Sources of Authority: Federal-Level Powers and the Constitution Acts

AuthorHoward Epstein
The materials in this chapter set out the basics of how constitutional
law affects understanding of land-use regulation.
The Constitution is always a start ing point for understanding any
area of law. There are two parts to this. O ne is that the Constitution
Act, 18671 sets out the separation of powers between the federal and the
provincial legislatures. While there is interaction and overlap, for the
most part the separation of powers is important. So far as municipal-
ities mostly the creatures of the provinces are concer ned, separa-
tion of powers means that if a topic (a head of power) is a federal matter,
then no province has authority to pur port to grant jurisdiction over the
topic to a municipality, and no municipality can exercise that power.
An example is criminal matters. The Constitution Act, 1867 assigns
jurisdiction over criminal law exclusively to the federal Parliament. Al-
though provinces have authority to attach pe nalties to breaches of their
regulatory statutes (and may allow municipa lities to do so as well), if
a provincial statute or a municipal by-law were seen by t he courts in
1 (UK), 30 & 31 Victoria, c 3, reprinted in RS C 1985, Appendix II, No 5. There
are numerous Const itution Acts, including 1867, 1871, and 1982. Until 1982,
they were Acts of t he UK Parliament. With the 1982 enact ment, the Constitution
Act, 1982, being Schedule B to the Can ada Act 1982 (UK), 1982, c 11, consti-
tutional ar rangements were patriat ed. The 1982 Act includes the Canadian
Charter of Rights and Freed oms.
their “pith and substance” to be cr iminal law, those laws would be
constit utionally i nvalid.
The other part to the Constitution is the Canadian Charter of Rights
and Fre edoms (Charter). The Charter offers certain protections to p eople
against their governments. As with the division of powers, violation of
a Charter-protected right would result in the invalidity of a law unless
it was seen as a justif‌ied infringement.2
The separation of powers aspect of the Constitution is not a simple
issue. A lthough The Constitution Act, 1867 lists federal and provincial
powers, and although there is a controlling inter pretive idea that all
topics, even those not contemplated at the time the Constitution was
f‌irst written (1867), are to be found in the Act, the results can be com-
plicated. Cases such as t he 2007 decision of the Supreme Court of Can-
ada in British Columbia (Attorney General) v Lafarge Canada Inc3 show
how diff‌icult it sometimes is to sort out which order of government has
jurisdiction over some particular land use.
Some new topics, such as aeronautics, have been seen by the court s
as exclusively assigned to the federal level. Some, such as the environ-
ment, have been seen as being divided between the two senior levels.
And municipalities have no constitutional status at all, which is illus-
trated by the 1997 decision of the Ontario Court of Appeal in East York
(Borough) v Ontario (Attorney Ge neral)4 (though as levels of government,
the Charter, or most of it, applies to them).
One important consequence of the div ision of powers is that the
federal Parliament has hugely important land-use regulatory powers, a
fact often not suff‌iciently appreciated. The topics range from national
parks to some provisions of the Criminal Cod e. In any land-use issue, it
is necessar y f‌irst to consider the division of powers quest ion under the
Constitution Act.
Because of the assig nment to the federal legislature of juri sdiction
over “Indians, and Land s reserved for the Indians . . .” and because sec-
tion 35 of the Constitution Act, 1982 addresses treaty r ights and unsur-
rendered rights, the topic of Aboriginal interests in land is de alt with
here. The topic is complex and rapidly evolving. Since Aboriginal law
is a distinct legal subject, we do no more than note its importance and
consider the broad points associated with land-use law.
As for the Charter, some attempts at land-use regulation can be
challenged as infringements of guaranteed r ights. Is postering a right
of free expression? What about billboards? Is gardening? Are lim its
2 See Section E(2)(i), below in th is chapter.
3 2007 SCC 23 [Lafarge].
4 (1997), 43 MPLR (2d) 155 (Ont CA).
Sources of Authorit y: Federal-Level Powers and the Con stitution Acts 167
on the height of fences an interference with libert y or security of the
person? What about fortif‌ications of a motorcycle club’s building? Can
zoning speak in ter ms of “family” occupancy? Where may demonstra-
tions occur? If zoning separates residential land uses by socio- econom-
ic class, does thi s offend the Charter?
And, since the Charter a llows for a government to justify an in-
fringement of rights in some circ umstances (section 1), what justif‌i-
cations must be made out, that is, how the Oakes te st5 plays out in
land-use matters will frequently be the focus in litigat ion.
The central provisions of the Const itution Act setting out the division of
powers between the two senior orders of government are sect ions 91,
92, and 92A:
Legislative Authority of Parliament of Can ada
91. It shall be lawful for the Queen, by a nd with the Advice and Con-
sent of the Senate and House of Com mons, to make Laws for the
Peace, Order, and Good Government of Ca nada, in relation to all
Matters not coming wit hin the Class es of Subjects by this Act a s-
signed exclusively to t he Legislatures of t he Provinces; and for great-
er Certaint y, but not so as to restrict the Generalit y of the foregoing
Terms of this Section, it i s hereby declared that (notwit hstanding
anything i n this Act) the exclusive Leg islative Authority of the Par-
liament of Canad a extends to all Matte rs coming within t he Classes
of Subjects next hereina fter enumerated; that is to s ay,
1A. The Public Debt and Property.
2. The Regulation of Trade and Commerc e.
. . .
5. Post al Serv ice.
. . .
7. Militi a, Military a nd Naval Service, and De fence.
. . .
9. Beacons, Buoys, Lighthouse s, and Sable Island.
10. Navigation a nd Shipping.
11. Quar antine . . .
5 See the discu ssion of this test from the c ase R v Oakes, [1986] 1 SCR 103 [Oakes],
in Section E(2)(i), below in thi s chapter.

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