The Constitution and Transportation

AuthorPatrick J. Monahan/Byron Shaw/Padraic Ryan
“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 Constit ution 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 circumst ances in
transport ation. Finally, it considers how legislative jurisdiction has
been exercised in practice by the federal and provincial governments
in certain key are as of transport ation.
1 The Constitution Act, 1867 (formerly, the British North Ame rica Act, 1867) (U.K.),
30 & 31 Vict., c. 3.
In general terms, the Constitution Act, 1867 allocates juri sdiction over
interprovincial a nd international tran sportation to the federal govern-
ment, while reserv ing responsibility for intraprovincial transport a-
tion to the provinces. This territorial approach to transpor tation 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 Limit s of the Province.”
Other provi sions in the Constitution Act, 1867 which allocate jur is-
diction to the federal Parliament include: “Beacons, Buoys, Lighthouses,
and Sable Island” (section 91(1)); “Navigation and Shipping” (sec-
tion 91(10)); “Ferries bet ween 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 Ca nada, 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 tran sportation.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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT