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

AuthorPatrick J. Monahan/Byron Shaw/Padraic Ryan
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.
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.

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