The Constitution and Transportation

• Author: Patrick J. Monahan/Byron Shaw/Padraic Ryan
• Pages: 375-405

375

CHAPTER 12

THE CONSTITUTION

AND TRANSPORTATION

A. INTRODUCTION

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

sively to Parliament or the provincial legislatures. Rather, transporta-

tion is regulated by federal and provincial governments pursuant to

various provisions of the Constit ution Act, 1867.1 This chapter e xamines

the relevant provisions in the Canadian constitution that allocate juris-

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

the courts have modif‌ied or supplemented the original division of pow-

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

examines the extent to which the division of powers has constrained

the ability of governments to respond to changing circumstances in

transportation. Finally, it considers how legislative jurisdiction has

been exercised in practice by the federal and provincial governments

in certain key areas of transportation.

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

30 & 31 Vict., c. 3.

CONSTITUTIONA L LAW376

B. BASIC DIVISION OF RESPONSIBILITIES

OVER TRANSPORTATION

In general terms, the Constitution Act, 1867 allocates jurisdiction over

interprovincial and international transportation to the federal govern-

ment, while reserving responsibility for intraprovincial transporta-

tion to the provinces. This territorial 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 Province s,

or extending beyond the Limits of the Province.”

Other provisions in the Constitution Act, 1867 which allocate juris-

diction to the federal Parliament include: “Beacons, Buoys, Lighthouses,

and Sable Island” (section 91(1)); “Navigation and Shipping” (sec-

tion 91(10)); “Ferries between a Province 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 each province were

transferred to Canada, including canals, public harbours, railways, 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 Federal

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

2 See the Third Sc hedule to the Constitution Act, 1867, which sets out the classe s

of provincial pr operty that passed t o the dominion at the time of Confeder a-

tion. The trans fer of title to the dominion was effe ctive at the moment of each

province’s entr y into Confederation. As tra nsportation was in a sta ge 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. S ee 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 components . 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 environmenta l regulations. In addition, ve hicles

manufactur ed in Canada must have a Nation al Safety Mark indicati ng that they

meet the relevant sa fety and environmental st andards.