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Residuary and Emergency Powers
Introduction
Section 91 of the Constitution Act, 1867 states that "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..." The power conferred to the Parliament is not a
sweeping power to legislate in relation to peace, order and good
government. The power contained in the opening paragraph of s. 91 is only
to legislate for the peace, order, and good government of Canada in matters not
exclusively assigned to the provinces.
In Fort
Francis Pulp & Power Co. v.
Man. Free Press Co., [1923] A.C. 965, the Privy Council explained that
s. 91 contemplates emergency situations which change the nature of the
power being exercised. When such situations occur, "s. 92 is not in
any way repealed... but a new aspect of the business of Government is
recognized as emerging" [Ibid. at
390]. What sort of situations constitute emergencies? "Highly
exceptional" or "abnormal" circumstances are required to
constitute an emergency: Board of Commerce, Toronto Electric
Commissioners v. Snider. If such an emergency does in fact exist, the
federal power under the emergency branch is limited by the extent of the
emergency. In other words, the existence of an emergency does not
automatically confer unfettered powers to the federal government; the
legislation must be "necessary" to address the emergency [Reference Re Anti-Inflation Act,
[1976] 2 S.C.R. 373 at 391].
The second branch of p.o.g.g. is what is
known as the "national concern" branch.
Matters of National Concern
The
national concern doctrine, as developed in the Local Prohibitions and
Canada Temperance cases, has been applied by the Supreme Court of Canada to
provide a basis for legislation under the introductory clause of section 91
of the Constitution.
In
Johannesson v. West St. Paul,
[1952] 1 S.C.R. 292, [1951] 4 D.L.R. 609 the Court held that aeronautics satisfied
the national concern test. Locke J. discussed the characteristics which
made the field of aeronautics one which concerned the country as a whole.
He cited the increasing volume of passenger and freight traffic, the use of
aircraft in the carriage of mail, and the importance of air traffic,
particularly to remote northern areas, to the opening up of the country and
the development of national resources. Locke J. then stated, at p. 327:
It is an activity, which to
adopt the language of Lord Simon in the Attorney
General for Ontario v. Canada Temperance Federation, must from its
inherent nature be a concern of the Dominion as a whole. The field of
legislation is not, in my opinion, capable of division in any practical
way.
In Munro v. National Capital Commission,
[1966] S.C.R. 663, 57 D.L.R. (3d) 753 the Court held that the development
of a legislatively designated area surrounding Ottawa was of sufficient national concern
to be encompassed by the federal residuary power. Cartwright J. stated, at
p. 671:
I find it
difficult to suggest a subject-matter of legislation which more clearly
[...] is the concern of Canada as a whole than the development,
conservation and improvement of the National Capital Region in accordance
with a coherent plan in order that the nature and character of the seat of
the Government of Canada may be in accordance with its national
significance. Adopting the words of the learned trial judge, it is my view
that the Act deals with a single matter of national concern.
The Future of the National Concern Doctrine
The
Anti-Inflation Act Reference [1976] 2 S.C.R. 373 gave new definition to the national concern branch
of the p.o.g.g. clause. R. v.
Crown Zellerbach Can. Ltd., [1988] 1 S.C.R. 401] appeared to solidify
that definition, although the Court divided deeply about how to apply the
reworked doctrine to the analysis of challenged legislation.
Some
commentators contended that the Supreme Court's development of the national
concern doctrine in Crown Zellerbach would threaten provincial
jurisdiction. The Supreme Court has been sensitive to this particular
criticism and has been careful in later cases to avoid any complaint that
the Court will use the national concern branch of the p.o.g.g. clause to
threaten provincial jurisdiction. Perhaps for that reason, application of
the doctrine continues to split the Court.
In
Ontario Hydro v. Ontario (Labour
Relations Board), [1993] 3 S.C.R. 327, the Court held that labour
relations in Ontario Hydro's nuclear generating stations was sustainable,
inter alia, on the federal government's p.o.g.g. power. Speaking for the
majority, La Forest J. stated:
There can surely be no doubt
that the production, use and application of atomic energy constitute a
matter of national concern. It is predominantly extra-provincial and
international in character and implications, and possesses sufficiently
distinct and separate characteristics to make it subject to Parliament's
residual power.
Mr. Justice
Iacobucci [Sopinka and Cory JJ. concurring] disagreed, focusing on Le Dain
J.'s third conclusion on the p.o.g.g. power from Crown Zellerbach: it must
have a singleness, distinctiveness and indivisibility. While
Iacobucci J. agreed that the federal government generally had jurisdiction
over atomic energy under the p.o.g.g. power,
[...] that
jurisdiction does not extend to the labour relations between Ontario Hydro
and those of its employees employed in the nuclear electrical generating
stations. The federal government does not require control over labour
relations at Ontario Hydro's nuclear facilities for the exercise of
jurisdiction over atomic energy. In other words, the labour relations
at issue in this case are not part of the single, distinctive and
indivisible matter identified as atomic energy.
In
A.G. Canada v. Hydro Quebec et. al.,
[1997] 3 S.C.R. 213 Hydro Quebec, which had been charged under s. 6(a) of
the Chlorobiphenyls Interim Order, challenged s. 6(a) and ss. 34 and
35 of the Canadian Environmental
Protection Act pursuant to which s. 6(a) was made. One basis of
the attack was that the provision did not fall within the national concern
branch of the peace, order and good government clause of s. 91 of the Constitution Act, 1867; another was
that the provisions did not fall within Parliaments criminal law power at.
s. 91:27. A majority of the Court found the provisions were justified
by s. 91:27 and thus found it unnecessary to consider the national concern
branch of the p.o.g.g. power. However, Justice La
Forest, for the
majority did say in passing:
In considering
how the question of the constitutional validity of a legislative enactment
relating to the environment should be approached, this Court in Oldman
River (cites omitted), made it clear that the environment is not, as such,
a subject matter of legislation under the Constitution Act, 1867. As
it was put there, the Constitution Act, 1867 has not assigned the matter of
environment' sui generis to either the provinces or Parliament (p.
63). Rather, it is a diffuse subject that cuts across many different
areas of constitutional responsibility, some federal, some provincial (pp.
63-64).
[...]
Some heads of
legislation may support a wholly different type of environmental provision
than others. Notably under the general power to legislate for the
peace, order and good government, Parliament may enact a wide variety of
environmental legislation in dealing with an emergency of sufficient
magnitude to warrant resort to the power. But the emergency would, of
course, have to be established. So too with the national concern
doctrine, which formed the major focus of the present case. A
discrete area of environmental legislative power can fall within that
doctrine, provided it meets the criteria first developed in Reference Re
Anti-Inflation Act, [1976] 2 S.C.R. 373, and thus set forth in Crown
Zellerbach, supra, at p. :
For a matter to
qualify as a matter of national concern in either sense it must have a
singleness, distinctiveness and indivisibility that clearly distinguishes
it from matters of provincial concern and a scale of impact on provincial
jurisdiction that is reconcilable with the fundamental distribution of
legislative power under the Constitution.
Thus in the
latter case, this Court held that marine pollution met those criteria and
so fell within the exclusive legislative power of Parliament under the
peace, order and good government clause. While the constitutional
necessity of characterizing certain activities as beyond the scope of provincial
legislation and falling within the national domain was accepted by all the
members of the Court, the danger of too readily adopting this course was
not lost on the minority. Determining that a particular subject
matter is a matter of national concern involves the consequence that the
matter falls within the exclusive and paramount power of Parliament and has
obvious impact on the balance of Canadian federalism. In Crown
Zellerbach, the minority (at p. ) expressed the view that the subject of
environmental protection was all-pervasive, and if accepted as falling
within the general legislative domain of Parliament under the national
concern doctrine, could radically alter the division of legislative power
in Canada.
The minority
position on this point (which was not addressed by the majority) was
subsequently accepted by the whole Court in Oldman River
at p. 64 (cites omitted). The general thrust of that case is that the
Constitution should be so interpreted as to afford both levels of
government ample means to protect the environment while maintaining the
general structure of the Constitution. This is hardly consistent with
an enthusiastic adoption of the national dimensions doctrine. That
doctrine can, it is true, be adopted where the criteria set forth in Crown
Zellerbach are met so that the subject can appropriately be separated from
areas of provincial competence.
I have gone on
at this length to demonstrate the simple proposition that the validity of a
legislative provision (including one relating to environmental protection)
must be tested against the specific characteristics of the head of power
under which it is proposed to justify it. For each constitutional
head of power has its own particular characteristics and raises concerns peculiar
to itself in assessing it in the balance of Canadian federalism. This
may seem obvious, perhaps even trite, but it is all too easy (see Fowler v.
The Queen, [1980] 2 S.C.R. 213) to overlook the characteristics of a
particular power and overshoot the mark or, again, in assessing the
applicability of one head of power to give effect to concerns appropriate
to another head of power when this is neither appropriate nor consistent
with the law laid down by this Court respecting the ambit and contours of
that other power. In the present case, it seems to me, this was the
case of certain propositions placed before us regarding the breadth and
application of the criminal law power. There was a marked attempt to
raise concerns appropriate to the national concern doctrine under the
peace, order and good government clause to the criminal law power in a
manner that, in my view, is wholly inconsistent with the nature and ambit
of that power as set down by this Court from a very early period and
continually reiterated since, notably in specific pronouncements in the
most recent cases on the subject.
[...]
In saying that
Parliament may use its criminal law power in the interest of protecting the
environment or preventing pollution, there again appears to have been confusion
during the argument between the approach to the national concern doctrine
and the criminal law power. The national concern doctrine operates by
assigning full power to regulate an area to Parliament. Criminal law
does not work that way. Rather it seeks by discrete prohibitions to
prevent evils falling within a broad purpose, such as, for example, the
protection of health. In the criminal law area, reference to such
broad policy objectives is simply a means of ensuring that the prohibition is
legitimately aimed at some public evil Parliament wishes to suppress and so
is not a colourable attempt to deal with a matter falling exclusively
within an area of provincial legislative jurisdiction.
Lamer,
C.J.C. and Iacobucci, J. for the minority wrote joint reasons which
concluded that the challenged provisions could not be justified by s.
91:27. Accordingly they went on to consider whether the national
concern branch of the p.o.g.g. clause could support the challenged
provisions. After reciting the four enumerated points by which
Justice LeDain summarized the national concern doctrine in Crown
Zellerbach, [1988] 1 S.C.R. 401 at 431-2, Lamer C.J.C. and Iacobucci, J.
continued:
Assuming that
the protection of the environment and of human life and health against any
and all potentially harmful substances could be a new matter which would
fall under the P.O.G.G. power, we must then determine whether that matter
has the required singleness, distinctiveness and indivisibility that
clearly distinguishes it from matters of provincial concern and whether its
impact on provincial jurisdiction [...] is reconcilable with the
fundamental distribution of legislative power under the Constitution.
Only if these criteria are satisfied will the matter be one of national concern.
(i)
Singleness, Distinctiveness and Indivisibility
The test for
singleness, distinctiveness and indivisibility is a demanding one.
Because of the high potential risk to the Constitution's division of powers
presented by the broad notion of national concern, it is crucial that one
be able to specify precisely what it is over which the law purports to
claim jurisdiction. Otherwise, national concern could rapidly expand
to absorb all areas of provincial authority. As Le Dain J. noted in
Crown Zellerbach, supra, at p. , once a subject matter is qualified of
national concern, Parliament has an exclusive jurisdiction of a plenary
nature to legislate in relation to that matter, including its
intra-provincial aspects.
The appellant
submits that the object of Part II of the Act is limited in scope in that
there is a clear distinction between chemical substances whose pollutant
effects are diffuse and persist in the environment and other types of
pollution whose effects are temporary and more local in nature.
Therefore, being a single, distinct and indivisible form of pollution which
can cross provincial boundaries, chemical pollution requires particular
national measures for its proper control. However, as we have shown
above, Part II of the Act applies to a wide array of substances, not only
to chemical pollutants. Moreover, the impugned legislation is not
limited to substances having interprovincial effects.
The definition
of toxic substances in s. 11, combined with the definition of substance
found in s. 3, is an all-encompassing definition with no clear limits.
[...]
Furthermore, by
virtue of s. 11(a), a toxic substance may be any form of distinguishable
matter which has or even simply may have an immediate or long-term harmful
effect on the environment. [...]
In sum, the
investigatory guidelines contemplated by s. 15 do not effectively narrow
the broad definitions given to toxic substances in ss. 11 and 3; that is,
they do not guarantee that only the most serious, diffuse and persistent
toxic substances will be caught by the regulatory power conferred by ss. 34
and 35. [...]
With respect to
geographical limits, although the preamble of the Act suggests that its
ambit is restricted to those substances that cannot always be contained
within geographic boundaries, nowhere in Part II or the enabling provisions
at issue is there any actual limitation based on territorial
considerations. The notion of environment as defined in s. 3 includes
all conceivable environments without regard to provincial boundaries.
Thus, Part II applies with equal force to toxic substances that are wholly
situated within a province or whose effects are localized or entirely
intraprovincial and to those which move across interprovincial or
international borders.
The majority of
this Court in Crown Zellerbach,
supra, at pp. 436-37, found marine pollution to constitute a single,
distinct, and indivisible subject-matter, on the basis that the Ocean Dumping Control Act, S.C.
1974-75-76, c. 55, distinguished between the pollution of salt water and
the pollution of fresh water, both types of waters having different
compositions and characteristics. In Part II of the Canadian
Environmental Protection Act, there is no analogous clear distinction between
types of toxic substances, either on the basis of degree of persistence and
diffusion into the environment and the severity of their harmful effect or
on the basis of their extraprovincial aspects. The lack of any
distinctions similar to those in the legislation upheld in Crown Zellerbach means that the Act
has a regulatory scope which can encroach widely upon several provincial
heads of power, notably, s. 92(13) property and civil rights, s. 92(16)
matters of a merely local or private nature, and s. 92(10) local works and
undertakings. In our view, this failure to circumscribe the ambit of
the Act demonstrates that the enabling provisions lack the necessary
singleness, distinctiveness and indivisibility.
Another
criterion that can be used to determine whether the subject matter sought
to be regulated can be sufficiently distinguished from matters of
provincial interest is to consider whether the failure of one province to
enact effective regulation would have adverse effects on interests exterior
to the province. This indicator has also been named the provincial
inability test (see Crown Zellerbach,
at pp. 432-34). If the impugned provisions of the Act were indeed
restricted to chemical substances, like PCBs, whose effects are diffuse,
persistent and serious, then a prima
facie case could be made out as to the grave consequences of any one
province failing to regulate effectively their emissions into the
environment. However, the s. 11(a) threshold of immediate or
long-term harmful effect on the environment also encompasses substances
whose effects may only be temporary or local. Therefore, the notion
of toxic substances as defined in the Act is inherently divisible.
Those substances whose harmful effects are only temporary and localized
would appear to be well within provincial ability to regulate. To the
extent that Part II of the Act includes the regulation of toxic substances
that may only affect the particular province within which they originate,
the appellant bears a heavy burden to demonstrate that provinces themselves
would be incapable of regulating such toxic emissions. It has not
discharged this burden before this Court.
The s. 34(6)
equivalency provision also implicitly undermines the appellant's submission
that the provinces are incapable of regulating toxic substances. If
the provinces were unable to regulate, there would be even more reason for
the federal government not to agree to withdraw from the field.
Section 34(6) demonstrates that the broad subject matter of regulating toxic
substances, as defined by the Act, is inherently or potentially divisible.
These reasons
confirm that the subject matter does not fulfill the characteristics of
singleness, distinctiveness and indivisibility required to qualify as a
national concern matter.
(ii)
Impact on Provincial Jurisdiction
Having
concluded that the requirement of singleness, distinctiveness and
indivisibility was not satisfied, it is unnecessary to examine the second
criterion of the national concern test. The subject matter at issue
does not qualify as a national concern matter and, since it was not
suggested that it could be upheld as a matter of national emergency, it is
therefore not justified by the peace, order and good government power.
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