The Courts and Canadian Federalism: from Watertight Compartments to Shared Responsibility

• Author: Patrick J. Monahan/Byron Shaw/Padraic Ryan
• Pages: 243-262

243

CHA PTER 7

THE COURTS AND

CANA DI A N FEDER ALISM:

FROM WATERTIGHT

COMPARTMENTS TO

SHARED RESPONSIBILIT Y

A. INTRODUCTION

Sir John A. Macdonald believed that the Constit ution Act, 1867,1 had

been drafted to ensure that “‘all conf‌lict of jurisdiction’ had been avoid-

ed” and that the courts would therefore assume a rel atively minor role

in the evolution of Canadian federalism.2 His prediction proved to be

wildly inaccurate. First, the language used in t he BNA Act, although ap-

parently clear to its dr afters, turned out to be ambiguous and open-end-

ed in practice. Second, and more signif‌ica ntly, t he division of legislative

responsibility ref‌lected an era in which government played a modest

and limited role. Within a matter of decade s, the entire conception of

the role of the state in Canada had changed, with governments being

called on to intervene in are as of economic regulation and social p olicy

that were simply unknown in 1867. The drafters of the BNA Act natur-

ally did not address how these new roles and responsibilities would be

shared between different levels of government.

It largely fell to the courts to structure a division of powers for Can-

ada. While the courts rendered t heir decisions in accordance with t he

categories of legislative powers set out in sections 91 and 92 of the BNA

Act, these categories merely provided a framework for decision making.

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

30 & 31 Vict., c. 3).

2 Quoted in W.P.M. Kennedy, “The Interpretation of the British North Am erica Act”

(1943) 8 Cambridge L.J. 146 at 151.

CONSTITUTIONA L LAW244

Before 1949, the highest court in Canada was t he Judicial Commit-

tee of the Privy Council (the JCPC or the Board). As Mallory has point-

ed out, in some respects, the JCPC was an ideal cour t of constitutional

appeal.3 Made up of Briti sh judges who were members of the House

of Lords, the JCPC was clearly impart ial and disinterested a s between

the federal and provincial govern ments in Canada. The Board was also

well positioned to defend the liberty of individuals and the rule of law;

law lords sitting in di stant Whitehall were far removed from short-term

political pressures in Canada. Despite thes e potential advantages, the

Privy Council’s record in the inter pretation of the Canadian constitu-

tion is, at best, mixed and highly controversial. The clear intention of

the BNA Act was to create a centralized federation. However, the JCPC

interpreted the Act so as to allocate many of the most important areas

of legislative jurisdiction to the provinces. Furthermore, the scheme

of federalism created by the JCPC tur ned out to be unworkable in many

respects. The twentieth centur y witnessed a dramatic ex pansion in the

role of government, with the state assum ing responsibilities in social

and economic policy that were unheard of in 1867. Yet most of these

new responsibilities were regarded by the Privy Council as m atters for

the exclusive jurisdiction of the provinces, which lacked the necessary

f‌inancial resources to deal effectively with the se new challenges. One

of the largest challenges facing both levels of government in Canada

since 1945 has been to devise mechanisms that w ill permit them to

escape or to bypass the impractical constitutional framework created

by the JCPC.

This chapter begins with an overview of the manner in which the

JCPC interpreted the division of legislat ive powers in sections 91 and 92

of the BNA Act until 1949. We also explain how this body of jurispru-

dence contributed to a f‌iscal and constitutional crisis th at emerged in

the 1930s, which forced governments at both the federal and the prov-

incial level to begin to search for new solutions. Finally, we trace the

manner in which governments si nce 1949 have developed cooperative,

intergovernmental mechani sms for coordinating shared jur isdiction.

3 See the disc ussion of the role of the JCPC in J.R. Mallory, The Stru cture of Canadi-

an Gover nment, 2d ed. (Toronto: Gage, 1984) at 377–81.