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CONSTITUTIONAL LAW

13 POGG POWER: NATIONAL CONCERN

Shigenori Matsui

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INTRODUCTION

What is the p.o.g.g. power over national concern?

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I HISTORICAL DEVELOPMENT OF THE NATIONAL CONCERN POWER

AG Ontario v. Canada Temperance Federation, [1946]

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Aeronautics Reference [1932]

Reference re Regulation and Control of Radio Communication [1932]

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Johannesson v. Rural Municipality West St. Paul, [1952] 1 S.C.R. 292

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If the subject of aeronautics goes beyond local or provincial concern because it has attained such dimensions as to affect the body politics of Canada, it falls under the peace, order, and good government clause of s. 91 since aeronautics is not a subject-matter confined to the provinces by s. 92.

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Munro v. National Capital Commission, [1966]

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I find it difficult to suggest a subject matter of legislation which more clearly goes beyond local or provincial interests and is the concern of Canada as a whole than the development, conservation and improvement of the national capital region in accordance with a coherent plan in order that the nature and character of the seat of the government of Canada may be in accordance with its national significance.

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Jones v. AG New Brunswick, [1975]

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I am in no doubt that it was open to the Parliament of Canada to enact the Official Languages Act (limited as it is to the purposes of the Parliament and Government of Canada and to the institutions of that Parliament and Government) as being a law "for the peace, order and good government of Canada in relation to [a matter] not coming within the classes of subjects ... assigned exclusively to the Legislatures of the Provinces".

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…No authority need be cited for the exclusive power of the Parliament of Canada to legislate in relation to the operation and administration of the institutions and agencies of the Parliament and Government of Canada. Those institutions and agencies are clearly beyond provincial reach.

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Reference re Anti-Inflation Act, [1976]Beetz J dissenting (de Grandpre J concurring)Ritchie J (Martland and Pigeon JJ concurring)

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If the first submission is correct, then it could also be said that the promotion of economic growth or the limits to growth or the protection of the environment have become global problems and now constitute subject matters of national concern going beyond local provincial concern or interest and coming within the exclusive legislative authority of Parliament. It could equally be argued that older subjects such as the business of insurance or labour relations, which are not specifically listed in the enumeration of federal and provincial powers and have been held substantially to come within provincial jurisdiction have outgrown provincial authority whenever the business of insurance or labour have become national in scope.

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It is not difficult to speculate as to where this line of reasoning would lead: a fundamental feature of the Constitution, its federal nature, the distribution of powers between Parliament and the Provincial Legislatures, would disappear not gradually but rapidly.

I cannot be persuaded that the first submission expresses the state of the law. It goes against the persistent trend of the authorities.

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The Anti-Inflation Act is, as its preamble states, clearly a law relating to the control of profit margins, prices, dividends and compensation, that is, with respect to the provincial private sector, a law relating to the regulation of local trade, to contract and to property and civil rights in the provinces, enacted as part of a program to combat inflation. Property and civil rights in the provinces are, for the greater part, the pith and substance or the subject matter of the Anti-Inflation Act.

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According to the Constitution, Parliament may fight inflation with the powers put at its disposal by the specific heads enumerated in s. 91 or by such powers as are outside of s. 92. But it cannot, apart from a declaration of national emergency or from a constitutional amendment, fight inflation with powers exclusively reserved to the provinces, such as the power to make laws in relation to property and civil rights. This is what Parliament has in fact attempted to do in enacting the Anti-Inflation Act.

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II CURRENT FRAMEWORK

R v. Crown Zellerbach Ltd., [1988]

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From this survey of the opinion expressed in this Court concerning the national concern doctrine of the federal peace, order and good government power I draw the following conclusions as to what now appears to be firmly established:

1. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature;

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2. The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern;

3. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution;

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4. In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter.

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The Ocean Dumping Control Act

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What about the power to regulate drugs? The Narcotic Control Act of 1960

R. v. Hauser [1979]

R. v. Malmo Levine [2003]

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What about the power to enact environment protection legislation?Friends of the Oldman River Society v.

Canada [1992]

R. v. Hydro-Quebec [1997]

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What about the power to implement the Kyoto protocol?

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What about the power to protect the personal privacy? The Personal Information Protection and

Electronic Documents Act (PIPEDA) of 2000

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What about the power to regulate nuclear energy? Ontario Hydro v. Ontario [1993]