The Constitution and Transportation

• Author: Patrick J. Monahan, Byron Shaw
• Pages: 377-407

377

CHA PTER 12

THE CONSTITUTION

AND TRANSPORTATION

A. INT RODUCTION

“Transportation” is not an enumerated head of power assigned exclu-

sively to Parliament or the provincial legi slatures. Rather, transporta-

tion is regulated by federal and provincial governments pursuant to

various provisions of the Constitu tion Act, 1867.1 This chapter e xamines

the relevant provisions in the Ca nadian constitution that allocate juris-

diction over the f‌ield of transport ation. It considers the extent to which

the courts have modif‌ied or supplemented the orig inal division of pow-

ers of transport ation contemplated by the Constitution Act, 1867. It also

examines t he extent to which the division of powers has constrained

the ability of governments to respond to changing circumstances in

transport ation. Finally, it considers how legislative jurisdiction has

been exercised in practice by t he federal and provincial governments

in certain key are as of transportation.

B. BASIC DIVISION OF RESPONSIBILITIES

OVER TR ANSPORTATION

In general terms, the Constitution Act, 1867 allocates juri sdiction over

interprovincial a nd international tran sportation to the federal gov-

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

30 & 31 Vict., c. 3.

CONSTITUTIONA L LAW

378

ernment, while reser ving responsibilit y for intraprovincial tran spor-

tation to the provinces. This ter ritorial approach to transportation is

ref‌lected most clearly in section 92(10) of the Constitution Act, 1867.

Section 92(10) provides that the provinces have exclusive jurisdiction

over “Local Works and Undertakings” except “Works and Undertak-

ings connecting the Province with any other or others of the Provinces,

or extending beyond the Limits of the Province.”

Other provi sions in the Constitution Act, 1867 which allocate jur is-

diction to the federal Parliament include: “Beacons, Buoys, Light-

houses, and Sable Island” (section 91(1)); “Navigation and Shipping”

(section 91(10)); “Ferries between a Prov ince and any British or Foreign

Country or between Two Provinces” (section 91(13)); power to declare

local works for the “general Advantage of Canada” (section 92(10)(c));

and where certain public works and property in e ach province were

transferred to Ca nada, including canals, public harbours, ra ilways, and

military roads (section 108).2

On its face, the federal power over trade and commerce in sec-

tion 91(2) would appear to be relevant to the f‌ield of transportation.

However, as discussed in Chapters 9 and 10, the courts have construed

this provision narrowly, and it has never been interpreted as adding

signif‌icantly to federal authority in the area of transportation.3 Federa l

authority over criminal law in section 91(27) has also permitted t he

federal government to establish a set of cri minal prohibitions and sanc-

tions relating to the operation of motor vehicles, vessels, and aircraft.4

Provincial authority i n relation to transportation matters f‌lows

from section 92(10) (“Local Works and Undertak ings”); section 92(13)

(“Property and Civil Rights in t he Province”); and section 92(16) (“Mat-

ters of a merely local or private Nature in the Provi nce”).

2 See the Third S chedule to the Constitution Act, 1867, which sets out the classe s

of provincial pr operty that passe d to the dominion at the time of Confeder a-

tion. The tran sfer of title to the dominion was ef fective at the moment of each

province’s entr y into Confederation. As tra nsportation was in a st age of infancy

at the relevant date s, dominion proprietary r ights acquired in thi s way have

not proven to be signi f‌icant factors in the regul ation of transportation . See C.H.

McNairn, “Trans portation, Communication an d the Constitution: The Scope of

Federal Juris diction” (1969) 47 Can. Bar Rev. 355 at 366.

3 It should be noted, however, that the t rade and commerce power has bee n 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 addit ion, vehicles

manufactu red in Canada must have a Nation al Safety Mark indicati ng 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.