Understand first, that the jurisprudence of other countries is not binding on Canadian courts (as Canadian law is not binding on other countries’ courts, naturally), but it can be persuasive. If a provision of another country’s rights document is written identically or very similarly to the same provision in our Charter, then it makes sense to consider Canadian decisions.
That being said, it should be asked: where did the Canadian Charter come from? Perhaps not so surprisingly, parts of it are borrowed from the US Bill of Rights; and so, some of our Charter jurisprudence includes American cases. See, for example, RWDSU v. Dolphin Delivery Ltd., [1986] 2 SCR 573 (link here), where the SCC states, at paragraph 18:
Emphasis added. RWDSU was the best I could do in a quick Google search, but it is not the only one. At any rate, it is an example of American Bill of Rights law being considered in an SCC decision concerning the Charter. It is far from the only Charter decision that has considered the law of other countries.
I’ve also been able to find R. v. Simpson, (1993) 12 OR (3d) 182; 79 CCC (3d) 482, out of the Ontario Court of Appeal, which dealt with ss. 8 and 9 of the Charter. In among all the Canadian cases, Simpson cites Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968); United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690 (1981); and Alabama v. White, 110 S. Ct. 2412 (1990). So, even provincial Courts of Appeal will consider foreign cases.
I’ve never heard anyone saying we should have kept the connexion. Even at the time, the debate wasn’t over patriation as such; it was over the proposed amendments, namely the amending formula and the enactment of the Charter. None of the provinces who objected to Trudeau’s plans did so on the basis that we should keep the British Parliament as part of our constitutional system.
I think wandering into either of these questions would be likely to trigger the debates I mentioned in the OP that I would prefer to avoid.
Getting back to the suggestion for defining the PM, I agree with Spoons’ response. I would just add to it that one of the strengths of responsible government is its flexibility on just this point: the powers of the office of Prime Minister depends very much on the current political situation; a Prime Minister with weak support in his party or the House may find his powers limited; a PM with very strong party support and in the House can do more. In that sense, it reflects the voters’ will: if the voters haven’t given a Prime Minister a majority, but only a minority, that’s a reflection that the PM doesn’t have strong popular support and therefore does not have as much power or freedom to move; a PM who has a strong majority, and thus more of a popular mandate, can do more.
i think it would be difficult to try and tie all that down in a job description, and in doing so, we might lose that flexibility.
There’s nothing the British government could do. The Gov Gen takes his advice from the Prime Minister of Canada. The Queen of Canada could dismiss the GovGen, but only on advice from the Prime Minister of Canada. The Queen of Canada would not take advice from a foreign Prime Minister.
The major difference is that we have a Tenth Amendment that works!
What I mean by that is that our division of powers between the federal and provincial governments has two significant differences from the US model. The first is that there are express lists of both federal powers, and provincial powers. The second is that the lists of powers are exclusive, not concurrent.
The first point is important because it gives the courts concrete instructions as to what is a matter of provincial jurisdiction. When faced with a division of powers question, courts have to look at the two lists and allocate the statute under those lists. Having a concrete list of provincial powers in addition to the federal powers acts to reduce the scope for unlimited expansion of the federal powers. To compare to the Tenth Amendment, which says that anything not assigned to the federal government is reserved to the states or the people; fine in theory, but if the scope of the federal powers is constantly growing, it’s really not much of a check. In the Canadian system, federal powers can’t just keep growing, because they bump into provincial powers.
The second major difference is that our model is exclusive lists, and in yours, the federal is largely concurrent. That is, if something is within provincial jurisdiction, Parliament cannot legislate on that topic. That’s different from the US model, where even if the states can regulate something, the federal Congress can also overlay laws on top: e.g. commerce clause authorising regulation of commercial matters on top of state regulation, federal criminal statutes, federal civil rights statutes on top of state criminal statutes, and so on. Again, this difference in approach keeps the federal powers in check, because the courts have long recognised that their task is to interpret both lists of powers; the enumerated provincial powers act as a check on the federal powers.
So with those theoretical differences in mind, the major area of provincial jurisdiction is “property and civil rights” (Constitution Act, 1867, s. 92(13)), with civil rights having the older meaning of rights in relation to matters under civil law, not criminal law. That head of power gives the provinces jurisdiction over contracts, torts, property law, wills and succession law, family law, and so on. It also has been interpreted to include intra-provincial commercial transactions, while the federal power over “the regulation of trade and commerce” (Constitution Act, 1867, s. 91(2)) is largely confined to inter-provincial and inter-national commercial matters.
Interestingly, our federal government tried to rely on the federal trade and commerce power to intervene in the economy during the Depression, much as the US federal government did. The difference is that the courts (notably the Imperial Judicial Committee, our final court at that time), struck down most of the federal legislation, and never “switched” to an expansive interpretation of the commerce power. Whether you like that result or not (and it was controversial), it’s meant that the federal commerce power here is not the ever-expanding sponge that it is in the US.
As a concrete example of that limitation on federal powers, our Supreme Court recently held, 9-0, that the federal government cannot create a securities regulator like the SEC in the US - securities regulation is largely a matter of provincial jurisdiction. Only some aspects of it fall within federal jurisdiction under the commerce power.
One other major difference from the US model is banking. Here, banking is an area of exclusive federal jurisdiction. That has been a key factor in the stability of the Canadian banking system generally, and in particular during the current economic crisis. Banks are under a single regulator, and the federal regulations in Canada have been much more conservative than in many other G8 nations. The feds have been criticised during the go-go years for keeping our banks under wraps, stifling their ability to compete, and so on. We’ve not been hearing so much grumbling on that point in the past four years. Banks in Canada don’t fail. The last time we had two banks fail, in the early 80s, it was the first time since the Great Depression, and triggered a major review of regulations. No bank has failed since then.
With respect to taxes, the provinces can only impose direct taxes (e.g. - income taxes, point of sale retail taxes), while the feds can tax anything.
I’m not sure I follow. If the SCC rules on a matter of common law within provincial jurisdiction, without any constitutional component, and the provincial government doesn’t like the decision, the government can just pass a law changing the common law.
For instance, in the 1970s, a married couple from Alberta broke up. They had run a ranch together for years, but everything was in his name. She sued for an equal division of the assets, arguing that it was a marriage partnership, but the SCC held that since it was all in his name, he was the sole owner and the wife had no legal claim to it: Murdoch v. Murdoch.
Great popular outcry, and within a few years, all of the provinces had enacted matrimonial property statutes which stated that both parties to a marriage had a right to the property built up during the marriage, regardless of the formal title.
That’s simply the most extreme example, but it shows that the provinces are free to change the law as declared by the SCC in matters coming within their jurisdiction, absent a constitutional component to the SCC decision.
I think… without, hopefully, leading to a debate that Piper wants to avoid … to answer the question of whether there’s a chance of Québec separating in the “foreseeable future” (say, the next 10-20 years?), I think it’s fair to say “No”, without some rather severe economic or relational change between the feds and the province (which I suppose could happen, but relations have been pretty good over the past while).
There is always a portion of the population who identify as separatists (anywhere from 20-40% it seems, though those numbers are off the top of my head) but it isn’t a majority, it isn’t enough to actually accomplish the task.
Provincial governments change back and forth between separatist and federalist parties largely to punish the party that just had a bit of a reign, not so much as a vote for sovereignty. I actually know federalists who have voted for the Parti Québecois when they felt that the Liberals needed to be ousted (and vice versa, actually), and I easily see that happening again. These people would never actually vote for separation, but the two party’s platforms are sufficiently similar to deal with a lot of the other issues in the province (IMHO).
I hope that isn’t overly controversial - we can hop over to another thread if people want to discuss this more.
The GG, however, is not precisely the PM’s puppet. The nasty 1975 incident in Australia illustrates what can happen when politicians are determined to push the envelope of proper political behavior.
But 99.999% of the time the GG will act on the ‘advice’ (=instructions) of the PM and HMG. But the difference lies in the disparate ways in which Americans and Brits/Canadians/Aussies view their governmental institutions. For us on the ‘Washington system’, checks and balances is shorthand for “Assume Nixon, Reagan, Clinton, Bush, Obama, Gingrich, DeLay, Pelosi, SCOTUS is going to do something outrageous; how can they be stopped?” In the Westminster system, the apposite question is, “How can disparate interests be led, albeit sometimes grudgingly, to a compromise that will make the government continue to run smoothly?” And the fact that the Queen and her GGs are persons, not inanimate objects or concepts, is key to making that work.
The prorogation episode of a couple of years ago is illustrative. After the General Election, no party had a majority in Commons. The Conservatives, incumbents comprising HMG, were the largest single party. But the Liberals, NDP, and PQ between them had the votes to defeat the Government on a vote of confidence – which was traditionally due to happen immediately after the start of Parliament, in the debate on the ‘speech from the Throne’. (That may not be the Canadian term for it; please correct me if so.)
However, the one thing on which the three parties were agreed was “Get the Tories out.” The Liberals and NDP hammered together a coalition, but it would also have been a minority government. The most the PQ were willing to give was a promise not to bring down the Lib/NDP government on confidence vote for 18 months. This meant that every single item on the coalition government’s legislative program would have been the subject of a protracted three-party negotiation that might well be the rock on which the coaltion foundered.
To prevent being defeated on a confidence vote as soon as the new parliament met, Conservative PM Harper asked (Not advised) the GG to proprogue Parliament for a substantial period. She reportedly declined to grant his request, but agreed to a shorter prorogation. This sounds undemocratic to us south of the border, but in fact was appropriate.
Why? Because it was the GG’s job to sustain HMG as long as it can command the confidence of the Commons. In this case, that reduces to “has not yet been voted out on a no-confidence motion.” During that shorter proprogation, PM Harper shifted portfolios among ministers, shored up support, and waited while the three-party opposition’s agreement to vote his government out came apart at the seams. Since nobody wanted yet another election so close on the heels of the previous one, HMG was not voted out on a no-confidence motion. And Canada continued with a stable government.
Looking at it from the Left one might find this a bit iffy. But consider that the GG would have done the same thing for a minority NDP government which the Liberals, Tories, and PQ were ganging up on, with absolutely no hope of putting that combination into a coalition government to replace it.
Stability and compromise – the keys to the Westminster system.
The debate on the speech from the throne actually went uneventfully. The address in reply was agreed to on the same day that the Minister of Finance gave the “fiscal update” that provoked the agreement by the other parties.
Not a part of the written constitution, but illustrative of the unwritten bits, the first bill introduced in the Commons at the beginning of a new session is always Bill C-1 “An Act Respecting the Administration of Oaths of Office”, which reasserts the independence of the Commons from Crown control.
In response to the excellent answer regarding the difference between the American and Canadian states/provinces rights under their constitutions (exlusive lists vs concurrent powers), I have another question.
Can Canadian provences cede powers to the federal government? For example, in Australia it was that states each had a set of consumer laws as parts of their sales of goods acts, and the federal government (which can as part of our ennumerated list deal with corporations) had a consumer law for corporations only. This got a bit confusing - was it a corporation, was it not, was it a sale of goods issue that was B2B or B2C, sole trader, partership, etc. So recently the states said fine, we cede that power over consumer laws relating to persons who are not corporations to the federal government (much simplified here) and Australia got the Australian Consumer Law for consumer protection issues, and the several states kept their various sale of goods acts to govern that. Could Canadian provinces do something similar? (Australian states did this with taxation as well.)
What about areas that are not clearly on one list or the other, or where part of an issue is state and part is federal? Here it’s said that the federal government can ‘cover the field’ in terms of such areas if they chose - so we have a Racial Discrimination Act that is federal, and thus (since it’s not an enumerated power on either side) covers the field and takes precedence over state legislation. What about Canada?
I think the answer would have to be “it depends,” and it depends on the subject matter.
For example, although they can, most provinces don’t bother establishing a provincial police force, preferring to let the federal RCMP provide policing services in the province for areas that do not have a municipal police force. Ontario, Quebec, and parts of Newfoundland have established their own police services, for example (Ontario Provincial Police, Surete du Quebec, and Royal Newfoundland Constabulary, respectively). But the provinces that use the RCMP don’t get a free ride–they pay for the Mounties’ services. But here is an example of provinces ceding power to the feds, and the federal police enforcing provincial laws (for example, the Mounties will tag speeders on provincial highways).
But provinces are protective of certain things. All provinces keep things like roads, driver licensing and vehicle registration, alcohol and gambling laws, and education, among others, to themselves; as they are allowed to under s. 92 of the Constitution.
And in certain areas, while the power constitutionally belongs to a province, the federal government will step in and legislate in order to ensure nationwide standards. Health care is an example here; while the provision of such care and the infrastructure to provide it is a province’s responsibility, the federal government has enacted the Canada Health Act in order to ensure (for example) portability between provinces. So, if I, an Albertan, fall ill while I happen to be in Ontario, Ontario cannot refuse to treat me under my Alberta insurance. My Alberta health insurance is valid in all provinces and territories, thanks to federal legislation.
You have a very good question, but one that I don’t think can be easily answered with a “yes” or “no.”
It may sound odd at first, but this is almost easier to answer than your other question. Quite simply, we return to the division of powers sections of the Constitution.
I’m going to use human rights and employment legislation as an example here, since your question is similar to one I am always asked when I give talks at the local college and university on employment, human rights and the law: why is there federal human rights legislation and provincial human rights legislation? Why is there federal employment legislation and provincial employment legislation? Does the federal trump the provincial? Is the federal like an appeal? Why is the federal act so similar to the provincial act? I was denied an apartment because I’m black; why won’t the Canadian Human Rights Commission accept my complaint?
For the answer to the above, as I said, we return to the division of powers sections in the Constitution. The first thing we have to ask is, “under whose power is the subject matter?” Once we know that, we know how, and with whom, to proceed. A few examples may illustrate:
– Bob works for a bank. He comes out as gay, and is fired for that reason. Bob goes to the federal human rights commission, as banks are a federal responsibility (Constitution, s. 91(15)).
– Sue works for a clothing store in the mall. She is wrongfully dismissed from her job. She complains through the Employment Standards commission of her province; clothing stores not being enumerated under federal powers, and thus falling under provincial, likely under Constitution s. 92(13). (See above for Northern Piper’s excellent explanation of “civil rights” as understood in the Constitution.)
– Rachel works as a flight attendant for a national airline. She is wrongfully dismissed, so she complains to the federal employment standards commission, as airlines are under federal jurisdiction: Constitution, s. 92(10)(a).
– Jerry is a locomotive engineer for a national railway. He suffers an injury that prevents him from driving locomotives, but doesn’t stop him from operating a computer while sitting at a desk. The railway fires him anyway, because of his disability. Jerry goes to the federal human rights commission, as railways are under federal jurisdiction: Constitution, s. 92(10)(a).
And so, knowing this, you can probably answer the question our black friend posed above: " I was denied an apartment because I’m black; why won’t the Canadian Human Rights Commission accept my complaint?" Apartment rentals are covered under Constitution s. 92(13): property and civil rights in the province; so the correct human rights commission would be the provincial one.
But to sum up my answer to your question, Gleena, here is why we don’t have the federal government trumping the provincial one, or as you put it, “covering the field”: because the Constitutional division of powers means that in some areas, the feds rule; and in others, the provinces rule. They can co-exist with similar legislation, as long as each keeps to their own areas as enumerated in the Constitution.
In the ongoing semiserious discussions of the Turks and Caicos joining Canada, one creative solution was instead of admitting them as a seperate province (which for a variety of reasons would have been very difficult), Nova Scotia was offering to just add the T&C to it to avoid the constitutional wrangling of creating another province. I realize it is very unlikely to happen, but is there any reason that plan wouldn’t have worked from a constitutional perspective?
That’s a really interesting question; no idea as to the answer! Canada has added territory on 5 separate occasions: 1870 (North-Western Territory and Rupert’s Land); 1871 (British Columbia); 1880 (Arctic lands and archipelago); and 1949 (Newfoundland). Those additions were all authorised by s. 146 of the constitution Act, 1867 (except for the Arctic, which was done by the royal prerogative). As Canada is a sovereign nation, can’t see anything that would stop it, but it would require some careful thinking.
Spoons gave a good answer to Gleena’s question; I’ll just add to it a bit.
On the pure legislative level, the provinces can’t cede jurisdiction to the feds, which seems to be what the Australian states have done in Gleena’s example. The reason they can’t do it (or Parliament cede jurisdiction to the provinces) is because that would be an indirect amendment to the division of powers (Nova Scotia Inter-Delegation Case).
But there’s no problem with administrative inter-delegation (a federal agency like the RCMP carrying out provincial tasks, or the feds delegating federal tasks to provincial agencies, which they’ve done in some cases). But at some point, does administrative inter-delegation (permissible) become legislative inter-delegation (impermissible)? As Spoons points out, the answer seems to be “it depends”. An answer which provides work for lawyers.
It’s a basic axiom of our system that everything is included in the two lists, with two residual clauses, one for the federal list and one for the provincial list. New activities get included in one or the other by analogy; so aviation got added to the federal list by analogy to inter-provincial railways, which are federal.
However, the courts have always recognized that some aspects of the same activity may fall in federal jurisdiction, and other under provincial jurisdiction (called, not surprisingly, the “double aspects doctrine”). For instance, the provinces regulate highway traffic: speed limits, vehicle registration, and so on. But the Parliament can and has criminalised certain aspects of of highway traffic, making impaired driving, dangerous driving, and a few other extreme misconduct into crimes. So when you’re behind the wheel, you’re subject to both federal and provincial regulation, in a complementary way.
There is no doubt that federal laws take priority in the case of conflict, called the “paramountcy doctrine.” At one point, the Judicial Committee and the Supreme Court did use the language of “occupied field” as a way to resolve conflicts between federal and provincial laws, taking the view that if Parliament had legislated in an area, that occupied the field and prevented provincial laws from applying. Sounds similar to what the Australian courts do, and to pre-emption in the US federal system.
However, in the past 60 years, the Supreme Court has taken a more hands-off approach to the paramountcy issue, saying that the provincial law is only inoperative if there is an actual operational conflict between the two laws, such that a citizen cannot obey both laws simultaneously. This approach gives greater recognition to provincial policies and reduces the judicial intervention between different federal and provincial policies to the very few cases where there is actual operational conflict.
To follow up on this ceding jurisdiction thing, suppose that the provinces decided they didn’t want independent securities regulation (I realize that a few of them do in actuality). Is there anything stopping the provinces from creating a de facto national securities regulator, in some form of treaty between them? I presume this is possible, as the provinces could each say that they were delegating the task of regulation to the Inter-Provincial Securities Regulation Commission, and then harmonize their legislation to coincide with the agreed upon rules. But I take it that they couldn’t then turn the operation of the Commission over to the feds?
One thing that I’ve never understood is the role of the Senate in Canada.
My vague understanding of the UK House of Lords is that it has some limited power to muck things up by slowing down legislation, but I’m not sure the Canadian Senate can do even that.
So what is the current power of Canada’s Senate (and I suppose, how does one become a Senator and what role or responsibility does a Senator have)? Has this changed over the history of Canada?
