Constitutional provisions

A general introduction to Canada's constitution

The BNA Act, 1867, Enactment 1

Canada's constitution has considerable impact on the way food system change can be brought about.  Understanding who has jurisdiction over what is critical to proposing transition strategies.  A related difficulty is that food is not mentioned in the Constitution, which means responsibilities are fragmented.  It also means there is no conception of a food system.

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 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.  The federal spending power is central to the Federal/Provincial/Territorial agreements on agriculture, currently named the Canadian Agricultural Partnerships.  It has been used less often for matters of food safety, food quality and food information (Buckingham, 2019).

Note that direct taxation powers are shared with the provinces (see below), but indirect taxation, such as excise and customs, is a federal matter. A direct tax is on the person targeted, whereas an indirect one can be shifted to other actors (Chalifour and Collin, 2019).

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). Restricting food marketing practices has generally not been deemed justifiable under criminal law, unless it involves fraud,  and thus requires support from the trade and commerce power (Buckingham, 2019).

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.  Note that it has not successfully been used  to ground federal agricultural and marketing legislation, even though P.O.G.G. has been used to support health measures (Buckingham, 2014a). However, the prospects of using the POGG appear to improve if the action addresses a really urgent food and agricultural  problem (Buckingham, 2019), and pressing environmental and health problems related to the food system might so qualify.  Such use of the POGG, however, has yet to be tested.

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).

Royal Prerogative and Treaty  Powers

These are used by the federal government to sign international agreements, and there are many that relate to Right to Food (see Goal 10).  But domestic implementation must be justified under provisions within sections 91 and 92.  This in part explains why domestic implementation is often weak, especially in cases where the provinces have authority but do not undertake actions to comply with international agreements (Buckingham, 2019).

Broadcasting

Under section 92 (10)(a), the federal government originally had authority over telegraphs which has been extended to include radio and television.

 

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, and to some extent consumer protection.  It is important to note that individual property rights are not enshrined in the Canadian constitution (as they are in the USA).

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, and municipal food system function then focuses on conventional domains of municipal authority granted by the provinces, including land use planning, service delivery, business licensing, signs and advertising, and institutional procurement.  However, Baxter and Rose (2019) argue that the courts have been taking a more expansive view of municipal authority (see below).

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, including food.  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, aquaculture, and sport and recreational fisheries, some of this responsibility under the Fisheries Act but not overseen by the Fisheries and Oceans Canada.  And because of provincial authority within other domains, such as relations with First Nations, economic development, resource extraction, environmental protection, agriculture and forest management, they must interact with the federal government on coastal management.  Based on post-BNA Act agreements regarding the sharing or transfer of responsibilities,  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.  First Nations peoples have their own constitutional laws which are not usually recognized by settler governments (see Lindberg, 2019)

Related to Private Law

The food system is also governed by private law associated with the sale and purchase of - property, contracts, torts - and this law rests primarily within the domain of the provinces owing to their property and civil rights powers.  The federal government is usually only involved if there is an infringement on intellectual property (Buckingham, 2019).

Some implications of federal and provincial authorities going forward

Buckingham (2014, a, b; 2019) has summarized some key implications of this consitutional complexity related to advancing food system change:

1. 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).  However, federal - provincial - territorial (FPT) co-operation will be required on most food system change files.  The most promising avenues to achieve this are FPT agreements (eg., the various Agricultural Policy Framework agreements [APF] ) and regulatory harmonization (e.g., provinces that have decided to use the federal regime to regulate organic production and certification for goods traded within their province).  Presumably because of the contestation associated with the APF processes, the federal government has been reluctant to take a comparable approach to national food policy development and implementation (see Andree et al., 2019), but Buckingham (2019) suggests this remains a viable approach.

2. Reconciliation of regulatory systems that are ineffective, contradictory or deficient in coverage will be important, but definitely "heavy lifting" for those involved.  Most of this work has yet to be completed, and in many cases, has yet to begin.

3. 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.  Several initiatives in the past have been struck down by the courts because they perceived legislatures to using such indirect measures (Buckingham, 2014a).

In all these circumstances, federal leadership is required and the current approach to food policy development likely needs to shift from a national food policy to a pan-Canadian one (Andree et al., 2019).

Municipal authority

Municipal authority is delegated by the province and municipal by-laws typically must make apparent their statutory authority. Baxter and Rose (2019) argue that municipal authority is likely expanding as it relates to the food system, but is in flux because the courts are not necessarily consistent in their interpretations and municipal decision makers are therefore not necessarily willing to be innovative in the face of potential rejection by the courts.

For example, some  recent court decisions interpreted as a group, while appearing to permit a wider sphere of jurisdiction, and recognizing the importance of having decisions made close to the citizens affected (subsidiarity), have also confined that authority to the territory of the municipality, rejecting actions that are focused primarily on activity outside the municipality.  Given the uncertainties, some municipalities chose to be policy entrepreneurs, enablers and facilitators of actions by other actors in the policy system in ways that avoid disputes that might lead to legal interventions.