Reshaping the “Living Tree”: Recent Developments in the Division of Powers under Canada’s Constitution
Mighty oaks from little acorns grow.
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,  1 SCR 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, RSC 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,  2 SCR 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 Law Society of British Columbia v Mangat,  3 SCR 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,  1 SCR 188. 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,  2 SCR 3 [Canadian Western Bank], 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, British Columbia (Attorney General) v Lafarge Canada Inc,  2 SCR 86 [Lafarge], 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 Chatterjee v Ontario (Attorney General), 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, 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.
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 AG Can v AG Alta,  1 AC 588 (PC), ref’d to in Bell Canada v Quebec (Commission de la santé et de la sécurité du travail),  1 SCR 749, paras 44-45.) More recently, the SCC 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.
(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.)