Canada’s re-emerging division of powers and the unrealized force of reciprocal interjurisdictional immunity Dwight Newman* Introduction In recent decades, up to the middle of the first from incursions by provincial laws, Canadian decade of the twenty-first century, Canadian courts have previously applied the doctrine division-of-powers jurisprudence seems to have in an asymmetrical fashion consistently in been in a period of quiescence, with modern favour of federal laws. In the two Bell Canada doctrine imposing few constraints on the fed- cases,3 for example, federal jurisdiction over eral government’s implementation of national interprovincial telecommunications won out programs. The Supreme Court of Canada had over provincial jurisdiction in relation to shown a readiness to uphold federal legislation labour relations. The decisions in these two in previously unanticipated areas, such as in the cases resulted in a situation where provincial substantial federal roles developed in economic labour standards are inapplicable to federally and environmental regulation. In the process, regulated telecommunications companies and federal powers like trade and commerce and other federally regulated industries. However, criminal law grew beyond their prior bounds. this traditional application of the IJI doctrine The Court simultaneously spoke of its innova- provides no explanation for why the core of tions as if they marked an era of so-called “co- provincial labour relations jurisdiction counts operative” federalism. for nothing. The subsequent decision in Canadian Western Bank came with a stricter In the last five years, however, division of test for IJI, seemingly applying IJI only where powers constraints on the federal government one government “sterilizes” an entity regulated have re-emerged. In 2007, the decision in by the other. This strict test has been removed Canadian Western Bank (released with a again in a recent pair of aeronautics cases in companion decision in Lafarge to the same Québec that have applied a less strict test again, effect) contained a surprise twist: for the first as explained further below. The implication of time, the Court explicitly affirmed the reciprocal IJI applying more broadly again, along with application of interjurisdictional immunity the decision that it is available in favour of the 1 (IJI) to protect the core of provincial works provinces, is that provincial IJI claims may now 2 and undertakings from federal interference. have teeth. One example is present in the Insite Although the doctrine of IJI should be reciprocal, case, in which the British Columbia Court of protecting provincial works from federal Appeal held in favour of a provincial IJI claim incursions by federal laws and federal works Constitutional Forum constitutionnel 1 in the context of the Insite Clinic’s claims to a I will argue that adopting provincial IJI, as the limited immunity from federal criminal law.4 Court clearly chose to do in Canadian Western It is at least possible that the Supreme Court of Bank, must imply further changes to recent Canada will affirm the result. federalism doctrine, potentially including the reaffirmation of spheres of genuine provincial This development on IJI was not an isolated exclusivity or even provincial paramountcy. re-emergence of restrictions on the federal gov- ernment. The first Supreme Court of Canada decision in many years to strike down federal Provincial interjurisdictional legislation on division-of-powers grounds was immunity and its doctrinal the Court’s heated and divided decision in the Assisted Human Reproduction Act Reference, paradoxes which was released in late December 2010—a The IJI doctrine emerges from the reality few days before Christmas, thereby evoking that if there are matters that actually fall within 5 only limited media attention. This decision has the jurisdiction of one level of government, already borne fruit, with a five-judge panel of they must have a core that is immune from the Alberta Court of Appeal following its rea- adverse effect by the other level of government. soning on the criminal law power and holding Canadian Western Bank first retreats from any unanimously in March 2011 that the federal broad description of this doctrine in light of government’s proposed national securities leg- worries about whether it is in accord with the islation is unconstitutional because it does not “dominant tide” of allowing concurrency9 and fit within the pertinent federal powers over the confines the test for IJI by requiring that a party 6 criminal law or trade and commerce. These wishing to make use of this doctrine must prove most recent developments follow a year and a a real impairment of the vital or essential parts bit after the Supreme Court of Canada’s deci- of an undertaking. The decision in this case sion in which it re-read the line between intra- suggests a preference for applying IJI only in provincial and interprovincial works and un- contexts where precedent for doing so already dertakings and re-invigorated provincial labour exists.10 The Court could have stopped there, 7 jurisdiction in Consolidated Fastfrate. To do so, but instead restates the doctrine within a the majority in that case turned to the drafters’ broader theoretical framework and also notes, intent in 1867 and the text of the Constitution importantly, that “[i]n theory, the doctrine is Act, 1867 in preference over a purposive “living reciprocal: it applies both to protect provincial 8 tree” analysis. heads of power and provincially regulated In the context of these developments, my undertakings from federal encroachment, and argument is that some of these recent changes to protect federal heads of power and federally regulated undertakings from provincial contain as yet undeveloped and unrealized 11 potential for even stronger affirmations of encroachment.” provincial jurisdiction in division-of-powers In some respects, the first paradox that arises jurisprudence. In particular, I argue that from the Canadian Western Bank decision is the the affirmation of reciprocal IJI contains a awkward result that longstanding provincial latent paradox that could portend even more advocacy of provincial IJI claims appears to substantial re-readings of past doctrine. have achieved fulfillment only at the same Commencing with a very brief reminder of the moment that IJI ceased to have much impact. At scope of the two doctrines, I will outline first the moment when the test for IJI is made more the paradox that can arise if a case invokes stringent, and the Court urges an avoidance of both the doctrines of provincial IJI and federal the doctrine, only then does it finally explicitly paramountcy. I then argue that this paradox permit provinces to use the doctrine. However, cannot be untangled through what the Court the Court has since unravelled this paradox, first attempted, namely, the juggling of the and without any cost to provincial IJI. In sequences in which these doctrines apply. Finally, recent months, it has once again recognized 2 Volume 20, Number 1, 2011 the ongoing relevance of IJI and has restated provincial statutory mandate, the provincial the test once again, now seemingly somewhere legislative provisions would have been subjected between the stringent test some might have to federal paramountcy to the extent of their seen in Canadian Western Bank and the looser inconsistency with the federal legislation. standard of “affecting a vital part.”12 However, there is another paradox in the Doctrinal juggling and its failure to recognition of provincial IJI that arises when resolve the paradox one considers the doctrine alongside that of federal paramountcy. The doctrine of federal The Court in Canadian Western Bank was paramountcy as developed by the courts states of course aware of the necessary interactions that “where there is an inconsistency between between IJI and paramountcy. Indeed, the validly enacted but overlapping provincial and Court split over what strikes many as a rather federal legislation, the provincial legislation is peculiar sort of issue: in what order the courts inoperative to the extent of the inconsistency”13 should turn to the doctrine of IJI and the and that inconsistency or conflict exists when doctrine of paramountcy. The majority adopted there is an impossibility of dual compliance the new position that the courts should prefer and/or a frustration of federal parliamentary paramountcy over IJI where “a case can be intent.14 The possibility of establishing federal resolved” in this manner.16 Both the separate paramountcy by showing provincial frustration opinion of Bastarache J17 and the writings of of federal purpose, as opposed to actual Peter Hogg18 are vociferous in their challenge to operational conflict, is implicitly narrowed in this approach on the grounds that it lacks basic the recent Supreme Court of Canada analyses, logic. The logic of it, in part, is to see if courts in that the Court has overturned appellate can avoid the creation of new IJI precedents. judgments that applied this branch of the However, regardless of the order in which the paramountcy test too broadly.15 doctrines are applied, the paradox I have raised remains. When considering the doctrine of federal paramountcy, one could envision before the Robin Elliot hints that the majority’s courts a situation where a provincial law would conceptualization of the order is flawed, but benefit from IJI against overlapping federal he does not draw out the full conclusions to legislation,