The ‘Victoria Charter’ refers to a package of changes to the Canadian Constitution that was debated by Prime Minister Trudeau and the provincial Premiers in Victoria in June 1971. The Victoria Charter's key elements touched the following subjects: fundamental freedoms and political rights, language rights, the composition and appointment of the Supreme Court of Canada, income security, and a constitutional amending formula. The ‘Victoria Charter’ also would have abolished the federal powers to reserve and disallow provincial legislation (see reservation and disallowance), committed governments to the reduction of social and economic disparities between the provinces, and formalized annual conferences of the Prime Minister and the Premiers.

Quebec Premier Robert Bourassa, facing strong opposition from both separatist and federalist quarters in Quebec, announced that Quebec could not accept the terms of the ‘Victoria Charter’. Specifically, he claimed that the terms of the income security measures (covering pensions and family/youth/occupational training allowances) were too uncertain for Quebec's tastes. The federal government and the other nine provinces declined to pursue these changes in light of Quebec's rejection of the package.

Comparing the ‘Victoria Charter’ to the Constitution Act, 1982 is particularly interesting. This comparison reveals several important differences in the process and substance of efforts to change the Constitution. The most significant procedural difference is that Quebec's rejection of a constitutional package, sufficient to stop constitutional change in 1971, did not prevent the patriation of the Constitution in 1982. Substantively, the amending formula found in the ‘Victoria Charter’ was very different from the one adopted in 1982. The ‘Victoria Charter’ prescribed that amendments needed the support of Ottawa and a majority of the provinces. But, the provincial majority had to include Ontario, Quebec, at least two of the Atlantic Provinces, and at least two of the Western provinces that had at least fifty percent of the region's population. By receiving veto power, Ontario and Quebec were treated differently than the other provinces. The current amending formula bows in the direction of provincial equality since no province is given the power to veto constitutional change. Another difference is that the 1982 Constitution requires that amendments to a number of subjects require the unanimous consent of the federal and provincial governments. Also, the rights guarantees found in the Canadian Charter of Rights and Freedoms are considerably more extensive and expansive than those contained in the ‘Victoria Charter’.

Sources:

• K. McRoberts, Quebec: Social and Political Crisis (Toronto: McClelland & Stewart, 1988).
• P.H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? (Toronto: University of Toronto Press, 1992).

Disputes over the existence and use of vetoes have played an important part in Canada’s constitutional development. During the Patriation Round, Quebec asserted the existence of a convention requiring unanimous provincial consent to constitutional amendments that would alter the division of powers between the provinces and federal government; if this convention existed, it would have given each province a ‘veto’.[1] The existence of this convention was twice considered by the Supreme Court of Canada. In the Patriation Reference (Re Resolution to Amend the Constitution),[2] the Court confirmed the existence of a convention requiring “a substantial degree of provincial consent”, but in the Quebec Veto Reference (Reference re Amendment of the Canadian Constitution), the Court clarified that this was not a requirement of unanimity.[3]

Notwithstanding these holdings, the amending formulas in Part V of the Constitution Act, 1982 create two sets of vetoes.[4] First, all constitutional amendments (except those to provincial constitutions, which provinces can amend unilaterally under section 45) require the consent of the federal government, giving it a ‘veto’ over constitutional change. Second, amendments covered by the ‘unanimity formula’ in section 41 require unanimous provincial consent. The scope of the unanimity formula, albeit important, is somewhat limited. However, section 41 has been amplified in importance by the practice, both during the Quebec and Canada Rounds, of bundling packages of constitutional amendments that trigger different amendment formulas. In the Quebec Round, it was widely accepted that the individual amending formulas operated cumulatively to all the amendments in a package, so that one amendment requiring unanimity would require unanimous consent for the package as a whole. It is argued by some that the growth of ‘mega-constitutional politics’, which makes such packages the norm, has accordingly rendered the amendment of the Constitution exceedingly difficult, and perhaps impossible.[5]

[1] Katherine Swinton, “Amending the Canadian Constitution: Lessons from Meech Lake” (1992) 42:2 UTLJ 139 at 141, n 10.

[2] Re Resolution to amend the Constitution, [1981] 1 SCR 753, 1981 CanLII 25 (SCC).

[3] Reference re Amendment to the Canadian Constitution, [1982] 2 SCR 793, 1982 CanLII 218 (SCC).

[4] Constitution Act, 1982, ss 38-49, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[5] For this paragraph, see generally: P Russell, Constitutional Odyssey, 2d ed (Toronto: University of Toronto Press, 1993).

What is Jordan’s Principle?

Jordan’s Principle is a principle that puts First Nations children’s needs first.[1] The goal of the principle is to ensure that First Nations children can access public services that are available to all other children without denial or delays.[2] If a government service is available to all other Canadian children, but a dispute arises within or between federal and provincial governments regarding payment for services to a First Nations child, the government department of first contact pays for the services and can seek reimbursement from the other government or department after the child has received the service.[3]

Origins of the principle

The principle is named in memory of Jordan River Anderson (October 22, 1999 – February 2, 2005).[4] Jordan, a First Nations child from Norway House Cree Nation, was born in Manitoba with a serious medical condition.[5] After spending the first two years of his life in a hospital, Jordan was ready to go to a specialized foster home.[6] However, because he was First Nations, for the next two years, Indigenous and Northern Affairs Canada, Health Canada, and the Province of Manitoba argued over who should pay for his at-home care.[7] In the meantime, Jordan remained in the hospital while the government departments continued to argue over the expenses. Sadly, in February 2005, he passed away at the age of five having spent his entire life in hospital.[8]

Jordan River Anderson’s case was not an isolated incident. A 2005 report published by the First Nations Child and Family Caring Society of Canada surveyed 12 First Nations agencies which indicated that during that past year alone, they had 393 experiences with various government departments disputing payment for services to a First Nations child.[9] Each dispute required an average of 54.25 hours for social workers to resolve.[10] Based on these findings, the report recommended that the federal government immediately adopt what the report named as Jordan’s Principle.[11]

Further to this recommendation, the motion to adopt Jordan’s Principle was unanimously passed by the House of Commons on December 12, 2007.[12]

[1] First Nations Child & Caring Society of Canada, “Jordan’s Principle”, online: <fncaringsociety.com/jordans-principle>.

[2] Ibid.

[3] First Nations Child and Family Caring Society of Canada v Attorney General of Canada (for the Minister of Indian and Northern Affairs), 2017 CHRT 14, at para 2 .

[4] Supra note 1.

[5] Ibid.

[6] FNCFS, supra note 3 at para 1.

[7] Ibid.

[8] Ibid.

[9] First Nations Child and Family Caring Society of Canada, “Wen: De We are Coming to the Light”, online: <cwrp.ca/sites/default/files/publications/en/WendeReport.pdf> at 17.

[10] Ibid.

[11] Ibid.

[12] FNCFS, supra note 3 at para 2.

This article was written by a law student for the general public.

The Constitution is Canada’s supreme law. The rules written in the Constitution are superior to all other laws in the country. However, it may be surprising to learn that Canada’s Constitution is composed of both written rules and unwritten principles. This article looks at Canada’s unwritten constitutional principles.

Justification for Unwritten Principles

A constitution must contain a complete legal framework of rules and principles in order to endure over time.[1] According to the Supreme Court of Canada, unwritten constitutional principles are necessary because Canada’s written Constitution does not deal with every problem or situation that could arise.^[2]

Unwritten principles are rooted in Canada’s constitutional history. The preamble to Canada’s Constitution says that Canada “is to have a Constitution similar in principle to that of the United Kingdom.” This means that Canada’s Constitution “was meant to continue the constitutional principles from the United Kingdom.”[3] The United Kingdom’s Constitution is comprised of written and unwritten components.

Where Do Unwritten Principles Come From?

Canada’s unwritten constitutional principles come from a number of sources. According to the Supreme Court of Canada, unwritten principles come from an understanding of the constitutional text itself, the Constitution’s historical context, and previous court interpretations of constitutional meaning.[4]  The Supreme Court has identified unwritten constitutional principles in various cases from those sources.^[5]

Nature of Unwritten Principles

Unwritten principles are the implied and unstated assumptions of the Constitution.[6] The Supreme Court of Canada has said that Canada’s Constitution has an internal architecture, and that all of the individual elements of the Constitution are linked together.[7] Unwritten principles are part of the internal architecture of the Constitution, and are as much a part of the Constitution as any of its written provisions.[8] All of the unwritten principles are interdependent, which means they are all related to one another, and cannot be used to trump each other.

Unwritten principles help the courts interpret the Constitution. They can be used to determine the “scope of rights and obligations, and the role of our political institutions.”[9] Since the written part of the Constitution cannot deal with every situation, unwritten principles help fill gaps in the written text.[10] The Court’s job is to interpret and apply unwritten principles to a particular constitutional problem.

For example, the written Constitution contains provisions that protect the judicial independence of superior courts, but it does not mention the same protections for provincial courts. Therefore, the written Constitution contains a “gap.” The Supreme Court of Canada has held that since judicial independence is an unwritten constitutional principle, it must apply to all courts. Therefore, the unwritten principle of judicial independence fills the gap in the written Constitution so that the independence of provincial courts is also protected.^[11]

Unwritten principles can be used to interpret the Constitution so that it evolves to address new circumstances that the written rules do not address.[12] In this way, using unwritten principles is consistent with the idea of the Constitution as a “living tree.” In 1929, Canada’s highest court at the time declared that the word “persons” in the Constitution includes women, and not just men. In the decision, Lord Sankey stated that the Constitution “planted in Canada a living tree capable of growth and expansion within its natural limits.”[13] Since unwritten principles can be used to interpret the Constitution so that it can adapt to circumstances that weren’t originally contemplated when it was written, they are part of the process of constitutional evolution.[14]

Unwritten principles also have legal force. This means the principles can create general or specific legal obligations, and impose limitations on government action.[15] For example, the Supreme Court has ruled that if a “clear majority” of Quebecers votes in favour of seceding from Canada, then unwritten constitutional principles require provincial and federal governments to negotiate the terms of that secession. The unwritten principles referred to in that case were democracy, constitutionalism and the rule of law, respect for minorities, and federalism.

Finally, the written text of the Constitution is the primary authority. Unwritten principles cannot be used to trump the written Constitution.[16] For example, the Constitution requires that an accused person is entitled to legal representation. In one Supreme Court case, the plaintiff argued that the unwritten principle of the “rule of law” guarantees the right to have a lawyer before any court or tribunal. The Supreme Court disagreed. Though the Constitution mandates a right to legal representation in some circumstances – criminal law – the unwritten principle of the “rule of law” does not impose a “general constitutional right to counsel.” [17] 

Some Existing Unwritten Principles

Conclusion

Unwritten constitutional principles are an essential part of Canada’s Constitution. They are rooted in Canada’s history, and can be used to help interpret the Constitution to adapt to new circumstances. Most important, unwritten constitutional principles have legal force. As Canada’s cultural and political landscape changes over time, unwritten constitutional principles will continue to play a vital role in ensuring that the Constitution is robust and responsive to current realities.

What is the duty to consult?

The duty to consult is a constitutional obligation that the Crown (federal, provincial, and territorial governments) has towards Aboriginal peoples.[1] The duty arises when the Crown knows or should know of a potentially existing Aboriginal or treaty right, and the Crown is contemplating conduct that might negatively affect that right.[2] In some instances, where the duty is triggered, the Crown will be obligated to accommodate the Aboriginal peoples.[3]

The courts are tasked with determining whether the government has fulfilled its duty to consult in any given case.[4] Where the government does not fulfill its duty, potential remedies can include a court ordering the government to stop the threatening activity, awarding damages, or ordering the government to carry out consultation with the groups affected prior to proceeding further.[5]

Where does the duty come from?

The Supreme Court of Canada established the duty to consult in the case of Haida Nation v British Columbia (Minister of Forests) in 2004.[6] The duty is rooted in the honour of the Crown – the constitutional principle that the Crown must act honourably in its dealings with Aboriginal peoples.[7] “This principle is in turn enshrined in section 35(1) of the Constitution Act, 1982, which recognizes and affirms existing aboriginal and treaty rights”.[8]

The honour of the Crown and section 35(1) require honourable negotiations leading to the just settlement of Aboriginal claims.[9] According to the Supreme Court, this implies that there is a constitutional duty to consult.[10]

Who owes the duty?

Only the Crown has a duty to consult with Aboriginal peoples.[11] The Crown can rely on regulatory agencies such as the National Energy Board to fulfill its duty, but only “procedural aspects” of consultation can be delegated to private parties.[12] For example, an energy delivery company seeking government approval on a pipeline can provide, obtain, and discuss information about the proposed project with affected Aboriginal communities – that would be considered “procedural aspects” of consultation.[13] Regardless of private or third party involvement, ultimately it is the Crown that is legally responsible for ensuring that affected Aboriginal communities are adequately consulted with or accommodated.[14]

The level of consultation varies case by case

The government has a duty to consult with Aboriginal peoples even before a right or title is proven.[15] This protection is necessary because negotiating treaties or proving Aboriginal rights is a lengthy process, potentially taking decades, and activities such as mining or logging could diminish the value of the Aboriginal interests in the meantime.[16]

The level of consultation or accommodation required falls on a spectrum based on two factors:[17]

1. The strength of an Aboriginal group’s claim to a right or title; and
2. The seriousness of the negative effects on the right or title.

The stronger the claim to a right or title is and the greater the negative effects are on their interests, the more consultation and potentially, accommodation is required between the Crown and Aboriginal groups.[18]

For example, on the lower end of the spectrum, the Crown may only be required to notify, give information, and discuss issues with the affected group.[19] On the higher end, the Crown may be required to allow the affected group to propose ideas for consideration or to participate in the decision-making process.[20] The Crown may have a duty to accommodate if the consultation with the Aboriginal group suggests a need for the Crown to adjust its plans, for example by changing the location of a proposed road.[21] Every case is approached individually and flexibly.[22]

The duty to consult does not create a veto power

The Crown’s duty to consult does not give Aboriginal groups a veto on government decisions.[23] The duty is fulfilled as long as the government has made a reasonable effort to provide meaningful consultation.[24]

For example, in the case of Taku River Tlingit First Nation v British Columbia (Project Assessment Director), the Supreme Court of Canada determined that the province of British Columbia fulfilled its duty to consult and accommodate with the Taku River Tlingit First Nation (“TRTFN”), despite being unable to reach an agreement about a road building project.[25] The proposed road ran across traditional TRTFN territory and had potentially negative impacts on the wildlife and also affected the TRTFN’s ability to use the resources in the area.[26]

The Supreme Court concluded that the province fulfilled its duty because the environmental assessment process required by British Columbia’s Environmental Assessment Act provided meaningful consultation with the affected group.[27] The Act gave the TRTFN a large role in the environmental assessment process, their concerns were presented to the Ministers who approved the project, and the ultimate approval contained measures to address their concerns.[28]

The legal framework for the duty is still developing

The legal framework for the duty to consult continues to evolve as case law develops. Meanwhile legal uncertainties still remain.[29] For example, there is still uncertainty regarding what degree of consent is required within Aboriginal communities during the consultation process, which can be a problem when there is internal conflict within a community, for example.[30] Also, it is unclear what the effect of Canada and Alberta implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – which references the need to obtain “free and informed consent prior to the approval of any project affecting [Indigenous peoples’] lands or territories and other resources” – will be on the duty.[31] The duty to consult is a relatively recent development in law and will only continue to develop as cases arrive before the courts.

Critiques of the duty to consult

The duty to consult is a controversial doctrine which has numerous critics. One common critique is that the scope of the duty is too vague, and that the SCC’s cautious approach in outlining its parameters, in favour of a flexible assessment, allows governments to act and then later argue that they have satisfied their obligations without any objective criteria.[32]

Another criticism holds that the duty to consult is an ineffective tool for achieving reconciliation between the Canadian state and Indigenous Peoples. Reconciliation requires “building new relationships of mutual benefit and respect between the Aboriginal peoples and the Crown,”[33] and some have argued that while the duty to consult may influence certain aspects of Crown decision making, it often reduces the obligation to a “technical exercise” which ignores the importance of relationship building.[34]

[1] R v Kapp, 2008 SCC 41 at para 6.

[2] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35 .

[3] Ibid at para 47.

[4] Peter W Hogg, Constitutional Law of Canada, vol 1, 5th ed (Scarborough: Thomson, 2007) (loose-leaf 2010 supplement) at 28.8(j) .

[5] Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 37.

[6] Hogg, supra 4 at 28.8(j).

[7] Haida, supra note 2 at para 16. Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 42.

[8] Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 19 .

[9] Haida, supra note 2 at para 20. Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 at para 24 .

[10] Haida, supra note 2 at para 20.

[11] Ibid at para 53.

[12] Ibid; Clyde River, supra note 8 at paras 21-22.

[13] British Columbia, Environmental Assessment Office, Guide to Involving Proponents when Consulting First Nations in the Environmental Assessment Process, December 2013 at 4.

[14] Haida, supra note 2 at 53.

[15] Hogg, supra 4 at 28.8(j).

[16] Ibid.

[17] Haida, supra note 2 at para 39.

[18] Ibid.

[19] Ibid at para 43.

[20] Ibid at para 44.

[21] Ibid at para 47.

[22] Ibid at para 45.

[23] Ibid at para 48.

[24] Ibid at paras 42, 62.

[25] Taku, supra note 9 at para 22.

[26] Taku River Tlingit First Nation et al v Ringstad et al, 2000 BCSC 1001 at para 4.

[27] Taku, supra note 9 at para 2.

[28] Ibid at para 22.

[29] Malcolm Lavoie, “The Northern Gateway Pipeline and the purpose of ‘duty to consult’” (27 July 2016), The Fraser Institute Blog, online: <www.fraserinstitute.org/blogs/the-northern-gateway-pipeline-and-the-purpose-of-duty-to-consult>.

[30] Martin Olszynski, “The Duty to Consult and Accommodate: An Overview and Discussion” (June 2016), online: <law.ucalgary.ca/files/law/duty-to-consult-and-accomodate-olszynski.pdf> at 48.

[31] Ibid at 25.

[32] Derek Inman, Stefaan Smis & Dorothee Cambou, “’We Will Remain Idle No More’: The Shortcomings of Canada’s ‘Duty to Consult’ Indigenous Peoples” (2013) 5:1 Goettingen J Intl L 253 at 284-285.

[33] Rachel Ariss, Clara MacCallum Fraser & Diba Nazneen Somani, “Crown Policies on the Duty to Consult and Accommodate: Towards Reconciliation” (2017) 13:1 McGill J Sust Dev L 1 at 7.

[34] Ibid at 50-51.

One of the heads of power allocated to the federal government in the Constitution Act, 1867, s. 91(2). Comparable to the federal power in the United States Constitution to "regulate commerce with Foreign nations, and among the several States," the power to regulate trade and commerce was considered one of the broadest powers available to the federal government to regulate economic activity. It was out of concern that the federal power over trade and commerce would render meaningless provincial authority over property and civil rights, that Courts narrowed the scope of this federal power. In an early decision of the Judicial Committee of the Privy Council (1881), the federal power was limited to the regulation of foreign trade, interprovincial trade and, perhaps, the "general regulation of trade affecting the whole dominion." But federal power did not extend to the regulation of the contracts of a particular business or trade as such regulation fell exclusively under provincial control. In subsequent decisions, courts would not recognize the federal power to regulate trade generally. The modern Supreme Court of Canada has sanctioned use of this branch of the federal power. The Court upheld a federal law which provides a civil cause of action for breach of the federal Combines Investigation Act. It has been argued by at least one scholar in Quebec that such an interpretation of the federal power by the Supreme Court amounts to a radical reinterpretation and expansion of federal power.

See Smith (1963); Swinton (1990).

Sources:

• McGilp. Ian (1992) The Distinct Society Clause and the Charter of Rights and Freedoms (North York: York University Centre for Public Law and Policy).
• Smith, Alexander (1963) The Commerce Power in Canada and the United States (Toronto: Butterworths).
• Smith, Lynn (1989) "Could the Meech Lake Accord Affect the Protection of Equality Rights for Women and Minorities in Canada?" Constitutional Forum 1(2): 12, 17-20.
• Swinton, Katherine (1990) The Supreme Court and Canadian Federalism: The Laskin-Dickson Years(Toronto: Carswell).
• Trudeau, Pierre Elliot (1988), "Say Goodbye to the Dream of One Canada" in Roger Gibbins, Howard Palmer, Brian Rusted and David Taras, eds., Meech Lake and Canada: Perspectives From the West (Edmonton: Academic Printing and Publishing).

The double aspect doctrine is a tool of constitutional interpretation used when both levels of government have an equally valid constitutional right to legislate on a specific issue or matter. Double aspect represents the modern notion of co-operative federalism, which abandons the out-dated idea that every subject matter falls under the exclusive control of either the federal or provincial government.[1]

Double aspect fosters respect for the decisions of the elected legislatures of both levels of government. As the name indicates, the double aspect doctrine acknowledges that both Parliament and the provincial legislatures can pass valid legislation relating to the same subject depending on the aspect from which the subject is being approached.[2]

One example of this doctrine at work is in Multiple Access v McCutcheon, a 1982 case that dealt with insider trading in Ontario.[3] Both levels of government passed legislation to combat insider trading: the federal government passed legislation dealing with federally regulated corporations, while Ontario’s legislation focussed on the actual acts of insider trading. The provinces could claim the power to do this through their constitutional powers over property and civil rights, which includes securities trading such as what was occurring in this case. The federal government had an equally strong jurisdictional claim through its ability to regulate for the peace, order and good government of Canada. The Supreme Court of Canada (SCC) ruled that both pieces of legislation were valid because they dealt with different aspects of the same problem that fell within the constitutional powers of the enacting legislature.

Another, more recent, example is in References re Greenhouse Gas Pollution Pricing Act.[4] The double aspect doctrine was discussed at length in the GGPPA Reference, where the SCC was tasked with deciding whether the federal government’s plan to establish a national pricing system for greenhouse gas emissions was valid law under the national concern branch of its peace, order and good government (POGG) power. The 6-3 majority found that the double aspect doctrine can apply when federal jurisdiction is grounded in POGG, but whether it does will depend on the facts of the case.[5] The SCC noted that this approach conforms to the modern approach to federalism, which favours flexibility and a degree of overlapping jurisdiction.[6] The doctrine should be applied cautiously, however, to avoid “eroding the importance attached to provincial autonomy.”[7] The federal law in this instance only imposed a minimum national standard, and allowed the provinces to legislate above it – the federal and provincial laws apply concurrently, but the federal law is paramount. In cases such as this, to ensure the protection of provincial autonomy, the court must be satisfied that there is a “compelling interest” in enacting rules over the federal matters which interact with provincial ones, and that “multiplicity of aspects is real and not merely nominal.”[8]

[1] Peter W Hogg & Wade Wright, Constitutional Law of Canada, 5th ed (date accessed 30 December 2021), (Toronto: Thomson Reuters Canada), ch. 15, § 15:7. Thomson Reuters ProView.

[2] Ibid.

[3] Multiple Access v McCutcheon, [1982] 2 SCR 161, 1982 CanLII 55 (SCC).

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

[5] Ibid at para 126.

[6] Ibid.

[7] Ibid at para 128.

[8] Ibid at para 131.

Canada’s Constitution divides the power to tax between Parliament and the provincial legislatures. Parliament has power to tax “by any Mode or System of Taxation.” This power includes ‘indirect taxation’. The legislatures, by contrast, are limited to “Direct Taxation within the Province.”[1]

Indirect taxes are imposed in one area of the economy with the expectation that the taxpayer will pass it on to another sector. For example, taxes imposed on manufacturing are the classic instance of indirect taxes. The legislature expects that the manufacturer will pass the tax on to the consumer by building it into the cost of the good sold. Direct taxation is expected to be paid by the taxpayer on whom it is first imposed; it is not expected to be passed on. Accordingly, direct taxation is thought to be more visible to the ultimate taxpayer and, politically, harder to get enacted. This was the nineteenth century economic theory behind the division of taxing powers.[2]

The Constitution requires that Bills imposing taxes must originate in the House of Commons and be preceded by a royal recommendation. This is a means of insuring that the elected chamber and a Cabinet Minister will take primary responsibility for taxation. The Constitution also prohibits Parliament and the legislatures from using their powers to tax lands or property belonging to each other.[3]

Parliament and the legislatures may also raise money by charging fees for their services, and by imposing costs incidental to regulation, such as licencing fees. These charges are not taxation. So, they are not restrained by the constitutional requirements to originate in the House of Commons, be preceded by a royal recommendation, and, in the case of the provincial legislatures, be “direct”. To be considered non-tax service charges or regulatory measures, levies must pursue a proper regulatory purpose that is anchored in some grant of constitutional power to the enacting legislative body, other than the taxing powers. The difference between taxes and these other charges is that taxes may be pure revenue raising measures. Regulatory charges, by contrast, usually are imposed to defray the expenses of the regulatory scheme, as, for example, a marketing board imposing the costs of its operation on the regulated producers or a municipality charging for snow removal. Unlike taxes, regulatory charges that are not taxes may originate in the Senate, do not require a royal recommendation, and, if imposed by a provincial legislature, may be indirect.[4]

[1] Constitution Act, 1867 (UK), 30 & 31Vict, c 3, s 91(3), 92(2), reprinted in RSC 1985, Appendix II, No 5.

[2] John Stuart Mill, Principles of Political Economy with some of their Applications to Social Philosophy, 7th ed by William J Ashely (London: Longmans, Green and Co, 1909), Bk V, Ch 3.

[3] Constitution Act, 1867, supra note 1 at ss 53(4), 125.

[4] See generally: Joseph Elliot Magnet, “The Constitutional Distribution of Taxation Powers in Canada,” (1978) 10:3 Ottawa L Rev 473.

‘Tax points’ came to prominence with the Federal-Provincial Fiscal Arrangements Act of 1961 (see the current Federal-Provincial Fiscal Arrangements Act, R.S.C. 1985, c. F-8.) when the federal and provincial governments converted from the tax rental arrangements (which originated during World War II) to separate federal and provincial personal and corporate income taxes (PIT and CIT). The federal government reduced its personal and corporate incomes taxes to make room for the newly established provincial taxes. The federal PIT abatement started at sixteen percent of the Basic Federal Tax (BFT) payable. PIT tax points are measured as a percentage of BFT and as of 2001, provincial personal income tax rates have been expressed as a percentage of the BFT. The federal CIT abatement was initially 9 percent of corporate taxable income (not tax payable, as with the PIT). With the federal abatement, the provinces introduced their own taxes at offsetting or higher rates.

‘Tax points’ took on a renewed relevance with the Federal-Provincial Fiscal Arrangements of 1977, when the federal transfer programs in support of health-care and post-secondary education were converted from cost sharing to a block transfer under the new Established Program Financing (EPF) transfer. EPF funding to the provinces was a combination of cash transfers and tax point transfers that would provide each province the same per capita support for health care and post secondary education. The value of the tax abatement, which made room for increased provincial taxes, varied by province and the cash payment made up the difference to the uniform per capita amount. Although the provinces raised the additional taxes from the federal abatement to support the EPF programs themselves, the federal government counted that revenue as part of the federal transfer. That practice continued with the conversion of the EPF and the federal Canada Assistance Plan (CAP) into the new Canada Health and Social Transfer (CHST) in 1996. That is, the cash transfer to each province under the CHST is affected by the provincial revenue generated from the federal tax abatement originating with the EPF transfers.

Sources:

• P.A.R. Hobson & F. St-Hilaire, “The Evolution of Federal-Provincial Fiscal Arrangements: Putting Humpty Together Again” in H. Lazar, ed., Towards a New Mission Statement for Canadian Fiscal Federalism (Kingston: Institute of Intergovernmental Relations, Queen’s University, 2000) 159.
• D.B. Perry, Financing the Canadian Federation, 1987 to 1995: Setting the Stage for Change (Toronto: Canadian Tax Foundation, 1997).
• J.H. Perry, A Fiscal History of Canada -- The Postwar Years (Toronto: Canadian Tax Foundation, 1989).
• J.C. Strick, The Public Sector in Canada (Toronto: Thompson Educational Publishing, 1999).

What is the Doctrine of Paramountcy?

In Canada, the doctrine of paramountcy is a constitutional tool that helps resolve conflicts between federal and provincial laws. Under this doctrine, a provincial law that conflicts with a federal law will be inoperative to the extent of the conflict.^[1] This means the federal legislation takes precedence over the provincial. While the provincial law will remain valid, the portion of it that conflicts with federal law will cease to apply for as long as the conflict exists. This inapplicable portion can become operative again if the federal law is amended in the future to resolve the conflict.

When is the Doctrine Applied?

When there is an apparent conflict between federal and provincial laws, courts use a two-step test to determine if the doctrine of paramountcy applies.

Step 1: Are both laws valid?

The first step is to establish whether both laws are valid. To do this, courts will ask: “[D]oes the ‘matter’ (or pith and substance) of … [each] law come within the ‘classes of subjects’ (or heads of power) allocated to the enacting Parliament or Legislature?”^[2]

This means that validity is determined:

1. By characterizing the law’s essential character — or “pith and substance” — by considering its purpose and its legal and practical effects.^[3]
2. By checking if the “pith and substance” is within the particular government’s jurisdiction. Note: The Constitution Act, 1867 lists different matters and specifies which level of government — federal or provincial — has jurisdiction over them. Despite the existence of these lists, it can sometimes be difficult to determine which level of government has jurisdiction to legislate on a given matter; however, this is beyond the scope of this key term (see here for more).

Step 2: Is there a conflict?

The test’s second step asks whether there is actually a conflict between the federal and provincial laws. There must be a conflict between federal and provincial legislation for the doctrine of paramountcy to apply.^[4]

In Canadian constitutional law, federal and provincial laws can conflict in several different ways. For example, in some cases, federal and provincial laws will be in operational conflict, where dual compliance — following both laws — is impossible.^[5] This is known as an “express contradiction.”^[6]

In other cases, a conflict will exist because the provincial law frustrates the purpose of the federal law.^[7] For example, in Law Society of BC v Mangat,^[8] a provincial law prohibited people from obtaining non-lawyers as their counsel, while a federal law allowed parties to be represented by non-lawyers. Although dual compliance with both laws was possible, the provincial legislation defeated the purpose of the federal legislation: to allow for inexpensive and accessible counsel. The provincial law was accordingly held to be inoperative.

If both the federal and provincial laws are valid, and there is a conflict between them, then the doctrine of paramountcy applies and renders the provincial law inoperative to the extent of the conflict. If a conflict does not exist, the doctrine does not apply and both laws will remain operational.

Another key example of the paramountcy doctrine in action is the case of Multiple Access Ltd v McCutcheon.^[9] In McCutcheon, the provincial law duplicated federal law to protect companies against insider trading. Both laws were valid — under the Constitution Act, 1867, provinces can legislate on matters relating to property and civil rights,^[10] and the federal government can legislate on matters of trade and commerce.^[11] It was also possible to follow both laws, so the Supreme Court of Canada did not apply the doctrine of paramountcy. Instead, the court applied the double aspect doctrine, allowing both levels of government to legislate on the issue.

[1] Rothmans, Benson, & Hedges Inc v Saskatchewan, 2005 SCC 13 at para 11.

[2] Ibid.

[3] R v Morgentaler, [1993] 3 SCR 463, 107 DLR (4th) 537.

[4] Smith v The Queen, [1960] SCR 776, 25 DLR (2d) 225.

[5] Ibid.

[6] Peter Hogg, “Paramountcy and Tobacco” (2006) 34 SCLR 335 at 337.

[7] Ibid.

[8] Law Society of British Columbia v Mangat, 2001 SCC 67

[9] Multiple Access Ltd v McCutcheon, [1982] SCR 161, 138 DLR (3d) 1.

[10] The Constitution Act, 1867, 30 & 31 Victoria, c 3, s 92(13).

[11] Ibid, s 91(2).