Constitutional provisions

A general introduction to Canada's constitution

The BNA Act, 1867, Enactment 1

General federal powers

Taxation

By Article 91, the federal parliament may raise money by any mode or system of taxation, but the Act does not permit the federal government to tax  property owned by the provinces or measures strictly related to provincial revenue and activity (Article 92), which presumably also includes provincial crown agencies and related organizations. But for a tax to be constitutionally defensible, it must be for revenue generating purposes.  If it is designed, as the current federal carbon tax proposal is, to return monies raised to the provinces from which they were generated, then it is not considered a tax in the constitutional sense (Chalifour and Elgie, 2017).  There remains legal debate about the constitutional foundations of the associated spending power of the federal government.  It is inferred from other  federal powers, including taxation, responsibility for appropriating funds, and public debt and property.  Transfers to provinces are named in sections 118 and 119, but the scope of these subsidies is also subject to legal debate. This is important because the federal government regularly uses its spending power to influence provincial activity and the provinces sometimes balk, claiming  it is unconstitutional.

Criminal law

Article 91 also gives the federal parliament criminal law power  and this power has been used since to justify a range of laws related to production, processing, distribution, prohibiting cruelty to animals, public health, food safety and environmental protection measures.  Many court cases over the years have established the validity of this approach, including not only prevention of fraud and other criminal activity, but also to modify public behaviour, though not necessarily connected to food consumption behaviour.  The activity under question does not have to be prohibited, legal measures can also be put in place to modify how people behave  with that activity.  Smoking warning labels are an example, given that tobacco production and consumption is not illegal (Chalifour and Elgie, 2017).  It has proven  difficult, however, to use the criminal law power to justify standards that are not related to food safety and quality (Buckingham, 2014a).

Trade and Commerce

The federal authority is in effect when goods cross borders and given that most food in Canada crosses borders, many commerce issues will be under federal jurisdiction.  Once a good is off the farm and traded, that activity is no longer justified under Agriculture sections but rather trade and commerce (Buckingham, 2014a).

Peace, order and good government (P.O.G.G.)

This provision can be employed on matters of national concern.  Arguably, many environmental, food and health issues fall under this category.  A common test of the legitimacy of federal use of this power is if a province fails to act within its borders and that has a negative impact on what other provinces do (Chalifour and Elgie, 2017).  Given the complex nature of food supply chains and environmental pollutants, and Canada's signature on many international agreements that commit us to action on these issues,  many matters are national in scope and freely cross provincial boundaries, suggesting that this power can be pertinent for justifying federal interventions.  Not that it has not successfully been used  to ground federal agricultural legislation, even though P.O.G.G. has been used to support health measures (Buckingham, 2014a).  This suggests a constitutional gap regarding the relationship between food and health.

Patents and other forms of intellectual property protection

Originally focused on machinery, it now provides authority for regulating plant and animal breeds and genetic engineering (Buckingham, 2014a).

General provincial powers

Trade and commerce within provincial borders - used also to justify inspection and grading

Taxation -  within the Province to raise revenue for Provincial Purposes (section 92)

Local works - under Article 92, within the province and not including shipping and matters of interest to more than one province.  Presumably this would include local food system infrastructure for goods and services that do not cross the provincial border

Property and civil rights  - Property is a provincial matter under Article 92 and is seen to cover land use. It is also used to justify authorities over food safety.

Agriculture - as articulated in Article 95, as long as it does not conflict with federal laws and is focused on matters within the province.  This means, when combined with property rules under Article 92 that most of the rules and guidance regarding agricultural performance are governed by the provinces

Education - under Article 93, largely provincial authority.

Hospitals and charities - there was no mention of health, but these institutions, with the limited understanding of them of the period, are under provincial authority

Municipalities - are instruments of the provinces

Licenses - under provincial authority for activities within the province

Divided authorities related to Agriculture

The BNA Act (section 95) gives concurrent power to provinces and the federal government over agriculture, with the federal government paramount in case of a conflict, but production control for conservation purposes is likely provincial authority. The scope of section 95 is historically contested  and there are several cases of federal and provincial law being deemed unconstitutional under section 95.  The contestation revolves around the extent to which section 95 applies to matters beyond the farm of an agricultural nature.  This has sometimes resulted in legislation being redrafted using sections 91 or 92 as the constitutional foundation (see Buckingham, 2014a). Setting prices would appear to be under federal trade and commerce authority if natural resource goods (food might be so viewed) are significantly traded beyond provincial borders.  But the view that emerged from earlier National Farm Products Agency cases is that the federal government can intervene in apparently provincial affairs, even if a good is primarily provincially traded, when there is a national interest in regulating external trade (Bray, 1980), which there would be the case of a national demand – supply coordination system. However, at this stage, there is no obvious way to determine how the courts might decide such matters.

Related to Fish

The federal government is responsible for sea coasts and inland fisheries.  But provinces are often responsible for certain waterways and bodies and aquaculture.  Based on post-BNA Act agreements and court rulings, the federal government has produced a guide to provincial responsibilities related to oceans.

Related to Health

.... at the time of Confederation, however, health care was not considered a matter of national importance but was seen primarily as an issue of private or local interest. In the event of illness, most people were dependent on their families and neighbours for care within the home. What little institutionalized health care did exist in 1867 was organized and delivered largely by local charities and religious groups rather than by the state..... As a consequence, the Constitution Act,1867 does not include “health” as a specific head of federal or provincial legislative responsibility.  (Jackman, 2000)

Related to income and social security (Berger Richardson and Lambek, 2018)

The federal government has authority over minimum wages in federally regulated industries, including  shipping, railway, air transport, radio broadcasting and banking, and Parliament.  However, most Canadians are regulated by provincial minimum wage laws as part of the provinces' authority over property and civil rights.  Social protection, what limited conception existed in 1867, was assigned to the provinces.  Federal efforts to intervene in social protection were originally rebuffed by the courts but in the 1940s and 50s, the federal government was given authority over unemployment insurance and old age pensions.  Both levels of government can use their spending power on social programs as long as they do not involve compulsion and do not violate the Charter.

Related to Transportation

Although much of transportation and related infrastructure is under provincial authority, Section 92(10)(a) and (b) of the BNA Act are exceptions to provincial powers.  Authority is given to the federal government for:

" 10 ...... (a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:

(b) Lines of Steam Ships between the Province and any British or Foreign Country:"

Related to First Nations, Inuit and Metis

A complex and deeply colonial authority (see Getting Started) based on section 91. It is exercised primarily in relation to  on-reserve registered (status) peoples.   Authority related to Inuit  came into force in 1939.  Authority related to Metis  remains contested. See the House of Commons interpretation for more on how the federal government views its responsibilities.

Fundamentals of food law flowing from constitutional provisions, precedence, practice, agreements and court decisions (Buckingham, 2014a,b)

Constitutional roots of private and public law related to:

  • Farming
  • Food safety and quality
  • Food labeling
  • Tort and contract
  • Intellectual property

Colourability - much of what proponents of food system change would like to see implemented is likely affected by the doctrine of colourability, that legislatures can not do indirectly what they are able to directly (Buckingham, 2014a).

Although Canada practices cooperative federalism,  federal authority is paramount in cases of contestation between provinces and the federal government, but provinces do have the right to set higher standards than the federal government (Berger Richardson and Lambek, 2018).