong predisposition toward single, all-embracing federal regulation of aeronautics, including small private aerodromes, perhaps more out of practical necessity, common sense and national advantage (as per the minority in Consolidated Fastfrate) than because they have an interprovincial, national or international dimension. It was more difficult to gauge the first principles behind the questions of Justices Abella and Rothstein, while Justices Fish and Cromwell remained silent.

As an ending to this article, one other comment from Justice Binnie is particularly noteworthy. He observed that, in considering federal paramountcy, courts may appropriately look for the federal purpose not only in the enactments of Parliament but also in federal ministry policies, directives, recommendations, and the like, which can comprise an overall scheme to carry out an intentention that ought not to be frustrated by provincial laws.

Perhaps that fits with administrative cooperative federalism. But the paramountcy doctrine has, at least since Multiple Access, required an operational conflict between federal and provincial enactments. Expanding the search parameters with respect to Parliament’s purpose carries the risk of giving new life to the old discredited theory of a federally-occupied field. That, with respect, would be a step in the wrong direction in our new constitutional thinking.

In the early days of Confederation, the constitutional seedling needed protection from winds and rains (centripetal forces drawing Canadian attention back across the seas or immediately to the south) which might have stunted or bent its growth. Next, the sapling needed protection from provincial governments with many of the attitudes of a teenager. These same provinces now have houses and children of their own, and are no longer at risk of driving their cars over the constitutional front garden after a night of carousing. In recent decisions, then, courts seem to consider that it is time to unstake the constitutional tree, remove the protective wire mesh from around its base, and allow all its branches to grow strong and free – albeit subject to a little judicious pruning, where necessary, to enhance the health of the tree in all its parts.

The Supreme Court of Canada’s jurisprudence has reflected that process of change in constitutional thinking ever since the decision in Robinson v Countrywide Factors, [1978] 1 S.C.R. 753. In that case, Chief Justice Laskin (for himself and three others) applied the “occupied field/negative implication” test of paramountcy, holding that the federal Bankruptcy Act rendered provincial fraudulent preference legislation constitutionally invalid. Justice Spence (for himself and three others) held, on the basis of what is now section 72(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended, that Parliament had indeed “occupied the field”, but had not occupied the whole field.

Justice Beetz, for himself alone, anticipated the future of federal paramountcy in Canada. Recognizing the reality, within the Canadian constitutional context, of interaction and overlap, he ruled that “laws provincial in their purpose, object and nature … cannot be rendered ultra vires because of virtual federal paramountcy: they can only become inoperative in case of actual repugnancy with valid federal laws.” In other words, an “actual conflict in operation as where one enactment says ‘yes’ and the other says ‘no’; [… where] compliance with one is defiance of the other.” In retrospect, Multiple Access Ltd. v McCutcheon, [1982] 2 S.C.R. 161, was only a small step away.

The next large step in a new direction in constitutional thinking was predicated on the court’s preference, in Mangat, Law Society of British Columbia v Mangat, [2001] 3 S.C.R. 113, of “the more supple paramountcy doctrine” over an analysis based on interjurisdictional immunity. The latter doctrine “would exclude provincial legislation, even if Parliament did not legislate in the area [, and] … might lead to a bifurcation of the regulation and control of the legal profession in Canada.”

A necessary condition for such change was then put in place through the decision in Rothmans, Benson & Hedges Inc. v Saskatchewan, 2005 SCC 13. In that case, the Court articulated the “overarching principle” in federal paramountcy cases: “a provincial enactment must not frustrate the [constitutionally-valid] purpose of a federal enactment, whether by making it impossible to comply with the latter or by some other means.”

The Turning Point: Canadian Western Bank and Lafarge

Having thus bolstered federal paramountcy as the doctrine of choice, the Court (per Binnie and LeBel JJ.) was then able, in Canadian Western Bank v Alberta, 2007 SCC 22, to favour “a view of federalism that puts greater emphasis on the legitimate interplay between federal and provincial powers”, and to limit the doctrine of interjurisdictional immunity largely to matters already decided on the basis of that doctrine. At the same time, Burrardview Neighbourhood Ass’n. v Vancouver (City), 2007 SCC 23, showed how the task of maintaining the balance of powers in practice falls primarily to governments, through cooperative dealings such as occurred between the VPA and the Greater Vancouver municipalities, with federal paramountcy to be invoked as a last resort.

The Court emphasized that the division of powers should be arbitrated through constitutional doctrines which permit an appropriate balance to be struck in the recognition and management of the inevitable overlaps. These doctrines should be designed to reconcile the need for national unity with the legitimate diversity of regional experimentation, adaptation, and local accountability. This view of cooperative federalism was reaffirmed in Ont. (A.G.) v Chatterjee 2009 SCC 19, where the Court underlined the importance of avoiding regulatory vacuums and achieving, wherever possible, the policy objectives of both levels of government – even through provincial laws deterring crime.

Cooperative federalism is thus no longer (as it had originally started out) merely a maxim for interpretation of sections 91 and 92 of the Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c. 3, in division of powers cases. It is now also an operational principle in how Canadians should be governed and govern themselves. Over the period and through the jurisprudence described above, Canadian constitutional law has moved: from a “watertight compartments” approach which favoured strong central governance, through recognition of cooperative federalism, to what is now the beginning of a new phase. In a phrase: administrative cooperative federalism.

Paramount Considerations
But what about the (now) relatively rare occasions on which administrative cooperative federalism fails the day? Is paramountcy always the default position, giving effect to the purposes of the so-called senior legislature on the federal aspect of the matter and thereby ousting otherwise valid legislation on the provincial aspect?

The double aspect doctrine has traditionally been applied with caution, lest exclusive provincial legislative jurisdiction set out in section 92 be combined with section 91 into a single more or less concurrent field of powers governed solely by the rule of federal paramountcy. (See A.G. Can. v A.G. Alta, [1916] 1 A.C. 588 (P.C.), ref’d. to inComm. de la santé et de la securite du travail (Que.) v Bell Canada, [1988] 1 S.C.R. 749, at para. 44, 45.) More recently, the Supreme Court has recognized that provincial jurisdiction and the intended balance of powers under the Constitution is protected, not diminished, by the double aspect doctrine – but only because that doctrine operates in tandem with a restrained approach to other constitutional doctrines.

Making paramountcy the last word in all cases where there is a double aspect to the matter is anything but restrained in the result. In this case, the federal government was no longer prepared to allow a safe injection site in Vancouver’s downtown east side to operate free from the risk of criminal sanctions despite the local and provincial health authorities’ urgings that it be allowed remain open. The British Columbia Court of Appeal, however, applied interjurisdictional immunity to protect provincialjurisdiction over what Justice Huddart recognized as an essentially local matter in PHS Community Services Society v Canada (Attorney General), 2010 BCCA 15. 

The doctrine of interjurisdictional immunity, traditionally applied in an asymmetrical fashion to defend exclusive federal jurisdiction but now limited in its use for that purpose, was thus given new life. It is now recognized to have a more symmetrical purpose to protect exclusive provincial jurisdiction, preserve the intended balance in division of powers, and give provincial and local governments the necessary breathing room to meet their constitutional responsibilities. Just as an arborist encourages new growth, the desired shape, and abundant foliage in the years to follow by pruning branches in a certain direction, so the courts continue to nurture and encourage Canada’s robust constitutional framework through division of powers jurisprudence.

(Editor’s Note: The author, Richard Butler, is a Constitutional lawyer with the B.C. Ministry of Attorney General. The views expressed are those of the author, and not his employer.)

Insite was opened in 2003 as a response to a variety of drug-related problems in Vancouver’s notorious “Downtown Eastside”. The clinic provides a range of services to injection drug users, including clean needles and a safe place for addicts to use their drugs. When it opened, Insite and its employees/volunteers were immunized from the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA or the Act) pursuant to a three-year ministerial exemption by the Minister of Justice under section 56 of the Act. This ministerial exemption was subsequently extended (twice) to June 30, 2008. Faced with the Harper government’s unwillingness to provide further extensions, supporters of Insite sought judicial relief.

The B.C Supreme Court Decision

The actions brought by the PHS Community Services Society (the operator of Insite) and the Vancouver Area Network of Drug Users (VANDU) sought a range of declaratory relief in order to allow Insite to continue its work free from the constraints of the CDSA:

1. That the activities undertaken by staff and volunteers at Insite do not violate sections 4 and 5 of the CDSA;2. That Insite is a provincial undertaking related to health, and therefore interjurisdictionally immune from the CSDA; or3. That section 4(1) and 5(1) of the CDSA should be struck down as a breach of section 7 of the Charter of Rights and Freedoms because they deprive a person addicted to a controlled substance access to health care at Insite.

Sections 4 and 5 of the CDSA criminalize possession and trafficking in controlled substances. Insite workers are likely caught by the broad definitions of possession and trafficking given that the clinic’s workers are fully aware that clients possess drugs and facilitate the consumption of drugs.

In his reasons, Mr. Justice Pitfield canvassed the social context of Vancouver’s Downtown Eastside, and the circumstances leading to the opening of Insite. In one particularly pointed passage, Justice Pitfield noted:

Whatever the shortcomings in the science surrounding the assessment of outcomes at Insite, and however the disputes may be resolved among those who engage in the assessment of the efficacy of safe injection sites generally, or Insite in particular, all of the evidence adduced by PHS, VANDU and Canada supports some incontrovertible conclusions:

1. Addiction is an illness. One aspect of the illness is the continuing need or craving to consume the substance to which the addiction relates.2. Controlled substances such as heroin and cocaine that are introduced into the bloodstream by injection do not cause Hepatitis C or HIV/AIDS. Rather, the use of unsanitary equipment, techniques, and procedures for injection permits the transmission of those infections, illnesses or diseases from one individual to another; and3. The risk of morbidity and mortality associated with addiction and injection is ameliorated by injection in the presence of qualified health professionals.

What is less certain and more controversial are the root causes of addiction. The evidence adduced in these proceeding regarding the character of the DTES, many of its inhabitants, and the nature of addiction leads me to the following assessment.

Residents of the DTES who are addicted to heroin, cocaine, and other controlled substances are not engaged in recreation. Their addiction is an illness frequently, if not invariably, accompanied by serious infections and the real risk of overdose that compromise their physical health and the health of other members of the public. I do not assign or apportion blame, but I conclude that their situation results from a complicated combination of personal, governmental and legal factors: a mixture of genetic, psychological, sociological and familial problems; the inability, despite serious and prolonged efforts, of municipal, provincial and federal governments, as well as numerous non-profit organizations, to provide meaningful and effective support and solutions; and the failure of the criminal law to prevent the trafficking of controlled substances in the DTES as evidenced by the continuing prevalence of addiction in the area.

(PHS Community Services Society v. Canada (Attorney General), 2008 BCSC 661 at paras. 87 – 89.)

On the merits of the dispute, Justice Pitfield declined the first two claims of relief sought. Relying on Solosky v The Queen, [1980] 1 S.C.R. 821, Justice Pitfield found that declaratory relief in respect of the conduct of Insite staff and volunteers was inappropriate because the criminal standards for drug-related offences are settled by law, and require a case-by-case factual inquiry. The trial decision also found the doctrine of interjursidictional immunity inapplicable to the case. Justice Pitfield concluded that the Supreme Court’s decisions in Canadian Western Bank at paras. 33 – 78, and Lafarge Canada Inc., at para. 4, which counsel significant restraint in the application of interjurisidctional immunity, ruled out its application. However, Justice Pitfield was persuaded that, because addicts suffer from an illness, denying them access to a safe injection site that mitigates the risk of overdose and transmission of disease violates section 7 of the Charter. As a result, the court found sections 4(1) and 5(1) of the CDSA unconstitutional and gave Parliament one year to adopt constitutionally compliant laws.

The B.C. Court of Appeal Decision

Both sides of the dispute appealed the trial decision. On appeal, PHS argued that the trial court erred in its failure to apply the doctrine of interjurisdictional immunity. The government appealed the trial court’s finding declaration that sections 4(1) and 5(1) of the CDSA were unconstitutional. Two judges of the Court of Appeal (Rowles and Huddart, JJ.A.) sided with PHS, and found that the doctrine of interjurisdictional immunity rendered the CDSA inapplicable to the health undertaking at Insite. Although agreeing that this finding resolved the appeal, Rowles, J.A. went on to conclude that the trial judge’s decision on the Charter issue was also correct. Smith, J.A., dissented, and found that the doctrine of interjurisdictional immunity did not apply to Insite, and furthermore would have reversed the finding of the trial judge in respect of the Charter.

The majority of the Court of Appeal concluded that Insite was “vital” to the province’s health care undertaking in downtown Vancouver. This conclusion, according to Huddart J.A., justifies shielding Insite from the CDSA:

… Insite is a provincial undertaking. It is a health care facility created under and regulated by provincial legislation within the province’s exclusive power. The only purpose of a health care facility is to provide health care services. The supervised drug injection service it provides is, as the trial judge found, “vital” to its provision of health care services to the community it serves (at para. 117). It would be difficult to envisage anything more at the core of a hospital’s purpose, than the determination of the nature of the services it provides to the community it serves. Indeed, it would be difficult to envisage anything more at the core of the province’s general jurisdiction over health care than decisions about the nature of the services it will provide.

(PHS at para. 157) [emphasis original] [citations omitted]

Because the CDSA would impair Insite’s work in reducing the transmission of HIV/AIDS and incidence of overdose, federal criminal law ought not to apply. For her part, Smith J.A. would have resolved the issue based on the paramountcy doctrine, finding that the province’s interest in providing health care must give way to the criminal law power:

The doctrine of interjurisdictional immunity cannot be applied to shield Insite from the applicability of s. 4(1) of the CDSA. To do so would significantly impair the federal criminal law mandate over controlled substances and create a gap in its general application across Canada. The effect of its application would require both jurisdictions to be wilfully blind to what Canada describes as “the chain of illegal distribution” or how the heroin injected by users of Insite is obtained from its place of original production, transported into Canada, distributed within Canada, sold to the consumers of illicit drugs, and from which the monetary proceeds are laundered domestically and internationally. This gap could grow larger if other provinces took advantage of the immunity proposed in this case: supervised injection sites could be opened in every city across Canada. The creation of “enclaves” where illicit drugs may be brought for intravenous drug use, without the potential for prosecution, could eviscerate the efficacy of a criminal law validly enacted by Parliament that seeks to address the broader context and consequences of illicit drug use across the entire supply chain.

(Ibid. at para. 244) [emphasis added]

The Need for an Appeal

While there may well be good policy arguments for allowing Insite to continue to operate, the decisions in PHS are concerning in terms of federalism and Canada’s constitutional division of powers. The decisions in PHS are concerning because the various opinions misapply both the doctrines of paramountcy and interjurisdictional immunity.

The paramouncy doctrine, part of the double aspect theory of Canadian constitutional jurisprudence, requires a conflict as between federal and provincial law. As the Court stated in Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161:

In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says “yes” and the other says “no”; “the same citizens are being told to do inconsistent things”; compliance with one is defiance of the other. (at 191)

For paramouncy to be triggered, the laws of two different orders of government must come into direct conflict.

Insite is not a creature of statute. As Huddart J.A. noted, BC law does grant broad authorization to the BC health authorities to address health-related issues (PHS at para. 104 – 108). However, nothing in BC law authorizes, or, to borrow from Multiple Access Ltd., directs the staff at Insite to violate the CDSA. Interestingly, a bill was presented to the BC legislature to recognize and protect the activities at Insite under provincial law (British Columbia, Bill M-214, Supervised Injection Facility Designation Act, 4th Sess., 38th Parl., 2008). To date, no BC law or regulation appears to specifically reference Insite or the activities at Insite in relation to the CDSA. Instead, Insite operates through a series of agreements between provincial authorities and local health authorities. BC law does not appear to command the staff at Insite to do that which federal law precludes. Paramountcy simply does not apply in this context.

In addition to clarifying the application of parmountcy, an appeal to the Supreme Court would provide an opportunity to further define the scope of interjurisdictional immunity and its relevance in the context of Insite. Although recent decisions in Canadian Western Bank and Lafarge did go some way to defining (and restricting) the role of interjurisdictional immunity, key questions remain. First, it remains unsettled whether interjurisidctional immunity applies in respect of provincial undertakings. While there seems no principled reason to deny its application to provincial undertakings, the Supreme Court has cautioned that extending the doctrine beyond those undertakings already addressed in the jurisprudence (railways, banks, Indians) should be avoided (Canadian Western Bank at para. 77).

Second, it is unclear whether interjurisdictional immunity applies to the undertaking that is affected by the impugned law, or the head of power upon which the undertaking is based. Robin Elliot’s article on Canadian Western Bank (“Interjurisdictional Immunity After Canadian Western Bank and Lafarge Canada Inc.: The Supreme Court Middies the Doctrinal Wasters – Again” (2008), 43 S.C.L.R. (2d) 433 at 490-91), cited by both the majority and dissent in PHS, suggests that interjursidictional immunity should examine whether the law in question affects the head of power, rather than the undertaking itself. If this is the case, then the majority reasoning in PHS is open to serious doubt. The CDSA does not substantially affect the ability of BC to provide health care in the general sense. An extreme example would be a federal law that criminalized opening a hospital within 100 metres of federal land. If the “dominant tide” of Canadian constitutionalism is to allow each level of government to effectively function, is it unreasonable that the provision of health care respect the criminal ban on certain narcotic substances?

While the facts in PHS are unique in terms of the drug problems faced in downtown Vancouver, the Court of Appeal’s ruling in PHS has potentially broad scope. Can provinces effectively immunize themselves from the criminal law via their exclusive powers? For example, could a province allow a person to obtain assistance in ending his or her life in the name of providing health care? Indeed, could the battle in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, be fought (and won) on federalism grounds rather than on the basis of individual rights? The “enclaves” theory of the division of powers has been rejected in Canadian jurisprudence. Are undertakings such as Insite exceptions to the general rule against enclaves? This is a question best put to the Supreme Court. Consequently, leave should be sought to address these fundamental constitutional questions.

(David Quayat is an international attorney, admitted in Ontario, with White & Case LLP in Washington, DC. He is a former law clerk to Chief Justice Allan Lutfy of the Federal Court, 2008/2009.)

The cases, Attorney General of Quebec v. Canadian Owners and Pilots Association (COPA) and Attorney General of Quebec v. Anabelle Lacombe, et al. deal with jurisdiction over aeronautics—specifically, disputes over provincial or municipal laws that prohibit the use of land or water for landing planes.

In COPA, two landowners decided to clear a plot of their land to build a runway and an airplane hangar. The runway was included on navigation charts issued to pilots, and complied with all the necessary federal regulations. However, in 1999 the Commission de protection du territoire agricole du Québec, relying on Quebec’s Act respecting the preservation of agricultural land and agricultural activities, R.S.Q., c. P-41.1, ordered the owners to cease their non-agricultural activities, dismantle the hangar, and return the land to agricultural use. The landowners sought judicial review of the decision, which was denied by the Superior Court, though overturned by the Quebec Court of Appeal (2008 QCCA 427).

In Lacombe, the respondents hold a federal license to operate their seaplane, and run a tour business out of their cottage, which is located on a lake in Sacré-Coeur. They often land on the lake and tie up at a dock there. The municipality passed a bylaw prohibiting the use of the lake as a base of operation for a seaplane business (respondent’s factum at para. 5). The Superior Court ordered the respondents to stop operating their business in the restricted area. The Court of Appeal also overturned that decision (2008 QCCA 426).

The issue for the Supreme Court in both appeals is the extent to which federally regulated undertakings have to comply with provincial and municipal laws.

That question isn’t exactly novel; indeed, it is the starting point for much of the Court’s division of powers jurisprudence. Until recently, courts answered it (in part) by applying the interjurisdictional immunity doctrine, which held that each level of government had a vital core of powers that could not be touched by the other level, even in the absence of any legislation (to use a discredited term, one level of government did not have to “occupy the field” in order to prevent the other level from legislating in the area). The classic statement of the doctrine is found in Beetz J.’s judgment in Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749 (Bell Canada 1988), where he wrote:

In order for the inapplicability of provincial legislation rule to be given effect, it is sufficient that the provincial statute which purports to apply to the federal undertaking affects a vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing it.

The Court overhauled its approach to interjurisdictional immunity in Canadian Western Bank v. Alberta (2007 SCC 22) and British Columbia v. Lafarge (2007 SCC 23). Binnie and LeBel JJ. held that “the dominant tide of constitutional interpretation does not favour interjurisdictional immunity”, and instead courts “should favour the operation of statutes enacted by both levels of government” (emphasis in original). The interjurisdictional immunity doctrine should now only be invoked if a statute impairs (not just affects) an absolutely indispensable or necessary part of the undertaking, and has generally been reserved for situations already covered by precedent.

So, then, when is something absolutely indispensable or necessary, and when is it impaired by a law? These are the questions that the Court needs to answer, if not definitively and for all time, then at least with more precision than in Canadian Western Bank. In that case, the Court didn’t really address when a law impairs an activity, since the activity in question (the promotion of “peace of mind” insurance by banks) was held not to be a vital part of banking. But banks and other undertakings that operate in a patchwork of federal and provincial regulation, such as telecommunications companies, need clarity on this issue. The potential to be subject to eleven different legislative schemes imposes real compliance costs on these businesses, and they should be able to make determinations about whether they have to comply with provincial laws.

Binnie and LeBel JJ. indicated in Canadian Western Bank that the paramountcy doctrine is now the preferred method of resolving division of powers questions, and the Court could choose to dispose of these cases via a paramountcy analysis. However, ignoring the interjurisdictional immunity doctrine entirely risks opening up a hole in the division of powers framework. As Professor Hogg points out in his text, in the absence of interjurisdictional immunity, a legislature could use a broadly framed law of general application to do what it could not through a narrowly framed one that would offend the division of legislative powers in sections 91 and 92 of the Constitution Act, 1867. The doctrine exists for a reason, and aeronautics certainly qualifies as a situation “already covered by precedent”. Moreover, in both cases, the provincial and municipal laws completely halt the activity that is permitted under the federal legislative scheme. These cases present a clear opportunity for the Court to outline what types of situations constitute an impairment—and what qualifies as a vital part—of a federal undertaking. The judges should take this chance to clarify this area of the law.