Contemporary Issues in Canadian Federalism Series: Legal Issues in Contemporary Federalism (TRN5-V58)

Transcript: Contemporary Issues in Canadian Federalism Series: Legal Issues in Contemporary Federalism

[00:00:00 The CSPS logo appears onscreen.]

[00:00:03 The screen fades to Darlene H. Carreau in a video chat panel.]

Darlene H. Carreau: Hello and welcome everyone to our event today on legal issues in contemporary federalism, the ninth event in a series called Contemporary Issues in Canadian Federalism Series. My name is Darlene Carreau. I'm the Chief Administrator and CEO of the Courts Administration Service. I will be your moderator this afternoon. Thank you so much for joining us.

Let me start by acknowledging that the land from which I am talking to you is located in Ottawa and on the unsurrendered territory of the Anishinaabe Algonquin Nation whose presence here reaches back to time immemorial. Some of you today may be joining us from various parts of this country and I therefore encourage you to also pause for a moment and to recognize and acknowledge the territory that you're occupying. Thank you.

As Chief Administrator and CEO of our four federal courts, I'm really honoured to play a small part in our panel discussion today as we explore federal systems, including the important role our judiciary plays in our democracy. As we will learn today, Canadian jurisprudence helps us interpret federal and provincial powers as defined by our constitution. Our esteemed panelists will help us better understand the complexities and the possibilities of federalism as we Canadians seek to tackle some of the important contemporary issues facing us today, including climate change and health care. Today, we are so very fortunate to hear from two leading experts on the topic of legal issues within the Canadian context.

Our first esteemed speaker is Peter Oliver who is a full professor at the University of Ottawa and a co-founder and member of Le Centre de droit public, uOttawa Public Law Centre. He is the author of The Constitution of Independence and the co-editor of Oxford Handbook of the Canadian Constitution, both published by Oxford University Press. Before taking up his current position at the University of Ottawa, he was Professor of Constitutional Law at King's College London, Scholar in Residence at Justice Canada, and Special Advisor, Legal and Constitutional, at the Intergovernmental Affairs Secretariat of our Privy Council.

And our second esteemed speaker is Johanne Poirier who is a full professor at the Peter MacKell Chair in Federalism at McGill University in the Faculty of Law. At McGill's Faculty of Law, she teaches constitutional law, comparative federalism, and a course on public policy and intergovernmental relations. In 2017, she taught a seminar in constitutional drafting and reform entitled Modernizing the Canadian Constitution. Most of Professor Poirier's publications explore various aspects of federalism, the protection of minorities, and most notably linguistic minorities, and more broadly, public law. Prior to joining the McGill Faculty of Law in 2015, she practiced public law at Justice Canada and taught comparative constitutional law at Université Libre de Bruxelles in Belgium for over a decade.

A warm welcome to both Johanne and Peter, and thank you all for joining us today. In today's session, Johanne and Peter will each provide a 20-minute presentation and then we will have what I hope to be a lively panel discussion followed by a question-and-answer period with the audience. And so, we encourage you participants today to please send your questions in your language of choice by clicking the chat function icon situated at the top right of your screen. We'll keep track of your questions as our presenters present today, and following the panel discussion, we'll try to get to as many of those questions as time will permit.

All right. Well, with that, let's get started on our discussion, and I'd like to invite Peter to get us started. So, Peter, over to you.

[00:04:23 Peter Oliver appears in a video chat panel.]

Peter Oliver: Thank you, Darlene, and good afternoon, everyone. I'm going to focus on the constitutional rules that govern legal federalism in Canada and then look at just one or two examples, the related Court of Appeal and Supreme Court of Canada case law, that interprets and applies those provisions. We start, of course, with sections 91 and 92 of the Constitution Act 1867 that set out the distribution of legislative powers. Section 91 says that, "It shall be lawful for Parliament to make laws within the classes of subjects hereinafter enumerated," and one then sees a list of classes of subjects, or heads of power as they're often referred to, that include important federal powers such as, for example, the regulation of trade and commerce, Section 91(2), banking, 91(15), and the criminal law power 91(27). Federal powers also include peace, order, and good government based on the opening words of Section 91, and federal works and undertakings, principally cross-border transportation and communication undertakings based in an exception set out in section 92(10)(a).

Section 92 states that each provincial legislature may exclusively make laws in relation to matters coming within the enumerated classes of subjects or heads of powers, and these include, for example, the establishment, maintenance, and management of hospitals, 92(7), municipal institutions in the province, 92(8), local works and undertakings other than those already referred to under Section 91, that's Section 92(10), and most important of all, property and civil rights, 92(13), and generally all matters of a local or private nature, 92(16). It should also be noted that while criminal law is a federal matter, provinces can, by virtue of Section 92(15), impose fines, penalties, or imprisonment in order to enforce any law that is already supported independently by another provincial head of power.

So, for example, provincial and municipal driving and parking offences can be supported by fines. A couple of further additions are in order before finishing this look at the constitutional text dealing with the division of powers. Section 92(10)(a), added by way of constitutional amendment in 1982, says that provincial legislatures may exclusively make laws in relation to non-renewable natural resources, forestry resources, and electrical energy. Section 93 deals with a matter that was in the original drafts of Section 92 and which still belongs there, but for the fact that it's long and detailed. So, Section 93 deals with the important provincial jurisdiction regarding education. Finally, Section 95 states that both provincial legislatures and the Parliament of Canada may make laws in relation to agriculture and immigration. This is what is known as a concurrent power. Section 95 ends by explicitly raising an issue that we'll want to look at in a moment, that is what happens when federal and provincial laws conflict. Section 95 says provincial laws in relation to agriculture and immigration have effect only to the extent that they aren't republic with any federal act.

Well, that's an awful lot of constitutional text, even though I've been selective. So, how did the courts apply these provisions? You'll have already noted fairly frequent reference to exclusive powers. We've also seen that, at least under Section 95, the constitution states that conflict between federal and provincial laws should be resolved in favour of federal preferences. What constitutes conflict between federal and provincial laws? And why would there be conflict outside the concurrent powers of Section 95 if federal and provincial laws are said to be exclusive? The best way to get a better handle on these and other questions is to look at the main analytical tools that our courts have developed in order to resolve legal federalism-related disputes. We can usefully highlight three key words that signal which analytical tool is about to be deployed, validity, operability, and applicability.

So first, validity. Determination of the validity of any piece of legislation involves a well-known two-step process. First, characterizing the legislation in question, and second, classifying it according to the relevant head of power. Characterization is accomplished by determining the pith and substance of the legislation, that is, its true nature, or more colloquially, what the legislation is really about. The pith and substance, or true nature of the legislation, is in turn determined according to its purpose and its effects. How do we determine the purpose? The court suggests that we can use both intrinsic and extrinsic evidence. Intrinsic evidence is found in the legislation. That is what we can glean from the preamble, the short and long title, the purpose clause, and the general structure of the act. Extrinsic evidence includes, for example, what the minister introducing the bill might have said at second reading. Committee reports might be relevant as well.

The Supreme Court of Canada has recently reminded us that the touchstone is still what the legislation actually says, not what was said about it, though the latter may still assist. The effects include the legal effects and the practical effects, the former being the effects that the legislation appears to contemplate, the latter being the unintended or ricochet effects. It should be pointed out that there will always be unintended ricochet, or secondary effects they're sometimes called, and the presence of these does not mean that the legislation is, for that reason, suspect. It's only when these effects seem to place the expressed legislative purpose in doubt that analysis of effects looms large. Once the characterization process is complete, the law in question can be assigned to a head of power. If that head of power is one belonging to the order of government that is legislated, then the law is valid. If the head of power belongs to another order of government, then it may be invalid. How do we know when a law is properly assigned, properly anchored, so to speak, in a head of power? Each head of power has been elucidated in a range of Supreme Court of Canada cases, and we have to look at those cases in order to identify the relevant requirements or legal tests. I'm afraid that I don't have time to go into the case law regarding each power now.

But sticking with the analytical terms, after validity comes operability. What happens when there appears to be a certain amount of tension between a valid federal act and a valid provincial act, or more likely, tension between certain provisions in those acts? The rule is that if the courts deem there to be conflict between these provisions, the federal provisions will be paramount, that is, they will take precedence over the provincial provisions and the latter will be said to be inoperative. The word 'inoperative' is used to convey the fact that the provincial act and all its provisions may be valid; however, due to the conflict, the provincial provisions do not operate. And furthermore, if the conflicting federal provisions were ever repealed, the formerly conflicting provincial provisions would become operative once again, that is, they would still be valid and now become operative. This sounds like an important, even imbalanced rule favouring federal power, and it is. However, over the years, the Supreme Court of Canada has refined the test that it uses to determine whether a conflict actually exists, with the result that conflicts and resulting federal paramountcy and corresponding provincial inability are seldom found. The recent Murray-Hall decision confirms this trend.

Trends aside, the Supreme Court of Canada has identified two situations that can result in federal paramountcy and inoperability. First, operational conflict, and second, frustration of federal purposes. The first of these, operational conflict, arises when one provision, one law or provision, says yes and the other law or provision says no. The second, frustration of federal purpose, often emerges where the federal legislator has deliberately left the matter unregulated or under-regulated, and a province decides to regulate in that space, thereby frustrating federal plans. Stated that way, you might think that frustration of the federal purpose could arise frequently. In fact, it has been seldom applied, the court often taking the view that the federal unregulated… or regulation nonetheless leaves room for properly anchored provincial legislation. This was the case in Murray-Hall regarding the number of marijuana plants that can be grown at home, federal legislation setting a four-plant limit, and Quebec legislation setting a limit of zero or no plants. Both were ruled valid and operative.

Finally, applicability. So far, the focus with validity and operability has been on the legislation itself, its pith and substance, and later, the potential conflict between otherwise valid federal and provincial legislation, requiring us again to focus on the detailed provisions. Applicability, in its day-to-day usage, simply refers to the uncontroversial fact that, for example, the Bank Act applies to banks and the Municipalities Act applies to municipalities. That wouldn't seem to require much collaboration. The more significant cases, then, deal not with whether and how a law is applicable but whether and how a law is inapplicable. Inapplicability is said to arise by way of the interjurisdictional immunity doctrine. Although the Supreme Court of Canada seems to have left the door open to the possibility of federal laws being declared inapplicable, the existing case law arises in relation to provincial legislation. A good deal of provincial law is of general application in that it applies on its face to all persons, all companies residing or operating in the province. Take provincial labour law by way of example. On its face, provincial labour laws apply not only to you and me and to Canadian Tire and Réno-Dépôt, but to individuals and companies who are normally subject to federal laws.

So, to take the most prominent examples, banks such as CIBC and Royal Bank, interprovincial and international transportation companies such as Air Canada, VIA, and TransCanada pipelines, and interprovincial and international communications companies such as Bell, Rogers, and Vidéotron. In relation to this latter list of federal persons and things, the court would, in the past, recognize an immunity, an interjurisdictional immunity, in circumstances where a provincial law of general application, like the labour laws, simply touched or affected the core of federal jurisdiction with respect to banking, and interprovincial and international transportation or communication. Given the ease with which this test could be met, these entities, banks and the like, benefited from an effective jurisdictional fortress, a strong fortress, with the result that they hardly needed to pay attention to provincial laws.

In the important 2007 decision in Canadian Western Bank, the Supreme Court of Canada made some key changes to this doctrine, the interjurisdictional immunity doctrine. First, it said that inapplicability would only arise where, in our example, the provincial legislation impaired as opposed to simply touched or affected the core of the federal jurisdiction. Second, the court stated that at least where federal interjurisdiction immunity is concerned, the doctrine would only apply to heads of power where precedents already existed, and would not be further expanded. Case law already existed regarding banks and interprovincial and international transportation and communication undertakings, which is why I've been using them as examples. The court in Canadian Western Bank was well aware that this ruling represented a loss for federal power, and therefore reminded federal authorities that they still have the power to draft legislation that clearly conflicts with applicable provincial provisions and thereby to exercise federal paramountcy.

With the time that I have remaining, I'd like to use a case study just to provide you with a rough idea of how all these doctrines and analytical tools play out. The case that I've chosen is the 2020 decision in Reference re Environment Management Act, involving the validity, operability, and applicability of proposed 2018 amendments to British Columbia's Environmental Management Act. This important case is less well known in part because the Supreme Court of Canada delivered an oral judgment through Chief Justice Wagner in which it stated simply, "We are all of the view to dismiss the appeal for the unanimous reasons of the Court of Appeal for British Columbia." The proposed amendments to the B.C. Environmental Management Act were the B.C. government's response following on heated debates and a provincial election in which the construction of the Trans Mountain, and therefore cross-border pipeline, was a major issue. The proposed amendments, amongst other things, required provincial permits for persons in possession of heavy oil above a certain threshold, and authorized both the attachment of conditions to such a permit and penalties for non-compliance.

Hopefully, with the benefit of the introduction to division of powers law, you can see that the Attorney General of Canada would succeed in challenging the proposed amendments if it could show that they were invalid, or valid but inoperative, or valid and inoperative but inapplicable to Trans Mountain, a federal interprovincial transportation undertaking. In the end, the B.C. Court of Appeal took the view that although the B.C. amendments were drafted as if they were of general application, their true purpose and effect was to regulate the Trans Mountain Pipeline, a federal transportation undertaking. As such, the provincial provisions were invalid. It was not necessary to consider whether they were applicable, if they're invalid, they cannot apply, or whether federal law might be paramount. If the provincial law is invalid, there can by definition be no conflict and no need to resolve it in favour of federal preferences.

Before winding up, I'd like to mention two key terms that have not featured in the discussion thus far. First, cooperative federalism, and second, double aspect. We began with the text of sections 91 and 92, and the frequent references to exclusive heads of power. Exclusive conjures up an image of federal and provincial laws neatly and securely anchored in separate zones. Whether or not this watertight compartments view of the division of powers was intended by the drafters of our constitution, the increasing complexity of the Canadian polity, society, and economy made it unworkable. The phrase watertight compartments conveyed federal and provincial jurisdiction with minimal overlap.

Increasingly, beginning in the middle of the last century, the Supreme Court of Canada has moved to a more flexible version of federalism in which overlapping jurisdiction is no longer the exception. This model is referred to as cooperative federalism. Despite the label, it does not mean that the courts will force intergovernmental actors to cooperate. Rather, it means that doctrines, such as the ones we have looked at this afternoon, are designed so that overlaps are assumed, even expected. We can find evidence of this trend in the fact that, for example, the definition of conflict under federal paramountcy is articulated in such a way as to make provincial inoperability unlikely, and in the fact that the old interjurisdictional immunity doctrine, inspired as it was by a version of watertight compartments, has been watered down.

Further evidence of cooperative, as opposed to watertight compartment federalism, lies in what we refer to as the double aspect doctrine. From time to time, the Supreme Court of Canada has reminded us that there are at least three levels or three perspectives at play in division of powers cases. First, the head or heads of power. Second, the legislative or regulatory texts. And third, the activities taking place in Canadian society that such texts aim to effect. The double aspect doctrine means, for example, that though only Parliament has jurisdiction over criminal law and only the province has jurisdiction over local and private matters, the properly anchored laws or regulations enacted by those orders of government can both regulate conduct on the highways. This is because of what we refer to as the double aspect doctrine, the fact that both federal and provincial laws can validly regulate the highways.

The environment and the health sector, for example, sometimes tempts us to refer to the activities themselves, highways, the environment, the health sector, as having a double aspect. This is dangerous slippage in our thinking if, on the one hand, we start to think of these activities as areas of de-facto concurrent federal and provincial jurisdiction. It is permissible and understandable talk if, on the other hand, we never forget that both orders of government can only legislate validly if they have satisfied the two-step test for validity with which we started. This means, for example, that Parliament can legislate regarding the safety of drugs but not regarding the running of hospitals. No doubt, you'll have questions regarding all of this. So, I will end here, hand over to Professor Poirier, and look forward to answering those questions in due course. Merci, thank you.

Darlene H. Carreau: Thank you very much, Peter. That was an informative overview of the constitutional rules that govern legal federalism in Canada and some great examples of the ways in which our courts have helped resolve the conflicts between federal and provincial laws and jurisdiction.

Johanne, I will now turn it over to you for your presentation.

[00:23:50 Johanne Poirer appears in a video chat panel.]

Johanne Poirier: Merci beaucoup, Madame Carreau, and thank you, Peter, for this crystal clear synthesis. We normally take five or six hours to teach what you've taught in 20 minutes, so this is quite a feat. It's a real privilege to address this audience of public servants today.

[00:24:14 A slide is shown with the title "Outline" above text that reads:

1. How waltzes between "dualism" and cooperative" federalism
2. Cooperative federalism and "intergovernmental law": concepts
3. Cataloguing legal cooperative "techniques" of cooperation: and illustrations]

I was part of the public service for a few years before academia, as Madame Carreau underlined, and I have really, really fond memories of my time at Justice. I'm also fascinated and thrilled that there was actually a series on federalism, because we have the sense that federalism has sort of moved off the chart. Not that we don't practice it. I mean, it's very difficult, I presume, to be in the public service, either federal or provincial, and not practice federalism on a daily basis.

[00:24:36 A slide is shown with the title « Plan » above text that reads:

1. Modelés fédéraux : quelques rappels de base…
2. Le fédéralisme coopératif et le « droit intergouvernemental » : clarifier les concepts
3. Répertorier et décrypter les « techniques » juridiques de coopération : les « écheveaux normatifs »]

But in terms of actually studying, getting our hands dirty, often, it's been bypassed, partly by interest in the Charter, other issues. And yet, interest in our fundamental institutions is actually very crucial for the solidity of democracy. So, I commend you for this. And of course, it's my candy store, so I'm happy to be in it today.

So, in the sort of 18 minutes I have left, I'd like to do three pretty complex things. So, I will go pretty fast. In French, we say, "attachez votre tuque" (brace yourselves). In English we say, "buckle up" So, hopefully, I will be able to go through them. I'm using quite a lot of visuals because the concepts I want to deal with tend to be a little bit complicated, and sometimes just looking at a picture might help. So, I'd like to do three things. The first one is actually go back to the structure of the Canadian federation that Peter developed from the division of powers. What does it mean to have exclusive powers? How was the federation created in 1867 and how has it evolved from a legal perspective? Then, the concept of cooperative federalism that Peter has evoked means different things. So, it means something for the Supreme Court but it means different things in different contexts. We'll try to unpack that. And then, a concept that I'm starting to toy with, which is intergovernmental law, to say that law… because we're looking at legal issues and federalism, and my argument is that law doesn't only pertain to division of powers. Law also permeates other aspects of federal governance and we should pay attention to that. And third, as an illustration of that but very quickly, I will bring your attention to the importance of legal techniques developed by the political branches, the legislative and the executive branches, to actually articulate interaction between federal and provincial orders, and sometimes even between provincial orders that are actually using legal techniques, but they're difficult to find but they exist, and in a country based on the rule of law, public action at some point must move from policy decisions and political decisions into legal norms, and how do you do that in a federal system? It's far more complicated than in a unitary state.

Okay, so federal models, some very basics. 1867, this is the architecture, a dualist federal system. I'm synthesizing and there are sort of nuances, but basically, everyone in their own house.

[00:27:24 A slide is shown with the title "Federal Models: Some basics …" above text that reads: "Dualist Federalism". Red and Blue boxes representing the Federal and Constitutive units (P/T) government units are shown. An arrow labelled "Execution" for each points from the Legislature directly to the "Executive" box.]

The federal order as a legislature, the two chambers, and I could complicate it by saying the King and… whatever in Parliament, but let's put it this way, like basically, Parliament and then the executive branch, which of course, in our parliamentary system, has the confidence of the House but also is the executor of legislation. And therefore, you're all federal public servants, you implement federal law and federal programs, and you're funded by the federal order. You execute federal policy, and this must be so obvious that you don't actually think that there could be other ways of doing it. The provinces do the same. They have their own legislature, their own executive, and their own public administration, and if we actually went below, I didn't draw it there, but to a large extent, at least administrative courts also follow this siloed, pillarized conception of federalism. Everyone in their own house. So, you're a public servant. If one of your decisions is challenged or one of your acts is challenged, you're going to go before the federal court that Madame Carreau administers. And if you're in a province, well, you're going to go before an administrative tribunal of the province and eventually the Superior Court of the province. It's, again, all in your own silos.

Now, let's contrast this with, and you'll wonder why I'm talking… no, actually, just before, just a picture. This looks a bit like row houses… I'm from Montréal, so let me take a picture from Montréal, but those beautiful row houses in La Plateau where everyone's in their own home but they're close together and they're somewhat connected. It's not entirely like that because you have the constitution on top, but I mean, you get the picture that everybody is quite autonomous. Now, let's look at a different federal model, and the reason I'm teaching… I'm invoking this is not only abstract. You'll see that it has a heuristic or explanatory value later on when we look at how we actually practice federalism in Canada.

[00:29:31 A slide is shown with the title "Integrated Federalism: German Style". Red and Blue boxes representing the Federal and Constitutive units (P/T) government units are shown. An arrow labelled "Execution" for each points from the a "Legislature" box directly to an "Executive" box. Arrows connect the Upper House of the Federal Legislature to the Executive of the Constitutive units and are labelled as "Execution of federal law and programmes" and "Designation".]

So, in a German-style federal system, but you have the same in the European Union or in Switzerland or in Austria and so on, the system's a little bit different. So, the federal legislature adopts legislation and it has a smaller executive, and particularly a smaller public service that executes only part of its policies and legislation only in a few areas, for instance, defence, foreign affairs and so on. For the most part, public policy, even federal public policy, is implemented by the public service of the Länder, of the equivalent of the provinces.

So, if you map this onto Canada, it would mean that you have… you would be far fewer public servants in the federal order. Most of you, you would actually work for provinces but you would implement both provincial law and federal law. Now, that looks like a strange system. It looks a bit like the provinces are agents of the federal system. But of course, you have to remember that in those systems, the provinces, the Länder, the equivalent of provinces, partake much more robustly in lawmaking at the federal level. So, they are much more present in the equivalent of our Senate. It's a bit like as if our premiers would sit in the Senate and different ministers would sit in the Senate to make public law at the federal level that they then have to implement. There's a different logic, and we could talk about this much longer, but keep that that idea in mind. It looks not like these neat little row houses. It's more like a condo. Everybody's got their house, but they share plumbing and electricity, and it's much more organic.

Now, let's move to concepts of cooperative federalism, which means different things. There's political cooperative federalism and this is often what we call executive federalism, basically, the federal provincial diplomacy. All the negotiations that go from the top up, the ministerial leveil, the Prime Ministerial level to different levels in public administration, so all the committees, all the formal and mostly informal kinds of cooperation that really takes place basically on probably in every policy area that you are all involved in. There's always a political dimension, and by political here, we often mean non-legal. We don't necessarily mean… because we have a public service that is, in theory, not politicized. So, they're not necessarily making political decisions. They're making policy decisions but not necessarily using legal means or anchored in law, but cooperative federalism can also have legal meaning. It can be constitutionalized. Now, that, in Canada, we hardly have any. Again, let's think 1867. We have autonomous institutions. They have exclusive powers. There's not supposed to be interaction. If there is interaction, it's basically federal law trumping provinces or sometimes London trumping Ottawa. But otherwise, there's no interaction. Everybody is supposed to do their own thing. There's no… but in some federal systems, of course, rules of the game, rules of interaction, rules of engagement, might be provided for in the constitution, either by constitutionalizing some institutions, certain bodies, certain principals, and so on. In Canada, we don't have it but I put it there because sometimes it's been invoked that it could be helpful to have it.

We have judicial cooperative federalism, and this is what Peter was talking about. We move from a system in which there is hardly any overlap, in theory, de jure. So, that means by law concurrency, Section 95, Immigration and Agriculture. So, in theory, it's that. And through all the doctrines that have evolved over time, that Peter has surveyed for us, we end up having overlap. Now, it's not quite shared powers, it's the double aspect, so… but we could talk about the difference between that. But basically, cooperative federalism, the way it's used by the Supreme Court doesn't mean we'll force you to cooperate or we will sanction you if you don't cooperate and don't behave like good neighbours or you actually hurt your neighbour in the federal system. Basically, we are concerned about who can do what, not about how you can do it. We're not going to survey that. Some federal systems have principles of good faith or federal loyalty, that enable the courts to actually intervene a bit more by saying, what you have done here is actually contrary to federal loyalty or to the federation or to good spirit or to good faith, and you shouldn't be doing this, you have the power but you shouldn't exercise it this way. In Canada, we don't have that. So, federal… basically cooperative federalism means removing barriers between exclusivity as much as possible to allow for more overlap. The idea being if there's more overlap, federal and provincial entities are going to, or authorities are going to, cooperate more. I don't find this very compelling because they could fight more if they have jurisdiction and we don't necessarily know who does what. But basically, this is the idea and this is why it's called cooperative federalism.

[00:35:14 A slide is shown with the title "INTERGOVERNMENTAL LAW: 3 aspects" above text that reads:

"Legal Dimensions:

• Upstream
  • Constitutional norms and principles, division of powers, constitutional interpretation
• Midstream
  • Legislative and executive techniques
• Downstream
  • Judicial review (of administrative action in cooperative contexts) + Other legal accountability mechanisms of the executive branch"

"Actors:

• Upstream
  • Constituent authority and judicial power
• Midstream
  • Legislative and executive branches
• Downstream
  • Administrative tribunals + Parliamentary committees.]

The other meaning, executive and legislative, is what I'm coming to here. What I've said, and this is going to be the most daunting slide, I'm sorry, but let me ask for your forbearance about this. It brings me to intergovernmental law. This is something I'm starting to work with, so feedback on this would be extremely helpful. Basically, my observation over the last few years of working on this has been that law permeates the federal system in different ways and at different angles. One of them is sort of upstream. This is what Peter has been talking about. The division of powers, constitutional interpretation by courts, occasionally federal principles, although in Canada, they're not used very much in that context, so basically the framework, the background. And after that, after we've done this, and basically when we think about law and federalism, normally that's what we think about, basically what's in the contract, what's in the constitution, and what are courts saying about it? Who does what? And this is what law is about.

This is partly because we have a common law system that puts a lot of focus on what judges say and sometimes disregard a little bit what the legislature and the executive branch actually do, and the legislature, well, legislates, and the executive branch executes but it also adopts secondary legislation, regulations, orders and councils, and so on, so the normative instruments that are also part of the legal system, and they use those, in theory, each in their own order. Think back dualism, they adopt legislation and regulation, and then they apply it on their exclusive field of jurisdiction, but what we see is there's overlap, increasing overlap, increasing interaction to get policy objectives accomplished and this is done, of course, by politics. You have to agree to coordinate to a certain extent. You have… there's policy, you have to have an objective to say, well, it's better if we do it this way, I'll let you do part of it, I will delegate part of the jurisdiction, or we will negotiate, or I won't impose the same rule on all provinces, I can… we can allow for some symmetry. This is all politics and policy. But after that, how you actually get it done uses, in many ways, legal instruments, and those are hidden in legislation. I'll come back to this in the next slide. They're hidden, they're hard to find, but they exist, and it's very peculiar, in a way, that they're not more visible and more studied and part of our even legal train. So, that's upstream constitutional, midstream, what the legislature and executive branch actually do when they use legal instruments, and then downstream are the scrutiny elements of what, largely, the executive does through judicial review and parliamentary scrutiny of the executive, so sort of downstream.

[00:38:21 A slide is shown with the title « Le DROIT INTERGOUVERNEMENTAL : 3 volets » above text that reads:

"Dimension juridique :

• En amont (upstream)
  • Normes et principes constitutionnels, répartition des compétences, interprétation constitutionnelle
• Entre les deux (midstream)
  • Techniques législatives et exécutives
• En aval (downstream)
  • Contrôle judiciaire (action administrative en contexte coopératif) + Autres mécanismes juridiques d'imputabilité de l'exécutif"

"Acteurs :

• En amont (upstream)
  • Pouvoir constituant et pouvoir judiciaire
• Entre les deux (midstream)
  • Branches législatives et exécutives
• En aval (downstream)
  • Tribunaux administratifs + Comités parlementaires.]

And here are the actors, of course, the tribunals and parliamentary committees and so on. Again, think dualism. Our modes of scrutiny in our Canadian system have been thought through in silos. Judicial review occurs within your own silo, your own judicial… your administrative tribunal. The federal court will only review federal action, provincial will review provincial action. Well, what happens when there is intermingling? Where does it go? Which court do you… which door do you knock at? Which law will apply? That's quite unclear sometimes. The same thing about parliamentary scrutiny through committees, for instance. There's a committee that reviews regulations. Well, what happens when regulation is delegated from one order to the other, as is possible? And I'll come back to this. Again, this is an aspect that is really important because, of course, scrutinizing the executive is part of getting away from absolute monarchy. It's part of the rule of law, it's part of democracy, and if it gets messy and we don't know who does it, or some of it actually seeps through, doesn't actually get controlled, well, this is a concern for people interested or concerned with the rule of law. So, what are those techniques?

And I'm sorry, I realize I haven't counted. Darlene, could you tell me how many minutes I still have, to see how fast I go through this?

Darlene H. Carreau: You could certainly take up to 10 minutes, Johanne. Yes.

Johanne Poirier: This is great. Okay, this is great. Thank you. So, we're in the midstream part, okay? So, we've got upstream, the constitutional set up. Downstream, the control. And then we're in the middle. So, there are different techniques. And this came to me as a, sometimes you do research at university that is quite candid, and I was a public servant. I believe in the role of the state and public authorities. I guess I'm a trial of my age, of the quiet revolution, and I believe in the state and I believe in having proper institutions. And I think, okay, we're talking about cooperative federalism, we know it happens and so on. But how does it actually happen? How does cooperation develop? And I started looking at some cases in which the court, for instance, the Supreme Court had to go through the validity of certain pieces of legislation or regulation. But those were not adopted only by one order of government, they were adopted in the context of what I call a normative framework, something really complex in which you've got federal law, provincial statutes, regulations, intergovernmental agreements, different kinds of orders and council, just a complex mesh of things to get things done. And the courts are often quite puzzled by these schemes because they derogate from our fundamental structure, which remains in silos and pillarized.

So, I started with these cases and thought, okay, let's map what's behind it. What norms are there and what's happening? Now, some of these techniques are actually quite well known and you'd find them in public law or constitutional law books, and others are not studied as much, and certainly, they're never put together in a place. And that's really weird because I started doing interviews with public servants who were generous and kind enough to give me some of their time, and saying, okay, where's the go-to book? Where's the guide? Like, how do I find these methods so I can teach them? Very candidly, and the answer came back, well, there is no guidebook, certainly nothing published, nothing public, and sometimes, we have part of it, but we don't really know. So, legal drafters use these techniques. They have an institutional memory, there must be internal memos of sorts, but there's really no guidebook. And very, I think probably very naively, I'm hoping that over the next couple of years I can start a draft of a handbook looking at these techniques and how they apply in specific policy areas to illustrate the complexity of law making in a federal system, because law is also mobilized, again, in this midstream part.

So, what are these techniques? Well, again, I won't be able to illustrate them all, but let's, to go quickly. Model statutes and regulations. So, if you want some kind of uniformity or harmonization, you can have one template, and then the different provinces and sometimes the federal order will adopt very similar legislation. They can not adopt just one statute because they each have their own institutions, and their own legislature and their own legal orders. But they can actually articulate some kind of harmonization by doing it this way. Sometimes you have very close parallel laws. There are different, but for our purposes here let's think that one and two or very similar. Something called legislation or regulation by reference or by incorporation. So, sometimes one order of government will say, well, I've got, let's put it this way, jurisdiction over interprovincial marketing of eggs and province have jurisdiction over interprovincial marketing of eggs, so we will actually try to coordinate. And maybe, and this is not actually the right example, but the federal order could say, well, I will incorporate provincial law in this particular case or vice versa. So, you don't actually just adopt the same legislation. You basically say, my legislation is going to be what's contained in the legislation of another parliament. Sometimes, I will illustrate with an example, it's called oblique inter-delegation. Normally in English I think the expression is inter-delegation. But in French we say oblique, which sort of shows that it's this way, and that's actually quite helpful. We have certain rules relating to amendments to federal and provincial legislation. Sometimes you condition the possibility of amending your own law to certain consultations with provinces. The parliament will say, we'll modify our own regulations, but before we'll consult with provinces. So, there's sort of, at least taking into account the interest of provinces in this kind.

Conditional legislation, I don't have time, but I have identified at least six different ways, saying, you do this, then we do that, and therefore we need to know what each order of government is actually doing. Thousands of intergovernmental agreements, some of, most of them would, people would think are not legally binding. I've been arguing for 20 years that some of them are legally binding and they would therefore engage law, or at least sometimes they are part of that huge normative network that actually make the system work, even if you have federal and provincial regulations. And sometimes you have intergovernmental institutions, sometimes they're not legalized, they don't have legal status, but sometimes they are. And to give you an example, something that I came across recently that really puzzled me, some interministerial councils to gain what we call legal personality. Legal personality means basically you can do legal things like sign contracts, rent premises and leases. Well, if you're just a non-legal entity and an intergovernmental body of different provinces informally, you cannot do that. Somebody has to do it for you. One of the provinces will rent the offices and so on. But if you have legal personality, you become like a corporation and you can hire staff and rent premises. Well, some interministerial councils have actually done this. So, they're using the corporate, corporation, non-profit corporation tools, legal tools, to actually give them capacity. Again, it's hidden law, but it is a legal dimension of federalism.

Two quick examples. Okay. Coming to this. Remember dualist federalism, each in their own house. Inter-delegation does that. So, inter-delegation basically says I can not transfer legislative powers from one order to the other because that would be like a constitutional amendment. Courts have said you can't do this, but courts have said you can delegate regulatory power or administrative functions to another order of government to make it more consistent, to have a one-stop shop for certain things. Again, marketing of agricultural products or trucking companies that don't have federal and provincial rules depending on whether they cross a provincial border or not. So, they basically try to harmonize it, and sometimes it's done through these means. And this is actually quite simple, but you might remember that it looks a little bit like Germany. It's ad-hoc, but it basically, you can go federal and have it implemented by a province. In Canada, interestingly, it can go both ways so that, for instance, provinces delegate to the RCMP, eight provinces delegate to the RCMP, their provincial police functions. And it's done partly through a system like that, although it's more complicated.

Quick example of this. Bizarrely, the Fisheries Act contains about seven different techniques of cooperation. I didn't know that. I found out by chance. I'm interviewing somebody who works at Fisheries and gives me one example and says, we've done one thing with a province. So, I say, okay, well, let's look in the Act, find these seven different techniques, this is one, very simple. For some reason, oysters are federal, as some fish, the fish don't stay in one place. Fisheries is very, very complicated. And fisheries are federal, except that through a scheme, the federal order delegates to the province the possibility of giving leases to cultivate oysters. This is, of course, extremely mundane, but the point, not if you love oysters or you're oyster cultivator, but what I mean is this has to be done through law. You can't just say, let's let the province do it, because the province doesn't have that jurisdiction normally. So, you have to use legal tools to actually make this happen.

Last example, and I'll close with this, Darlene. This illustrates, the two sort of ovals, illustrate double aspect. So, over hard drug use, I'll synthesize here, but it's a bit of a caricature, but there's jurisdiction through the criminal law power, federal jurisdiction through the criminal law power, more repressive approach, and there is health harm reduction approach of the provinces. And both apply to the same problem, and both apply to the same people and so on. And recently, you might have heard that British Columbia is exempted from certain criminal provisions because it has managed to convince Ottawa, so this is a policy and a political decision, that it wants to increase its harm reduction approach and reduce repression to deal with the, notably, with the opioid crisis. And what does it do after there was an agreement? The agreement, of course, has to be political. But after that, what happens is you move from this, where federal law applies, to oops, federal law doesn't apply. This is not the courts telling this is not applicable. It's the political branches. The legislature in this case, the legislature sort of allows it, and it's the executive that says, we will not in certain circumstances and in this case, over the entire province, we will not apply our own laws, we choose to do that. And basically, in that case, you have provincial law that will regulate. This, again, has to be done through legal means. It's actually very difficult, well, it's quite difficult to find and then to map it. But I believe that it's actually really important. So, in the end, cooperative federalism looks not like a nice little rowhouse or even like a condo. It looks more like Habitat 67. And the law for me is the mortar that keeps it all hanging together, and the role of lawyers is to actually find what the mortar is made of. Merci beaucoup.

Darlene H. Carreau: Merci, Johanne. Thank you so much for that wonderful overview of cooperative federalism and for introducing us to your work on intergovernmental law. I appreciated you underscoring the importance of the rule of law and your explanation and overview of cooperative legal techniques, including the illustrative examples of oysters and controlled substances. So, thank you to you both for those presentations. We have now reached the panel discussion portion of our event. And a reminder to everyone in the audience that if you haven't already done so, now is the time to forward your questions for Peter and Johanne by clicking that chat icon in the upper right-hand corner of your screen. So, while you were presenting Peter, I did get a question for you, and maybe I'll kick the session off with that one. What is the purpose or the rationale behind the rule of precedence of federal provisions? Is this an imperative for the long-term survival of the federation?

Peter Oliver: So, I'm not sure I understand the question, but I'm assuming the question is that the whole legal regime that I just described is that imperative. And I suppose I would, because I'm not sure what the alternative would be, I mean, I suppose we'd just have to go with the text as written. So, maybe I can interpret the question a little and say that, certainly, we can see in what I was describing an evolution from the original way that section 91 and 92 are set out to a cooperative federalism and a number of the doctrines that I developed. And those weren't invented by the court just out of judicial creativity, although maybe some would disagree with me, but they were developed because as the state expanded to do jobs, not just the welfare state, but the need for greater regulation, there's a greater amount of complexity and I think the court came to the conclusion that the watertight compartments approach wouldn't, wasn't fit for purpose and needed to be, it needed to be adapted. And so, the title of the series, I gather, is, The Living Tree. That's the overarching title. And we're talking about federalism today, but certainly, The Living Tree has affected federalism. And that's why I need to add all of this gloss on section 91 and 92, which took me 20 minutes. But as Johanne says, I could have gone on for much longer. So, perhaps I'll leave it at that.

Darlene H. Carreau: Parfait. Merci. Thank you, Peter. Another interesting question from our audience. When there is a conflict between federal law and Indigenous law, do the rules of validity, operability and applicability still get applied, or would the federal law rule?

Peter Oliver: Well, that's, Johanne maybe, do you want to answer? I'll maybe say something quickly about that. That's a question which the Supreme Court addressed fairly squarely in a case called Tsilhqot'in, close to ten years ago. So, we used to, the interjurisdictional immunity doctrine that I was describing, used to be developed in a fairly important way regarding Indigenous peoples and lands, and the court in Tsilhqot'in said that, really, that's probably not the most appropriate way to analyze it, because we're talking about Indigenous peoples and lands but looking at it through the frame of whether it's federal or provincial, and there's obviously a missing important party in that story. So, the court said that we should begin with section 35, which isn't the topic today, but most of you will know is the provision that protects Aboriginal rights, treaty rights, rights that protect Aboriginal title and activities. And so, the court said we should begin with section 35 and an analysis of whether the Aboriginal right exists, and then within a separate body of case law, there are rules regarding whether federal and provincial law can limit to some extent those rights, and the court says that's the better way to analyze it, rather than through federalism doctrines which were developed for other purposes. Perhaps you want to add, Johanne?

Darlene H. Carreau: Thank you. Well, it allows me to return to something about the age of our federal constitution. I've alluded to 1867 several times, and we're still governed by 1867. Of course, 1982 added the charter and added section 35, and there's been some evolution in the interpretation of parts of the 1867 constitution, including division of powers to have less exclusivity. But it has not been revamped. And in that constitution, as you probably all know, Indigenous peoples are not treated as constitutional actors. They're treated more like objects of legislation and they fall under federal jurisdiction. Now, over time, because partly of the judicial notion of cooperative federalism, there's been more overlapping and recognition than provincial law, could also apply to some Indigenous lands and people. So, they are faced with several crowns in a way, provincial crowns and federal crowns. And then you have the issue of, well, do they have space to legislate? Do they have self-government in the, in our Canadian system? And that is currently being developed and even litigated.

The Supreme Court will render a really important decision this year about the intermingling of section 35 and federalism, and to what extent self-government in section 35, if it's recognized, actually shifts the rule of the game of federalism. It will not create clearly a third order of government that readily, but it might if the court validates the statute. It's the First Nations, Métis, and Inuit Children, Youth and Family Act. If the court validates the scheme, basically it will make space for Indigenous lawmaking, at least in the area of child and family services, children and family services. But it does this not by changing the division of powers. It does that in a way by… I can not even go into the details of it. But basically, it's federal legislation that vacates part of federal space to say, well, we will leave that space for Indigenous peoples. And if there is a conflict, well, it depends. Sometimes federal law would have paramountcy because we impose certain rules, for instance, the interest of the child, and sometimes Indigenous law might have paramountcy. But it's paramountcy not that's given by the constitution, but it's given in a federal statute. I realize this is very technical, but basically the answer to the question is we don't really know yet and it's going to be piecemeal until we actually have the courage of constitutional reform.

Darlene H. Carreau: Thank you, Johanne and Peter. Another question from our audience regarding the example of B.C. being exempted from some aspects of the CDSA. Could questions of fairness be argued from individuals in other provinces that are subject to these aspects? Could one argue that exemptions must be applied nationwide?

Johanne Poirier: Well, this is very interesting because federalism allows for a symmetry. It allows for a symmetry by definition, because provinces have jurisdiction and they do what they want with it. So, the idea that everybody ought to be treated the same across the country is actually antithetical to federalism. At the same time, we have constitutionalized rights and these include equality rights. And then the question becomes, how do we interpret these rights? And do they sometimes impose a certain degree of uniformity, and the, in fairly old case law, the Supreme Court has recognized that even federal statutes could be applied differently in different provinces, and that does not violate charter rights necessarily. In a particular case, it was even different criminal procedure rules, which were really significant. If you're not subject to the same criminal law procedures in different provinces, you'd think that you're not being treated sufficiently the same and that your rights are being violated. And the Supreme Court said, no, this is admissible in our federal system. So, the answer, of course, I'm just a prof in my office, I'm not a Supreme Court, so until they rule, we don't know. But I mean, basically in theory, it's permissible.

Now, but sometimes you can still make an application. Probably, here the idea would be that individuals would lobby their province for the province to obtain the same deal that B.C. has obtained. And it would be very difficult for a federal order to actually refuse if everything's in order and everything's in place, in theory.

Darlene H. Carreau: Thank you, Johanne. So, since 1867 and the constitutional division of powers, Canadian federalism has proved to be pretty resilient to address the needs of Canadians. How do you see the frameworks and theories of Canadian federalism being applied to Canadian politics in the 21st century? Peter, do you want to kick us off?

Peter Oliver: Sure. Well, maybe just, a lot of my answer is related to what I was saying earlier about the living tree. You can see already, and looking at the past, we can see a lot of evolution in the doctrine. And that wasn't just evolution for the fun of it. It was evolution to find legal solutions that fit better with an evolving and increasingly complex Canadian society. So, I think that's the same thing that we would want to say about the future. But then the question is, well, what are the challenges of the future? The ones that get mentioned regularly are still worth mentioning. Again, there's a huge challenge regarding the global and local environment. We may have public health issues, we had a huge one, but they don't seem to go away. There are also issues regarding technology, artificial intelligence, ChatGPT, all of these things have to be dealt with. And so, of course there will, there may be further evolution. And I think the rules as they exist are, I'm happier with them being rules which presume cooperation. As Johanne was mentioning, cooperation and overlap can produce conflict but it can also force parties which might be inclined to work in silos to communicate. The analogy I sometimes use is, in the old days the legislation was anchored separately, watertight compartments. Now, the assumption is that everyone gets a bit more rope, which means that there's possibility of collision. So, you have to get on your radio to speak to the other parties and you also have to put bumpers on as well to expect that there's going to be collisions.

Just to finish up, though, I would say that, in this, coming back to my answer to the second question I answered previously, the protagonists are not just the federal and provincial governments, although they're front and centre in federalism. The territories have for some time been an important actor. But Johanne mentioned Indigenous groups, a hugely important actor, and also, at least in the academic world for the past ten years, there's a lot of talk about cities, and a reaction against this idea that they're always said to be creatures of the province. I think, well, many cities, think of Quebec City for one, pre-existed by a long shot any province. But besides that, cities are where most of the population lives, they're huge generators of the economy, and I think working out how our 1867 constitution releases some of that power and allows just, on the other hand, to deal with some of the issues that cities put before us is a huge issue for the future.

Darlene H. Carreau: Thank you. Johanne?

Johanne Poirier: Yes. I'll go back to something I said earlier, again, about the age of the constitution. Sections 91 to 95 are dusty, they are unreadable. They are so 19th century. And basically, we've worked around that by reinterpreting certain provisions, by adding. The environment is in there so we basically have to fit it somewhere. And it's the same with, you mentioned artificial intelligence and so on. So, you basically have to work yourself into it. Now, how close is this to, again, the rule of law? I mean, the basic tenet of the rule of law is you should know what the law is. Now, you open your constitution and you don't know by reading the constitution who actually gets to do what. This is actually very puzzling. When we teach Canadian constitutional law abroad, or particularly federalism, people are just really puzzled that the 1867 constitution is still the law, supreme law in Canada. I mean, if you read it, you think you still have basically a very strong monarchy with overreaching federal powers and basically nothing modern. So basically, the other actors, the courts and the political branches, have had to toy with the Constitution. So, that shows how malleable it is, sort of the living tree. It's partly interpretation, it's partly action by the other branches. And it's true that there is a lot of coordination and cooperation, but there's also a lot of gray zones and limits of what we can do with a contract that is just so antiquated. And Peter gave the example of local government and cities. Two years ago, the Supreme Court rendered a decision about basically the power and the democratic legitimacy of cities, and it basically reached a limit by, and I'm really synthesizing and paraphrasing here, this is not entirely fair, but basically saying they're creatures of the province and this is where the constitutional protection lies for democracy. And so, this, basically there are limits to how you can restructure a constitution. And again, I'm not that much of a dreamer, but I guess I am a bit of a dreamer, but the idea is at some point there's only so much elasticity in a text. And the question is who gets to modify it that much that you can not only add powers, reinterpret powers, but actually really give self-government a place in the constitutional order? It's been done, as I said, piecemeal with Indigenous peoples, partly because they're anchored in their section 35 rights. So, that gives them sort of a stepping stone to try to do it, but municipalities don't. So, there are actually limits to how adaptable a 19th century constitution is to contemporary situations.

Darlene H. Carreau: Very interesting. Interesting. Lots of players, elasticity. Are we going to run out of elasticity? Does it need modernization? Lots to talk about there. I have another question from our audience around how do you envision a judicial system or the legislature, so I guess you get to pick your branch of government, implementing a system that properly manages overlap or inter-delegation when the current system consists of silos that fails to account or have the ability to cooperate?

Peter Oliver: Johanne, do you want to start? Because the reference to silos is, maybe…

Johanne Poirier: Sort of mine?

Peter Oliver: Yeah.

Johanne Poirier: I was hoping you might actually help me there. Well, at this stage I'm mostly, again, making a (inaudible), like noticing how inadequate our scrutinizing mechanisms are to the intermingled and entangled reality of cooperative federalism on the ground. So, I haven't reached the point of reform, let's put it this way. If I'm to look at reform in the parliamentary system, you would have to imagine, at least within even a federal order, a committee that is designated to look at intergovernmental arrangements, and basically the delegation to provinces. But that would still remain in the silo. At least they would look at what was going on. But it would remain in the silo. Could it be done differently? Well, you could. I mean, I'm daydreaming here, imagine interparliamentary committees where parliamentarians of different orders get together and say, okay, well, let's look at how our own parliaments, and executive in particular, have actually done things together, to survey if the objectives have been met and basically scrutinize the way they're supposed to do when they're in their silos. But basically, our system, again, doesn't have the elasticity to deal with the reality. There are limits to the structure, given by the structure of the federation. Same thing with judicial review. Now, you could imagine more joint administrative tribunals, I presume, although I'm not a specialist of judicial powers. If you don't delegate, and I'm going to be technical here, section 96 powers so you have certain courts that are constitutionalized, you might be able to create a joint tribunal or designate a tribunal that is really empowered to revise inter-delegated or joint intergovernmental action. And sometimes it's done in the scheme, in the now dead or never born Pan-Canadian Securities Regulation scheme that was validated by the Supreme Court, but then the parties didn't actually implement it. So, there was a very complex arrangement with federal laws, and provincial laws, and statutes, and regulations, and agreements, and some kind of authority, which was like an intergovernmental body, and council of ministers and so on. And in that there was a tribunal, and the tribunal was, in a way, intergovernmental.

Now, after that, where, and I can't actually remember where appeals of decisions of that tribunal were to be taken. It could be that appeals would have gone to provincial courts and then gone up the ladder, I can't quite remember. But you'd have to think about that at some point, because of course, courts of appeal are not acting together. They're acting separately. And if you've got a body that implements provincial law, well, the federal court can't actually review provincial administrative action, at least not now. So…

Peter Oliver: So, if I could just add to that. And thanks, Johanne, for taking a first stab at the question, because I think that the question, it was launching off, I think, from your account of a fairly siloed Canadian system. And in 1867 it looks very siloed and it's, I thought, so useful for us just to see how another federal system like Germany is set up differently. But you could say that even though we begin siloed, the development by the courts of cooperative federalism and all sorts of other intergovernmental practices is an attempt to answer the question that was posed by the, by whoever asked this question. The problem in Canada, though, is not with the legal rules, they can be summed up, but with the fact that the intergovernmental practice is how, what word can we use Johanne? Obscure?

Johanne Poirier: Opaque.

Peter Oliver: Opaque! Obscure? And so, we want to bring that, highlight that more, bring that into the daylight, and then Johanne's answer went further than that and talked about how we could not just bring it into the light but improve on it. So, that's what I hear in the question, and in Johanne's presentation and in your answer. So, I hope that's helpful.

Darlene H. Carreau: Thank you. I have a question in French. Johanne, if I understood correctly, your last example with the federal government could lead to more and more disparities between the provinces in areas of federal jurisdiction protected by the Constitution. That would result in certain provincial legislative assemblies having more and more powers and in the rights of the citizens of the various provinces being unequal in federal matters. Isn't that worrying?

Johanne Poirier: Thank you. Thank you very much for the question. I will just reiterate that there are inherent differences in the federal system in Canada, particularly because so many areas fall under provincial jurisdiction. Children's services, schools, social assistance, hospitals, all of that is under provincial jurisdiction, and aside from the rules of financial redistribution, equalization, and so on, the rules are not uniform and the allocations are not the same, and the rights are not the same, et cetera. You could say that this is a total disgrace and then sometimes, it is defensible and, very often, when we look at public policies or social rights, certainly, my students always tend to want to assign everything to the federal government and say it has to be the same rules for everyone, okay? And so we have to step back a bit to the fundamentals of federalism and say, but why do we have a federal system and what advantages can federalism have, because we don't always see them when we look at disparities that can be shocking. So that depends on the distribution of federal and provincial powers. Now the question has more to do with federal law in federal areas. Could there be asymmetrical application in the federal framework? What I'm discovering as I do my research is that there is a lot more than I thought. Because, for example, to go back, you're going to tell me that it's not as shocking when we talk about it. But then, I'm not in Newfoundland, et cetera. I will say when we talk about fisheries and there are different regulations, different federal regulations for each of the provinces with different rules, et cetera, that's because we are taking into account a geographical, economic, sociological and biological reality that is different. And so, in some areas, it is an advantage of federalism to be able to adapt and not have blanket rules. It would be quite absurd for the rules on fisheries to be exactly the same in Saskatchewan and Newfoundland, so there has to be some sort of adaptation. Now, when we come to... when we touch on areas that are perhaps more politically sensitive because we're talking about social rights or things that have a greater impact on all citizens, again, we need to have that debate, to what extent we can allow differences. Let me use a... no, it's not quite... I was going to talk about fundamental rights that may differ from one province to another and the fact that it does differ from one province to another because the Charter applies everywhere. But fundamental rights are not just the Charter. There are rights protected by the provinces too, and sometimes the provinces protect certain rights more and certain rights are recognized in, quote unquote, provincial constitutions, even if they have not entirely codified environmental law, and so on. And sometimes, they are not recognized at the federal level; we have a difference. Is that shocking? Perhaps, but the advantage of federalism is to be able to innovate at the provincial level and sometimes even inspire the federal level. The question is to what extent do we allow innovation within federal jurisdiction, and here we come back to the example of British Columbia. We may be shocked that the exemption was not automatically granted to all the provinces, but not all the provinces wanted it. So, is it better to give it to no one or to give it to a province that asks for it, that feels ready to tackle a social problem, a glaring social problem even, and that requires greater latitude to do so? And then, if it works well, we know the other provinces are looking at what is happening in British Columbia. It's a three-year pilot project and so the question is, in three years, in British Columbia, either because it won't be conclusive, or because it will have changed government, will they say no, bring back federal law, we want to have the dual aspect, et cetera. Do they no longer want this exemption or will they keep it and other provinces, those that want it, will also be able to have this exemption? Not everyone is treated the same, but it's not necessarily inequitable.

Darlene H. Carreau: Thank you Johanne. I have two questions that I think are getting at the same topic, but one related to labour and human rights and the other related to the environment. So, just in the interest of time, I'm going to try to bundle them together. I think they both are asking for your views with respect to increased provincial federal collaboration or whether there is any movement towards comprehensive and cooperative schemes between the federal and provincial heads of power in in those areas, and how long do you think that that would take to materialize? I think the audience really wants cooperation and collaboration, especially in the areas that are so important, like human rights and the environment. And what do you think it would take to get us there? Super easy question, Peter, Johanne.

Peter Oliver: Right. Well, we can perhaps just start by repeating what I think both of us ended up saying, which was that cooperative federalism doesn't involve the courts forcing cooperation. That was actually a case that was decided when the gun registry came to an end and Quebec wanted to carry on, and it was a highly cooperative scheme, but when one party decided that it was at an end, the court didn't require that the files be handed over. And so, if the courts aren't willing to force cooperation, then the answer would seem to be quite simple, that the answer to the question is that at a political level we have to vote for parties of whatever stripe that are willing to cooperate on these, on whatever issues you think are most important. But the ones that were mentioned were the environment, and what was the second one?

Johanne Poirier: Health.

Peter Oliver: And health, yeah. I mean, certainly.

Darlene H. Carreau: Human rights and labour law.

Peter Oliver: Human rights and labour law. Well, I mean, it's the same answer, but I thank you for reminding me of the example that was mentioned.

Johanne Poirier: If I may, everybody wants cooperation, I mean, it's apple pie in a way, and we want to get the job done. We want to have good policy. We don't want hot potatoes to be thrown one way or the other. We don't want blame shifting. We actually want action, we want transparency and we should be calling for it. We saw in the pandemic that there wasn't that much name calling, even when there were tensions, and there was a lot of very opaque cooperation. We didn't know what was going on behind those closed doors. We were told they were being, there were meetings, we never knew what the meetings were about, and then we had these different press conferences and so on. So, there was some cooperation but it was not necessarily very transparent, and it doesn't necessarily carry after the huge emergency is gone. And we're seeing with the environment right now federal law, and environmental protection, and the green gas tariffication act and so on, they take into consideration provinces to a certain extent, like they could legislate using paramountcy and impose rules on provinces in a lot of areas, and the federal order doesn't do it. Maybe it doesn't do it because of realpolitik, because it would have too much of a backlash and resistance. Sometimes it doesn't because, well, why not allow a certain degree of difference in provinces in ways to meet certain objectives? But it's true that this kind of fragmentation of policy areas where you don't really know who's responsible for what leads to duplication, and sometimes to gaps in policymaking and a lot of transaction time to negotiate. And it's not necessarily hugely effective.

Now, let me go back to how could we force them to cooperate? Well, sometimes an emergency forces parties to cooperate. We would hope that sometimes the citizenry asks for cooperation. And it may be what happened in, again, in British Columbia when Vancouver said we're going to do this ourselves if British Columbia doesn't do it. And all of a sudden British Columbia and the federal order are negotiating and they're finding a solution. So, sometimes it comes from more sort of below and the courts. It's true that we don't have a federal principle of cooperation. I argued for it in some obscure paper doing all sorts of comparative law saying that maybe we should be inspired by federal loyalty and other federal systems so that courts don't necessarily tell the political branches what to do, but sometimes calls upon them to actually go back to the negotiating table and to do things in good faith.

The Court, that was a 5-4 decision. I mean, it was quite split. And after, that they weakened it again. So, I'm not saying they're going there, but who knows what the court might do in ten or 15 years when faced with real policy challenges. In Belgium recently, the Constitutional Court, I'm speaking quite freely here because I haven't actually read the case, so I've heard about this, the Constitutional Court, of course, in a very different context, has told the federal and the constitutive orders to actually negotiate and find a solution, and they send them back with an order. Now, will they respect it or not? But the courts brought its legitimacy to actually force the branches to get their act together, given the fragmentation of powers to deal the climate change challenge. So, it might be that this happens. And if I can just say that in 30 seconds, in a very exploratory manner, I've suggested that with regards to the relation between the Canadian state federation, the federation and the provinces, and the relationship of that bundle with Indigenous peoples, that there should be compulsory cooperation.

Now, there's compulsory consultations and so on between. But within the Canadian state, between provinces and the federal order, maybe there should be forced to cooperate between themselves when they're engaging with Indigenous peoples or when they're affecting Indigenous interests. There should not be all this divided crowns and blame shifting. They should just get their act together constitutionally. But we need the courts to actually acknowledge this and it would be quite an overturn of previous case and precedent.

Darlene H. Carreau: Amazing. I think we could talk about this for six more hours, but unfortunately, we're out of time. So, I did want to thank both Johanne and Peter. That was an extremely important topic for my colleagues in the federal public service. So, thank you again for your time and for lending your expertise to this very stimulating discussion. You've definitely provided us with a greater understanding of federalism, and the roles and responsibilities in our federation as a whole and across the jurisdictions.

Unfortunately, this concludes today's event. On behalf of the School, I'd like to thank our audience for being part of today's discussion. I hope that you have enjoyed our event and that you're leaving feeling inspired. While we weren't able to get necessarily to all of your questions, rest assured that we will review them along with the evaluations of today's event when planning our future events.

And the School has more events and courses to offer. The next event in this series may be of interest to many of you. It's on the view from the territories and that takes place on December 18th. I encourage you to visit the School's website to keep up to date and to register for all future learning opportunities that may be of interest to you. So, once again, thank you all and have a wonderful day. Thank you everyone! Have a nice day!

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