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Intergovernmental cooperation

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Tolga Yalkin

on 17 September 2013

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Transcript of Intergovernmental cooperation

Nova Scotia Inter-delegation (1950)
The Federal Parliament DID NOT and the Provincial Legislatures DID have jurisdiction to legislate a system of old age pension.
The Federal Parliament DID and the Provincial Legislatures DID NOT have the jurisdiction to impose sales tax.
Federal Parliament give Provincial Legislatures power to impose sales tax.
Provincial Legislatures give the Federal Parliament the power to enact old age pension.
This delegation of legislative power is not permissible under the Canadian Constitution.
Three primary ways overcome:
1. Incorporation by reference
2. Administrative delegation
3. Conditional legislation
A-G (Ont) v Scott (1956)
Provided for enforcement of English maintenance orders and a right to raise defences available under English law.
But, it operated like a delegation, as changes in English law substantially changed Ontario law. Why wasn't this an unacceptable delegation?
Incorporation by reference
Administrative delegation
Provincial legislatures can delegate law making authority to administrative entities within the province: Hodge (1883).
The Federal Parliament can also delegate law making authority to federal administrative entities: Re Gray (1918).
However, can the Federal Parliament delegate law making authority to provincial administrative entities?
Sir Barnes Peacock (for the Court):
"Delegatus non protest delegare" does not apply.
Authority to delegate is "plenary and ample".
The important thing is that the delegation can be destroyed at will - it is not an abdication.
Panama Refining (1935) USSC:
Some "policy", "established standard" or "rule" for manner in which legislative authoirty is to be exercised must be provided.
Exclusive means EXCLUSIVE, and to allow otherwise would defeat the whole scheme of Canadian confederation. Provincial legislatures and Parliament cannot be subordinate to one another.
Coughlin v Ontario Transport (1968)
Extraprovincial carriers operating within a province must get a licence from provincial transport board.
Provincial transportation board was to issue licences "upon like terms and conditions and in the like manner as if the extra-provincial undertaking operated in the province were a local undertaking.
R v Furtney [1991]
The Criminal Code provided the Lieutenant Governor-in-Council of each province to make gaming and betting lawful, where it would not otherwise be.
Stevenson J:
Reiterated that inter-delegation of legislative jurisdiction is constitutionally impermissible (Nova Scotia Inter-delegation [1950])
"The prohibition is against delegation to a legislature. There is no prohibition against delegating to any other body."
"Parliament may delegate legislative authorty to bodies other than provincial legislatures; it may incorporate provincial legislation by reference and it may limit the reach of its legislation by a condition, namely the existence of provincial legislation" - Stevenson J in R v Futney [1991]
In this case, the legislation did two things:
(1) it gave Cabinet the power to exempt charitable or religious organizations if proceeds used for charitable or religious purposes;
(2) a licence so issued can be subject to terms and conditions, including those perscribed by provincial law.

This is not delegation to a provincial legislature, so it is permissible.

This is incorporation by reference and, therefore, acceptable.
Re Gray (1918)
Hodge (1883)
Nova Scotia Inter
-delegation (1950)
PEI Potato Marketing Board v Willis (1952)
A-G Ont v Scott (1956)
Coughlin (1968)
The Privy Council opined that provincial legislative power was "as plenary and as ample within the limits perscribed by s. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow."
The question remained, however, whether skeletal statutes could be construed as invalid delegations of "legislative powers". This was rejected in Shannon v Lower Mainland Dairy Products Board (1938).
"plenary and ample"
"abdication, abandonment, or surrender"
Total conferral of legislative powers on administrative agency is permissible so long as the delegation is an "abdication, abandonment, or surrender" of the legislative power.
Ontario legislature incorporating by reference English law
Parliament incorporating by reference provincial law
Executive Federalism
What is executive federalism?
Why is executive federalism so pervasive in Canada?
What is the result?
"Executive federalism is characterized by the idea that the role of Parliament in governing the country should deminish while premiers should acquire more influence over national public policy. In effect, this means that Canada's national government would be a council of first ministers."
Intergovernmental Agreements
Intergovernmental Cooperation
Reference re CAP [1991]
In 1967, the Canadian Government entered into agreements with each province to pay contributions towards social assistance and welfare.
The agreement provided for a procedure to be followed to terminate.
Neither Parliament nor the Government followed this procedure, and unilaterally termined by act of Parliament.
Sopinka J:
The principle of parliamentary sovereignty means that Parliament cannot bind itself and is free to amend laws.
Furthermore, the terms of the agreement were consistent with a unilateral right of termination.

"It must be remembered that this is not an ordinary contract but an agreement between governments ... In lieu of relying on mutually binding reciprocal undertakings which promote the observance of ordinary contractual obligations, these parties were content to rely on the perceived political price to be paid for non-performance."
Cree Regional Authoirty [2010]
A tripartite agreement between Québec, Canada, and the Cree could not be amended, as per its terms, unilaterally.
The difference here was that we had an agreement that was encapsulated outside of mere legislation.
PEI Potato Marketing Board v Willis (1952)
Federal government authorized PEI (provincial) marketing board to regulate international and interprovincial marketing of potatoes.
The federal government had delegated to a provincial authority jurisdiction to market a federally regulated area.
The Supreme Court upheld this as a valid delegation of jurisdiction as Parliament had a "adopted as its own" the provincial agency.
How do we think this deision squares with the other decisions we've enocuntered so far?
It was valid. Incorporation by reference is not delegation.
Carwright J:
The delegation was valid as:
An administrative delegation to a provincial authority (PEI Potato); and
An incorporation by reference (A-G v Scott).
If the federal Parliament can incorporate by reference, does this mean that the prohibition in Nova Scotia inter-delegation (1950) is rendered of no force?
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