Ontario’s Restrictions on Third Party Election Advertising are Law, “Notwithstanding” the Finding of Unconstitutionality

Creating a balance between protecting both democracy and free expression is a difficult task. In 2017, the Ontario legislature amended the Election Finances Act[1] to insert a provision that places spending limits on third party political advertising six months prior to an election. In 2018, this spending limit was extended such that the limit applied over a 12-month period prior to an election instead of a 6-month period. Arguably, these spending limits were imposed to promote a fair and democratic election process by limiting the extent to which more affluent individuals and groups can influence the electoral process.[2] However, a constitutional challenge was launched against the Government of Ontario on the ground that the law infringed section 2(b) of the Charter of Rights and Freedoms, which guarantees the freedom of expression. The Ontario Superior Court of Justice found in Working Families Ontario v Ontario[3] (“Working Families”) that the impugned provisions of the Election Finances Act did in fact unjustifiably infringe section 2(b) of the Charter. As a result, the Court declared these provisions of no force or effect.

The Government of Ontario then had a choice: appeal the Court’s decision, amend the law to align with Charter values, or disregard the finding of unconstitutionality and invoke the notwithstanding clause to reenact the invalidated law. Of these options, the last was chosen. On July 14, 2021, the lifeless law was revived, despite its Charter infringements, using the notwithstanding clause.

This article first reviews the amendments to the Election Finances Act. It then explains the Court’s decision in Working Families. Finally, it explores the Government of Ontario’s decision to invoke the notwithstanding clause in response to the Court’s ruling.

Legislative History: Third Party Spending is Limited by the Election Finances Act

Bill 254 amended the laws governing Ontario’s provincial elections to “protect Ontarians’ essential voice in elections” and “promote fairness in the electoral process for everyone.”[4] One of these amendments, section 37.10.1(2) of the Election Finances Act, found itself at the centre of a constitutional challenge for infringing free expression. Section 37.10.1(2) provides that no third party can spend “more than $600,000 in total for the purposes of third-party political advertising during the 12-month period immediately before the issue of a writ of election.”[5] This limit was criticized as “severely and aggressively target[ing] third parties,”[6] such as trade unions. Political advertising is broadly defined in section 1.1(1) of the Election Finances Act as “advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate.”[7] As such, the law limits many forms of political expression.

Before Bill 254’s amendments, Ontario had a spending limit that was capped at 6 months prior to the writ of election. Like the 12-month limit, the 6-month limit was also scrutinized. Charter challenges were launched against the Government of Ontario, which responded that “pre-election spending limit[s] on third-party political advertising … [are] necessary and reasonable to ensure a fair and proper election process.”[8] Before the courts could adjudicate the claims regarding the 6-month limit, the Government of Ontario amended the Election Finances Act in 2021 with Bill 254.

Charter Challenge Launched: Bill 254 Unjustifiably Limits Free Expression

To determine whether the 12-month spending limit violates the freedom of expression, a Charter analysis must be conducted. First, the Court must determine whether political advertising is protected speech under section 2(b) of the Charter. If it is not protected speech, it will not receive Charter protection and the analysis ends. However, if it is protected speech and an infringement is found, the Court will proceed to the next step of the analysis, when it will ask whether the law constitutes a reasonable limit on the infringed right under section 1 of the Charter.

Is Third Party Political Advertising Protected Speech Under the Charter?

Not all expression receives the same degree of protection under section 2(b) of the Charter.[9] Instead, courts assess each form of expression in context to determine the extent to which it must be protected.[10] In R v Keegstra, Justice McLachlin (as she then was) explained the importance of the freedom of expression for political speech: “[Free expression] is instrumental in promoting the free flow of ideas essential to political democracy and the functioning of democratic institutions. This is sometimes referred to as the political process rationale.”[11] For these reasons, among others, political expression has been granted a high level of protection under section 2(b).[12] However, as the analysis is contextual, this is not always the case. Sometimes political expression merits a lower level of protection “depending on the nature of the controversy at hand.”[13]

In Working Families, free expression was not the only constitutional value at stake. Other constitutional values, like equal speaking opportunities, must also be protected during elections.[14] The concern with not limiting third-party advertising is that heavily-funded third party political advertisers can disproportionately dominate the airwaves and drown out voices that have less funding.[15] The Court concluded that the “financing of political expression” is “certainly an aspect of expression deserving protection under section 2(b) … but its level of protection is a matter of context, to be weighed with and against other values underlying democracy itself.”[16] The right of third-party political advertisers to engage in free expression is therefore “counterbalanced by a need to ensure that all citizens have an equal opportunity to participate in the electoral process.”[17]

The question, then, was whether Bill 254 violates freedom of expression by infringing on political speech. The Court quickly concluded that limiting third party political advertising does restrict freedom of expression.[18] In the Court’s words, free expression is a broad right that is infringed whenever a government “limits an activity that conveys or attempts to convey meaning,” and political advertising is one of those activities.[19] The Attorney General of Ontario also conceded this point.[20]

Charter Rights Are Not Absolute: Can the Section 2(b) Infringement Be Justified?

Charter rights are not absolute. Governments can justifiably limit a protected right under section 1 of the Charter if that limit “can be demonstrably justified in a free and democratic society.”[21] To determine whether the law is justified, courts apply the Oakes test, which assesses the importance of the law’s objective and whether there is proportionality “between the objective and the means used to achieve it.”[22] If the Oakes test is satisfied, the violation of the Charter right is regarded as legally justified and the law is constitutional.

The Working Families decision hinged on the question of proportionality. Among other things, an infringement is proportional only if it minimally impairs the violated Charter right. The Court found that at the Oakes test’s minimal impairment stage “the rubber of Bill 254 hits the slippery road of justification, causing the … vehicle to skid off course.”[23] The Court found that Bill 254 was not minimally impairing because the Government failed to consider other measures that would achieve its objective but have less of an impact on Charter rights. The Court cited two key facts in support of this conclusion. Firstly, the Chief Electoral Officer recommended against imposing restrictions on “issue-based advertising” prior to the election, concluding that such restrictions do “not augment the fairness and equality that such regulations are meant to address.”[24] Secondly, and more significantly, the Government of Ontario’s own expert witness testified that a 6-month spending limit was an “appropriate and effective” length of time for restricting political advertisements.[25] As such, it was difficult for the Government of Ontario to argue that a 12-month period minimally impairs free expression when a 6-month period would, according to its own expert witness, ensure a fair and democratic election period. On this point, the Attorney General failed to provide evidence that justified or explained why the restricted spending period was doubled.[26] The 12-month spending restrictions in section 37.10.1(2) were accordingly not found to be minimally impairing, and the law was not saved under section 1 of the Charter.

Having ruled the 12-month spending restrictions unconstitutional, the remedy declared by the Court was the invalidation of the impugned sections of the Election Finances Act, rendering them of no force or effect. Often, when this type of declaration is made, courts will suspend the declaration of invalidity for a period of time, so that governments may amend the law and bring it into compliance with the Charter. In this case, no suspension was granted as an Ontario provincial election was scheduled to occur within 12 months of the Court ruling. This meant that third party advertisers, under the impugned law, were already within the 12-month restricted spending period. As such, the law was invalidated immediately, so that these parties would not be subject to unconstitutional laws during this pre-election period.

The Notwithstanding Clause Stifles Judicial Dialogue

Section 37.10.1(2) was lifeless for just a few days before it was revived by the Government of Ontario on June 14, 2021. What made this revised legislation different than the original law was the inclusion of the notwithstanding clause. The notwithstanding clause is a constitutional provision set out in section 33 of the Charter that gives the provinces and Parliament power to declare that a law may operate “notwithstanding” the fact that it infringes upon certain Charter rights. It functions to “prevent a person from bringing an action in court claiming that a law violates fundamental freedoms, legal rights, or equality rights and is therefore invalid.”[27] Therefore, as Ontario enters the next election cycle, no party will be able bring a claim to court arguing that the spending restrictions in the Election Finances Act violate their freedom of expression.

Since its inception in 1982, the notwithstanding clause has had limited use. Of the 14 governments that can use the clause, only Saskatchewan, the Yukon, Ontario, Alberta, and Quebec have made declarations under section 33.[28] However, this is the first time that a court has declared a law unconstitutional and the government has immediately responded by invoking the notwithstanding clause and reenacting exactly the same law. Normally, where the courts find a law unconstitutional, the offending government will attempt to bring it into compliance with the Constitution through amendment — a process that is often referred to as a dialogue between courts and legislatures. Ontario’s use of the notwithstanding clause effectively ends this dialogue; the Government of Ontario has simply re-enacted the same law, ignoring the Court’s judgment that it is unconstitutional.

For some observers, though, the notwithstanding clause offers a way for elected officials to challenge unelected judges’ interpretations of constitutional rights and principles. Hansard from the debates on June 14, 2021, when the new notwithstanding legislation was passed, states that reviving the spending limit law “will restore … critical guardrails to protect the essential role of individuals at the heart of Ontario’s democracy.”[29] This suggests that the Government of Ontario is re-enacting this law to ensure a fair and democratic election process by limiting the role of private money in the electoral process. Conversely, critics of the Government of Ontario argue that this law “limits comment on essentially any public policy issue when these comments matter the most.”[30] Whatever position one takes, critics of the Election Finances Act are no longer able to challenge it under section 2 of the Charter (or under other sections of the Charter to which the notwithstanding clause applies).

Conclusion: Back Where We Started

Despite the unjustifiable infringement on free expression, the 12-month restriction on spending for third-party political advertisements is law in Ontario. Those who fall under the impugned restrictions set out by the Election Finances Act are left with few to no remedies. Because the notwithstanding clause was used to revive the law, Charter challenges cannot be brought on the basis that the law violates fundamental freedoms, legal rights, or equality rights. However, this issue is not free of constitutional challenges just yet. A new challenge was launched against the law under section 3 of the Charter.[31] Section 3 guarantees democratic rights and is exempt from the purview of the notwithstanding clause. Whether or not this claim will succeed is uncertain, but in the meantime third-party political advertising must abide by the spending limits under the revived Election Finances Act.

[1] Election Finances Act, RSO 1900, c E7.

[2] Working Families Ontario v Ontario, 2021 ONSC 4076 at para 6 .

[3] Ibid.

[4] Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly, 1st reading, Legislative Assembly of Ontario, 42-1, No 227 (25 February 2021) at 11578 (Hon Doug Downey).

[5] Election Finances Act, supra note 1, s 37.10.1(2).

[6] “Conservatives double-down with amendments to Bill 254, the ‘Squashing Ontario Democracy Act’” (13 April 2021), online: Cision <www.newswire.ca/news-releases/conservatives-double-down-with-amendments-to-bill-254-the-squashing-ontario-democracy-act--823313298.html>.

[7] Election Finances Act, supra note 1, s 1.1(1).

[8] Working Families, supra note 2 at para 6.

[9] Ibid at para 24.

[10] Ibid.

[11] Ibid at para 24, citing R v Keegstra, [1990] 3 SCR 697 at 802, 1990 CanLII 24.  

[12] Working Families, supra note 2 at para 25.

[13] Ibid at para 26. See Ford v Quebec (Attorney General), [1988] 2 SCR 712, 1988 CanLII 19.

[14] Working Families, supra note 2 at para 27.

[15] Ibid at para 32.

[16] Ibid at para 28.

[17] Ibid at para 31.

[18] Ibid at para 34.

[19] Ibid.

[20] Ibid.

[21] Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[22] “Section 1 — Reasonable Limits” (last modified 2 July 2021), online: Government of Canada Department of Justice <https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html>.

[23] Working Families, supra note 2 at para 63.

[24] Ibid at para 64.

[25] Ibid at para 65.

[26] Ibid at para 73.

[27] “Notwithstanding Clause” (last visited 21 July 2021), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2019/07/notwithstanding-clause/> .

[28] “Section 33 – Notwithstanding clause” (last modified 2 July 2021), online: Government of Canada Department of Justice <www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html>.

[29] Bill 307, An Act to amend the Election Finances Act, 3rd reading, Legislative Assembly of Ontario, 42-1, No 275 (14 June 2021) at 14208 (Hon Doug Downey).

[30] Christine Van Geyn, “Doug Ford’s gag law will limit comment on essentially any public policy issue” (17 June 2021), online: Canadian Constitution Foundation <https://theccf.ca/doug-fords-gag-law-will-limit-comment-on-essentially-any-public-policy-issue/>.

[31] Robert Benzie, “Unions again challenging Premier Doug Ford’s campaign finance law as unconstitutional” (12 July 2021), online: Toronto Star <www.thestar.com/politics/provincial/2021/07/12/unions-again-challenging-premier-doug-fords-campaign-finance-law-as-unconstitutional.html>.

Can a Provincial Referendum Trigger a Legal Duty to Enter Constitutional Negotiations? Alberta’s 2021 Equalization Referendum and the Reference re Secession of Quebec

Background

The word “referendum” is frequently mentioned by politicians, media, and academics as a potential way of settling contentious public issues. Whether it is to eliminate daylight savings time, create a provincial police force, or initiate negotiations to amend the Constitution of Canada, a referendum typically involves putting a binary “yes” or “no” question to members of the public so that they can directly express their opinion on it.[1] Due to widely held beliefs that referenda represent the unfiltered voice of the electorate, their results carry a special type of political weight, conferring “the people’s legitimacy … [on] decisions which may lead a country in a specific direction for years or decades.”[2]

On October 18th, 2021, Albertans will vote on two referendum questions as part of regularly scheduled municipal elections.[3] One of these questions asks whether the controversial equalization provision of the 1982 Constitution Act (section 36(2)) should be removed from Canada’s Constitution. The question is, what happens if a majority of Albertans vote “yes” in the referendum? Is the equalization provision automatically removed from the Constitution? And, if not, would a “yes” vote impose any legal obligations on Canada’s other governments, or set any further legal processes in motion?

This article provides some background on equalization and presents opposing perspectives on the constitutional implications of the referendum’s results. It explains why the referendum will not remove equalization from the Constitution, and why a “yes” vote likely doesn’t impose any constitutional obligation on the federal government or other provincial governments to negotiate with Alberta on removing section 36(2).

Equalization Payments: Two Opposing Streams of Thought

Before considering the legal impact of the referendum, we need a brief primer on its subject matter: equalization. Equalization payments were first made in 1957, and are now constitutionally guaranteed by section 36(2) of the Constitution Act, 1982, which states:

Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.[4]

Equalization payments are sums of federal tax revenues that are transferred to provincial governments to ensure that provinces have sufficient funds to ensure delivery of a consistent level of public services across the country.[5] Provinces that generate less revenue, colloquially referred to as “poorer” provinces,[6] receive a financial top up, whereas “richer” ones do not.[7]

While the Constitution guarantees that equalization payments will apply, it does not specify how equalization payments will be carried out. The formula to calculate equalization payments is a policy question that is left to the federal government of the day. A complex, mathematical formula calculates just how much money a province receives in any given year.[8] This formula was updated in 2009 by the Harper government and renewed in 2018 by Justin Trudeau.[9] For a more detailed explanation of how equalization works, see here.

In any given year, some provinces receive equalization payments, and others do not. This has resulted in two diverging perspectives. On the one hand, some stakeholders frame these transfers as unfair.[10] For example, the current Premier of Alberta, Jason Kenney, has said that “equalization is a powerful symbol of unfairness … in confederation”[11] whereby hardworking Albertans’ taxes subsize “have-not provinces.”[12] On the other hand, other stakeholders frame equalization payments as a vital “safety net” to ensure that public services are delivered to a baseline standard for all Canadians.[13] In a public debate, former politician and academic Michael Ignatieff stated that “equalization offers rough equality of opportunity,” guaranteeing assistance when provinces meet the criteria to receive transfer payments.[14]

The Kenney government’s staunch opposition to equalization led Kenney to promise during the 2019 election campaign to hold a referendum on its removal from the Constitution. Accordingly, the government has formulated the following question for the vote on October 18th, 2021:

“Should section 36(2) of the Constitution Act, 1982 — Parliament and the government of Canada’s commitment to the principle of making equalization payments — be removed from the constitution?”[15]

Guidance From the Supreme Court: The Duty to Negotiate from the Quebec Secession Reference

In 1998, the SCC ruled in the Reference re Secession of Quebec that a province could not unilaterally separate from Canada following a provincial referendum in which a majority voted in favour of secession.[24] In the course of this judgment, the Court offered guidance on how federal and provincial governments should respond to the results of provincial referenda on constitutional matters.[25] The Court stated that “the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession … would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.”[26] A few lines further on, the Court wrote that “[t]he corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table.”[27] The Court framed this as an obligatory “duty to negotiate” for the federal and other provincial governments.[28] But as the debate over Alberta’s equalization poll shows, different parties have very different interpretations of what the Court meant.

What Does the Kenney Government Claim the Secession Reference Means?

Kenney directly cited the Secession Reference when speaking publicly about the referendum. In a June 7th, 2021 press conference, he said that “a positive vote on a proposed constitutional amendment, if it has a clear question and a clear majority of Albertans vote in favour of it, … [will] meet the threshold of the Quebec Secession Reference to compel the Government of Canada to engage in good faith negotiations with Alberta.”[29] Thus, his interpretation of the “duty to negotiate” suggests that when any province holds a referendum with a clear majority result on any constitutional topic, the federal government is legally obliged to commence negotiations.[30]

Kenney has also described the specific process through which this duty to negotiate would arise. Following a positive vote in favor of eliminating equalization, Kenney’s government would ratify the proposed amendment via a vote in the Legislative Assembly.[31] Kenney believes this act of legislative ratification would then legally oblige the federal government and the other provincial governments to commence formal negotiations on the removal of section 36(2) from the Constitution.[32]

Furthermore, Kenney has suggested that the referendum is also an important strategic move on the part of his government. In the June 7th press conference cited above, he said that the referendum is part of a “strategy to elevate Alberta’s fight for fairness in Confederation to the top of the national agenda ... [and] to get Ottawa’s attention.”[33] While Kenney acknowledged that a province cannot unilaterally change the Constitution[34] and that a “yes” vote in the referendum is not “immediately going to fundamentally change equalization”[35] in Canada, he nevertheless calls the referendum a “legal tool to make a strong political point.”[36]

What Do Constitutional Scholars Claim the Secession Reference Means?

In light of Kenney’s reliance on the Secession Reference to justify holding the referendum on section 36(2), academics have chimed in with their opinions on the proper interpretation of the “duty to negotiate.”

Constitutional scholar Emmett McFarlane stated in 2019 on Twitter that “the [duty to negotiate] articulated in the Quebec Secession [R]eference only applies to secession.”[37] University of Alberta law professor Eric Adams similarly argues that Kenney is misrepresenting the Secession Reference, reasoning that the SCC “chose its words deliberately” so that the duty to negotiate applies only “to the most foundational constitutional crisis: the breakup of confederation itself.”[38] Further, Professor Adams points out that it would be a public policy nightmare if negotiations were automatically triggered following any provincial referendum on an any given constitutional topic. He reasons that this would create “an endless quagmire of constitutional dysfunction … [something that] the Supreme Court did not place us on [a path towards].”[39] Adams thus provides a relatively narrow interpretation of the Secession Reference, one which is diametrically opposed to Kenney’s.

While Adams acknowledges that Kenney has the right to initiate constitutional dialogue, he suggests that he can do this without holding a costly provincial referendum.[40] If Kenney asked for the issue to be addressed at a first ministers’ meeting, Adams argues that other provinces and the federal government “have an obligation to acknowledge and address”[41] the matter of equalization, but that they needn’t do more than “listen” to Alberta’s concerns.[42] Adams further suggests that Kenney’s interpretation may be more political than legal, and may be rooted in a politics of “anger, accusation, and blame” rather than a real desire to formally change the Constitution.[43] Whatever Kenney’s motives: for Adams, the referendum will have “nothing … tangible to say about whether or not the constitution [is actually] changed.”[44]

By contrast, University of Calgary professor Rainer Knopff characterizes Kenney’s interpretation as “partly right … [but] also partly wrong.”[45] Like Adams, he argues that the duty to negotiate is only triggered following a referendum on secession.[46] However, Knopff departs from Adams’ arguments and suggests that a different section of the Secession Reference provides a path forward where a referendum may be part of the process for triggering binding legal negotiations.[47]

Professor Knopff’s interpretation begins with paragraph 69 of the Secession Reference, which specifies that the Constitution Act, 1982 “confer[s] a right to initiate constitutional change on each participant in Confederation”[48] and imposes a “corresponding duty on … [Canada’s other governments] to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change”[49] in the initiating province. Knopff suggests that this process does not require a referendum but is rooted in section 46 of the Constitution Act, 1982.[50] Section 46 states that “procedures for [constitutional] amendment … may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province.”[51]

Turning to the mechanics of how this would take place, Knopff speculates that the Alberta legislature could pass a simple resolution on the elimination of equalization and that this would impose a constitutional duty to negotiate on other governments.[52] However, he notes that Alberta’s  Referendum Act requires a constitutional referendum before any such resolution can be enacted.[53] Thus, Knopff suggests that the referendum on equalization is an important step in the legal process of bringing about intergovernmental negotiations on the removal of section 36(2), although it is the legislative resolution that would ultimately “trigger the [constitutional] duty to negotiate,”[54] not the referendum.

The Results of a Single Referendum Probably Don’t Trigger a Legal Duty to Enter Constitutional Negotiations

So, even if a majority of Albertans vote to eliminate equalization, experts generally agree that this would not, by itself, impose a duty on other Canadian governments to enter into constitutional negotiations on equalization. Of course, a referendum is a useful tool for capturing public opinion, and it may be in the best political interests of the Kenney government to hold it, or in the federal government’s political interests to initiate negotiations in the event of a “yes” vote. However, if a vote in favour of eliminating equalization does result in constitutional negotiations, it is more likely that this would stem from political positioning and calculations, not constitutional law. Given the difficulty of getting seven provincial legislatures representing 50% of the population of the provinces to agree on a particular issue, as required by the Constitution’s general amending procedure, it is not likely that the Kenney government will succeed in repealing the equalization provision, even if intergovernmental negotiations did take place

[1] Yves Beigbeder, “Referendum” (June 2011), online: Oxford Public International Law <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1088>.

[2] Ibid.

[3] Drew Anderson, “Premier Jason Kenney Announces Equalization, Daylight Savings Referendums” (15 July 2021), online: CBC News <https://www.cbc.ca/news/canada/calgary/alberta-jason-kenney-referendum-equalization-1.6103528>.

[4] Constitution Act, 1982, s 36(2), being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[5] Edison Roy-Cesar, “Canada’s Equalization Formula” (2013) at 1, online (pdf): Library of Parliament  <https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/InBriefs/PDF/2008-20-e.pdf> .

[6] Ben Eisen & Mark Milke, “The Real Have-Nots In Confederation: British Columbia, Alberta, and Ontario” (1 May 2010), online: Policy Options < https://policyoptions.irpp.org/magazines/the-fault-lines-of-federalism/the-real-have-nots-in-confederation-british-columbia-alberta-and-ontario/> [Eisen].

[7] Ibid.

[8] LOP Equalization Formula, supra note 5 at 2-3.

[9] Paul Wells, “The Trudeau Liberals’ Fast One on Equalization: Not So Fast” (22 June 2018), online: Macleans <https://www.macleans.ca/politics/ottawa/the-trudeau-liberals-fast-one-on-equalization-not-so-fast/>.

[10]Senator Paula Simons, “Equalization Town Hall” (28 July 2021) at 00h: 11m: 57s — 00h: 12m: 24s, online (video): YouTube < https://www.youtube.com/watch?v=jPg_QZ2hqz8&t=1s> [Simons Town Hall].

[11] Janet French, “Alberta Equalization Referendum Will Have No Bearing on the Constitution, Experts Say” (7 June 2021), online: CBC News <https://www.cbc.ca/news/canada/edmonton/kenney-update-equalization-referendum-1.6056251>.

[12] Eisen, supra note 6.

[13] Marni Soupcoff, “Equalization is Doing Alberta No Favors — Michael Ignatieff’s Patronizing Arguments Notwithstanding” (19 October 2012), online: National Post <https://nationalpost.com/opinion/marni-soupcoff-equalization-is-doing-alberta-no-favours-michael-ignatieffs-patronizing-arguments-notwithstanding>.

[14] Ibid.

[15] Alberta Legislative Assembly, Hansard Transcripts, 30-2, No 109 (3 June 2021) at 5220.

[16] Constitution Act, 1982supra note 4, ss 38-49.

[17] French, supra note 11.

[18] Constitution Act, 1982, supra note 4 at ss 38-40, 42.

[19] Constitution Act, 1982, supra, note 4 at ss 38-42.

[20] Richard Albert, “The Conventions of Constitutional Amendment in Canada” (2016) 53 Osgoode Hall L J 399 at 409-410.

[21] CPAC, “Alberta Premier Jason Kenney Discusses Equalization Referendum, Apologizes for Cabinet Patio Dinner” (7 June 2021) at 00h: 15m: 44s — 00h: 16m: 04s, online (video): YouTube <https://www.youtube.com/watch?v=D1rGj0vp-eE> [Kenney Press Conference].

[22] James Keller, “Albertans To Vote on Equalization in Fall Referendum: A Breakdown” (18 July 2021), online: The Globe and Mail <https://www.theglobeandmail.com/canada/alberta/article-a-breakdown-of-albertas-referendum/> [Keller].

[23]Ibid.

[24] Reference re the Secession of Quebec, [1998] 2 SCR 17, 161 DLR 4th 385 .

[25] Ibid at paras 88-92.

[26] Ibid at para 88.

[27] Ibid [emphasis added].

[28] Ibid at para 90.

[29] Kenney Press Conference, supra note 21 at 00h: 15m: 43s — 00h: 16m: 03s.

[30] Eric M Adams, “Jason Kenney’s Equalization Referendum is Built on a Crucial Misrepresentation” (28 June 2021), online: The Globe and Mail <https://www.theglobeandmail.com/opinion/article-jason-kenneys-equalization-referendum-is-built-on-a-crucial/> [Adams].

[31] Kenney Press Conference, supra note 21 at 00h: 16m: 03s — 00h: 16m:16s.

[32] Ibid.

[33] Ibid at 00h: 16m: 33s — 00h: 16m: 44s.

[34] Ibid at 00h 16m: 29s — 00h: 16m: 33s.

[35] Ibid at 00h 16m: 23s — 00h: 16m: 29s.

[36] Ibid at 00h: 17m: 01s — 00h 17m: 10s.

[37] Emmett MacFarlane, “Kenney still operating on presumption that a referendum would force the rest of Canada to negotiate” (22 October 2019 at 15:48), online: Twitter <https://twitter.com/EmmMacfarlane/status/1186761303341371394>.

[38] Adams, supra note 30.

[39] Ibid.

[40] Keller, supra note 22.

[41] Ibid.

[42] Ibid.

[43] Adams, supra note 30.

[44] Simons Town Hall, supra note 10 at 00h: 19m: 54s — 00h: 20m: 02s.

[45] Rainer Knopff, “Refining Alberta’s Equalization Gambit” (2020) at 3, online (pdf): Fraser Institute <https://www.fraserinstitute.org/sites/default/files/refining-albertas-equalization-gambit.pdf> [Knopff].

[46] Ibid at 1.

[47] Ibid at 3.

[48] Secession Reference, supra note 24 at para 69.

[49] Ibid.

[50] Knopff, supra note 45 at 3.

[51] Constitution Act, 1982, supra note 4, s 46.

[52] Knopff, supra note 45 at 4.

[53] Ibid at 6.

[54] Ibid at 1.

Provincial Constitutions: What Are They and How Do We Amend Them?

On May 13th, 2021, Quebec introduced Bill 96, An Act Respecting French, the Official and Common Language of Quebec.[1] Among other things, Bill 96 attempts to add two clauses to the Constitution Act, 1867. The first clause would declare that “Quebecers form a nation.”[2] The second states that French is Quebec’s official language, and “the common language of the Quebec nation.”[3] To make these changes, Quebec is relying on the amendment procedure set out in section 45 of the Constitution Act, 1982. Section 45 sets out the following unilateral amendment procedure: “Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.”[4] Whether Quebec can validly make these changes using section 45 is uncertain and has experts across Canada divided. This is an unprecedented issue, as no province has ever attempted to make changes to a federal constitutional law — in this case, the Constitution Act, 1867 — using section 45.

This article analyzes whether Quebec can use section 45 to enact Bill 96’s proposed changes. First, it explains what a provincial constitution is. Second, it reviews the section 45 amendment procedure. Finally, it looks at some of the different scholarly perspectives on whether an amendment to a federal law (and a Constitution Act in particular) can constitute an amendment to a provincial constitution.

Provincial Constitutions Exist, But They Are Mostly Unwritten and Uncodified

There is one mention of the phrase “constitution of the province” in Canada’s Constitution, that being in section 45 of the Constitution Act, 1982. However, this term remains undefined. So, what is a provincial constitution?

Provincial constitutions are largely unwritten, but they do also have written components.[5] These written parts are uncodified, meaning that they are not collated in a single constitutional text. This makes it difficult to determine every single written source which is part of a provincial constitution.

The written elements of provincial constitutions include “statutory rules, common law rules, and constitutionally entrenched rules.”[6] They include provincial laws that set out the rules for provincial electoral systems, legislative processes, and governance by the executive branch.[7] They also include parts of the federal Constitution.[8] For example, sections 91 to 95 of the Constitution Act, 1867 set out provincial jurisdiction,[9] sections 96 to 100 create the framework for provincial courts,[10] and Part 5 sets out the Crown’s role in provincial governance.[11]

The unwritten nature of provincial constitutions is modelled after the British system, under which significant and important parts of the constitution are unwritten and instead defined by conventions.[12] Constitutional conventions are unwritten rules that govern matters that are not dealt with explicitly in the written constitution.[13] Conventions are not enforceable by courts as they are not laws, but exist in the “political realm.”[14] The “most fundamental convention of provincial constitutions” is the principle of responsible government.[15] Additional conventions that are part of provincial constitutions in Canada relate to the premier’s and provincial cabinet’s powers.[16]

Section 45: The Amending Procedure for Provincial Constitutions

Part V of the Constitution Act, 1982 sets out different procedures for amending Canada’s Constitution. Each procedure applies to “different subjects” and establishes different requirements for the amendment to be approved.[17] Section 45 sets out a unilateral amendment procedure that permits provincial legislatures to amend the “constitution of the province.”[18] The only requirement, or qualifier, is that this amendment procedure is subject to section 41 of the Constitution Act, 1982. Section 41 requires the unanimous consent of both houses of Parliament and all 10 provincial legislatures for amendments relating to specific subjects, including the “composition of the Supreme Court of Canada,” the amendment procedures in Part V of the Constitution Act, 1982, and “the use of the English or the French Language.”[19] Essentially, the reference to section 41 in section 45 functions as a filter, ensuring that provinces cannot unilaterally pass provincial constitutional amendments on certain subjects of special national importance.

While there is limited case law on section 45 itself, legal scholars suggest that the case law that applied to the now-repealed section 92(1) of the Constitution Act, 1867 also applies to section 45.[20] Section 45 of the newer, 1982 Constitution Act repealed and replaced the original amendment procedure for provincial constitutions (found in section 92(1) of the 1867 Act). Some scholars reason that case law on the old procedure, since it deals with the same subject matter, should be applied to the new one. In a 1987 decision, Ontario (Attorney General) v OPSEU, the Supreme Court of Canada provided commentary on the old section 92(1) procedure. First and foremost, an amendment of a provincial constitution is achieved, the Court said, through the enactment of “an ordinary law or statute of the provincial legislature.”[21] An enactment is considered an amendment to a provincial constitution:

when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(1), such as the office of Lieutenant‑Governor and, presumably and a fortiori, the office of the Queen who is represented by the Lieutenant‑Governor.[22]

Looking at section 45, there is no explicit requirement for any special level of majority support for the proposed amendment to pass. However, it does, at a minimum, require the passing of a law in a provincial legislature, thereby implying that a majority of legislators must necessarily consent to the amendment.[23]

Can Quebec Use Section 45 to Amend the Constitution Act, 1867?

Experts are divided on whether the proposed addition of two clauses to the Constitution Act, 1867 can validly be done using the section 45 amendment procedure. Unfortunately, previous uses of section 45 provide little guidance, as there have only been a few occasions when a provincial law has explicitly referenced it.[24] For example, Alberta expressly relied on section 45 when developing a land-based governance model for Métis settlements within the province in 1990.[25]  However, the crucial difference between this use of section 45, and the use now proposed by Quebec, is that Alberta did not modify or add clauses to a piece of federal legislation. Moreover, Quebec’s proposed amendments are not just to any federal law, but to the Constitution Act, 1867, which is identified in the Constitution Act, 1982 as part of the Constitution of Canada.[26] As such, Quebec’s attempt to use section 45 is strikingly different from previous uses.

Where Does the Federal Government Stand?

When asked if Quebec could add clauses to the Constitution Act, 1867, Prime Minister Justin Trudeau responded that permission from the other provinces or the federal government is not needed.[27] In his comments, Trudeau said “Quebec, effectively, has the right to modify a part of the Constitution.”[28] Shortly after Trudeau’s comments on the matter, all major political party leaders at the federal level agreed that Quebec is able to make these proposed changes via section 45.

While federal leaders’ reasons for taking this position are unclear, one factor may be that there is nothing that controversial about the substance of the proposed changes. In fact, in 2006, Parliament under the Harper government already passed a House of Commons motion recognizing Quebec’s status as a nation.[29] However, it is important to note that this House of Commons motion is symbolic and non-binding. As such, this motion is very different from a constitutional amendment, because constitutional law is not only binding, but is “supreme” as well, ie the highest form of law in the Canadian legal system.

On the other hand, the support from Trudeau and other political party leaders, despite the legal and constitutional questions surrounding Bill 96’s proposed changes, may be a product of political calculation rather than legal or otherwise substantive analysis.[30] On this point, Ian Peach suggests that federal party leaders are supporting these amendments “in the hope that agreeing with the Quebec government will allow them to win more House of Commons seats in Quebec in the upcoming federal election.”[31]

Whatever the motivations of federal leaders, their comments and opinions do not bring us any closer to answering the real question surrounding the Bill 96 changes: the question of how these two proposed clauses can be legally added into the Constitution Act, 1867. On that matter, commentary from legal experts can help clarify whether the Quebec government is correct to assert that section 45 can be used.

What Do the Experts Say?

Among the first to comment on the matter, Emmett Macfarlane stated that Quebec cannot unilaterally insert the proposed clauses into Canada’s Constitution using section 45.[32] Macfarlane commented: “[The provisions] run afoul of the Constitution’s amending formula and are thus ultra vires (beyond the authority of) the Quebec National Assembly.”[33] He reasoned that recognizing Quebec as a nation in the Constitution Act, 1867 extends beyond the boundaries of a provincial constitutional change for the purpose of the amending procedure in section 45.[34] Further, Macfarlane notes that the provisions “would confer new, unprecedented recognition of a social fact by the Canadian Constitution.”[35] This amendment does not go towards “the operation of an organ of the government of the province,”[36] in the words of the Supreme Court; instead it “imposes recognition of a contested fact on the rest of the federation.”[37]

Stéphanie Chouinard, on the other hand, partially agrees with the Quebec government, but adds a layer of nuance. Chouinard commented that “the first part of this proposal could most likely be adopted unilaterally by Quebec, but the second may require federal approval.”[38] The requirement of federal approval is laid out under section 43 of the 1982 Constitution Act, and is applicable to amendments that “relate … to the use of the English or the French language in a province.”

In contrast with both Macfarlane and Chouinard, Benoît Pelletier, a former minister for intergovernmental affairs in Quebec, fully supports the Quebec government’s claim that it can use section 45 for both proposed amendments.[39] In short, Pelletier believes that the proposed amendments only modify the constitution of Quebec and do not touch upon or alter federal-provincial relations, another province’s affairs, or the structure of Canadian federalism.[40] He accordingly reasons that both provisions are fully within the scope of section 45.

Where Do Canadians Stand?

Within Canada, the general public is also divided. The National Post reports that “a large majority of Quebecers support the right of provinces to unilaterally amend parts of the Constitution, whereas a similar majority of Canadians outside Quebec reject the proposal.”[41] The results of a recent poll showed that 62% of Quebecers supported the use of section 45 to amend parts of the Constitution that applied to the province specifically, while 64% of Canadians living outside of Quebec disagreed.[42] The last time Canada has seen a division such as this was arguably in the years leading up to and surrounding the 1995 referendum on Quebec sovereignty, which was partly motivated by Canada’s failure to constitutionalize Quebec’s distinct status — as Bill 96 now tries to do — via the Meech Lake and Charlottetown Accords.[43]

Conclusion: Where Are We Now?

On May 13th, 2021, Quebec tabled Bill 96, An Act Respecting French, the Official and Common Language of Quebec. Bill 96 proposes to unilaterally insert two clauses into the Constitution Act, 1867. The first declares that “Quebecers form a nation.” The second states that French is the official language in Quebec, and the “common language of the Quebec nation.” In response to these changes, the federal government and all major federal political party leaders have effectively given Quebec the green light to move forward with this amendment using the amending procedure found in section 45 of the Constitution Act, 1982. Section 45 permits provinces to unilaterally amend their provincial constitutions. Despite the supportive responses from Parliament, legal experts disagree sharply on whether Quebec can validly use section 45 to make these proposed amendments. As things stand, this uncertainty about the law will remain unless the Supreme Court of Canada has an opportunity to authoritatively rule on the matter through a reference question.

Further Reading:

[1] Bill 96, An Act respecting French, the official and common language of Québec, 1st Sess, 42nd Leg, Québec, 2021 (first reading 13 May 2021), online: <http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-96-42-1.html> .

[2] Ibid, s 159.

[3] Ibid, s 159.

[4] Constitution Act, 1982, s 45, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[5] Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2, 1987 CanLII 71 at para 85 .

[6] Emmanuelle Richez, “The Possibilities and Limits of Provincial Constitution-Making Power: The Case of Quebec” in Emmett Macfarlane, ed, Constitutional Amendment in Canada (Toronto: University of Toronto Press, 2016) 164 at 164 [Richez].

[7] Ibid at 165.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid at 164.

[13] Stephen Azzi, “Constitution of Canada” (last modified 24 April 2020), online: The Canadian Encyclopedia <www.thecanadianencyclopedia.ca/en/article/constitution>.

[14] Ibid.

[15] Richez, supra note 6 at 164-65.

[16] Ibid.

[17] Ibid.

[18] Constitution Act, 1982, supra note 4, s 45.

[19] Ibid, s 41.

[20] Richez, supra note 6 at 166.

[21] OPSEU, supra note 5 at para 82.

[22] Ibid at para 90.

[23] Richez, supra note 6 at 170.

[24] Erin Crandall, “What is a Provincial Constitution and How Do We Amend It?” (May 28 2021), online: Policy Options <https://policyoptions.irpp.org/magazines/may-2021/what-is-a-provincial-constitution-and-how-do-we-amend-it/>.

[25] Ibid. See also Constitution of Alberta Amendment Act, 1990, RSA 2000, c C-24, Preamble.

[26] Ian Peach, “Quebec Bill 96 – Time for a Primer on Amending the Constitution” (2021) 30:3 Const Forum 1 at 3 [Peach].

[27] Jonathan Montpetit, “Quebec’s proposed changes to Constitution seem small, but they could prompt historic makeover” (19 May 2021), online: CBC News <www.cbc.ca/news/canada/montreal/quebec-canada-constitution-changes-language-bill-1.6031828>.

[28] Ibid.

[29] “House passes motion recognizing Quebecois as nation” (27 November 2006), online: CBC News <www.cbc.ca/news/canada/house-passes-motion-recognizing-quebecois-as-nation-1.574359>.

[30] Peach, supra note 26 at 6-7.

[31] Ibid at 7.

[32] Emmett Macfarlane, “Quebec’s attempt to unilaterally amend the Canadian Constitution won’t fly” (14 May 2021), online: Policy Options <https://policyoptions.irpp.org/magazines/may-2021/quebecs-attempt-to-unilaterally-amend-the-canadian-constitution-wont-fly/> [Macfarlane].

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] OPSEU, supra note 5 at para 90.

[37] Macfarlane, supra note 32.

[38] Stéphanie Chouinard, “Legault’s Language Bill – A Third Way Between Sovereigntists and Federalists” (14 May 2021), online: Policy Magazine <https://www.policymagazine.ca/legaults-language-bill-a-third-way-between-sovereignists-and-federalists/>.

[39] Marco Bélair-Cirino, “Le Québec francophone dans la Constitution canadienne, sans demander de permission” (13 May 2021), online: Le Devoir <www.ledevoir.com/politique/quebec/600956/le-quebec-francophone-dans-la-constitution> [translated by author].

[40] Ibid.

[41] Christopher Nardi, “Quebecers and the rest of Canada deeply divided on Quebec’s proposal to modify Constitution: poll” (29 May 2021), online: National Post <https://nationalpost.com/news/politics/quebecers-and-the-rest-of-canada-deeply-divided-on-quebecs-proposal-to-modify-constitution-poll>.

[42] Ibid.

[43] See “Looking back at the 1995 Quebec referendum” (30 October 2020), online: Global News <https://globalnews.ca/video/7433833/looking-back-at-the-1995-quebec-referendum>.

The Constitutional Amendments in Quebec's Bill 96: Whose Consent is Needed?

On May 13th, 2021, the Quebec government introduced Bill 96, “An Act respecting French, the official and common language of Québec” in the Quebec National Assembly.[1] Bill 96 seeks to update the Charter of the French Language (also known as “Bill 101”)[2] and “affirm that the only official language of Québec is French [and] that French is the common language of the Québec nation.”[3] Bill 96 is receiving significant attention amongst constitutional scholars for article 159, which seeks to amend section 90 of the Constitution Act, 1867 — one of the key texts of the Canadian Constitution — by inserting the following provisions:[4]

FUNDAMENTAL CHARACTERISTICS OF QUEBEC

90Q.1.  Quebecers form a nation.

90Q.2.  French shall be the only official language of Quebec. It is also the common language of the Quebec nation.[5]

Constitutional scholars are divided on whether Quebec’s National Assembly may unilaterally amend the Constitution Act, 1867 in this way. Part V of the Constitution Act, 1982 sets out five rules that governments must follow to pass constitutional amendments, where the applicable rule depends on the subject matter of the proposed amendment.[6] This article refers to these rules collectively as the Constitution’s “amending formula” and to each separate rule as an “amendment procedure.”

This article highlights some of the leading thoughts on which amendment procedure should apply to the Bill 96 amendments and why. In particular, the article focuses on the following three amendment procedures:[7]

Section 45: Amendments by Provincial Legislatures

Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.[11]

Section 45 allows for the amendment of a provincial constitution by that province’s legislature, acting alone. This is the least onerous amendment procedure under the 1982 Constitution Act’s amending formula.[12] The Quebec government intends to enact the proposed constitutional amendments in Bill 96 unilaterally, using the section 45 amendment procedure. Its leading argument for invoking section 45 is that the proposed provisions amend Quebec’s provincial constitution, not the Constitution of Canada. However, there has been disagreement on three issues that are essential to this claim: (1) how to define the constitution of a province; (2) whether the proposed amendments alter the Constitution of Canada or just the constitution of the province of Quebec; and (3) whether the proposed provisions are purely symbolic, or “engage … the interests of the [other] provinces by changing the fundamental nature”[13] of the Canadian federation and, hence, the Constitution of Canada.[14]

The following are some of the arguments that have been made in favour of the Quebec government’s claim that it can unilaterally amend the Constitution Act, 1867 using section 45:

On the other hand, these are some of the arguments against Quebec’s claim that it can use section 45 to enact the proposed changes:

Section 43: Amendment of Provisions Relating to Some but not All Provinces

An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including

(b) any amendment to any provision that relates to the use of the English or the French language within a province,

may be made … only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.[24]

Constitutional scholars and lawyers disagree on how to interpret this provision. Some argue that section 43 is engaged when the Constitution of Canada itself is amended — not a provincial constitution — and that amendment applies to one or more, but not all, provinces.[25] Others suggest that section 43 is engaged when an amendment to either the Constitution of Canada or a provincial constitution affects or amends a “special arrangement” in the Constitution of Canada — including the use of the English or French language within a province — regardless of which vehicle is used to make that amendment.[26]

In theory, section 43 makes it somewhat more efficient to amend the Constitution of Canada when the amendment only affects one or some but not all of the provinces because it does not require the consent of provinces for whom the amendment does not apply.[27] At the same time, section 43 ensures that all Canadians are represented — via the involvement of federal institutions — in the process of amending the Constitution of Canada, even if not all provinces take part in the process.[28] In this regard, section 43 allows members of parliament to examine the amendment on behalf of all Canadians to better understand its broader implications, including its effect on the rest of the Constitution.[29] Pan-Canadian representation is important because the Constitution belongs to all Canadian citizens, and it is a fundamental constitutional principle of democracy that all Canadians are represented in the process of amending it.[30]

The following source argues that both of Quebec’s proposed additions to the Constitution Act, 1867 — 90Q.1 (the nationhood provision) and 90Q.2 (the language provision) — amend the Constitution of Canada, but that the amendments only affect the province of Quebec, and therefore only require the consent of the federal Parliament and the Quebec National Assembly:

The following sources consider whether the language provision (90Q.2) affects the Constitution of Canada, and therefore requires, at a minimum, authorization by the federal Parliament as well as the Quebec National Assembly:

Section 38 (1): General Procedure for Amending the Constitution of Canada

An amendment to the Constitution of Canada may be made … where so authorized by

(a) resolutions of the Senate and House of Commons; and

(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.[34]

Professor Richard Albert assessed this amendment procedure as the fourth-most difficult to use in the world.[35] For Albert, this is not necessarily a good thing. In his view, a constitution should be sufficiently entrenched to preserve the fundamental values upon which a society is based. However, it should not be so difficult to amend that it “privileges the status quo and reinforces the values and vision of those whose voice prevailed in creating the constitution.”[36]

The section 38 amendment procedure is also known as the “7/50 formula” or the “general amending procedure.” The Supreme Court of Canada referred to this procedure as “represent[ing] the balance deemed appropriate by the [constitutional] framers … for most constitutional amendments,” while the other amending procedures are “exceptions to the general rule.”[37] This suggests that section 38 is a big bucket that captures most constitutional amendments and should be interpreted broadly, while the remaining procedures cover the exceptions and should therefore be interpreted narrowly.

A number of scholars have argued that, insofar as no other amendment procedure is obviously applicable, one or both of the Bill 96 changes should be placed in the “big bucket” of the general amending procedure under section 38:

 Conclusion

It is not clear which amending procedure must be used for Quebec to insert the nationhood and French language provisions into the Constitution Act, 1867. Much of the debate is about defining key terms such as “constitution of the province,” understanding the purpose of the proposed provisions in the context of Bill 96 and other provincial legislation, and examining the effects of elevating these provisions to constitutional status. The Quebec government is preparing to conduct public hearings on Bill 96, to begin September 21st, 2021,[46] so some of the answers could be forthcoming. In the meantime, the recent commentary from constitutional experts provides insight into the key considerations that ought to inform how the proposed amendments are dealt with.

Further reading from the Centre for Constitutional Studies:

[1] Bill 96, An Act respecting French, the official and common language of Québec, 1st Sess, 42nd Leg, 2021 (first reading 13 May 2021) [Bill 96].

[2] Charter of the French language, CQLR c C-11 (adopted in 1977, last updated 18 March 2021).

[3] Bill 96, supra note 1 at Explanatory Notes.

[4] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.

[5] Bill 96, supra note 1 art 159 .

[6] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ss 38, 41, and 43-45 . See also Richard Albert, “The Expressive Function of Constitutional Amendment Rules” (2013) 59:2 McGill LJ 225 at 247-250 [Albert, “Amendment Rules”].

[7] Section 41 will not be addressed because there is general consensus that neither provision falls within the scope of the listed matters that require unanimous provincial and federal consent (see e.g. Emmett Macfarlane, “Quebec’s attempt to unilaterally amend the Canadian Constitution won’t fly” (14 May 2021), online: Policy Options <https://policyoptions.irpp.org/magazines/may-2021/quebecs-attempt-to-unilaterally-amend-the-canadian-constitution-wont-fly/> [“Mcfarlane”]). Section 44 will not be addressed because this procedure applies only to amendments made by Parliament “in relation to the executive government of Canada or the Senate and House of Commons” (Constitution Act, 1982, supra note 6, s 44).

[8] Constitution Act, 1982, supra note 6, s 45.

[9] Ibid, s 43.

[10] Ibid, s 38.

[11] Ibid, s 45 (emphasis added). “Amendment by unanimous consent” provides an exhaustive list of matters that require the consent of Parliament and all legislatures to amend (Constitution Act, 1982, supra note 6 at s 41).

[12] See Albert, “Amendment Rules,” supra note 6 at 249.

[13] Reference re Senate Reform, 2014 SCC 32 (CanLII) at paras 77-78 .

[14] See e.g. Patricia Hughes, “How Far Can We Go Before the Constitutional Bargain Is Undermined?” (1 June 2021), online (blog): Slaw <http://www.slaw.ca/2021/06/01/how-far-can-we-go-before-the-constitutional-bargain-is-undermined/> [“Hughes”]. Hughes asks: “Which part of the constitutional amending procedure applies? What do those provisions mean? What are the ramifications for the spirit or architecture of the constitutional bargain? Do sections 90Q.1 and/or 90Q.2 amend the Constitution of Canada? Or … do they amend only the Constitution of Quebec?”

[15] Marco Bélair-Cirino, “Le Québec francophone dans la Constitution canadienne, sans demander de permission” (13 May 2021), online: Le Devoir <https://www.ledevoir.com/politique/quebec/600956/le-quebec-francophone-dans-la-constitution> (translated by author) [“Bélair-Cirino”]. See also Maxime St-Hilaire, “Quebec’s Bill 96 is an Unconstitutional Attempt to Amend the Constitution of Canada” (8 June 2021), online: Advocates for the Rule of Law <http://www.ruleoflaw.ca/quebecs-bill-96-is-an-unconstitutional-attempt-to-amend-the-constitution-of-canada/>.

[16] Patrick Taillon, “La langue de la loi” (18 January 2021), online: Le Devoir <https://www.ledevoir.com/opinion/idees/593465/langue-francaise-la-langue-de-la-loi> (translated by author). See also Taillon quoted in Bélair-Cirino, supra note 15 and St-Hilaire, supra note 15.

[17] Bélair-Cirino, supra note 15 (echoing the language in the Constitution Act, 1982, supra note 4, s 43 and the Supreme Court of Canada in Reference re Senate Reform, supra note 13 at paras 25-27).

[18] Allan Rock and Glenn O’Farrell, “Quebec’s Bill 96 has its merits, notwithstanding one big flaw” (9 June 2021), online: The Globe and Mail <https://www.theglobeandmail.com/opinion/article-quebecs-bill-96-has-its-merits-notwithstanding-one-big-flaw/>. See also Richard Albert, “Constitutional Amendment by Stealth” (2015) 60:4 McGill LJ 673 [Albert, “Amendment by Stealth”].

[19] Ian Peach, “Quebec Bill 96 — Time For a Primer on Amending the Constitution” (2021) 30:3 Constitutional Forum / Forum constitutionnel 1 at 3 [“Peach”].

[20] Jonathan Montpetit, “Quebec's proposed changes to Constitution seem small, but they could prompt historic makeover” (19 May 2021), online: CBC News <https://www.cbc.ca/news/canada/montreal/quebec-canada-constitution-changes-language-bill-1.6031828> (quoting Professor Adams).

[21] Eric Adams, “I think the confusion stems from the heading of Part V of the Constitution Act, 1867: ‘Provincial Constitutions’. The provisions that follow contain some elements of provincial constitutions, but this section is not, itself, the Constitutions of the various provinces” (28 May 2021 at 11:29), online: Twitter <https://twitter.com/ericadams99/status/1398330636276932610?s=10>.

[22] Julius Grey, “Bill 96: The perils of ‘pensée unique’” (Lexus Nexus: 26 May 2021), online: The Lawyer’s Daily <https://www.thelawyersdaily.ca/articles/26971> [“Grey”]. See also Albert, “Amendment by Stealth,” supra note 18 and Peach, supra note 19 at 5.

[23] Grey, supra note 22.

[24] Constitution Act, 1867, supra note 4 (emphasis added).

[25] See e.g. Peach, supra note 19 at 3-4.

[26] See e.g. CBC Power and Politics, “Could Quebec unilaterally change parts of the Constitution?” (19 May 2021), online: YouTube <https://www.youtube.com/watch?v=ZTfYJ-nlY5A> (Eroll Mendez) [“CBC Power and Politics”]; and Hughes, supra note 14.

[27] See Peach, supra note 19 at 5.

[28] Constitution Act, 1982, supra note 6 at s 43 (amendments that include “(a) any alteration to boundaries between provinces, and (b) any amendment to any provision that relates to the use of the English or the French language within a province” requires parliamentary consent and the consent of “each province to which the amendment applies”). See also Peach, supra note 19 at 5.

[29] See Peach, supra note 19 at 5.

[30] Ibid at 5-6.

[31] Ibid.

[32] CBC Power and Politics, supra note 26. See also Joel Goldenberg “Trudeau’s Bill C-32 declares French as Quebec’s official language” (16 June 2021), online: The Suburban <https://www.thesuburban.com/news/city_news/trudeaus-bill-c-32-declares-french-as-quebecs-official-language/article_73b1d6bf-bf0d-53c3-b2b4-6b2c08420590.html>.

[33] Hughes, supra note 14.

[34] Constitution Act, 1982, supra note 6, s 38 (emphasis added).

[35] See Albert, “The Difficulty of Constitutional Amendment in Canada” (2015) 53:1 Alta LRev 85 at 93 (citing Donald S Lutz, Principles of Constitutional Design (New York: Cambridge University Press, 2006 at 169).

[36] Ibid at 106.

[37] Reference re Senate Reform, supra note 13 at para 36.

[38] Macfarlane, supra note 7.

[39] Ibid (echoing the Supreme Court of Canada in Reference Re Senate Reform, supra note 13 at paras 77-78).

[40] Hughes, supra note 14.

[41] CBC Power and Politics, supra note 26. See also Deepak Awasti, “Trudeau wrong in interpretation of Bill 96 Constitutional amendment powers”, (26 May 2021), online: The Suburban <https://www.thesuburban.com/opinion/letters_to_editor/trudeau-wrong-in-interpretation-of-bill-96-constitutional-amendment-powers/article_0d6fec82-c5c5-5f64-8b92-ef2da8a6654b.html>.

[42] Hughes, supra note 14 (Hughes notes that, alternatively, Quebec could view the nationhood provision as a “pact between two peoples” that does not affect the other provinces, and therefore only engages section 43).

[43] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[44] Constitution Act, 1867, supra note 4 at s 133 (Hughes, supra note 14 notes that a violation of section 133 could be interpreted narrowly to affect only Parliament and Quebec, but not the rest of Canada).

[45] Hughes, supra note 14 (Hughes also uses this argument to suggest that unanimous consent could be required under section 41 of the Constitution Act, 1982, although this is unlikely. If the courts find that the French language provision violates the Constitution so broadly as to affect all provinces of Canada, unanimous consent may be required).

[46] “Public hearings for Quebec’s French language law bill to begin Sept. 21” (29 June 2021), online: Montreal Gazette <https://montrealgazette.com/news/quebec/public-hearings-for-quebecs-french-language-law-bill-to-begin-sept-21>.

The Genetic Non-Discrimination Act Reference: Federal Criminal Law Powers Applied to Modern Science

The Supreme Court of Canada Weighs In: The GNDA is Constitutional  

On July 10th, 2020, the Supreme Court of Canada (SCC) released its much-anticipated Reference re Genetic Non-Discrimination Act (“GNDA Reference”) decision. In a remarkably close decision, a five to four majority of the Court found that the Genetic Non-Discrimination Act (GNDA) is constitutional.[1] This article will examine how the Court reached this conclusion by framing the GNDA as a valid exercise of the federal Parliament’s criminal law power.

Background: What Does the GNDA Do?

In 2017, Parliament addressed concerns about the use of mandatory genetic tests and the potential for non-consensual use of genetic test results by passing the GNDA. Section 3 of the GNDA makes it illegal “to require an individual to undergo a genetic test as a condition of” the following:  entering into or continuing contracts or agreements, the provision of goods or services, and offering or continuing to offer specific terms and conditions in a contact or agreement.[2] Section 5 requires an individual’s consent if any genetic information is to be used, collected, or disclosed.[3] And section 7 outlines the penalties for violations, which range from fines to imprisonment for up to five years.[4] The GNDA also updated the Canadian Human Rights Act and the Canada Labour Code by explicitly outlawing discrimination based on genetic conditions.[5]

The GNDA’s Path Through Parliament: Swirling Questions About its Constitutionality

The GNDA originated in the Senate as a private members bill.[6] It was proposed by Senator James Cowan, who wished to use the federal government’s jurisdiction over criminal matters[7] to ensure that Canadians can freely access “the extraordinary advances taking place in medical science”[8] by undergoing genetic tests. Throughout the parliamentary discussions, many lawmakers agreed with the Bill, typically on the grounds that it would prevent insurance companies denying coverage[9] or increasing premiums based on pre-disposed genetic conditions.[10] Lawmakers also asserted that the Bill was necessary to update Canada’s laws to address nuanced forms of discrimination.[11]

However, as the GNDA made its way through Parliament, concerns about its constitutionality arose. The main flashpoint centered around the division of powers, a hallmark of Canadian federalism.[12] Section 91 of the Constitution Act, 1867 grants the federal government jurisdiction over certain matters, while Section 92 outlines the powers of provincial governments.[13] Neither level of government can make laws that fall under the other’s exclusive jurisdiction. With the GNDA, Parliament purported to exercise its jurisdiction over criminal law under section 91(27) by outlawing genetic discrimination and establishing stringent punishments for violations.

In contrast, the Government of Quebec argued that the GNDA was a veiled attempt to regulate the insurance industry and private commercial contracts, and that it thereby intruded on the provinces’ jurisdiction over property and civil rights under section 92(13).[14] Insurance companies also raised concerns about the legislation, claiming that the federal government was unconstitutionally regulating their industry and making it more difficult for them to assess risk.[15] The Cabinet of Canada, on the advice of then-Attorney General Jody Wilson-Raybould, agreed with the Quebec government and opposed the GNDA in Parliament.[16] Nevertheless, a majority of parliamentarians voted to pass the GNDA and it was granted royal assent in May 2017.[17]

Immediately, Quebec’s provincial government asked its Court of Appeal to determine whether sections 1 to 7 of the GNDA were a valid exercise of the federal Parliament’s power to make criminal laws. The Quebec Court of Appeal ruled that sections 3, 5, and 7 of the GNDA were not criminal laws and were unconstitutional because they therefore exceeded federal jurisdiction.[18] Upon the Quebec Court’s ruling, the Canadian Coalition of Genetic Fairness, an intervener[19] which heavily advocated for the GNDA, filed an appeal to the Supreme Court of Canada.[20] The SCC was tasked with determining whether the GNDA is a valid criminal law or a “colourable law” which presents itself as a criminal law but in fact attempts to covertly regulate matters within provincial jurisdiction (e.g. the insurance industry).

The Supreme Court’s Analysis: A Two Step Process

Writing for the majority of the Supreme Court, Justice Karakatsanis outlined the division of powers test to determine whether the impugned provisions of the GNDA fell within federal jurisdiction. First, the Court “characterized” the GNDA by determining its “pith and substance” (or essential character). Then, based on that characterization, the Court asked whether the federal government has the power to enact the GNDA under section 91(27) of the Constitution Act, 1867 (the criminal law power).[21]

Step 1- Pith and Substance: Determining the Essential Character of the GNDA

The first step the SCC took in the GNDA Reference was a “pith and substance” analysis. This analysis determines the “essential character” of the law — “what it is really about”[22] — regardless of its stated intention.[23] This characterization process “requires considering both the law’s purpose and its effects.”[24] To do this, the Court first examined the intrinsic evidence of the law’s purpose, which included the text of the GNDA, its structure, and its title.[25] Then, the Court considered extrinsic evidence of the law’s purpose, which included parliamentary debates, committee testimony, and other government publications.[26] Finally, the legal and practical effects of the law were considered.[27]

In its survey of the intrinsic evidence of the law’s purpose, the SCC held that the text of the GNDA, its preamble, and its title were strong evidence that the purpose of the law was to “combat discrimination based on information disclosed by genetic tests by criminalizing compulsory genetic testing, compulsory disclosure of test results, and non-consensual use of test results in a broadly defined context.”[28] The Court noted that genetic tests “reveal highly personal information — details that individuals might not wish to know or share and that could be used against them.”[29] The Court found that the intrinsic evidence suggested that the GNDA’s dominant purpose was to protect this information from being used against individuals without their full and free consent.[30]

Next, the SCC examined extrinsic evidence of the law’s purpose, which included parliamentary debates and committee testimonies concerning the GNDA as it worked its way through the legislative process. Time and time again, members of parliament and senators spoke about the lack of legal protections that “left individuals vulnerable to genetic discrimination and grounded the fear of … [said] discrimination.”[31] Additionally, the Court referenced committee testimony by experts,[32] many of whom focused on the “devastating health consequences” stemming from the “foregoing of genetic testing” out of fear that personal health information revealed by that testing might be used against those being tested.[33]

After examining the evidence of the law’s purpose, the SCC determined that the main legal effects of the GNDA were that it “prohibit[ed] genetic testing requirements and non-consensual uses of genetic test results.”[34] Effectively, the Court found that the GNDA protected individuals from genetic discrimination in a wide variety of circumstances while imposing substantial penalties for violations.[35] In terms of practical effects, the Court determined that the GNDA enables individuals to choose freely, without fear, to undergo genetic testing.[36] Thus, the Court concluded that the GNDA’s provisions give individuals greater control over their private health information, and “encourage individuals to undergo genetic testing …. [that] may in turn produce health benefits, including by enabling earlier detection of health problems.”[37]

In light of this analysis of the law’s purpose and effects, the SCC concluded that the pith and substance of the GNDA was to “protect individuals’ control over their detailed personal information disclosed by genetic tests in the areas of contracting and the provision of goods and services in order to address fears that … test results will be used against them and to prevent discrimination based on that information.”[38] This was somewhat different from the Quebec Court of Appeal’s ruling that the law’s essential character was not to prohibit genetic discrimination in a general sense, but to regulate “agreements … particularly insurance and employment contracts.”[39] For the SCC though, the law’s impact on the insurance industry, while significant, is relatively indirect. In this regard, although the Court acknowledged that Parliament was concerned about potential genetic discrimination in the specific context of the insurance industry, it ultimately concluded that the provisions of the GNDA were not limited to regulating any one specific industry or activity.[40]

However, within the majority of the five Justices, there were two differing opinions on the exact pith and substance of the GNDA, with some Justices reaching a slightly different conclusion than Justice Karakatsanis.[41] Two other Justices found that the pith and substance of the GNDA was not merely to prevent genetic discrimination, but more broadly “to protect [public] health by prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing.”[42] Regardless of this difference, both majority interpretations of the pith and substance of the GNDA lead to the same result in step two of the Court’s analysis.[43]

Step 2- Classification: The GNDA Fits Under Federal Parliament’s Section 91(27) Criminal Law Power

After determining that the essential character of the GNDA was to combat genetic discrimination and the fear of genetic discrimination, the SCC had to “classify” the law under a head of power.[44] More specifically, the Court asked whether the GNDA constitutes a valid exercise of the federal Parliament’s power to make criminal laws, per section 91(27) of the Constitution Act, 1867.[45] In addressing this question, the SCC cited the Margarine Reference, which established that for federal legislation to be characterized as a criminal law, it must fulfill three criteria:[46]

The GNDA fulfilled the first two criteria easily, being prohibitive of genetic discrimination, and containing fines and/or jail time as the penalties for violation.[47] The success of the GNDA’s classification as a criminal law under section 91(27) then hinged on whether the prevention of genetic discrimination constitutes a valid criminal law purpose under the Margarine Reference test.[48] Broadly speaking, a valid criminal purpose has two features. Firstly, “it should be directed at some evil, injurious, or undesirable effect on the public.”[49] Secondly, it “should serve one or more of the ‘public purposes’ or ‘ends’”[50] mentioned in the Margarine Reference, which included “public peace, order, security, health, [and] morality.”[51]

In the GNDA Reference, the SCC held that the GNDA safeguards “autonomy, privacy and the fundamental social value of equality, as well as public health.”[52] The Court recognized the potential, before the GNDA was enacted, for sensitive personal information to be abused and disseminated without an individual’s permission. Furthermore, the Court referenced the broad nature of criminal law powers, citing RJR-MacDonald, which held that Parliament’s criminal law powers are broad, plenary, and must be able to respond to new and emerging matters.[53] The Court noted that genetic mapping and the pace of modern science open up the potential for new threats to personal privacy,[54] and held that it is within Parliament’s power under section 91(27) to protect people from such “emerging threats to [their] privacy, autonomy and equality.”[55]

The SCC also noted that genetic discrimination poses a threat to public health that Parliament is empowered to address via its criminal law powers.[56] It recognized that genetic discrimination and the fear of genetic discrimination can be barriers to an optimized healthcare system.[57] For example, the Court reasoned that if there were no protections in place, individuals may choose to avoid potentially lifesaving genetic testing out of fear that their information could be used against them in the future.[58] The Court concluded that the law directly targets this fear, and ensures necessary protections that can positively impact the public healthcare system as a whole.[59]

In summary, the SCC held that since the GNDA targeted potential harms to privacy, autonomy, equality, and public health,[60] it has a valid criminal purpose and therefore constitutes a valid exercise of the federal Parliament’s exclusive power to make criminal laws.[61]

Conclusion: A Split Decision, But the GNDA Remains in Effect

The GNDA Reference was a difficult case for the Court, with a single vote making the difference. Five of the nine Supreme Court Justices found the GNDA constitutional, while the remaining four Justices argued in dissent that the GNDA unconstitutionally intrudes into the provinces’ jurisdiction over property and civil rights.[62] It was the narrowest of decisions, but it ensures that the GNDA remains a valid law, and will remain in force unless a future parliament repeals it.

According to its proponents, the GNDA was purported to respond to advances in modern science and, in particular, to ensure that individuals can benefit from these advances without suffering discrimination. Given the rapid pace of scientific innovation today, this will not be the last time that governments and courts in Canada grapple with the constitutional implications of regulatory issues that could not have been known when the Constitution Act, 1867 was enacted.

[1] Reference re Genetic Non-Discrimination Act, 2020 SCC 17 at paras 1-4 .

[2] Genetic Non-Discrimination Act, SC 2017, c 3, s 3 .

[3] Ibid at s 5.

[4] Ibid at s 7.

[5] Ibid at ss 8-10.

[6] Olivia Stefanovich “Supreme Court of Canada Upholds Genetic Non-Discrimination Law” (10 July 2020), online: CBC News <https://www.cbc.ca/news/politics/stefanovich-supreme-court-of-canada-genetic-information-1.5643245> [Stefanovich].

[7] Senate, Debates of the Senate, Orders of the Day, 42-1, No 150 (27 January 2016) at 14:50 (Hon James Cowan).

[8] Ibid at 14:30.

[9] House of Commons, Private Members Business, House of Commons Debates, 42-1, No 149 (7 March 2017) at 17:40 (Don Davies).

[10] House of Commons, Private Members Business, House of Commons Debates, 42-1, No 149 (7 March 2017) at 17:25 (Jennifer O’Connell).

[11] House of Commons, Private Members Business, House of Commons Debates, 42-1, No 149 (7 March 2017) at 18:00 (Garnett Genuis).

[12] Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2007) at chapter 5 at 2.

[13] Constitution Act, 1867 (UK), 30 & 31 Vict, c3, ss 91-92, reprinted in RSC 1985, Appendix II, No 5.

[14] Alanna Crouse, “Falling Between the Jurisdictions: Genetic Discrimination & the Law” (31 March 2020), online (blog): McGill Journal of Law and Health <https://mjlh.mcgill.ca/2020/03/31/falling-between-the-jurisdictions-genetic-discrimination-the-law/>.

[15]  Elizabeth Adjin-Tettey, “Striking the Right Balance: Does the Genetic Non Discrimination Act Promote Access to Insurance?” (2021) 14:1 McGill JL & Health 145 at 158.

[16] John Paul Tasker, “Liberal backbenchers Defy Cabinet Wishes and Vote to Enact Genetic Discrimination Law” (8 March 2017), online: CBC News <https://www.cbc.ca/news/politics/genetic-testing-bill-vote-wednesday-1.4015863>.

[17] Ibid.

[18] Reference of the Government of Quebec concerning the constitutionality of the Genetic Non-Discrimination Act enacted by Sections 1 to 7 of the Act to prohibit and prevent genetic discrimination, 2018 QCCA 2193 at paras 23-26 .

[19] An intervener is a third party the court allows to make arguments about a law or case. See also, “Intervener,”   online: Thomson Reuters < https://ca.practicallaw.thomsonreuters.com/8-507-2484?transitionType=Default&contextData=(sc.Default)#:~:text=A%20party%20in%20a%20litigation%20that%3A&text=Has%20been%20granted%20standing%20by,or%20part%20of%20the%20litigation>

[20] Stefanovic, supra note 6.

[21] GNDA Reference, supra note 1 at para 103.

[22] Ibid at para 29.

[23] Ibid at para 28.

[24] Ibid at para 30.

[25] Ibid at para 35.

[26] Ibid at para 40.

[27] Ibid at para 51.

[28] Ibid at para 39.

[29] Ibid at para 39.

[30] Ibid at paras 38-39.

[31] Ibid at para 45.

[32] Ibid at para 43.

[33] Ibid at para 126.

[34] Ibid at para 52.

[35] Ibid at paras 52-53.

[36] Ibid at para 54.

[37] Ibid at paras 54-56.

[38] Ibid at para 65.

[39] QC GNDA Reference, supra note 18 at paras 10-11.

[40] GNDA Reference, supra note 1 at paras 57-62.

[41] Ibid at paras 111-114.

[42] Ibid at para 136.

[43] Ibid at paras 150-151.

[44] Ibid at para 26.

[45] Ibid at para 66.

[46] Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1 at 49-50, 1 DLR 433 .

[47] GNDA Reference, supra note 1 at para 68.

[48] Ibid at para 147.

[49] Margarine Reference, supra note 46 at 49.

[50] GNDA Reference, supra note 1 at para 72.

[51] Margarine Reference, supra note 46 at 50.

[52] GNDA Reference, supra note 1 at para 80.

[53] RJR MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199 at para 28, 111 DLR (4th) 385 .

[54] GNDA Reference, supra note 1 at para 89.

[55] Ibid at para 92.

[56] Ibid at para 73.

[57] Ibid at para 93.

[58] Ibid at paras 97-98.

[59] Ibid at paras 97,102.

[60] Ibid at paras 93,96.

[61] Ibid at para 4.

[62] Ibid at para 272.

From Just a Title to Minister of Everything: The Deputy Prime Minister of Canada

Deputy Prime Minister (DPM) Chrystia Freeland is a familiar face at daily press conferences in her role as chair of the Cabinet Committee on COVID-19.[1] Since her appointment as DPM in 2019, Freeland has been perceived as wielding a tremendous amount of power, earning her the nickname “minister of everything.”[2] At present, Freeland is responsible for a range of files, including finance (in her concurrent role as minister of finance), Canada-US relations, and the country’s COVID-19 response. This has led some to suggest that the current DPM is actually “running things in Ottawa.”[3] But just how powerful is the Office of the DPM, and where does its power come from?

Source of the DPM’s Powers: Unwritten Conventions & the Prime Minister

The prime minister has broad powers that flow from unwritten constitutional conventions.[4] Constitutional conventions are an important component of Canada’s Constitution that can be characterized as accepted customs.[5] Although they are not legally enforceable, constitutional conventions are nonetheless supposed to bind political actors in order to promote the stable operation of democratic governance.[6] For example, the powers of the prime minister (PM) are enumerated nowhere in the legal texts that make up the Constitution of Canada.[7] However, by constitutional convention, the PM can create, merge, and abolish ministry roles and government departments (including the Office of the DPM),[8] and may unilaterally change the name, scope, and authority of departments at any time.[9] For example, in 1991, Prime Minister Brian Mulroney created the role of Minister responsible for Constitutional Affairs.[10] He appointed Joe Clark to the role to manage the negotiations that produced the Charlottetown Accord, and the role was dissolved shortly after the Accord was rejected in October 1992. Likewise, Justin Trudeau created the Ministry of Border Security and Organized Crime Reduction to address the illegal border crossings at Roxham Road in 2018.[11] The department and its powers were later combined with the Ministry of Public Safety in 2019.

Background History: The Creation of the Office of the Deputy Prime Minister

The Office of the Deputy Prime Minister of Canada is a relatively recent creation. It was established in 1977 by Prime Minister Pierre Trudeau, who wished to recognize the service of one of his longtime cabinet ministers, Allan MacEachen.[12] Trudeau borrowed the title from the United Kingdom, where it was first recognized in 1942.[13] During the WWII coalition government in the UK, Clement Attlee answered House of Commons questions on behalf of PM Winston Churchill during the latter's absences. As the designated alternate to answer questions, Atlee was recognized as “Deputy Prime Minister,” though there were no other duties attached to the title.

The Fluctuating Role of the Deputy Prime Minister in Canada

Given their broad powers, the incumbent prime minister’s discretion determines the scope of the deputy prime minister’s powers.[14] Each PM will have different preferences on this, and the DPM’s role will accordingly fluctuate from one officeholder to the next.

1) When the Office is Unoccupied: No Deputy Prime Minister

Since unwritten conventions allow the prime minister to create and abolish cabinet positions based on the needs of the government, the deputy prime minister’s role may not always be occupied. The PM is not required to appoint a DPM, and may instead choose to retain the powers that may otherwise have been delegated to a DPM. For example, from 2006-2015, Stephen Harper did not appoint a DPM.[15] During this period, power that could have been delegated to a DPM remained centralized in the Prime Minister's Office. As an example of this, Harper himself chose to chair the cabinet committee formed to respond to the 2008 Financial Crisis. Alternatively, Harper could have appointed a dedicated DPM to play the type of crisis response role that Chrystia Freeland has played during the COVID-19 pandemic.

Throughout the Harper years, some commentators suggested that Finance Minister Jim Flaherty and Industry Minister Jim Prentice wielded so much influence and power that either or both of them could be considered the unofficial DPM.[16] However, this is a misnomer. While Flaherty and Prentice may have been the second most powerful figures in the Harper government, that alone would not automatically make them DPMs, even unofficially. In fact, as the following section will make clear, a high level of political power and influence has rarely been a feature of the DPM’s Office, historically.

 2) When the Office is Occupied: Fluid Role of the Deputy Prime Minister

 When prime ministers have filled the role of deputy prime minister, the powers of the DPM have varied considerably, within and between governments. In this sense, the office has ranged from a purely honorary role to one that conveys emphasis on a specific ministry and, more recently, a role that can be arguably be viewed as the second most powerful in Canada’s government.

  1. Symbolism: Honorific Title

The assignment of the DPM title to a minister can be done for symbolic purposes with no powers attached to it. As noted above, when Pierre Trudeau created the office in 1977, he appointed longtime cabinet minister Allan MacEachen to the role. MacEachen was previously in charge of labour, external affairs, immigration, and finance. Trudeau wanted to recognize his contributions in these important roles over the years, giving him the title of DPM.[17] As DPM, MacEachen had no formal duties and responsibilities; instead, all his formal powers were exercised through his position as government house leader.[18]

Similarly, Jean Chretien served briefly as DPM in the John Turner government in 1984.[19] Turner appointed Chretien to the post after defeating him in the Liberal leadership race. Like MacEachen, Chretien had no formal powers, and wore the DPM label as a purely symbolic title. Thirteen years later, in 1997, Chretien (then prime minister) appointed the longest-serving Member of Parliament in the House of Commons, Herb Gray, to the role of DPM.[20] Gray, a senior cabinet minister with decades of experience, had no specific responsibilities as DPM.[21] Thus, these examples demonstrate that at its core, the office of DPM is an empty box: a symbolic title that doesn’t necessarily hold any real significance or specific powers.

Semi-Symbolism: A Title to Emphasize Concurrent Roles

While deputy prime minister has often been a purely symbolic title, it can also be assigned to a minister to emphasize the importance of their role in cabinet.[22] By adding the title of DPM, the PM attempts to convey that the government is prioritizing a particular issue. The title itself remains symbolic, but the political power of the officeholder increases insofar as they wield powers stemming from other key cabinet roles.

For example, from 2003-2006 Prime Minister Paul Martin assigned Anne McLellan the title of DPM, in addition to her existing role as public safety minister.[23] In doing so, Martin attempted to demonstrate that his Liberal government prioritized public safety. Martin became PM shortly after 9/11, when the world was grappling with tough questions about balancing national security and civil liberties.[24] Having the public safety minister concurrently serve as DPM implied that the government was focused on keeping Canadians safe and prioritizing national security.[25]

Anne McLellan's tenure accordingly shows that the DPM role may be used to symbolically convey additional importance to other high-profile political roles.[26] While having a DPM serve concurrently as a minister does emphasize government priorities, those priorities would likely have been on the government's agenda regardless of whether the deputy prime minister role was filled.[27] In McLellan’s case, the title of DPM remained a largely symbolic one, where powers are exercised via concurrent cabinet roles and not via her role as DPM.

Although deputy prime minister has often been little more than a symbolic title, the prime minister’s breadth of discretion means that a DPM may exercise broad powers through that office alone. Is this now the case with Chrystia Freeland?

While Freeland is one of the most prominent cabinet ministers in the Trudeau government, her status as DPM can still be interpreted simply as a title that adds emphasis to her other ministerial roles.  Indeed, much of Freeland’s power since 2019 has stemmed from her concurrent roles in other ministries.[28] When Freeland was moved from foreign affairs to her current role as DPM, she was also assigned the key cabinet post of Minister for Intergovernmental Affairs. Then, in August 2020, Freeland took over the Ministry of Finance portfolio,[29] laying the groundwork for the eventual 2021 budget and the COVID-19 economic recovery. While Freeland has wielded tremendous power in these roles, one may argue that this did not make her a powerful DPM, since she would have addressed the same critical issues if her DPM title were removed. In this sense, Freeland’s position is arguably similar to McLellan’s: maintaining her title as DPM with her appointment as Finance Minister may have been intended to show the government’s seriousness about supporting Canadians through the pandemic and the prioritization of a successful economic recovery.

However, it has also been suggested that Freeland’s role has expanded her powers beyond those of her other ministerial roles.[30] Alongside her concurrent role as minister of finance, Freeland supervises Canada-US relations and North American trade, negotiates with provincial leaders, and continues to lead the response to COVID-19. She also works collaboratively with all the other ministers in setting the agenda for their departments.[31] The breadth and diversity of these roles suggests that she is perhaps closer than any of her DPM predecessors to being Canada’s de facto second in command.[32]

However, while Freeland may function politically as Justin Trudeau’s second in command, her position is starkly different from that of a legal second in command, such as the Vice President of the United States. The US Vice Presidency is a constitutionally entrenched role and is first in the line of presidential succession.[33] Canada’s DPM role is neither. The DPM exists only at the PM’s discretion, and does not automatically assume the role of PM in the event of his/her death or incapacitation. In fact, there is no formal order of succession in Canada. If the PM is killed or incapacitated, the Governor General appoints whichever cabinet minister can maintain the confidence of the House of Commons, which may or may not be the DPM.[34]

In conclusion, Freeland’s current duties and powers suggest that the DPM position can expand beyond a mere honorary title. However, the role of the DPM is not, constitutionally, that of the PM’s official second in command, and does not come with fixed, clearly defined powers. Even in Freeland’s case, the DPM’s powers could be revoked by the Prime Minister at any moment, and much of her political power today derives from her concurrent role as minister of finance.

The Road Ahead: The Future of the Office of the Deputy Prime Minister

Overall, the deputy prime minister’s role is governed by the prime minister’s powers to create ministries and appoint ministers, which arise from unwritten constitutional conventions. Since these conventions give the PM broad discretion, the role of the DPM varies considerably at any given time, ranging from a symbolic title to the PM’s de facto second in command. It is, in other words, a role that fluctuates as governments and their priorities change. Unless there is a constitutional amendment on this issue at some point, the scope and powers of the DPM will most likely continue to fluctuate for the foreseeable future.

[1]Prime Minister of Canada, News Release, “Prime Minister Creates Committee on COVID-19” (4 March 2020), online: PMO News Releases <https://pm.gc.ca/en/news/news-releases/2020/03/04/prime-minister-creates-committee-covid-19>.

[2]Anne-Sylvaine Chassany, “The ‘Minister of Everything’ Pins Her Hopes on a Consumer Led Rebound from Covid-19 Setbacks” Financial Times (12 May 2021), online: <https://financialpost.com/financial-times/the-minister-of-everything-pins-her-hopes-on-a-consumer-led-rebound-from-covid-19-setbacks>.

[3] Eugene Lang & Greg Schmidt, “The Role of Deputy Prime Minister is not as Powerful as Most Think” Policy Options (6 August 2020), online: <https://policyoptions.irpp.org/magazines/august-2020/the-role-of-deputy-prime-minister-is-not-as-powerful-as-most-think/> [Lang & Schmidt].

[4]Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2007) at Part 1, Section 9.4 (c) [Hogg].

[5] Patrick Malcolmson & Richard Myers, The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed (North York: University of Toronto Press, 2012) at 16-18.

[6] Ibid at 40.

[7] Hogg, supra note 4.

[8] Peter Aucoin, “Organizational Change in the Machinery of Canadian Government: From Rational Management to Brokerage Politics” (1986) 19:1 Canadian Journal of Political Science 3 at 4 [Aucoin].

[9]Jodie Sinnema, “Cabinet Appointment For Edmonton’s Sohi huge win for cities” Edmonton Journal (4 November 2015), online: <https://edmontonjournal.com/news/politics/edmonton-mp-amarjeet-sohi-scores-a-seat-in-federal-cabinet>.

[10] “Joe Clark, Constitutional Yes Man” (23 October 1992) at 00h:03:20a, online (radio podcast): CBC Archives <https://www.cbc.ca/archives/entry/the-yes-man>.

[11] Douglas Quan, “Appointment of New Border Security Minister Meant to Shore Up Liberal Vulnerability- Political Observers” The National Post (18 July 2018), online: <https://nationalpost.com/news/politics/appointment-of-new-border-security-minister-meant-to-shore-up-liberal-vulnerability-political-observers> [Quan].

[12] Mark Gollom, “So What Does a Deputy PM Do? It All Depends on the Boss” CBC News (21 November 2019), online: <https://www.cbc.ca/news/politics/deputy-pm-chrystia-freeland-1.5366602>.

[13]Oonah Gay, “The Office of the Deputy Prime Minister” (2 July 2013), online: UK Parliament House of Commons Library, online: < https://commonslibrary.parliament.uk/research-briefings/sn04023/>.

[14] Aucoin, supra note 8 at 12.

[15] Geoff Nixon, “What Powers Do Deputy PM’s Hold? And Where is Harper’s?” CTV News (4 July 2010), online: <https://www.ctvnews.ca/what-powers-do-deputy-pms-hold-and-where-is-harper-s-1.528136>. 

[16]Aaron Wherry, “Room at the Top: Is Harper’s Legacy a Conservative Leadership Vacuum?” CBC News (24 January 2020), online: < https://www.cbc.ca/news/politics/stephen-harper-conservative-leadership-1.5437504>.

[17] Lang & Schmidt, supra note 3.

[18] Elizabeth McMillan, “Allan J. MacEachen, Canadian Politician Behind Landmark Social Programs, Dead at 96” CBC (13 September 2017), online: <https://www.cbc.ca/news/canada/nova-scotia/allan-maceachen-former-federal-liberal-cabinet-minister-dies-1.4286949>.

[19]“The Right Hon. Joseph Jacques Jean Chretien, PC, QC, CC, OM, MP” (last modified 12 November 2003), online: Library of Parliament  <https://lop.parl.ca/sites/ParlInfo/default/en_CA/profiles/person/profile306>.

[20] Herb Gray, “Proceedings of the Canada-United States Law Institute Conference on Understanding Each Other Across the Largest Undefended Border in History” (2005) 21 Can-US LJ  287 at 287.

[21] “The Right Honorable Herb Gray” (last modified 20 June 2004), online: OurCommons <https://www.ourcommons.ca/Members/en/herb-gray(1096)>.

[22] Mario D Bellissimo, “Who is That Minister in the Courtroom” (2004) 31 IMMLR-ART 260 at 260 [Bellissimo].

[23]Emerald Bensadoun, “There is No Job Description: What Exactly Does a Deputy Prime Minister Do?” Global News (21 November 2019), online: <https://globalnews.ca/news/6201033/deputy-prime-minister-freeland/>.

[24] Alissa Malkin, “Government Reorganization and the Transfer of Powers” (2008) 39 Ottawa L Rev 537 at 545.

[25] Quan, supra note 11.

[26] “The Hon Anne McLellan” (last modified 5 February 2006), online: OurCommons <https://www.ourcommons.ca/Members/en/anne-mclellan(1355)/roles>.

[27] Bellissimo, supra note 22 at 260.

[28] Office of the Prime Minister, “Deputy Prime Minister and Minister of Intergovernmental Affairs Mandate Letter Prime Minister of Canada” (18 August 2020), online: Prime Minister Justin Trudeau PMO <https://pm.gc.ca/en/mandate-letters/2019/12/13/deputy-prime-minister-and-minister-intergovernmental-affairs-mandate> [Mandate Letter].

[29] David Cochrane, “Freeland Replaces Morneau as Trudeau’s Finance Minister” CBC News (18 August 2020), online: <https://www.cbc.ca/news/politics/trudeau-cabinet-finance-minister-1.5690404>.

[30] Nick Taylor-Vaisey, “The Minister of Everything, Chrystia Freeland Takes On the Coronavirus” (5 March 2020), online: MacLeans <https://www.macleans.ca/politics/ottawa/the-minister-of-everything-chrystia-freeland-takes-on-the-coronavirus/; Andy Blatchford & Rachel Browne, “Minister of Everything is Tasked With Canada’s Comeback”, Politico (25 November 2020), online: <https://www.politico.com/news/2020/11/25/trudeau-tasks-chrystia-freeland-with-canadas-comeback-440512>.

[31] Mandate Letter, supra note 28.

[32] Andy Blatchford & Rachel Browne, “Minister of Everything is Tasked With Canada’s Comeback” (25 November 2020), online: Politico <https://www.politico.com/news/2020/11/25/trudeau-tasks-chrystia-freeland-with-canadas-comeback-440512>.

[33] “Vice President of the United States” (20 January 2021), online: Senate.gov <https://www.senate.gov/artandhistory/history/common/briefing/Vice_President.htm#2>.

[34] Adam M Dodek, “Rediscovering Constitutional Law: Succession Upon the Death of the Prime Minister” (2000) 49 UNB LJ 22 at 35.

Yes, the Federal Government Can Put a Price on Greenhouse Gas Emissions – Part 2

Which level of government can make laws on a new matter that is not specifically addressed in Canada’s Constitution? This was the broad issue at stake in the Supreme Court of Canada’s 2021 decision: References re Greenhouse Gas Pollution Pricing Act (“GGPPA Reference”).[1] In this case, the Court was tasked with determining whether the Constitution permits the federal government to enact a statute — the Greenhouse Gas Pollution Pricing Act (“GGPPA”) — that establishes “minimum national standards of GHG price stringency to reduce GHG emissions.”[2] The Court found that the federal government has the power to enact the GGPPA because the establishment of minimum national standards of GHG price stringency is a matter of national concern.[3] This decision is significant because not many matters in Canadian history have been designated by the courts as matters of national concern.[4] As such, this case gave the Court a rare opportunity to further clarify what constitutes a matter of national concern under Canadian constitutional law.

This article is Part 2 of a two-part series that explores the majority’s decision in the GGPPA Reference. Part 1 focused on the Court’s characterization of the GGPPA as a law establishing “minimum national standards of GHG price stringency to reduce GHG emissions.”[5] Part 2 examines how the Supreme Court of Canada reached its conclusion that the GGPPA is a valid exercise of Parliament’s legislative power under the national concern doctrine.

The Federal Power to Make Laws for Peace, Order, and Good Government

After a court determines a law’s “pith and substance” (or essential character), the next step in the division of powers analysis is to classify the law under a head of power. This means that the court must identify whether the federal government or the provincial governments have the power to enact the law. A government will only have the power to enact legislation on matters that are assigned to them by the Constitution. The key provisions that set out the division of powers are sections 91 and 92 of the Constitution Act, 1867. Section 91 sets out the powers assigned to the federal government, while section 92 lists the powers assigned to the provincial governments.

In the GGPPA Reference, the Supreme Court determined that the GGPPA was a valid exercise of the federal government’s power to “make Laws for the Peace, Order, and good Government of Canada.”[6] The introductory clause in section 91 of the Constitution Act, 1867 empowers Parliament to make laws for these purposes. This power is commonly called “POGG” (an acronym for peace, order, and good government) and has three branches: emergency, national concern, and residual.

Broadly speaking, the national concern branch allows the federal government to make laws on matters that transcend the boundaries of any one province and that are of interest to the country as a whole. It is a significant finding when a court rules that the national concern branch applies. Once the court finds that a matter is one of national concern, the federal government will have the permanent power to make laws on that matter moving forward.[7]

Judicial History: R v Crown Zellerbach Canada Ltd[8]

Prior to the GGPPA Reference, the most recent successful use of the national concern doctrine was in Crown Zellerbach in 1988. This case asked whether federal legislation addressing marine pollution and dumping (including in provincial waters) was valid under the national concern doctrine. The Supreme Court of Canada said yes and provided four “firmly established”[9] conclusions on how to analyze whether the national concern doctrine applies to a proposed matter:

  1. The national concern branch is distinct from the national emergency branch of POGG;
  2. The national concern doctrine applies to new matters and matters that were originally provincial matters but that have become matters of national concern over time;
  3. A matter of national concern “must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern.”[10] Further, the impact on provincial jurisdiction as a result of granting federal jurisdiction over a matter must be reconcilable with the Constitution’s division of legislative power; and
  1. To assess singleness, distinctiveness, and indivisibility, courts should consider whether there would be consequences to extra-provincial interests if provinces failed to regulate the matter.[11]

The limited history of the national concern doctrine shows that it is only applied in exceptional cases where it is necessary for the federal government to make laws to address distinctly national problems.

Out with the Old, in with the New: Clarifying the National Concern Test

The national concern test set out in Crown Zellerbach remains largely unchanged by the Court’s decision in the GGPPA Reference. However, the Court provided clarity on the application of this rarely used doctrine. The Court began by addressing three preliminary issues.

First, it clarified the “matter” to which the national concern doctrine applies. The Court found that the “matter” is identified in the characterization stage of the division of powers analysis.[12] In other words, the legislation’s “pith and substance” (or essential character) determines “the breadth and content” of the matter of national concern.[13]

Second, the Court addressed the impact on the constitutional division of powers when a new matter of national concern is found. When a new matter of national concern is recognized, exclusive and permanent jurisdiction is given to the federal government to make laws that involve that matter. However, the power given to the federal government is limited to the regulation of matters that have a “sufficient connection” to the matter of national concern.[14]

Third, the Court found that the double aspect doctrine can apply to matters of national concern.[15] A matter is said to have a double aspect when “both levels of government have an equally valid constitutional right to legislate on a specific issue or matter.”[16] This finding is consistent with the principle of cooperative federalism, which holds that federal and provincial jurisdiction may overlap to achieve common goals.[17]

After addressing these preliminary issues, the Court proceeded to articulate and clarify the national concern test. Under this test, there are three steps to determine whether a matter qualifies as a matter of national concern.

  1. Threshold Question

The national concern analysis begins by asking whether the matter at issue is of “sufficient concern to Canada as a whole.”[18] At this step, the onus is on the federal government to provide evidence to prove that the proposed matter warrants “consideration in accordance with the national concern doctrine.”[19] As the Court put it, “[t]his invites a common-sense inquiry into the national importance of the proposed matter.”[20]

  1. Singleness, Distinctiveness, and Indivisibility

The second step requires courts to find that a matter has a “singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern.”[21] There are two principles underlying this requirement.

First, this requirement seeks to prevent federal overreach by ensuring that the doctrine only applies to matters that are not just “specific and readily identifiable,” but also “qualitatively different” from matters of provincial concern.[22] What then makes a matter “qualitatively different”? The Court set out three considerations for this stage of the analysis. First, a key consideration set out by the Court is: “whether [the matter] is predominantly extra provincial and international in character, having regard both to its inherent nature and to its effects.”[23] Second, courts can look to related international agreements to see whether the matter has extra-provincial aspects that make it qualitatively different from a provincial matter.[24] Finally, the federal role must be different than that of the provinces, rather than a duplicate.[25] This means that federal laws on the matter must be national in character and focused on national goals rather than focusing on issues that “are primarily of local concern.”[26]

Second, federal powers should only be found under this doctrine when “evidence establishes provincial inability to deal with the matter.”[27] This is commonly known as the “provincial inability test,” which has three criteria.[28] First, the provinces must be “constitutionally incapable of enacting” the legislation alone or in tandem with other provinces.[29] Second, the failure of one or more provinces to act would endanger the success of the scheme in other parts of the country.[30] And third, the failure of a province to deal with the matter must have “grave extraprovincial consequences.”[31]

  1. Scale of Impact

The third and final step of the national concern analysis requires the federal government to show that the “scale of impact on provincial jurisdiction … is reconcilable with the fundamental distribution of legislative power under the Constitution.”[32] The purpose of this final balancing act is to prevent federal overreach and protect against unreasonable intrusions on provincial jurisdiction.[33]

Summary of the National Concern Doctrine Framework

In sum, to find that a matter is of national concern, the federal government must demonstrate compliance with a three-step test that the Supreme Court of Canada clarified in the GGPPA Reference:

  1. Threshold Question: The federal government must prove that the proposed matter is of sufficient concern to the entire country to warrant considering it as a potential matter of national concern.
  2. Singleness, Distinctiveness, and Indivisibility: The federal government must demonstrate that: a) the matter is qualitatively different from a matter of provincial concern, and b) the provinces are unable to deal with the matter.
  3. Scale of Impact: The federal government must demonstrate that the impact on provincial jurisdiction is reconcilable with the constitutional division of powers.

Matter of National Concern: Climate Change is a “threat of the highest order to the country, and indeed to the world”[34]

After clarifying the national concern doctrine, the Court turned its mind to classifying the GGPPA, which in this case meant determining whether the matter that the GGPPA seeks to address falls under the national concern branch of POGG. Before beginning the analysis, it is important to note what that matter is. As discussed in Part 1 of this two-part series of articles, the Court did not regard the GGPPA as a law regulating greenhouse gas emissions in general. Instead, the Court narrowly framed the GGPPA as a law establishing minimum standards for pricing GHG emissions in Canada to reduce such emissions.

Creating Minimum National Standards for Greenhouse Gas Pricing is a Matter of National Concern

In the initial, “threshold” prong of the national concern test, the Supreme Court of Canada found that the GGPPA’s subject matter does concern Canada as a whole. Canada has a history of efforts aimed at reducing greenhouse gas emissions.[35] Further, evidence from international bodies shows that carbon pricing plays an important role in reducing emissions.[36] The Court concluded this step of the analysis by stating that “this matter is critical to our response to an existential threat to human life in Canada and around the world.”[37]

Next, the Court found that the matter meets the second requirement of the national concern test: the requirement of singleness, distinctiveness, and indivisibility. With respect to the first principle underlying this requirement — that the matter is qualitatively different from provincial matters — the Court noted that GHGs are specific and identifiable, that the pollution problem is global in scope, and that international agreements exist and support the conclusion that the matter is more than a matter of provincial concern.[38] With respect to the second principle, the provincial inability test, the Court found that provinces are constitutionally unable to establish minimum national standards for greenhouse gas pricing, that the risk of a province opting out of the scheme could undermine its success, and that legislative inaction would have grave consequences for extra-provincial interests.[39] To illustrate the last point further, the Court remarked that climate change is “causing significant environmental, economic and human harm nationally and internationally, with especially high impacts in the Canadian Arctic, in coastal regions and on Indigenous peoples.”[40]

Finally, turning to the third requirement of the national concern test (“scale of impact”), the Court found that assigning this matter to the federal government does not unduly disrupt the federal/provincial balance of power. Here, the Court acknowledged that classifying this matter as a matter of national concern would clearly impact provincial jurisdiction.[41] However, the Court balanced this impact against the federal government’s interest in making laws on greenhouse gas pricing.[42] In this regard, the Court reasoned that the federal government has an interest in addressing the risk of grave harm that would arise if some provinces did not adopt sufficiently stringent greenhouse gas pricing schemes.[43] Further, the impact on provincial jurisdiction is limited because it does not prevent provinces and territories from designing their own pricing systems as long as they meet the minimum national standards.[44]

As all three steps of the national concern test were established, the Court was able to classify the law under the national concern branch of POGG. This means that the federal government has the power to make laws that establish minimum standards in Canada for pricing greenhouse gas emissions for the purpose of reducing emissions. The Court concluded that this matter has a “real, and compelling, federal perspective on [greenhouse gas] pricing, focused on addressing only the well-established risk of grave extraprovincial harm.”[45]

Conclusion

Following an almost three-year debate on whether the GGPPA is valid or not, we finally have an answer. The Supreme Court of Canada definitively settled once and for all that the GGPPA is constitutional. This means that this legislation will remain in force and is likely to be permanent unless a change in government facilitates its repeal. As such, all provinces and territories must have a climate plan in place that aligns with the standards set out by the GGPPA. In reaching this final decision, the Court took the opportunity to provide clarity on the national concern branch of POGG. The GGPPA Reference sheds important light on the three-pronged analysis for determining if a proposed matter falls within federal jurisdiction as a matter of “national concern.”

Now that we have received this decision, what happens next? For many, this decision marks a step forward in Canada’s climate change response and has the potential to facilitate progress towards national and international climate targets. However, provincial governments in Alberta and elsewhere do not see this decision as a victory, but as an intrusion on provincial powers to regulate resource industries.[46] Despite these concerns, the Supreme Court’s decision leaves these critics with no realistic way forward. For the time being, the dispute over the validity of the GGPPA can be regarded as legally settled.

[1] References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 .

[2] Ibid at para 57.

[3] Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 .

[4] See Johannesson v Municipality of West St Paul, [1952] 1 SCR 292, [1951] 4 DLR 609. See Munro v National Capital Commission, [1966] SCR 663, 57 DLR (2d) 753. See Ontario Hydro v Ontario (Labour Relations Board), [1993] 3 SCR 327, 107 DLR (4th) 457.

[5] GGPPA Reference, supra note 1 at para 57.

[6] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.

[7] “Peace, Order and Good Government” (29 June 2021 last visited), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2019/07/peace-order-and-good-government/>.

[8] R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401, 1988 CanLII 63 .

[9] Ibid at para 33.

[10] GGPPA Reference, supra note 1 at para 105.

[11] Crown Zellerbach, supra note 8 at para 33.

[12] GGPPA Reference, supra note 1 at para 116.

[13] Ibid.

[14] Ibid at para 122.

[15] Ibid at para 126.

[16] “Double Aspect” (29 June 2021 last visited), online: Centre for Constitutional Studies < https://www.constitutionalstudies.ca/2019/07/double-aspect/>.

[17] GGPPA Reference, supra note 1 at para 126.

[18] Ibid at para 142.

[19] Ibid at para 144.

[20] Ibid at para 142.

[21] Ibid at para 145.

[22] Ibid at para 146.

[23] Ibid at para 148.

[24] Ibid at para 149.

[25] Ibid at para 150.

[26] Ibid.

[27] Ibid at para 152.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Ibid at para 153.

[32] Ibid at para 160.

[33] Ibid at para 161.

[34] Ibid at para 167.

[35] Ibid at para 169.

[36] Ibid at para 170.

[37] Ibid at para 171.

[38] Ibid at paras 172-80.

[39] Ibid at paras 182-87.

[40] Ibid at para 187.

[41] Ibid at para 197.

[42] Ibid at para 198.

[43] Ibid.

[44] Ibid at para 200.

[45] Ibid at para 211.

[46] Elise Von Scheel, “Kenney concerned carbon tax ruling enables future intrusions on provincial jurisdiction” (25 March 2021), online: CBC < https://www.cbc.ca/news/canada/calgary/kenney-alberta-carbon-tax-reaction-environment-1.5963722>.

R v Desautel: The Court Defined “Aboriginal peoples of Canada” – What Now?

Recently, in R v Desautel, the Supreme Court of Canada (SCC) found that “[t]he Aboriginal peoples of Canada under [section] 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact.”[1] This was a significant decision because it recognizes, for the first time, that a person does not need to be a citizen or resident of Canada to have Aboriginal rights under section 35 of the Constitution Act, 1982.

In a previous article, we reviewed the reasons for the Court’s decision and the criteria to establish whether a particular community is one of the “Aboriginal peoples of Canada” under section 35. This article will explore the Court’s assessment of how this decision may affect other areas of Aboriginal law[2] in Canada: (1) the Crown’s obligations under the duty to consult doctrine; (2) the test for justifying an infringement of Aboriginal rights; and (3) the interpretation of modern treaties. Finally, the article will review some questions that the Court left unanswered and will consider its brief comments about the role of Aboriginal peoples in defining themselves.

Impact on Other Aspects of Aboriginal Law

Duty to Consult: The Crown’s Constructive Knowledge of Aboriginal Rights

The Crown’s duty to consult Aboriginal peoples arises “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”[3] For example, a proposed development project could affect an Aboriginal people’s treaty right to hunt in the potentially impacted area, so the Crown would have a duty to consult that people before pursuing the project. In this example, the Crown would presumably have “real knowledge” of the relevant right because that right was agreed to in treaty. However, as noted above, the Crown is also under a duty to consult when it has “constructive knowledge” that its actions may adversely impact Aboriginal rights. This means that an adverse impact on Aboriginal “rights may reasonably be anticipated”[4] by the Crown.

The Court in Desautel acknowledged that real or constructive knowledge typically stems from years of interactions between the Crown and Aboriginal peoples in Canada.[5] When the Aboriginal group is not within Canada, though, the Crown might not have had many, if any, interactions with them and is therefore less likely to have real or constructive knowledge of their Aboriginal rights.[6] This raises the question of whether the Crown must seek out Aboriginal peoples outside of Canada for the purpose of meeting their duty to consult obligations.

The Court decided that the Crown is not obliged to search for these Aboriginal groups, but must “determine whether a duty to consult arises and … what the scope of the duty is”[7] when it is put on notice that such a group exists.[8] “It is for the groups involved to put the Crown on notice of their claims.”[9]

Justifying an Infringement on Aboriginal Rights: Is Canadian Citizenship Relevant?

A section 35 Aboriginal right is not absolute. Under the Sparrow test, the Crown may limit Aboriginal rights when it is justified by the interests of the broader community.[10] The test for such justification is highly contextual and is based on the facts of each case.[11] This begs the question of whether it is easier to justify limiting the rights of a non-Canadian claimant who resides outside of Canada.

The Court found that “the fact that an Aboriginal group is outside Canada is relevant to the [legal] test for justifying an infringement of an Aboriginal or treaty right.”[12] It did not specify how courts must consider this factor, but framed it as a matter of “reconciling the interests of an Aboriginal people with the interests of the broader community of which it is a part.”[13] This implies that the degree of connection between the Aboriginal group and the Canadian public is relevant to determining whether the Crown is justified in infringing that group’s Aboriginal rights. In other words, it may be easier to justify infringing the rights of persons who are not Canadian citizens or residents of Canada.

What if This Definition Conflicts with Modern Treaties?

Modern treaties are agreements between Aboriginal peoples and the Crown that were entered into after 1982, when Aboriginal and treaty rights were recognized and affirmed in the Constitution Act, 1982.[14] Some modern treaties grant rights to non-Canadian citizens while others exclude them. This raises the question: does the content of modern treaties affect whether a person is a member of one of the Aboriginal peoples of Canada?

In Desautel, the Court reaffirmed previous SCC decisions which found that modern treaties form part of “our constitutional fabric”[15] and should be “considered with great respect.”[16] However, the Court noted that the content of modern treaties does not determine whether a person is a member of one of the Aboriginal peoples of Canada under section 35. Further, it noted that a person who does not belong to one of the Aboriginal peoples of Canada under its new definition can still have rights arising from treaties.[17] In other words, the rights belonging to the Aboriginal peoples of Canada are separate and distinct from the rights which arise from treaties.

Some Questions are Better Left for Another Day

After considering the implications of the Desautel decision on the three issues described above, the Court identified a number of questions to be left for another day. It is not unusual for courts to remain silent on issues that are not determinative of the main question in the case, and is in fact standard judicial practice. Some of the questions that the Court identified but did not address were:

Justice Côté’s dissent raised further questions that were not addressed in the majority’s decision:

Remarks on Vindicating Aboriginal Rights

The Court also made some important remarks in obiter which suggest that it is ultimately for Aboriginal peoples to define themselves. Remarks in obiter are comments that do not affect the outcome of the case and are not legally binding, but are still important because they reveal courts’ thinking on matters that they consider important.

First, the Court reaffirmed the courts’ role as the “guardians of the Constitution and of individuals’ rights under it.”[24] This means that the authority to interpret section 35(1), including the phrase “Aboriginal peoples of Canada,” rests with the courts. However, the Court then stated that “[i]t is for Aboriginal peoples … to define themselves and to choose by what means to make their decisions, according to their own laws, customs and practices.”[25] This suggests that the question of who belongs to one of the “Aboriginal peoples of Canada” has two aspects: (1) whether a community is an Aboriginal people under section 35(1) of the Constitution Act, 1982; and (2) whether that community will regard a particular section 35 claimant as one of its members. The first is a question for the Canadian courts, and the second is a question for Aboriginal communities themselves. In other words, the Court recognizes that Aboriginal peoples — not courts — have the authority to determine who is a member of their own communities.

Conclusion: A New Branch on the “Living Tree” of Canadian Constitutionalism

Although this decision answered the important question of who are the “Aboriginal peoples of Canada” under section 35(1) of the Constitution Act, 1982, it raised a new set of questions. The Court provided guidance on only three of these questions and decided to leave the bulk to be decided another day.

Lord Sankey, a 20th century British jurist famously compared the Canadian Constitution to “a living tree capable of growth and expansion within its natural limits.”[26] This “living tree” metaphor has been interpreted to mean that the Constitution is capable of growing and changing over time while still remaining true to its original purpose.[27] The Court’s decision in Desautel signals that a new branch of the constitutional tree is emerging. By defining the term “Aboriginal peoples of Canada” in a way that opens up more questions than it answers, the Court is giving future courts the task of nurturing and developing the new bud it has created. In this way, a new branch of constitutional law will emerge and the Constitution of Canada will continue to grow and change like a living tree.

[1] R v Desautel, 2021 SCC 17 (CanLII) at para 31 .

[2] Aboriginal law governs the constitutional relationship between the Crown and the Aboriginal peoples of Canada through colonial laws such as the Royal Proclamation of 1763, the Indian Act, the Constitution Act, 1867, and the Constitution Act, 1982. It is distinct from Indigenous law, which refers to the legal traditions of Indigenous peoples themselves.

[3] Desautel, supra note 1 at para 72 (citing Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 (CanLII) at para 35 ).

[4] Ibid at para 72 (quoting Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 40).

[5] Ibid at para 75.

[6] Ibid at para 74.

[7] Ibid at para 76.

[8] Ibid at paras 74-75.

[9] Ibid at para 75.

[10] See R v Sparrow, 1990 CanLII 104 (SCC) ; and Desautel, supra note 1 at para 79 (citing R v Gladstone1996 CanLII 160 (SCC) at para 73 ; and R v Nikal1996 CanLII 245 (SCC) at para 92).

[11] See Desautel, supra note 1 at para 78 (citing Sparrow, supra note 11 at 1111; and Gladstone, supra note 11 at para 56).

[12] Ibid at para 77.

[13] Ibid at para 79 (emphasis added).

[14] See Quebec (Attorney General) v Moses, 2010 SCC 17 (CanLII) at para 82.

[15] First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 (CanLII) at para 1 (cited by Desautel, supra note 1 at para 82) .

[16] Desautel, supra note 1 at para 82 (citing Nacho Nyak Dun, supra note 16 at paras 1, 33 and 38).

[17] Ibid.

[18] Ibid at para 32. Under section 35(2) of the Constitution Act, 1982, the “’[A]boriginal peoples of Canada’ includes the … Métis peoples of Canada.” In a 2003 decision, the Supreme Court of Canada defined “Métis” as “distinctive peoples who, in addition to their mixed [Aboriginal and European] ancestry, developed their own customs, way of life, and recognizable group identity” (R v Powley, 2003 SCC 42 (CanLII) at para 10). Métis peoples would fail to meet the definition of “Aboriginal peoples of Canada” in Desautel because in this decision, the ancestral peoples must have occupied Canadian territory “at the time of European contact.”

[19] Ibid at para 76. The scope and content of the Crown’s duty to consult is proportionate to a preliminary assessment of the strength of the case for an Aboriginal or treaty right and the seriousness of the potential adverse effects on that right (see Haida, supra note 3 at para 39). The scope of the Crown’s duty to consult will vary according to the circumstances. “Deep” consultation might require formal participation by Aboriginal peoples in the decision-making process and the provision of written reasons for the Crown’s decision explaining how Aboriginal concerns were considered. “Lower” consultation may be achieved through written notice, disclosure, and the discussion of any issues raised in response (see Haida, supra note 3 at paras 43-44).

[20] Desautel, supra note 1 at paras 80-81 (Justice Côté’s dissent considers this question at para 124).

[21] Ibid at para 122 (citing Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at ss 35 and 25). Article 35.1 obliges the Prime Minister to “invite representatives of the [A]boriginal peoples of Canada to participate in the discussions on [any amendment made to section 91(24) of the Constitution Act, 1867, section 25 of the Constitution Act, 1982, or Part II of the Constitution Act, 1982 on the Rights of the Aboriginal Peoples of Canada].”

[22] Ibid at para 123.

[23] Ibid at para 140.

[24] Ibid at para 84 (citing Hunter v Southam Inc, 1984 CanLII 33 (SCC) at 169).

[25] Ibid.

[26] Edwards v Canada (Attorney General), 1929 CanLII 438 (UK JCPC) at 106-107.

[27] Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed (Scarborough: Thomson, 2007) at 36.8(a).

R v Desautel: Who are the “Aboriginal Peoples of Canada”?

“Aboriginal peoples of Canada” have special Aboriginal and treaty rights that are protected under section 35 of the Constitution Act, 1982.[1] But who are the “Aboriginal peoples of Canada”?

The Supreme Court of Canada (SCC) considered this question for the first time in R v Desautel,[2] a case where an American citizen living in Washington State claimed that he has an Aboriginal right to hunt in his ancestors’ traditional territories near Castelgar, British Columbia. In a 7:1 decision,[3] a strong majority of the Court agreed with Mr Desautel and found that:

The Aboriginal peoples of Canada under s. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact. This may include Aboriginal groups that are now outside Canada.[4]

This article will review the SCC’s decision in Desautel and a second article will examine its potential consequences. Specifically, this article will examine: (1) the background of the case; (2) the underlying principles that informed how the Court came to its decision; and (3) the new legal test that the Court specified for identifying the “Aboriginal peoples of Canada.”

Background: Does Mr Desautel Have an Aboriginal Right to Hunt?

Mr Desautel is an American citizen living in Washington State and a member of the Lakes Tribe of the Colville Confederated Tribes, a successor group of the Sinixt people. The Sinixt people traditionally occupied the territory from north of Revelstoke, British Columbia to Kettle Falls in Washington State. In the latter half of the nineteenth century, the Sinixt people were forced out of their Canadian territories into the United States. More than a century later, in October of 2010, Mr Desautel shot a cow-elk near Castlegar, British Columbia, which is on traditional Sinixt territory. He was charged with violating the British Columbia Wildlife Act for hunting without a license and for hunting big game while not being a resident of British Columbia.[5] Mr Desautel claimed that, as a member of a successor group of the Sinixt people, he has an Aboriginal right to hunt in his traditional territories.

Section 35 of the Constitution Act, 1982 protects the “existing [A]boriginal and treaty rights” of the “[A]boriginal peoples of Canada.”[6] In other words, the question of who belongs to an “Aboriginal people … of Canada” is a threshold question in the test for whether a claimant has a protected Aboriginal right. This question is usually easy to answer, but it was complicated by the fact that Mr Desautel is an American citizen living in Washington State. Therefore, before the Court could determine if Mr Desautel has an Aboriginal right to hunt in what was once Sinixt territory, it first had to decide, for the first time, whether someone who is neither a citizen nor resident of Canada can nonetheless belong to one of the “Aboriginal peoples of Canada.”

A Purposive Interpretation of Section 35: Prior Occupation and Reconciliation

The Court stated that the legal definition of “Aboriginal peoples of Canada” is implicit in the “doctrinal structure” of Aboriginal law[7] and the principles upon which it is based.[8]

To start, the Court reaffirmed that section 35(1) must be interpreted purposively[9] with a view to achieving the two purposes of “recogniz[ing] the prior occupation of Canada by organized, autonomous societies and … [reconciling] their modern-day existence with the Crown’s assertion of sovereignty over them.”[10]

The Court then drew from a long history of previous Supreme Court decisions to show how these dual purposes are grounded in Aboriginal law and the principles that underlie it.[11] It also noted that these same two purposes give rise to the legal tests for Aboriginal rights and title, and the principle of honour of the Crown.[12] Read together, the various elements of this overview[13] provide a rich understanding of what these dual purposes mean and how they are reflected in Canadian constitutional law.

Purpose 1: Prior Occupation

According to the Court, one of the fundamental purposes of section 35 is the recognition of “prior occupation.” This means acknowledging that Aboriginal peoples lived on the land we call Canada long before European settlers arrived.[14] They lived in “organized, autonomous societies”[15] under their own systems of law[16] and had strong connections to their traditional territories.[17] The Crown then asserted its sovereignty over what is now Canadian territory,[18] imposing its own laws and customs upon these preexisting Aboriginal societies.[19]

Purpose 2: Reconciliation

The second purpose that the Court attributed to section 35 is “reconciliation,” a term which it used in two distinct ways:

With these two purposes in mind, the Court looked back at the history of Aboriginal peoples whose ancestral lands were divided by international boundaries, and who moved or were forcibly displaced by European settlers. It then looked forward and found that excluding from the definition of “Aboriginal peoples of Canada” those “Aboriginal peoples who were forced to move out of Canada would risk perpetuating the historical injustice suffered by [A]boriginal peoples at the hands of colonizers.”[22]

Defining “Aboriginal peoples of Canada” in Theory and in Practice

The Aboriginal peoples of Canada under s. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact. This may include Aboriginal groups that are now outside Canada.[23]

In Theory: Aboriginal Peoples of Canada Needn’t Be Canadian

The Court’s purposive interpretation of section 35 led it to define “Aboriginal peoples of Canada” as the modern-day successors of the Indigenous peoples who occupied the land we now call Canada “at the time of European contact.”[24] Accordingly, the constitutional guarantees provided by section 35 are not limited to residents and citizens of Canada, but may be extended to include peoples whose ancestors were separated from their traditional territories by the establishment of international boundaries or through forcible displacement.

Justice Côté was the only judge to disagree on this point. Writing in dissent, she defined “Aboriginal peoples of Canada” more narrowly as “Aboriginal groups that are members of, and participants in, Canadian society.”[25]

In Practice: The “Modern Successors of … Aboriginal Societies”

Who are “the modern successors of … Aboriginal societies”? The Court in Desautel set out guidance to help future courts answer this question. It is not a strict test, but rather a contextual analysis based on the facts of each case. Every case will require consideration of different factors which may be weighted differently from one case to the next. However, the Court was clear that all Aboriginal peoples of Canada must have occupied Canadian territory at the time of European contact.

The Court tells us that, when a claimant lives outside of Canada, they must establish a link between their modern-day community and the historic Aboriginal society that once occupied territory in what is today known as Canada. Legally, this link is called “successorship.” Successorship is not a clearly defined concept and the Court did not establish a minimum threshold that section 35 claimants must meet.

In addressing a particular claim, courts may draw from a wide variety of evidence to establish successorship, such as common “ancestry, language, culture, law, political institutions and territory.”[26] They must consider the possibility that a community might have split or merged or been forcibly displaced over time. Courts will need to assess the circumstances of each particular case to decide whether one criterion is more significant than the other, and to ultimately establish (or not establish) successorship.

The New Definition Applied to Mr Desautel’s Case

The Court found that Mr Desautel was a member of an Aboriginal people of Canada. Their decision was based on the two key criteria discussed above: (1) the Lakes Tribe are the modern-day successors of the Sinixt people and they did not lose this identity or the rights that derive from it after being forced to leave their ancestral lands; and (2) the Sinixt people had occupied the territory around Castlegar, British Columbia at the time of European contact.

Mr Desautel therefore met the threshold test for who belongs to an Aboriginal people of Canada. The Court then proceeded with the test for whether he had an Aboriginal right under section 35. In this regard, the Court found that Mr Desautel has a right to hunt in the Sinixt people’s traditional territories in British Columbia.[27] In other words, the sections of the British Columbia Wildlife Act that prohibit hunting without a license and hunting big game while not being a resident of British Columbia do not apply to Mr Desautel.

Conclusion

This decision is significant because the Supreme Court of Canada recognized that Aboriginal rights claimants under section 35 of the Constitution Act, 1982 do not need to be citizens or residents of Canada. It emphasizes the underlying principles of Aboriginal Law: to “recognize the prior occupation of Canada by organized, autonomous societies and reconcile their modern-day existence with the Crown’s assertion of sovereignty over them.”[28] It also sets out guidance for future courts to determine whether a person belongs to one of the “Aboriginal peoples of Canada” and therefore has Aboriginal rights under section 35. The impact that this decision could have on other areas of Aboriginal law will be addressed in a second article o

[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at ss 35 and 25 .

[2] 2021 SCC 17 (CanLII) .

[3] Justice Moldaver was prepared to “assume, without finally deciding,” that Mr Desautel is a member of one of the Aboriginal peoples of Canada (ibid at para 143). Justice Côté wrote a dissenting opinion contesting the majority’s ruling that Mr Desautel belongs to one of the Aboriginal peoples of Canada.

[4] Desautel, supra note 2 at para 31.

[5] Ibid at paras 3-6 (citing Wildlife Act, RSBC 1996, c 488).

[6] Constitution Act, 1982, supra note 1.

[7] Aboriginal law is the body of law which governs the constitutional relationship between the Crown and the Aboriginal peoples of Canada through colonial laws such as the Royal Proclamation of 1763, the Indian Act, the Constitution Act, 1867, and the Constitution Act, 1982 (see e.g. Bora Laskin Law Library, “Welcome to Aboriginal Law Research” (last updated 19 May 2021), online: Bora Laskin Law Library <https://guides.library.utoronto.ca/aboriginallaw>; and JFK Law, “Making Space for Indigenous Law” (12 Jan 2016), online (blog): JFK Law Corporation < https://jfklaw.ca/making-space-for-indigenous-law/>). Aboriginal law is separate and distinct from “Indigenous law”, even if the two are sometimes interconnected. Indigenous law refers to the legal traditions of the Indigenous peoples themselves. Indigenous legal traditions have ancient roots, flow from many sources, and are expressed in a multitude of ways, including oral traditions, story, song, wampum belts, etc. (see John Borrows, Canada’s Indigenous Constitution, Toronto: University of Toronto Press, 2010) at ch 1-3. See also JFK Law, supra).

[8] Desautel, supra note 2 at para 31.

[9] Ibid at para 21 (citing R v Sparrow, 1990 CanLII 104 (SCC) at 1106 ; and R v Van der Peet, 1996 CanLII 216 (SCC) at paras 21-22 . A purposive interpretation means that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” — Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC) at para 21, citing Elmer Driedger, Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) at 87. In other words, when interpreting a law purposively, the courts do not analyze it based on its text alone, but with an eye towards achieving its underlying purpose).

[10] Ibid at para 22.

[11] Ibid at para 31.

[12] Ibid at para 23.

[13] Ibid at paras 24-30.

[14] Ibid at para 24 (citing Calder v Attorney-General of British Columbia, 1973 CanLII 4 (SCC) at 328).

[15] Ibid at paras 24 (citing Sparrow at 1094) and 26 (citing Van der Peet, supra note 10 at para 43).

[16] Ibid at para 28 (citing R v Marshall, 2005 SCC 43 at para 129).

[17] Ibid at para 46.

[18] Ibid at para 26 (citing Van der Peet, supra note 10 at para 43).

[19] Ibid at para 30 (citing Manitoba Metis, supra note 2 at para 67).

[20] Ibid at paras 22 and 26.

[21] Ibid at para 30 (citing Little Salmon/Carmacks at para 10, internal quotations removed). “Reconciliation” in this context is similar to the Truth and Reconciliation Commission’s use of the term, which means “coming to terms with events of the past in a manner that overcomes conflict and establishes a respectful and healthy relationship among people, going forward”. However, since the Court did not cite this reference, we should not conflate the two. Canada’s residential schools: the final report of the Truth and Reconciliation Commission of Canada, vol 6 (Montreal: McGill-Queen’s University Press, 2015) at 3. See generally Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada, (Ottawa: Library and Archives Canada).

[22] Ibid at para 33.

[23] Ibid at para 31.

[24] Ibid.

[25] Ibid at para 105.

[26] Ibid at para 49.

[27] Ibid at para 62.

[28] Ibid at para 22.

Yes, the Federal Government Can Put a Price on Greenhouse Gas Emissions

In 2018, the federal government put a price on greenhouse gas emissions across Canada with its Greenhouse Gas Pollution Pricing Act (“GGPPA” or “the Act”).[1] Since its inception, the GGPPA’s validity has been contentious. The provinces of Alberta, Ontario, and Saskatchewan asked their respective Courts of Appeal whether the federal government has the constitutional power to enact the GGPPA. While both Ontario’s and Saskatchewan’s Courts of Appeal ruled that the GGPPA was within the federal government’s power and therefore valid, Alberta’s Court of Appeal found that it was not.

Finally, on March 25, 2021, the Supreme Court of Canada weighed in on the issue and released its References re Greenhouse Gas Pollution Pricing Act (“GGPPA Reference”) decision.[2] A majority of the Court found that the GGPPA is constitutional. To reach its decision, the Court had to determine the law’s “pith and substance” (or its “essential character”) before asking whether the Constitution permits the federal government to make such a law.[3] This article is Part 1 of a two-part series that reviews the Supreme Court of Canada’s majority decision in the GGPPA Reference. Part 1 examines how the GGPPA prices carbon-based products, and what the law’s essential character is. Part 2 will examine how the Supreme Court of Canada determined that the GGPPA is a valid exercise of Parliament’s legislative power.

The Division of Powers: No, the Federal Government Cannot Make Laws on Everything

The main question in the GGPPA Reference is whether the federal government has the constitutional power to make laws that create minimum standards for pricing greenhouse gas emissions. This issue exemplifies Canada’s federal system in which two levels of government, the federal and the provincial, have powers to govern in particular areas. In this regard, sections 91 and 92 of the Constitution Act, 1867 divide legislative powers between the provincial legislatures and federal Parliament. This means that the federal Parliament cannot make laws relating to just any matter it finds important. Instead, federal laws must be within Parliament’s legislative authority as set out by the Constitution.

Insofar as it concerns Parliament’s constitutional power (or lack thereof) to enact the GGPPA, the GGPPA Reference is a federalism-based constitutional challenge. Courts approach these federalism-based issues by way of a division of powers analysis. First, a court must characterize the law. To do this, the court will consider the purpose and effects of the impugned legislation to identify its essential character or “pith and substance.” Second, once the court identifies the law’s pith and substance, it must classify the law under section 91 or 92 of the Constitution Act, 1867. This article focuses only on the first of these steps: the characterization or “pith and substance” analysis.

Climate Change is a “grave threat to humanity’s future”[4] and the GGPPA is Parliament’s Response to This Threat

To clarify, the GGPPA’s pricing schemes only apply to provinces that lack a sufficiently stringent carbon pricing scheme of their own. Whether a specific person or organization is responsible for paying the charges depends on which part of the Act applies to that particular party. The GGPPA has 4 parts in total, but only Parts 1 and 2 were at issue in the GGPPA Reference.

Part 1: Fuel Charge

Part 1 of the GGPPA establishes a fuel charge on certain carbon-based fuel products specified in the Act. This fuel charge applies to producers, distributors, and importers. Although this charge is not directly levied on consumers of energy products, the cost of the charge will likely be indirectly passed onto consumers through higher energy prices.[8] Despite paying higher energy prices upfront, consumers can expect to get some money back. Currently, 90% of the funds generated by this fuel charge are distributed through consumer rebates.[9]

Part 2: Industrial Greenhouse Gas Emissions

Industrial facilities are not exempt from charges. Part 2 of the GGPPA sets out a separate carbon pricing system for industrial facilities that emit large amounts of greenhouse gas emissions.[10] This system is called an output-based pricing system (“OBPS”). The OBPS only applies to covered facilities. A covered facility does not have to pay the fuel charge set out in Part 1 of the Act. However, the OBPS requires industrial facilities to pay for emissions in excess of a set limit.

Not all industrial facilities will qualify as a covered facility. The Output-Based Pricing System Regulations set out the criteria for a covered facility.[11] If a facility does not meet the criteria, the Minister of the Environment has the authority to designate a facility as a covered facility.

The GGPPA Sets Out Minimum National Standards that Operate as a Backstop

One of the Court’s findings in the GGPPA Reference was that the GGPPA acts as a backstop and does not displace the ability of provinces or territories to create their own carbon pricing systems.[12] As such, provinces and territories can create their own policies to meet greenhouse gas emission reduction targets that reflect their own circumstances as long as the policies meet the minimum standards imposed by the GGPPA.

Parts 1 and 2 of the GGPPA will not apply to a province or territory that has implemented a sufficiently stringent greenhouse gas pricing system. The GGPPA’s fuel charge and OBPS will only apply in a province or territory if:

Characterization: The Pith and Substance of the GGPPA is to Establish Minimum National Standards of Greenhouse Gas Price Stringency

To determine whether the federal government can validly enact legislation creating minimum standards for greenhouse gas pricing schemes across Canada, the Supreme Court first had to “characterize” the GGPPA.  That is, the Court had to identify the law’s essential character (known as its “pith and substance”). In doing so, the Court adopted a narrow characterization of the GGPPA: “the true subject matter of the GGPPA is establishing minimum national standards of GHG price stringency to reduce GHG emissions.”[14]

To arrive at this characterization, the Court considered intrinsic and extrinsic evidence regarding the GGPPA’s purpose, as well as its legal and practical effects. It first considered the intrinsic evidence, which involves an assessment of the legislation itself to determine what it really means. To be more precise, this entailed an analysis of the GGPPA’s text including the statute’s long and short title, the preamble, and its references to the UNFCCC, the Paris Agreement, and the Pan-Canadian Framework.[15] Next, the Court looked to the extrinsic evidence regarding the law’s purpose, which included parliamentary debates and background documents. This provided the law’s background and historical context, which led the Court to conclude that the GGPPA is concerned with pricing greenhouse gas emissions.[16]

Finally, the Court assessed both the legal and practical effects of the GGPPA. Beginning with the legal effects, the Court found that Parts 1 and 2 of the GGPPA create a greenhouse gas pricing scheme that prices emissions in a way that is consistent with other provinces in Canada.[17] Due to the GGPPA’s backstop nature, these legal effects only apply if the Governor in Council determines that Part 1 or 2 of the Act should apply to a specific province. As such, provinces and territories are still able to establish their own greenhouse gas pricing policies to meet emission reduction targets as long as they meet the standards set out by the GGPPA. These legal effects show that the GGPPA focuses on setting minimum standards for greenhouse gas pricing.

With respect to the practical effects, the Court noted that it is difficult to definitively say what the GGPPA’s consequences are because the legislation has been in force for a short time.[18] However, the Court found that practically, the only thing a province or territory cannot do under the GGPPA is to not implement a greenhouse gas pricing scheme at all or to implement one that does not meet the GGPPA’s national standards.[19] After considering the purpose and effects of the GGPPA, the Court finally concluded that the pith and substance of the GGPPA is “establishing minimum national standards of GHG price stringency to reduce GHG emissions.”[20] This narrow construction of the law’s pith and substance led the majority to later classify the law as a matter of national concern and, hence, as constitutionally valid exercise of Parliament’s legislative power. The GGPPA’s classification is the focus of Part 2 of this article series.

Broad or Narrow Characterization? Does it Matter?

How a law is characterized, narrowly or broadly, has the potential to impact how a court determines the constitutionality of an impugned law. If a law’s pith and substance is characterized too broadly, it can be difficult to fit it under a specific head of power without intrusions on another level of government’s jurisdiction. A narrow characterization, on the other hand, will likely interfere less with another jurisdiction’s legislative authority.

The GGPPA Reference demonstrates the consequences of choosing a narrow characterization over a broad one. While the majority adopted a narrow view of the law’s pith and substance, Justice Brown (with Justice Rowe agreeing on this point) took a more expansive, broad view in dissent. Parts 1 and 2 of the Act were characterized separately by the dissenters: Part 1 as reducing GHG emissions by “raising the cost of fuel” and Part 2 as reducing GHG emissions by “pricing emissions in a manner that distinguishes among industries based on emissions intensity and trade exposure.”[21] This broad characterization likely led to the dissenting Justices finding that the GGPPA constitutes an impermissible intrusion on provincial jurisdiction.

Conclusion

Since the enactment of the GGPPA in 2018, there has been polarized debate on whether the federal government has the power to put a price on greenhouse gas emissions. Finally, the Supreme Court of Canada weighed in with its judgment in the GGPPA Reference. The majority of the Supreme Court of Canada concluded that Parliament’s GGPPA is constitutional. This means that the federal government can validly put a price on greenhouse gas emissions.

Identifying a law’s pith and substance is an important first step in determining whether a government has the power to enact a certain law. Once the law’s essential character is identified, courts can determine whether it falls under a provincial or federal head of power. In the GGPPA Reference, the majority adopts a narrow view of the GGPPA, concluding that the GGPPA’s pith and substance concerns the reduction of greenhouse gas emissions by establishing minimum national standards of greenhouse gas pricing.

A second article will continue reviewing the Court’s division of powers analysis by looking at its next step: classification under a head of power.

[1] Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 .

[2] References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 .

[3] “Pith and Substance” (18 June 2021 last visited), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2019/07/pith-and-substance/>.

[4] GGPPA Reference, supra note 2 at para 2.

[5] Government of Canada, “The Paris Agreement” (6 January 2016), online: Government of Canada <https://www.canada.ca/en/environment-climate-change/services/climate-change/paris-agreement.html>.

[6] GGPPA Reference, supra note 2 at para 13.  

[7] GGPPA, supra note 1, Preamble.

[8] GGPPA Reference, supra note 2 at para 30.

[9] Ibid at para 31.

[10] Ibid at para 34.

[11] Output-Based Pricing System Regulations, SOR/2019-266.

[12] GGPPA Reference, supra note 2 at para 27.

[13] Ibid at paras 18, 27.

[14] Ibid at para 57.

[15] Ibid at paras 58-61.

[16] Ibid at paras 62-69.

[17] Ibid at para 71.

[18] Ibid at para 78.

[19] Ibid at para 79.

[20] Ibid at para 80.

[21] Ibid at para 340.