Right to Life, Liberty and Security of the Person

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

Right to Life, Liberty and Security of the Person

Section 7 of the Canadian Charter of Rights and Freedoms protects our right to “life, liberty, and security of the person.” It guarantees our legal rights, which protect our personal autonomy and bodily integrity from laws or actions by the government that violate those rights. However, government action that harms these rights is not enough to violate the Charter. Section 7 is violated only when the government infringes these rights in a way that goes against the principles of fundamental justice.

Therefore, in determining whether there has been a section 7 violation, there are two components to consider:

1) whether government action infringes life, liberty or security of the person, and

2) whether this infringement goes against the principles of fundamental justice

Right to Life:

There is no concrete definition of the right to life.[1] This means the definition could expand when new issues emerge. Traditionally, state action that increases the risk of death involves the right to life.[2] This includes indirect action, such as barriers to health care for life-threatening conditions. [3]

Right to Liberty: The Supreme Court is divided on what the right to liberty means, but identifies two components:

1) freedom from physical restraint, and

2) freedom to make fundamental personal choices. [4]

The first includes laws that involve possible imprisonment and physical actions that are forced by the state.[5] Two examples are mandatory fingerprinting laws and regulations that prohibit loitering.[6] The second protects the right to “enjoy individual dignity and independence.”[7] This includes decisions about how a person wants to live his or her life, such as whether to marry or have children.[8]

Right to Security of the Person:

Security of the person “has a physical aspect and a psychological aspect.”[9] The physical aspect includes state action that prevents someone from making choices that affect his or her own body. It can also involve indirect state action, such as laws that cause a risk to health.[10] The psychological aspect is affected when a person experiences “serious state-imposed stress.”[11] This occurs when the state causes stress that is beyond day-to-day stress, such as by threatening to remove children from their parents.[12]

Principles of Fundamental Justice:

If government action infringes life, liberty or security of the person, it must conform to the basic principles of fundamental justice to comply with theCharter .

Three guidelines define principles of fundamental justice:

1) the principle must be a legal principle

2) the public must generally consider this principle to be fundamental to a fair legal system 3) the principle must provide a manageable standard to measure section 7 violations[13]

These guidelines are quite broad. Therefore, courts use the specific concepts of arbitrariness, overbreadth, and gross disproportionality to determine whether an infringement is in line with the principles of fundamental justice. [14]

Arbitrariness:

The law on arbitrariness is “not entirely settled.”[15] Traditionally, two steps determine if a law is arbitrary. First, the court must identify the law’s objective. Second, the court must consider whether the law’s effects meet this objective.[16] If the law leads to an effect that is not connected to its objective, it is considered arbitrary.[17] For example, in R v Morgentaler, the court considered lawsthat restricted abortions to those approved by an abortion committee. [18] The government argued the law’s objective was to protect the fetus.[19] However, getting committee approval caused delays that were detrimental to women’s health. Therefore, the law was arbitrary, because these delays were not connected to the objective of protecting the fetus.[20]

Overbreadth:

Overbreadth lets courts recognize that some laws “go beyond what is required to achieve its objective.”[21] In Bedford, the court considered the law that prohibits living off profits made from prostitution. While the law means to protect sex workers from exploitation, it prevents them from hiring drivers, receptionists, and bodyguards.[22] This law is overbroad because it prohibits some relationships that are beneficial and not exploitative.[23]

Disproportionality:

Gross disproportionality describes state action that is too extreme to justify.[24] First, the court must determine the objective of the law. Second, the court must consider whether the law’s effect is too extreme as a response to that objective.[25] If the law’s effects go beyond its objectives, it is considered disproportionate. For example, inPHS Community Services Society, the Supreme Court considered the constitutionality of refusing to allow a supervised safe injection site in Vancouver (Insite), which allowed drug addicts to use drugs without being prosecuted. Insite attempted to reduce needless death of those addicts. The court decided that Insite caused no obvious negative impact on public health and safety.[26]Therefore, denying Insite’s services was grossly disproportionate, because of the number of lives the program saves.[27]

[1] Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms (Toronto: Irwin Law, 2013) at 235 Sharpe[ ]; Guy Régimbald & Dwight Newman,The Law of the Canadian Constitution (Markham: LexisNexis, 2013) at 626 [Régimbald].

[2] Régimbald, supra note 1 at 626.

[3] Ibid.

[4] Sharpe, supra note 1 at 235; Peter Hogg, Constitutional Law of (Toronto: Thomson Reuters, 2007) at 47-7 [Hogg].

[5] Régimbald, supra note 1 at 627.

[6] Ibid.

[7] Godbout v Longueuil (City), [1997] 3 SCR 844 at para 66.

[8] Régimbald, supra note 1at 627-628.

[9] Ibid at 628.

[10] Ibid.

[11] R v Morgentaler, [1988] 1 SCR 30 at para 22. [12] Régimbald, supra note 1at 629-630.

[13] R v Malmo-Levine, 2003 SCC 74 at para 113 [Malmo-Levine].

[14] Peter W. Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 The Supreme Court Law Review 201 Hogg[ Charter].

[15] PHS Community Services Society v Canada (Attorney General), 2011 SCC 44 at para 132 Insite[ ].

[16] Ibid at paras 129-130.

[17] Canada (Attorney General) v Bedford, 2013 SCC 72 at para 101 [Bedford].

[18]Morgentaler, supra note 11 at para 39.

[19] Ibid at para 256.

[20] Ibid at para 153.

[21] Bedford, supra note 17at para 35.

[22] Ibid at para 64.

[23] Ibid at para 139.

[24] Malmo-Levine, supra note 13 at para 143.

[25] Hogg, supra note 4 at 205.

[26] Insite, supra note 15 at 133.

[27] Ibid. Fundamental Freedoms

Fundamental Freedoms are basic political liberties required in a democracy. In general, they guarantee that an individual can act, think, be, or do without government interference unless a law says otherwise.[1]

Fundamental Freedoms are found in section 2 of the Canadian Charter of Rights and Freedoms. This section guarantees the following freedoms to everyone in Canada:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including

(c) freedom of peaceful assembly; and

(d) freedom of association

The (SCC) interprets these freedoms in a broad way. For example, in the R v Big M Drug Mart Ltd. decision, the SCC specified that section 2 “embraces both the absence of coercion and constraint, and the right to manifest such beliefs and practices.”[2] In that case, the Court found the ban on Sunday shopping violated freedom of religion since the law’s purpose was to force the Christian religious observance on all Canadians.[3]

Fundamental freedoms became increasingly important to the international community and to Canadians after the horrors of the Second World War. The United Nations adopted a set of fundamental freedoms in the Universal Declaration of Human Rights in 1948.[4] Parliament first recognized similar freedoms in 1960 through the Canadian Bill of Rights. But as an ordinary federal statute, and not part of the constitution, the protections given in the Bill of Rights had no more force than any other law. They also did not protect Canadians against provincial laws. In the late 1960s, P.E. Trudeau championed a bill of rights to be inserted into the constitution to “guarantee the fundamental freedoms of the individual from interference, whether federal or provincial.”[5] This guarantee was realized through in 1982 and the Charter of Rights and Freedoms.

While “fundamental,” these freedoms are not absolute. Legislatures can override them by using the notwithstanding clause. However, the notwithstanding clause has never been used to override fundamental freedoms. Additionally, section 1 of the Charter establishes that the rights guaranteed within it are subject to “reasonable limits” that are “justified in a free and democratic society.”[6]

For example, in R v Keegstra the SCC ruled that the law against the willful promotion of hatred violated Keegstra’s freedom of expression, but that the law was justified under section 1. Keegstra’s anti-Semitic speech went against the very principles of democracy that the freedom of expression was supposed to protect. Hateful expression harms democracy when its targets face such scorn and disrespect that they no longer participate in the process. [7] Therefore, the law in this case was found to be a reasonable limit on freedom of expression.

[1] Walter S. Tarnopolsky, The Canadian Bill of Rights, 2d ed (Toronto: McClelland and Stewart, 1975) at 2.

[2] R v Big M Drug Mart Ltd., 1985 CanLII 69 at para 95 (SCC).

[3] Ibid at para 97.

[4] Universal Declaration of Human Rights, GA Res 217 (III), UNGAOR, 3d Sess, Supp No 13, UN Doc A/810 (1948) 71, ss 18-20 [5] The Honourable Pierre Elliot Trudeau, Minister of Justice, A Canadian Charter of Human Rights, January 1968 in Anne Bayefsky, Canada’s Constitution Act 1982 and Amendments: A Documentary History (Toronto: McGraw-Hill Ryerson, 1989), at 51-53.

[6] Canadian Charter of Rights and Freedoms. Part I of the Constitution Act, 1982, being Schedule B of the (UK), 1982, c 11, s 33.

[7] R v Keegstra, 1990 CanLII 24 (SCC).

Constitution Acts

The ‘Constitution Acts’ are a set of statutes enacted by the Imperial Parliament, beginning with theConstitution Act, 1867 ((U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, Appendix II, No. 5), and culminating in the Constitution Act, 1982 (being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11), that lay down much of the framework of government in Canada. There are thirteen statutes in total. Of these, the 1867 and the 1982 Constitution Acts are the most important.

The first of these statutes brought the three original confederating colonies of British North America into the Dominion of Canada together, divided that Dominion into four provinces, and distributed jurisdiction between the federal and provincial governments, either exclusively or concurrently (see division of powers). Other provisions create and partially define the powers of the executive and legislative branches of both the federal and provincial governments and the superior courts. The second of these statutes, inter alia, contains the Canadian Charter of Rights and Freedoms, provisions regarding the rights of aboriginal peoples, and procedures for constitutional amendment.

The other eleven statutes alter the legal framework established by the Constitution Act, 1867, either by amending the text of that statute, or conferring new powers or imposing new obligations on the federal government and/or the provinces. For example, the Constitution Act, 1940 (3-4 George VI, c. 36 (U.K.)) amended section 91 of the Constitution Act, 1867 to add unemployment insurance to the list of areas over which the federal government has jurisdiction.

It would be a mistake to regard these statutes as exhaustive of the Constitution of Canada. First, according to section 52(2) of the Constitution Act, 1982, the Constitution of Canada consists of not only these statutes, but also a number of other imperial statutes and orders, as well as Canadian statutes. The most important of these admitted British colonies in existence at the time of Confederation to Canada (e.g. Newfoundland) and created the Prairie provinces (e.g. Alberta). Second, as Peter Hogg has argued, this list omits a number of statutes and imperial instruments which create and define the powers of important institutions, and hence which are of a constitutional nature, such as the Supreme Court and Exchequer Courts Act, 1875(S.C. 1875, c. 11; now called the Supreme Court Act, R.S.C. 1985, c. S-26), and the Letters Patent Constituting the Office of Governor General of Canada, 1 October 1947. Third, reflecting the largely unwritten nature of the British constitutional order out of which much (but certainly not all) of our Constitution emerged, the Canadian Constitution has a significant unwritten component, consisting of common law rules alterable by ordinary legislation (e.g. prerogative powers of the Crown), unwritten rules which prevail over inconsistent legislation (see Reference Re Secession and secession), and legally unenforceable rules of political morality (see convention). Reservation and Disallowance

Reservation’ and ‘Disallowance’ are often confused, since both derive from the practices of the British colonial empire, but they are actually distinct terms. Historically, ‘reservation’ was the practice whereby a colonial governor, rather than giving or refusing assent to a bill, could refer it to the imperial government for the final decision. ‘Disallowance’, on the other hand, was the practice whereby a colonial bill could still be declared null and void by the imperial government, even though the colonial governor had given royal assent.

Sections 55, 56 and 57 of the Constitution Act, 1867 provided that acts of the Parliament of Canada were subject to these instruments of imperial control. A few such acts were reserved or disallowed in the first few decades after Confederation, but the powers passed into disuse as Canada evolved towards independence, even though they were never formally eliminated.

Section 90 of the Constitution Act, 1867, which adapted the same practices to the purpose of maintaining federal control over the provinces, proved to be of much greater significance. Early Lieutenant-Governors frequently reserved bills for a final decision by the federal government. Although the practice was controversial, and soon became unnecessary as communications improved between Ottawa and the provincial capitals, a Saskatchewan bill was unexpectedly reserved as late as 1961.

Disallowance, from the federal viewpoint, was a much more reliable instrument of control over the provinces. It was used extensively by the Macdonald, Mackenzie and Laurier governments, particularly against Manitoba and British Columbia, and thus became a source of western discontent with the federal system. After 1911 its use was rare, but the election of the Social Credit government in Alberta in 1935 led to a brief revival. The last Act ever disallowed was a 1943 Alberta statute which prohibited the sale of land to “enemy aliens” or Hutterites.

The Victoria Charter of 1971 would have eliminated ‘reservation and disallowance’ from Canada’s Constitution, but the extensive changes made to the Constitution in 1982 left both powers intact. Either might still be used to prevent the illegal or unilateral secession of a province, but otherwise their future use is extremely unlikely.

Sources:

G.V. La Forest Disallowance and Reservation of Provincial Legislation (Ottawa: Department of Justice, 1955). J.R. Mallory, Social Credit and Federal Power in Canada (Toronto: University of TorontoPress, 1954; reprinted 1976). J.T. Saywell,The Office of Lieutenant- Governor (Toronto: University of Toronto Press,1957). G. Stevenson, Ex Uno Plures: Federal-Provincial Relations in Canada, 1867-1896 (Montreal: McGill-Queen’s University Press, 1993).

Concurrency

‘Concurrency’ refers to the allocation of responsibility for a subject matter of legislation to both the federal and provincial levels of government. Concurrent allocation of responsibility arises from the fact that the powers assigned to the federal Parliament and provincial legislatures by sections 92-95 of the Constitution Act, 1867 are expressed in quite general terms. As a result, the constitutional powers of the federal Parliament and the provincial legislatures overlap. Within the area of overlap, either Parliament or the legislatures have constitutional power to legislate. The power to legislate within this area of overlap is thus said to be concurrent.

Some commentators have called for expansion of the use of concurrency in the Constitution. They reason that by so doing provinces will have greater flexibility to develop legislative programs tailored to their special needs and desires. This proposal has drawn a reaction. Extensive use of concurrency, say the opponents, allows certain provinces to exercise more power than others, a situation fundamentally at odds with the notion of equality inherent in Canadian citizenship. The proponents counter that extensive use of concurrency merely affects the level at which citizens take decision – federal or provincial. It does not affect the governmental power available to citizens.

Reference re Quebec Secession

The Reference re Quebec Secession ([1998] 2 S.C.R. 217) is the of the Supreme Court of Canada that addresses the constitutionality of a hypothetical unilateral declaration of independence by the province of Quebec. Two related sets of events led to the Reference. First, in the latest step in its long march to independence, the Parti Québécois government of Jacques Parizeau announced in 1994 that it would hold another referendum on independence in October of 1995. Second, a Quebec lawyer and former sovereignist, Guy Bertrand, launched a court action prior to the referendum asking the court to order that the referendum not take place because a “Yes” vote could threaten Bertrand’s rights as guaranteed under the Canadian Charter of Rights and Freedoms (see Bertrand v. AG Quebec (1995), 127 D.L.R. (4th) 408). The Court agreed with the argument but declined to stop the referendum. When the referendum was finally held, the Quebec government lost by the narrowest of margins. After the vote, Bertrand went to court again asking that the government be restrained from holding any future referenda on sovereignty (see Bertrand v. AG Quebec (1996), 138 D.L.R. (4th) 481). This action was abandoned when the federal government decided to submit three questions to the Supreme Court of Canada in a reference.

The federal government asked the Court to offer its opinion on the constitutionality of a unilateral declaration of independence by Quebec. In other words, could Quebec legally leave Canada simply by declaring that it is sovereign? What about the existing amendment procedures in the Canadian Constitution? Second, the Court was asked whether Quebec enjoys the right under international law to declare independence unilaterally. Third, the Court was asked which body of law, domestic or international, would take precedence in the event of a conflict.

In August 1998 the Supreme Court rendered its opinion. In regard to the first question, the Court declared that secession “must be considered, in legal terms, to require an amendment to the Constitution, which perforce requires negotiation.” The opinion stresses the conditions and processes of negotiation almost to the exclusion of formal constitutional amendment. If a future Quebec referendum was “free of ambiguity both in terms of the question asked and in terms of the support it receives”, then a positive result “would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.” Quebec does have a democratic right to initiate the move to independence, wrote the Court, but the population of Quebec must vote by a clear majority on a clear question in order to trigger the constitutional obligation on the part of the rest of the country to negotiate in good faith the terms of separation. Quebec cannot legally – that is, within the terms of the Canadian Constitution – declare independence unilaterally. It can, however, initiate a process of change leading to independence in which Canada has an obligation to participate.

On the question of Quebec’s right of self-determination at international law, the Court answered in the negative. Accordingly, it did not have to answer the third question.

Sources:

Canada, Department of Justice, “Background Material on Quebec Secession Reference. D. Schneiderman, ed., The Quebec Decision: Perspectives on the Supreme Court Ruling on Secession(Toronto: Lorimer, 1999).

Colourability

Colourability is a concept that goes against because the Constitution has assigned certain powers to the federal jurisdiction under section 91 and to the provincial realms under section 92.[1] It occurs when either the federal government or any of the provincial or territorial governments, attempts to introduce legislation that may appear to address one issue within the scope of its power but in fact it is a disguised attempt to address something that is outside its jurisdiction. Or, in the words of constitutional scholar Peter Hogg, colourable legislation occurs when a jurisdiction attempts to pass a law indirectly that it cannot pass directly so that it “may accomplish its original goal.”[2]

Colourability was an issue in the 1993 decision ofR v Morgentaler.[3] Morgentaler planned to open an abortion clinic in Nova Scotia. The provincial government immediately passed legislation that would outlaw abortion clinics and limit the procedure to hospitals only. However, the regulations introduced were not limited to abortions. The province added procedures like liposuction and anything it claimed would jeopardize public health care in favour of a private system. Offenders would face criminal penalties. Morgentaler proceeded to open his clinic anyway and was charged. He then challenged the constitutionality of the provincial law that outlawed abortion clinics.[4] The Supreme Court agreed with the argument that specific abortion regulations, rather than being a valid provincial regulation of hospitals and medicine, instead constituted an invalid criminal law.[5] As a result, all regulations introduced in the legislation were struck down, including those not dealing with abortion.[6] Hogg argues that this was an example of colourability: Nova Scotia may have simply wished to limit abortions in the province, and so it introduced other legislation as a package that would accomplish more than one goal.[7]

Colourability is often thought of as a negative term that should be used both carefully and sparingly. According to Hogg, the adjective ‘colourable’ carries a strong connotation of disapproval or even suspicion of the means by which the legislative body sought to carry out the policy.[8] Therefore, when examining whether legislation is out of, or ultra vires, a particular jurisdiction one should not jump to the conclusion that the legislation is attempting to achieve some ulterior or subversive purpose.[9]

[1]The Constitution Act, 1867, ss 38-49, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2]Peter W Hogg, Constitutional , vol 2, 5th ed (Scarborough: Thomson, 2007) at 15.2.

[3]R v Morgentaler, [1993] 3 SCR 463 (CanLII) [Mortgentaler]. .

[4]Ibid.

[5]Ibid.

[6]Ibid.

[7]Hogg, supra note 1.

[8]Ibid.

[9]Ibid.

Fulton-Favreau

Efforts to find anamending formula for the Canadian Constitution began in 1927. The question was studied extensively over the next thirty years but no agreements were reached. In 1960 E. Davie Fulton, Minister of Justice in the government of John Diefenbaker, proposed an amending formula at a federal-provincial conference. The formula provided that amendments affecting all provinces would require unanimous consent; amendments affecting one or more provinces would require the consent of the province or provinces concerned; amendments that did not concern provincial powers, education or official bilingualism would require the consent of two- thirds of the provinces embodying fifty per cent of the population. Ottawa could delegate powers to the provinces and vice-versa with the agreement of the federal government and at least four provinces (seedelegation and devolution).

Only Saskatchewan opposed the formula but no further attempts to implement it occurred until 1964. Informal discussions among the provincial premiers over the next few years led to agreement with no significant changes and Guy Favreau, Minister of Justice in the government of Lester B. Pearson, produced draft legislation embodying the formula which was discussed at meetings in Charlottetown and Ottawa. All of the premiers accepted the draft but the New Democratic Party opposed the formula in the House of Commons. In spite of the fact that the formula was identical to the one put forward three years earlier by his own government, Diefenbaker came out against it. Canada’s leading academic constitutional expert at the time, Bora Laskin, called the formula, “an unmitigated constitutional disaster.” While these critics saw the formula as giving too much power to the provinces, many in Quebec thought it did not go far enough. In 1965 Premier Jean Lesage of Quebec withdrew his support and the plan was effectively dead.

Sources:

G. Favreau, The Amendment of the Constitution of Canada (Ottawa: Queen’s Printer, 1965). J. English, The Life of Lester Pearson, vol.2 (New York: A.A. Knopf, Canada, 1992). J. L. Granatstein, Canada 1957-1967: The Years of Uncertainty and Innovation (Toronto: McClelland and Stewart, 1986). P. Stursberg,Diefenbaker: Leadership Lost 1962-1967 (Toronto: University of Toronto Press, 1976). Reference Question

A reference question is a submission by either the federal or provincial government that asks the courts for advice on a major legal issue. A court does not rule on a reference question. Rather, the question results in an “advisory opinion” that guides the government in determining a law’s meaning or the constitutionality[1] of a proposed course of action. A court’s answer to a reference question is not binding.

The Supreme Court of Canada (SCC) hears reference questions from the federal government. Until 1949 the SCC’s opinion could be appealed to the Judicial Committee of the Privy Council in Britain. After that, the SCC became the highest court in Canada.[2] Since that time, its decisions are the final word on the reference questions put before it.

In contrast, reference questions from provincial and territorial governments are heard by courts in their own jurisdictions. Each province has rules about how questions may be brought to the courts, which are in legislation such as Judicature Acts or Constitutional Questions Acts.[3] In most provinces the provincial Court of Appeal considers reference questions. British Columbia is the exception because its Constitutional Questions Act[4] allows questions to be referred to either the Court of Appeal or to the Supreme Court of British Columbia.[5] Once a provincial court has given its reference opinion, the government has an automatic right to appeal the decision to the SCC.[6]

Only governments can initiate reference questions. They cannot be initiated by private individuals or groups, but a court’s advice often impacts these stakeholder groups.[7] Once a court receives a reference question request from the government, it first decides whether it will hear it. For example, a court may decide to hear questions involving unresolved legal issues of interest to Canadians, but it may refuse to hear questions that can be heard as a case in lower courts or questions that are no longer relevant.[8]The guidelines for federal government reference question submissions are stated in section 53 of the Supreme Court Act, which discusses the processes for referring certain questions for judicial opinion.[9]The guidelines for provincial or territorial submissions occur within that jurisdiction’s own legislation.

Reference questions are an effective tool in Canadian law. They can influence political and societal norms. The first reference question put to the Supreme Court, in 1876, dealt with an important issue at that time: inReference re The Brothers of the Christian Schools in Canada, the SCC was asked if Parliament had exceeded its legislative authority when it incorporated a teachers’ society.[10] Since then, the SCC has considered questions which influenced topics such as the definition of marriage in the Civil Marriage Act to Quebec separatism when it was asked to consider if and how a province can separate from Canada.[11]

Reference questions also provide timely, authoritative and cost-effective advice on the constitutionality of proposed legislation. Obtaining a court’s opinion by reference procedure is far less costly than a future constitutional challenge once a law has been passed.[12] And although courts’ reference opinions are not legally binding, to date no government has ignored them.[13]

[1] Gerald Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law,” in William R Lederman ed, The Courts and the Canadian Constitution (McClelland & Stewart, 1964) at 169. [2] James L Huffman and MardiLyn Saathoff, “Advisory Opinions and Canadian Constitutional Development: The Supreme Court’s Reference Jurisdiction” (1989) 74 Minn L Rev 1251 at 1260.

[3] Rubin, supra note 1 at 172.

[4] Constitutional Questions Act, RSBC 1996, c 68.

[5] Leah McDaniel, “The Reference Procedure: The Government’s Ability to Ask the Court’s Opinion” (June 26, 2013), online: Centre for Constitutional Studies < https://www.constitutionalstudies.ca/ccs/index.php/constitutio nal-issues/democratic-governance/2-the-reference-procedure- the-government-s-ability-to-ask-the-court-s-opinion#_edn6>.

[6] Supreme Court Act, supra note 3, s 36.

[7] Peter W Hogg, Constitutional Law of Canada (Toronto: Thomson Reuters Canada, 2009) at 8.6(a)).

[8] Hogg, supra note 2.

[9] RSC 1985, c S-26 [Supreme Court Act].

[10] Ian Bushnell, The Captive Court: A Study of the Supreme Court of Canada (Toronto: McGill-Queen’s University Press, 1992) at 75.

[11] Rubin, supra note 1 at 174.

[12] Huffman & Saathoff, supra note 5 at 1316.

[13] McDaniel, supra note 8. Co-operative Federalism

What is co-operative federalism?

Canada uses a system of government known as federalism in which political power is shared by the federal and provincial governments.[1] Co-operative federalism is a concept of federalism based on the federal and provincial governments working together to achieve mutual goals.[2]

The division of powers, outlined in sections 91 (federal powers) and 92 (provincial powers) of the Constitution Act, 1867[3], limits what each level of government has the authority to do. For example, the provinces have the exclusive power to regulate trade that occurs within their province, while the federal government has the exclusive power to regulate trade that occurs between provinces.[4] Although the Constitution sets out what each level of government has the exclusive power to do, in practice, there is significant overlap between the federal and provincial areas of control, such as in the area of health care.[5]

Courts have developed the idea of co-operative federalism into a legal principle to reject strict approaches to interpreting the division of powers.[6] Co-operative federalism reflects the realities in society that often require the federal and provincial governments to establish coordinated efforts.[7] The more flexible approach to interpreting the division of powers makes it easier for collaboration between governments.[8]Courts prefer to allow laws jointly enacted by both levels of government to operate in order to promote co- operative federalism.[9]

Co-operative federalism in action

“Canadian federalism’s constitutional creativity and cooperative flexibility”[10] is apparent in the Supreme Court of Canada case of Re Agricultural Products Marketing Act (Canada).[11] The case confirmed that a national egg marketing plan requiring provincial and federal laws to work together was constitutional. A federal agency assigned production quotas to each province so that they could share the national egg market.[12] Both the provincial and federal governments agreed with this arrangement.[13]

One issue in the case was whether the provinces could regulate the production of eggs that would eventually leave the province.[14] Only the federal government has the power to control international trade and trade between provinces.[15] The Supreme Court allowed the provinces to continue despite the effect of the laws on trade outside of the province, concluding that overall purpose of the laws were valid.[16] The majority of the Court recognized that the provincial laws complemented the federal laws, and that finding them to be invalid would make it impossible for a practical co-operative regulatory scheme under the Constitution.[17]

Limits of co-operative federalism

The principle of co-operative federalism is not meant to diminish a government’s power in its area of authority or jurisdiction.[18] The majority of the Supreme Court of Canada in Quebec (Attorney General) v Canada (Attorney General) emphasized that the principle must respect the division of powers.[19] In this case, the majority did not apply the doctrine of co-operative federalism as it would undermine the jurisdiction of the federal government.[20]

The case related to a federal law that was passed in 2012 to put an end to the long-gun registry.[21] The long-gun registry was initially created in 1995 when the federal government passed the Firearms Act, establishing a national gun control scheme.[22] Quebec viewed the registry as a partnership between the two levels of government.[23] Data from the national and provincial registries were combined into a central database.[24] Quebec claimed that it had gathered, analyzed, organized, and modified data in the central database.[25] The province argued that it had a right to the data because it resulted from the partnership; therefore, the federal government was obligated to transfer the data to the province owing to the principle of co- operative federalism.[26]

The majority of the Supreme Court concluded that regardless of Quebec’s involvement, the principle of co-operative federalism cannot be used to force the federal government to give Quebec the data.[27] If the federal government has the power to create the registries, then according to the Constitution, it also has the power to dispose of its data without Quebec’s consent.[28]

This keyword was written by Raymond Chen.

[1] Reference re Secession of Quebec, [1998] 2 SCR 217 at para 56.

[2] Eric M. Adams, “Judging the Limits of Cooperative Federalism” (2016) 76 SCLR (2nd).

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

[4] Citizens Insurance Co v Parsons, (1881) 7 AC 96 (PC) [Parsons].

[5] PHS Community Services Society v Canada (AG), 2011 SCC 44 at paras 62, 66-69.

[6] Quebec (AG) v Canada (AG), 2015 SCC 14 at para 17 [Quebec].

[7] Ibid at para 148. [8] Ibid at para 147.

[9] Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 149.

[10] Fédération des producteurs de volailles du Québec c Pelland, 2005 SCC 20 at para 15.

[11] Re Agricultural Products Marketing Act (Canada), [1978] 2 SCR 1198 [Egg Reference].

[12] Ibid at 1214-16.

[13] Ibid at 1214.

[14] Ibid at 1216.

[15] Parsons, supra note 4.

[16] Ibid at 1285-87, 1296.

[17] Egg Reference, supra note 11 at 1296.

[18] Quebec, supra note 6 at paras 19-20.

[19] Ibid at paras 18-20.

[20] Ibid at para 20.

[21] Ibid at para 7.

[22] Ibid at para 5.

[23] Ibid at para 22.

[24] Ibid at para 6.

[25] Ibid at para 121.

[26] Ibid at para 22.

[27] Ibid at para 20. [28] Ibid.