The Constitution and Transportation

• Author: Patrick J. Monahan
• Profession: Dean and Professor of Law Osgoode Hall Law School, York University
• Pages: 356-382

CHAP TER 12

THE CONSTITUTION

AND TRANSPORTATION

A. INTRODUCTION

This chapter exami nes the relevant provisions in the Canadian consti-

tution allocating jurisdiction over the f‌ield of transportation. It consid-

ers the judicial interpretation of these constitutional provisions and the

extent to which the courts have modif‌ied or supplemented the original

scheme contemplat ed by the Constitution Act, 1867.1 It also examines

how legislative juri sdiction has actually been exercis ed by both the fed-

eral and the provincial governments, in order to establish whether the

constitutional division of responsibilities has in fact constrained the

ability of governments to re spond to changing ci rcumstances in trans-

portation. The Constitution Act, 1867, does not classi fy “transportation”

as a class of subject (or head of power) assigned exclusively to Par-

liament or the provincial legislatures. Instead, specif‌ic transportation

matters or modes are dealt with i n a variety of separate constitutional

provisions th at effectively divide responsibility for tran sportation regu-

lation between the federal a nd the provincial governments.

1The Constitution Act, 1867 (formerly, the British North America Act, 1867) (U.K.),

30 & 31 Vict., c.3 [CA 1867]. Subsequently refer red to as the 1867 Act (or, for

historica l references, the BNA Act).

356

The Constitution and Transportation 357

B. BASIC DIV ISION OF RESPONSIBILITIES

OVER TR A NSPORTATION

In general terms, the Constitution Act, 1867, alloc ates jurisdict ion over

interprovincial and international transportation to the federal govern-

ment, while reserv ing to the provinces responsibility for tr ansportation

matters within a single province. This terr itorial approach to tra nspor-

tation is ref‌lected most clearly in section 92(10) of the Constitution Act,

1867, which reser ves to the federal Parliament respons ibility over “Works

and Undertakings connecting the Province w ith any other or others of

the Provinces, or extending beyond the Limit s of the Province,” while

providing for provinci al responsibil ity for “Local Works and Undertak-

ings.” Other provisions in the 1867 Act which allocate juri sdiction to

the federal Parliament include: “Beacons, Buoys, Lighthouses, and Sable

Island” (s.91(1)); “Navigation and Shipping” (s.91(10)); “Ferries between

a Province and any Brit ish or Foreign Country or between Two Prov-

inces” (s.91(13)); power to declare local works for the “general Advantage

of Canada” (s.92(10)(c)); and where certain public works and property

in each province were tr ansferred to Canada, including cana ls, public

harbours, railway s, and militar y roads (s.108).2 The federal power over

trade and commerce in section 91(2) of the 1867 Act was at least poten-

tially relevant to the f‌ield of tr ansportation; the courts have construed

this provi sion narrowly, however, and it has never been interpreted as

adding signif‌icantly to federal authority in t his f‌ield.3 Federal aut hority

over crimina l law in section 91(27) has also permitted the federal gov-

ernment to establish a set of cr iminal prohibitions and sanctions relat-

ing to the operation of motor vehicles, vessels, and ai rcraft.4 Provincial

2 See the Third Sc hedule to the 1867 Act, ibid., setting out the clas ses of prov-

incial proper ty that passed to t he dominion at the time of confeder ation. The

transfer of t itle to the dominion was effe ctive at the moment of each province’s

entry into con federation. As trans portation was in a stage of in fancy at the rel-

evant dates, domi nion proprietary right s acquired in this way h ave not proven

to be signi f‌icant factors in the regu lation of transport ation. See C.H. McNairn,

“Transportat ion, Communication and the Con stitution: The Scope of Federal

Jurisdict ion” (1969) 47 Can. Bar Rev. 355 at 366.

3 It should be noted, however, that t he trade and commerce power has b een used

to regulate t he safety of new cars and component s. The Motor Vehicle Safety

Act, R.S.C. 1985, c.M-10, requires all motor vehicles i mported into Canada to

comply with federa l safety and environment al regulations. In add ition, vehicles

manufactu red in Canada must have a Nat ional Safety Mark indic ating that they

meet the relevant sa fety and environmental st andards.

4 See the Criminal Code, R. S.C. 1985, c.C-46, ss .249-61.