Distinct Society

The 1967 Commission on Bilingualism and Biculturalism described Canada as being constituted of “two great distinct cultures” — English and French — with a “distinct society” residing in Quebec and an “English-speaking society” in the Rest of Canada (ROC).[1] The phrase entered constitutional negotiations as early as 1970, but came to prominence when the recognition of Quebec as a distinct society was included as one of five conditions for Quebec’s participation in constitutional talks in 1985. The 1987 Meech Lake Accord proposed a distinct society clause be included in the body of the constitution,[2] while the 1992 Charlottetown Accord proposed a similar clause in the constitution’s preamble.[3] Both versions would have operated as interpretive clauses. Concerns were expressed that the clause would confer special status on Quebec and undermine the Canadian Charter’s equality rights.

As to the first concern, both proposals expressly provided that no additional powers were to be accorded to Quebec under the division of powers by virtue of the clause. Instead, courts would have been expected to use the distinct society clause as an aid to interpretation in constitutional disputes between the federal and provincial governments.[4]

The second concern, that a distinct society clause would undermine rights guaranteed under the Charter, was based on the fear that Quebec wished to limit Charter rights and freedoms without having to resort to the notwithstanding clause.[5] It was believed that a distinct society clause would have made courts hesitant to find language laws, and other laws designed to promote Quebec’s distinctive language and culture, inconsistent with Charter freedoms. It should be understood, however, that the Supreme Court of Canada took into account Quebec’s distinctiveness, without a distinct society clause, when it ruled in 1988 that Quebec’s commercial sign law was contrary to the Quebec and Canadian Charter guarantees of freedom of expression.[6]

In 2006, the Conservative Government under Prime Minister Harper, passed a resolution in the House of Commons which recognized that “the Quebecois form a nation within a united Canada.”[7] The resolution passed with overwhelming support, unlike a similarly worded resolution in 1995 (which was presented as a response to the close result in the Quebec Referendum). The 2006 resolution was not a constitutional amendment, or even a statute, and does not confer any special legal status on Quebec.[8]

[1] Canada, Royal Commission on Bilingualism and Biculturalism, Report of the Royal Commission on Bilingualism and Biculturalism, book 1 (Ottawa: Privy Council Office, 1967) at para 43.

[2] “The Meech Lake Accord” (2003) 30:1 Man LJ 39 at 39.

[3] “Charlottetown Accord: Document” (7 February 2006) at s 2(1)(c), online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/charlottetown-accord-document>.

[4] Richard Simeon, “Meech Lake and Shifting Conceptions of Canadian Federalism” (1988) 14 (Supplement) Can Pub Pol’y S7 at S12, S21.

[5] Troy Q Riddell and FL Morton, “Reasonable Limitations, Distinct Society and the Canada Clause: Interpretive Clauses and the Competition for Constitutional Advantage” (1998) 31:3 Can J Political Science 467 at 485-86.

[6] See: Ford v. Quebec (Attorney General), [1988] 2 SCR 712, 1988 CanLII 19 (SCC).

[7] Peter W Hogg & Wade Wright, Constitutional Law of Canada, 5th ed (date accessed 1 January 2022), (Toronto: Thomson Reuters Canada), ch. 5, § 5:4. Thomson Reuters ProView.

[8] Ibid.

Supremacy of Parliament

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

Democracy is known as “government by the people”. Representative democracy acknowledges that it is impossible to have every decision made by multitudes of individuals, and it therefore creates various institutions to make laws and other decisions required in the day-to-day life of the state. The two main models of representative democracy – parliamentary democracy and constitutional democracy – differ in their institutional design.

In a parliamentary democracy, the Parliament is supreme and no other governmental institution has the power to nullify its laws. If a citizen finds a certain law repugnant, his only option is to mobilize a change in Parliament (for example, by campaigning in favour of a certain issue or by joining a political party), such that Parliament changes that law. There is nothing a citizen can do against a law that is believed to have violated his rights other than push for political change.

In a constitutional democracy, Parliament is not omnipotent. Its powers are constrained by the Constitution. In most constitutional democracies, if a citizen believes that a certain law violates a certain provision in the Constitution, she can file an action in a court of law. Courts have the power of judicial review on the constitutionality of legislation. If the court finds that the law does indeed violate the Constitution, it can strike the law down.

Prior to 1982, Parliamentary supremacy reigned in Canada. The British North America Act set the division of powers between Parliament and the provincial legislatures where each legislature was supreme such that, within its jurisdiction, no other institution had the power to declare its laws unconstitutional. This situation changed in 1982 with the adoption of the Canadian Charter of Rights and Freedoms as part of theConstitution Act, 1982. This Act prescribes that “the Constitution of Canada is the supreme law of Canada” (s.52). Thus constitutional supremacy replaced Parliamentary supremacy in Canada. Consequently, if Parliament or any provincial legislatures now enact a law which violates a section of the Charter, a court has the power to strike this legislation down.

Some commentators argue however, that since s. 33 of the Charter, the notwithstanding clause, allows Parliament and the provincial legislatures to override certain provisions of the Charter, Canadian legislatures are still partially supreme.

Sui Generis

Sui generis is a latin phrase used in many different contexts and is generally used when referring to something that possesses unique characteristics that are not easily categorized. In the context of Canadian Aboriginal law, sui generis is a legal term describing the relationship between the Government (the Crown) and the Aboriginal peoples of Canada in relation to Aboriginal title, rights, and treaties.[1] These rights and relationships are “unique,” “one of a kind,” or “in their own class.”[2] This is due both to the unique place of these rights and relationships in Canadian law and the source of the rights, since Aboriginal peoples occupied Canada prior to settlement by Europeans.[3]

Development of the Term

The first use of the term appeared in the Supreme Court of Canada decision Guerin v The Queen.[4] Guerin is a decision about a lease that the Crown granted to a developer on traditional Aboriginal land. Sui generis was used to describe the special kind of fiduciary relationship between the Crown and Aboriginal peoples. A fiduciary relationship generally occurs when one group or person is required to act in another's interest in the context of that relationship. In the context of the relationship between the Crown and Aboriginal peoples, the Supreme Court defined that relationship in two ways. First, if Aboriginal groups wanted to give up their interests in land, they could only do so to the Crown.  Second, the surrender of land by an Aboriginal band to the Crown created an obligation on the Crown to hold the land for the use and benefit of that band.[5]

Sui Generis Today

Today, the term is used to describe Aboriginal-Crown relationships and rights in many similar contexts. For example, In R v Sparrow,[6] the Supreme Court ruled that this fiduciary duty was the guiding principle for the interpretation of Aboriginal and treaty rights in section 35(1) of the Constitution Act, 1982.[7] As that section is the part of the Constitution that recognizes and affirms Aboriginal rights and title in Canada, sui generis is now commonly used to describe Aboriginal title, rights, and treaties.

In another example, Aboriginal title is described as sui generis in that:

The term is also used to describe Aboriginal rights[9] and treaties,[10] among other legal interests. Over time, sui generis has become a catch-all term for describing different legal rights and interests held by Aboriginal peoples in Canada.

[1] Peter W Hogg, Constitutional Law of Canada, 2012 Student ed (Toronto: Carswell 2012) at 28-31.

[2] John Borrows & Leonard Rotman, “The Sui Generis Nature of Aboriginal Rights: Does it Make a Difference?” (1997) 36 Alta L Rev 5.

[3] Delgamuukw v British Columbia, [1997] 3 SCR 1010, 1997 CanLII 302 (SCC) at para 114 .

[4] Guerin v The Queen, [1984] 2 SCR 335, 1984 CanLII 25 (SCC) .

[5] Ibid at p 387.

[6] R v Sparrow, [1990] 1 SCR 1075, 1990 CanLII 104 (SCC) .

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

[8] Delgamuukw, supra note 3 at paras 113-115.

[9] R v Van der Peet, [1996] 2 SCR 507, 1996 CanLII 216 (SCC).

[10] R v Sioui, [1990] 1 SCR 1025, 1990 CanLII 103 (SCC).

Dialogue Theory

What is ‘Dialogue Theory’?

‘Dialogue theory’ is a particular thesis that describes the relationship between the legislative and judicial branches of government. Put most simply, it is the idea that “Canadian legislators are engaging in a self-conscious dialogue with the judiciary.” This is an ongoing process that, over time, can result in a variety of responses.

Charter dialogue originated in Canada from the introduction of the Charter of Rights and Freedoms, 1982. According to this theory, interaction “resembles a tennis match between branches about the compatibility of the policies at stake with the bill of rights.” The judiciary’s role is to give meaning to constitutional text by determining a given law’s consistency with the Constitution and Charter. The government is then able to engage with court judgments and respond accordingly. Parliament may choose to re-work or abandon legislation altogether. Thus, legislative and judicial institutions participate in a dynamic exchange.

One of the ways dialogue can be measured is by looking at legislation that has been passed by Parliament and subsequently rejected by the Supreme Court. For example, from 1982 to 1995, Hogg, Thornton & Wright found 82% of laws struck down by the Court caused some sort of legislative response. Whether they were revisions, amendments, or scrapping of the bill altogether, lawmakers responded to what judges had to say.

Criticism

Dialogue theory is not without controversy. Criticism comes from the perception that dialogue is one-sided. For example, Hogg, Thornton & Wright found that legislation that went back to the drawing board was often re-drafted to reflect the same objective as the first attempt. In these cases, Parliament was perceived not to have fulfilled its end of the exchange; lawmakers neglected to listen to judicial advice. Further, because the 'notwithstanding clause' gives Parliament the final say for breaches of certain sections of the Charter, there is no guarantee that lawmakers will comply with judicial advice. This potential, along with decisions by Parliament that ignore Court decisions, undermine the theory that there is an ongoing dialogue.

Peter W Hogg & Allison A Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997) 35 Osgoode Hall LJ at 101.

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

Emmett Macfarlane, “Conceptual Precision and Parliamentary Systems of Rights: Disambiguating ‘Dialogue’” (2012) 17(2) Review of Constitutional Studies at 75.

 Charter, supra note 2; Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

 Peter W Hogg, Allison A Bushell Thornton & Wade K Wright, “Charter Dialogue Revisited – Or ‘Much Ado About Metaphors’” (2007) 25 Osgoode Hall LJ at 196. 

 Ibid.

 Section 33(1) of the Charter states that “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of  Charter.”

Subsidiarity

‘Subsidiarity’ is a jurisdictional principle regarding the distribution of competence between federal and sub-federal levels of government. The leading statement of this principle is Article 5 of the Treaty Establishing the European Community (Official Journal C 340), which states that "In areas that do not fall within its exclusive competence, the Community shall take action only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community". Although the principle of ‘subsidiarity’ is not found in the text of the Constitution Act, 1867, several commentators have been attracted to the principle because it appears to provide a principled and rational basis for allocating jurisdiction between the provincial and federal governments. It recognizes both the importance of provincial autonomy and the functional superiority, in certain circumstances, of federal jurisdiction.

Applied to Canada, the principle of ‘subsidiarity’ would imagine the federation as a scheme for mutual advantage, whereby the federal government only acts when the provinces cannot further their own interests through individual action. In this connection, there is a clear similarity between the principle of subsidiarity and the "provincial inability test" relied on by the Supreme Court of Canada to delineate the scope of federal jurisdiction under the national dimensions branch of the peace, order and good government power (see R. v. Crown Zellerbach Canada, [1988] 1 S.C.R. 401) and the general regulation of trade branch of the trade and commerce power (General Motors Canada v. City National Leasing, [1989] 1 S.C.R. 641). However, as a legal principle, a great deal turns on the identification of those circumstances in which provinces are unable to act. The debate here would be whether inability refers to a real constitutional inability on the part of provincial governments, or rather the functional criterion of the comparative institutional advantage of the federal government.

Sources:

Spicer Commission

The ‘Spicer Commission’, formally known as the Citizens’ Forum on Canada’s Future, was part of the Mulroney government’s efforts to lay the groundwork for the Charlottetown Accord. The Commission consisted of twelve prominent Canadians from across the country led by the former Commissioner of Official Languages, Keith Spicer. Starting in January 1991, the forum solicited briefs from organizations, held public hearings across the country, and urged Canadians to communicate their opinions in as many ways as possible. About 400,000 people in all availed themselves of the opportunity but only 11.2 percent of responses came from Quebec. The forum delivered its final report on 27 June 1991.

Unfortunately for the government, the most unanimous opinion revealed by the process was a general dislike and mistrust of the Prime Minister. On a number of general constitutional issues such as whether provincial or federal powers should be increased, deep divisions were apparent between Quebec and the rest of Canada. The forum unexpectedly revealed substantial public discontent with such settled policies as bilingualism and multiculturalism. The forum made a number of recommendations, most of which were bland and predictable: Senate reform, recognition of Quebec uniqueness, and recognition of Aboriginal rights. The recommendation for a constituent assembly was perhaps the most novel initiative. The failure of the Charlottetown process suggests that the Citizens’ Forum neither built consensus nor allayed public fears about constitutional change.

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Sovereignty-Association

‘Sovereignty-association’ is one manifestation of Quebec separatism. It calls for political independence and an ongoing economic partnership with Canada. Conceptualized by René Lévesque, ‘sovereignty-association’ was the centrepiece of the Parti Québécois' (PQ) secessionist platform during the years Lévesque led the party (1968-85). ‘Sovereignty-association’ was intended to increase the strength of the independence movement by calming fears that a political divorce from Canada would deliver tough economic times to the people of Quebec. Lévesque's political instincts were shrewd. In the 1970s Quebec public opinion polls consistently reported that people were more likely to support political independence if it included maintaining an economic partnership with Canada.

A mandate to negotiate ‘sovereignty-association’ was the subject of the 1980 Quebec referendum, the first Quebec referendum on sovereignty. Premier Lévesque sought majority support from Quebec voters to negotiate the terms of ‘sovereignty-association’ with Canada. The results of those negotiations would be put to the public in a second referendum.

In a 1979 position paper the PQ stated that sovereignty-association should include free trade between Canada and Quebec, common tariffs against imports, and a common currency. New joint Quebec-Canada political institutions were proposed to govern these economic arrangements. Various English Canadian political leaders declared that they would not negotiate an economic association with a sovereign Quebec. These declarations generally are conceded to have contributed to the decisive defeat the separatists suffered in the 1980 referendum.

In the 1990s, the idea that an economic association with Canada must be a condition of Quebec independence waned in popularity. The question posed in the 1995 referendum only stipulated that Quebec should offer a new economic and political partnership to Canada before declaring independence. Canada's acceptance was not a prerequisite for sovereignty. Unlike in 1980, the separatists lost this second referendum by the narrowest of margins (50.6 percent to 49.4 percent) (see secession).

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Delegation

Background

The constitutional distribution of powers (see division of powers) between the federal and provincial governments has, at times, made it difficult for either level of government to deal with certain issues. Inter-delegation — the delegation of federal power to the provinces or a provincial power to the federal government — was used in the 1930s and 40s as a solution to this problem.[1] In 1950 however, the Supreme Court of Canada found that such legislation was unconstitutional because it disturbs the distribution of powers in the British North America Act, now known as the Constitution Act, 1867.[2]

In 1960, the First Ministers reached a provisional agreement on a constitutional amendment to permit inter-delegation.[3] Under this amendment, Parliament would have been able to delegate its authority to make laws in any area of federal jurisdiction if at least four provinces agreed.[4] Conversely, four provinces could delegate legislative jurisdiction to Parliament over certain specified provincial matters.[5] But the 1960 plan was not implemented.[6] The agreement failed in 1964 when it was reintroduced at a First Ministers Conference because the government of Quebec reversed its position over other aspects of the proposed amendment.[7]

Inter-delegation: Delegating Legislative Authority Between Levels of Government

The constitutional position today remains as it was left in 1964. The delegation of federal legislative power to a province (or group of provinces) or of provincial legislative power to Parliament is unconstitutional.

Delegating Legislative Authority to Other Bodies

While delegation of powers between levels of government is constitutionally prohibited, there is no prohibition against delegating powers to a subordinate body. Parliament and the provincial legislatures may delegate lawmaking powers to entities such as the executive branch of government and bodies of their own creation, like administrative boards and tribunals.[8] Delegates must act within the limits of the authority delegated by Parliament or a provincial legislature.[9] Delegated power is subordinate and can be withdrawn.[10]

Parliament and provincial legislatures are able to delegate broad powers. For example, in 2021, the Supreme Court of Canada held in References re Greenhouse Gas Pollution Pricing Act that Parliament constitutionally delegated broad powers to the executive branch in the Greenhouse Gas Pollution Pricing Act (“GGPPA”).[11] The GGPPA exemplifies the breadth of powers that Parliament can delegate to the executive branch. The powers delegated by Parliament in the GGPPA include the power of the Governor in Council (i.e. the federal Cabinet) to determine whether provincial greenhouse gas pricing systems are sufficiently stringent.[12] Parliament also assigned the Minister of the Environment the power to designate a facility (upon request by the facility) as a “covered facility,” thus subjecting it to the regulatory charges found in Part 2 of the GGPPA.[13] This decision affirms the legislature’s power to make broad delegations of powers to the executive branch.

[1] Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) (loose-leaf updated 2019, release 1) at 14.3(a).

[2] See Nova Scotia (AG) v Canada (AG), [1951] SCR 31, 1950 CanLII 26; Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

[3] James Ross Hurley, Amending Canada’s Constitution: History, Processes, Problems and Prospects (Ottawa: Canada Communication Group, 1996) at 32.

[4] Ibid at 33.

[5] Ibid.

[6] Ibid at 34.

[7] Ibid at 34-35.

[8] Hogg, supra note 1 at 14.1(a).

[9] Ibid at 14.3(a).

[10] Ibid.

[11] References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at paras 83-88 ; Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 .

[12] GGPPA Reference, supra note 11 at para 27.

[13] GGPPA, supra note 11 at s 172.

Social Union

Social union is the dimension of the Canadian federation that emphasizes the social community shared by Canadians, focusing on such things as social justice, interregional and interpersonal equity, role of government in society, and the relationship between governmental provision of social services and programmes and Canadian identity. Reflective of more than simply a political union, Canadian citizenship is assumed to entail certain social rights and to imply core social policy entitlements. The collective provision of these social entitlements is commonly felt to be best achieved through national standards and principles, resulting from such mechanisms as federal unilateralism, federal-provincial cooperation, interprovincial agreement, or some combination thereof. A significant challenge for the Canadian social union lies in the federal nature of the Canadian state with its division of responsibility for social policies between federal and provincial governments.

Section 36 of the Constitution Act, 1982 provides some, arguably directive rather than-justiciable, constitutional recognition of government’s role in securing social and economic aspects of the Canadian union. Federal and provincial governments commit to the promotion of equal opportunities for the well-being of Canadians, the furtherance of economic development to reduce disparity in opportunities, and the provision of essential public services of reasonable quality to all Canadians. The section also expresses the federal government’s commitment to the principle of equalization payments to provincial governments to ensure reasonably comparable levels of public services across Canada. The Draft Legal Text of the Charlottetown Accord of August 28, 1992, had it been adopted, would have expanded this section to include, under the heading of The Social and Economic Union, a series of non-justiciable policy objectives for health care, social services and benefits, education, the rights of workers to organize and to bargain collectively, the goal of full employment, and a reasonable standard of living.

More recent federal/provincial negotiations have resulted in the February 4, 1999 document, "A Framework to Improve the Social Union for Canadians -- An Agreement between the Government of Canada and the Governments of the Provinces and Territories", issued by the provincial governments (with the sole exception of Quebec) and the federal government. The Agreement, while of limited legal status, expresses common political understandings and commitments respecting such matters as the values fundamental to the Canadian social union, the impact of provincial social programmes on citizen mobility, public accountability and procedural transparency of governmental social programmes, joint planning and consultation for social policy initiatives, the federal spending power, and intergovernmental dispute resolution and avoidance in the area of social policy.

Sources:

Declarations

A declaration is a statement made by a court clarifying the law, or the rights and obligations of one party to another. When a court makes a declaration, it simply ‘declares’ what the law is. It does not direct a party to take any particular action.

When people feel that a government action or a law has denied them their rights, or that a law contradicts a section of the Constitution, they may seek a declaration from the courts deciding the issue.

Constitutional Sources

The courts hold a traditional power to make declarations on any subject. In constitutional law, the courts use declarations as remedies against unconstitutional government action, or to clarify the meaning of the Constitution or a constitutional provision.

Two sections of the Constitution reinforce the courts’ ability to use declarations to protect the Constitution: sections 24(1)[1] and 52. Section 24(1) protects the courts’ ability to declare that the government has breached the Charter rights of an individual. Section 52 confirms that “The Constitution of Canada is the supreme law of Canada,” and any law inconsistent with its provisions is “of no force or effect.”[2] This confirms the courts’ ability to render a law invalid by declaring it unconstitutional.

Historical Significance

Declarations are important in non-constitutional law both historically and today. In the past, the law forbade people from suing the government for money.[3] This has since changed at both a provincial[4] and federal level.[5]

However, Canadians are still not able force the government to take specific actions through a lawsuit.[6] Instead, courts are to declare whether or not the government has acted legally.[7] If it has acted illegally, the government is expected to take steps to fix any problems it has caused, but the court does not instruct it on how to do so. Thus, unelected judges do not order an elected government to do anything, while the legally correct outcome still, eventually, follows.

Constitutional Application

Courts have stronger powers to compel the government to take specific actions to follow the Constitution. However, courts still generally prefer to rely on declarations. This is largely because governments must consider the will of the electorate when creating laws, and must balance many competing interests.[8] Courts thus prefer to declare a law or course of action to be unconstitutional, and allow the government and voters to decide on the best way to fix it.

If declaring a law to be unconstitutional would cause a breakdown in law and order, courts will sometimes suspend a declaration to give the government time to craft a new one.

[1] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5, s. 24(1).

[2] Ibid, s. 52(1).

[3] William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765) at Book 3 Chapter 17, available online: <http://avalon.law.yale.edu/18th_century/blackstone_bk3ch17.asp>.

[4] Proceedings Against the Crown Act, RSA 2000, c P-25.

[5] Crown Liability and Proceedings Act, RSC 1985, c C-50 s 3.

[6] Ibid, s 22(1); Proceedings Against the Crown Act, supra note 3, s 17(1)(2).

[7] Ibid.

[8] Newfoundland (Treasury Board) v NAPE, 2004 SCC 66 at para 114, 3 SCR 381.

Social Charter

This term is used to capture various means of constitutional recognition of the essential components of economic and social citizenship (such as rights to education, health care, an adequate standard of living, housing, and employment). Recent calls for such constitutional modification flow largely from the perceived vulnerability of social and economic guarantees to political attack. The means envisioned to capture constitutional recognition range from entrenchment of justiciable, judicially enforceable social and economic rights in the Constitution, to constitutional articulation of norms or entitlements monitored by some non-judicial national or federal institution, to expression within the Constitution of general principles of symbolic and hortatory impact alone. The nature of the positive obligation imposed on government by social and economic rights has been cited by many as reason for constituting such rights as "non-justiciable" or as merely "directive principles", on the basis that such obligations, because of the complex socio-economic and fiscal policy issues they raise, are inappropriately adjudicated upon or enforced by the courts. Yet, civil and political rights often involve equally complex issues and impose significant fiscal obligations on governments. A number of countries already provide for varying measures of recognition of social and economic norms or rights in their constitutions. (See, for example, the constitutions of Japan, Netherlands, and South Africa.)

The notion of entrenching social rights in the Constitution received early mention in constitutional scholar Frank Scott’s 19xx proposal for an entrenched Bill of Rights containing, in addition to protection for traditional civil liberties, a declaration or enunciation of social objectives or goals. During negotiations leading up to the ultimately unsuccessful Charlottetown Accord of August 28, 1992, the Ontario government argued for recognition of social objectives in an expanded version of the non-justiciable principles contained in Section 36 of the Constitution Act, 1982. In response to this proposal, the Alternative Social Charter was developed and endorsed by a wide range of equality-seeking groups. The Draft Legal Text of the Charlottetown Accord included a "social and economic union" provision modeled on Ontario’s proposal detailing a series of non-justiciable "policy objectives" for health care, social services and benefits, education, the rights of workers to organize and to bargain collectively, the goal of full employment, and a reasonable standard of living. The mechanism for monitoring progress made in relation to these objectives was to be left to further federal/provincial negotiations.

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Interjurisdictional Immunity

The doctrine of Interjurisdictional immunity is a rarely used constitutional tool that is employed to insulate the activities of one level of government from another.[1] Thus far in Canadian case law, this doctrine has almost always been used in favour of the federal government.[2]

Typically, interjurisdictional immunity is triggered when a province passes a law of general application, for example laws governing speed limits. These laws can often affect companies or industries, otherwise known as undertakings, which are exclusively governed by federal law.[3] An example of this would be if a Canada Post truck received a speeding ticket. In this instance, the doctrine of interjurisdictional immunity could be invoked to attempt to stop Canada Post from having to pay the ticket because they are a federal undertaking immune from provincial law.

In practice, interjurisdictional immunity is used in only very rare circumstances.[4] Courts have held that it is a doctrine that goes against the modern way of interpreting the Constitution, which favours co-operation and overlap.[5] Concerns have been raised that overusing the doctrine could lead to either legal vacuums where no law would apply or to an over-centralization of power since the doctrine has traditionally favoured the federal government over the provinces.[6]

In order to deal with these issues, the Supreme Court of Canada has created a very strict test that needs to be met in order for the doctrine to be used. The first test was adopted in the 1988 Bell Canada case.[7] It stated that a law had to affect a vital or essential part of an undertaking of the other jurisdiction for the doctrine of interjurisdictional immunity to be used.[8] The Supreme Court re-evaluated this test ten years later in the Canadian Western Bank case, finding that the Bell Canada test overextended the doctrine.[9] Under the new test, a law has to impair a vital or essential part of an undertaking in order for the doctrine to be used.[10] The Supreme Court reaffirmed the limited scope of the doctrine and stated its preference for pith and substance analysis and the doctrine of paramountcy.[11]

Prominent Interjurisdictional Immunity Cases:

Bell Canada v Quebec[12]

Canadian Western Bank v Alberta[13]

[1] Peter W Hogg & Wade K Wright, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2021) (loose-leaf revision 1), ch 15 at 16; Kerry Wilkins, “Exclusively Yours: Reconsidering Interjurisdictional Immunity” (2019) 52:2 UBC L Rev 697 at 713–714.

[2] Wilkins, supra note 1 at 714–723; Hogg & Wright, supra note 1 ch 15 at 21.

[3] Hogg & Wright, supra note 1 ch 15 at 18.

[4] Hogg & Wright, supra note 1 ch 15 at 20.

[5] Canadian Western Bank v Alberta, 2007 SCC 22 at para 42 ; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at paras 148–149; Wilkins, supra note 1 at 731–733, 735–736.

[6] Wilkins, supra note 1 at 729–731, 734–735; Canadian Western Bank, supra note 5 at paras 43–45.

[7] Bell Canada v Quebec (Commission de la Santé et de la Sécurité du Travail), [1988] 1 SCR 749, 51 DLR (4th) 161 .

[8] Bell Canada, supra note 7 at para 316; Hogg & Wright, supra note 1 ch 15 at 20.

[9] Canadian Western Bank, supra note 5.

[10] Canadian Western Bank, supra note 5 at paras 48–49; Hogg & Wright, supra note 1 ch 15 at 20.

[11] Hogg & Wright, supra note 1 ch 15 at 20.

[12] Bell Canada, supra note 7.

[13] Canadian Western Bank, supra note 5.