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.
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeUnlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
