26:
449:, the form of agreements between governments, in which His Majesty does not formally appear, Canada being represented by the Governor General in Council or by a delegate or delegates authorized directly by him. Whatever the form of the agreement, it is now settled that, as regards Canada, it is the Canadian Government acting on its own responsibility to the Parliament of Canada which deals with the matter. If the international contract is in the form of a treaty between heads of states, His Majesty acts, as regards Canada, on the advice of his Canadian Government.
558:
her new functions derived from her new international status she incurs obligations they must, so far as legislation be concerned when they deal with provincial classes of subjects, be dealt with by the totality of powers, in other words by co-operation between the
Dominion and the Provinces. While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure.
453:
provide for giving effect to them. That this authority is exclusive would seem to follow inevitably from the circumstances that the
Lieutenant-Governors of the provinces do not in any manner represent His Majesty in external affairs, and that the provincial governments are not concerned with such affairs: the effect of the two decisions reported in 1932 Appeal Cases is that in all these matters the authority of Parliament is not merely paramount, but exclusive.
443:
Nations, and by the nations of the world, as possessing a status enabling her to enter into, on her own behalf, international arrangements, and to incur obligations under such arrangements. These arrangements may take various forms. They may take the form of treaties, in the strict sense, between heads of states, to which His
Majesty the King is formally a party. They may take,
423:, jurisdiction, legislative and executive, for the purpose of giving effect to any treaty obligation imposed upon Canada, or any one of the provinces of Canada, by force of a treaty between the British Empire and a foreign country, is committed to the Parliament and Government of Canada. This jurisdiction of the Dominion, the Privy Council held, in the
628:
The
Supreme Court of Canada, as final arbiter of constitutional disputes since 1949, moved toward a more flexible view of federalism that accommodates overlapping jurisdiction and encourages intergovernmental cooperation—an approach that can be described as the "dominant tide" of modern federalism...
619:
The
Judicial Committee of the Privy Council, which was the final arbiter of Canada’s Constitution until 1949, tended to favour an exclusive powers approach. Thus, Lord Atkin in 1937 famously described the respective powers of Parliament and the provincial legislatures as "watertight compartments"....
586:
The right to strike and the right to bargain collectively are now generally recognized, and the determination of such matters as hours of work, rates of wages, working conditions and the like, is in my opinion, a vital part of the management and operation of any commercial or industrial undertaking.
442:
Second, as a result of the constitutional development of the last thirty years (and more particularly of the last twenty years) Canada has acquired the status of an international unit, that is to say, she has been recognized by His
Majesty the King, by the other nations of the British Commonwealth of
604:
As to its general effect on federal and provincial jurisdiction, it has been suggested that the "watertight compartments" doctrine, generally construed as stating that nothing can be added or taken away, may be more properly described as meaning that a head of power can encompass more than it did at
557:
It must not be thought that the result of this decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and
Provincial together, she is fully equipped. But the legislative powers remain distributed and if in the exercise of
641:
After 1949, the
Supreme Court tended to side more with the federal government; subsequently, in 1955, it ruled that international agreements between provinces and foreign governments were allowed only if they did not involve treaty obligations but merely reciprocal or concurrent legislative action.
489:
The object of the Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest,
473:
that the King or the
Governor General should enter into an international agreement dealing with matters exclusively assigned to the jurisdiction of the provinces solely upon the advice of the federal Ministers who, either by themselves or even through the instrumentality of the Dominion Parliament
596:
The
Reference served to promote the concept of dual federalism, where the provinces could act as separate communities within a wider political union. As a result, spillover effects by an Act passed by one level of government onto the other level are not tolerated, and are dealt with by the courts
494:
It follows from all that I have said that, in my opinion, the draft conventions upon which is based the legislation now submitted to us have not been properly and competently ratified, that they could not be so ratified without the consent of the legislature in each province, both by force of the
452:
Necessarily, in virtue of the fundamental principles of our constitution, the Canadian Government in exercising these functions is under the control of Parliament. Parliament has full power by legislation to determine the conditions under which international agreements may be entered into and to
645:
This judgment has generated extensive debate about the complications that were introduced in implementing Canada's subsequent international obligations, and it has been condemned for being out of touch with Canadian economic and political realities. The Supreme Court of Canada has indicated in
377:
There may also be cases where the Dominion is entitled to speak for the whole, and this not because of any judicial interpretation of ss. 91 and 92, but by reason of the plain terms of s. 132, where Canada as a whole, having undertaken an obligation, is given the power necessary and proper for
235:. The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.
671:
and concepts like "watertight compartments" qualify the extent of that interplay. But it must be recognized that these doctrines and concepts have not been the dominant tide of constitutional doctrines; rather they have been an undertow against the strong pull of
1294:
526:"The obligations are not obligations of Canada as part of the British Empire, but of Canada, by virtue of her new status as an international person, and do not arise under a treaty between the British Empire and foreign countries."
624:
capable of growth and expansion within its natural limits".... This metaphor has endured as the preferred approach in constitutional interpretation, ensuring "that Confederation can be adapted to new social realities"....
439:, the provinces have no power and never had power to legislate for the purpose of giving effect to an international agreement: that, as a subject of legislation, is excluded from the jurisdiction envisaged by section 92.
620:
However, the Judicial Committee recognized that particular matters might have both federal and provincial aspects and overlap.... Privy Council jurisprudence also recognized that the Constitution must be viewed as a "
541:"The question is not how the obligation is formed, that is the function of the executive: but how is the obligation to be performed and that depends upon the authority of the competent legislature or legislatures."
461:(as he then was) argued that the conventions were separate and did not arise as a consequence of the Treaty, the 1925 Reference was binding, and moreover that they were not properly ratified at all, declaring:
468:
In Canada, the practice has grown gradually to enter into international conventions through the medium of the Governor in Council. It does appear that it would be directly against the intendment of the
587:
This being so, the power to regulate such matters, in the case of undertakings which fall within the legislative authority of Parliament lies with Parliament and not with the Provincial Legislatures.
529:"No obligation to legislate in respect of any of the matters in question arose until the Canadian executive, left with an unfettered discretion of its own volition, acceded to the conventions, a
638:
The Reference expressly left undecided the question as to the extent of the federal power to negotiate, sign and ratify treaties that deal with areas falling within provincial jurisdiction.
416:
From two main considerations, the conclusion follows that legislative authority in respect of international agreements is, as regards Canada, vested exclusively in the Parliament of Canada.
553:
had made Canada fully independent in governing its foreign affairs, the Board held that s. 132 did not accordingly evolve to take that into account. As noted at the end of the judgment,
663:
The history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers. It is true that doctrines like
315:
1309:
1267:
297:
572:
The scope of the federal jurisdiction with respect to labour relations, as determined by the 1925 reference, continued to apply until 1955, when the
255:, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to
1094:
1072:
966:
937:
306:
198:
36:
329:
which declared that only the provincial legislatures had the competence to do so with the first two conventions, except with respect to federal
1314:
465:
The treaty-making power is the prerogative of the Crown. In ordinary practice, it is exercised on the recommendation of the Crown’s advisers.
1289:
807:
770:
743:
1085:
735:
1207:
H. Scott Fairley (1999). "External Affairs and the Canadian Constitution". In Yves Le Bouthillier; Donald M. McRae; Donat Pharand (eds.).
791:(2009). "8: Ottawa, the Provinces, and the Evolution of Canadian Trade Policy since 1963". In Anastakis, Dimitry; Bryden, P.E. (eds.).
1299:
499:
and upon the proper interpretation of article 405 of the Treaty of Versailles; and that, for that reason, the Acts now submitted are
1304:
1249:
1216:
286:
115:
120:
697:"The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations"
1174:
Subnational Sabotage or National Paramountcy? Examining the Dynamics of Subnational Acceptance of International Agreements
25:
289:
was established, in which Canada became a member. Between 1919 and 1928, the ILO adopted several conventions, including:
664:
478:
1241:
799:
611:
549:
269:
244:
125:
333:
and workers in those parts of Canada not within the limits of a province. The decision in that ruling was unanimous.
531:
110:
1264:
326:
260:
92:
1157:
1129:
864:
81:
606:
574:
220:
78:
Reference re legislative jurisdiction of Parliament of Canada to enact the Minimum Wages Act (1935, c. 44)
991:
928:
609:
in 1867, but it should not encompass less. The Supreme Court in 2011 summarized its present approach in
425:
369:
1110:
681:
621:
337:
282:
225:
538:"For the purposes of sections 91 and 92 ... there is no such thing as treaty legislation as such."
202:
171:
239:
During the 1920s, as a result of the growing political and diplomatic independence of the various
1063:
704:
673:
458:
383:
696:
1209:
Selected Papers in International Law: Contribution of the Canadian Council on International Law
1245:
1233:
1212:
803:
776:
766:
739:
722:
713:
325:
Their ratification and implementation were not carried out, following a 1925 reference to the
166:
834:
754:
601:, or "read down" so that it remains within the jurisdiction of the originating legislature.
386:
were given to the Supreme Court as to in what particular or to what extent each of them was
161:
1271:
794:
431:
1090:
1068:
962:
933:
728:
Rule on the Application of the Division of Powers to International Treaty Implementation
578:
held that it extended to all works and undertakings falling under it. In that judgment,
382:
As there was debate as to whether the Parliament had the competence to pass these Acts,
188:
788:
668:
579:
252:
130:
959:
The Liquidators of the Maritime Bank of Canada v The Receiver General of New Brunswick
1283:
988:
Validity and Applicability of the Industrial Relations and Disputes Investigation Act
677:
656:
648:
330:
474:
are prohibited by the Constitution from assuming jurisdiction over these matters.
1171:
408:
388:
517:
445:
403:
780:
256:
47:
The Attorney General of Canada v The Attorney General of Ontario and others
267:
When Canada subsequently gained full independence following passage of the
240:
201:
concerning the distinct nature of federal and provincial jurisdiction in
929:
The Attorney-General Canada v The Attorney-General of Ontario and others
763:
Canadian Federalism and Treaty Powers: Organic Constitutionalism at Work
367:
This change in position followed the Privy Council's decision in the
680:
and, in recent years, a very restrained approach to concurrency and
1295:
Judicial Committee of the Privy Council cases on appeal from Canada
655:
An indication that that may eventually happen came in a comment by
1086:
Henrietta Muir Edwards and others v The Attorney General of Canada
652:
that it may be ready to revisit the issue in an appropriate case.
1265:
Canadian Interpretation and Construction of Maritime Conventions
412:, as the conventions arose from the Treaty of Versailles, said:
861:
Reference in re Legislative Jurisdiction over Hours of Labour
400:
The Court was evenly divided, 3-3, on each of the questions.
793:
Framing Canadian Federalism: Historical Essays in Honour of
64:
UKPC 6 (BAILII), AC 326, 156 LT 302, 1 DLR 673, 1 WWR 299
273:, s. 132 was not amended to reflect its changed status.
247:
stated that the United Kingdom and the Dominions were:
1170:
Zagros Madjd-Sadjadi, Winston-Salem State University.
490:
each province retaining its independence and autonomy.
1160: at pp. 153–154, SCR 137 (22 December 1955)
765:. Brussels: P.I.E. Peter Lang SA. pp. 61–100.
340:ratified the conventions, and subsequently passed:
152:
144:
139:
103:
98:
88:
73:
68:
60:
52:
42:
32:
18:
259:, and freely associated as members of the British
228:was granted power to implement certain treaties:
1238:Law, Politics and the Judicial Process in Canada
1211:. London: Kluwer International. pp. 79–91.
1113: at par. 9, 2 SCR 669 (20 October 2005)
724:Constitution over Convenience: Reaffirming the
661:
584:
555:
463:
435:case is exclusive; and consequently, under the
414:
375:
249:
230:
347:The Weekly Rest In Industrial Undertakings Act
316:Minimum Wage-Fixing Machinery Convention, 1928
8:
1132: at par. 27, 2 SCR 2 (29 July 1987)
1107:Reference re Employment Insurance Act (Can.)
477:I would like to conclude with the words of
15:
298:Hours of Work (Industry) Convention, 1919
1141:
1121:
1119:
1071:, 9 App Cas 117 (15 December 1883),
1039:
1015:
396:Reference to the Supreme Court of Canada
827:
419:First, by virtue of section 132 of the
307:Weekly Rest (Industry) Convention, 1921
199:Judicial Committee of the Privy Council
37:Judicial Committee of the Privy Council
1027:
7:
1183:Southern Journal of Canadian Studies
736:Faculty of Law, University of Ottawa
597:through declaring the measure to be
1232:Morton, Frederick Lee, ed. (2002).
1126:Ontario (Attorney General) v. OPSEU
1093:, A.C. 124 (18 October 1929),
915:
876:
848:
359:The Limitation of Hours of Work Act
512:The Board held that all Acts were
251:autonomous Communities within the
14:
287:International Labour Organization
1310:Canadian constitutional case law
1234:"Judicial Review and Federalism"
936:, AC 54 (22 October 1931),
197:, is a landmark decision of the
24:
721:Pamela Louise Anderson (2009).
221:British North America Act, 1867
191:, A.C. 326, also known as the
838:, IX. Miscellaneous Provisions
378:performing such an obligation.
1:
1315:Supreme Court of Canada cases
1075: (on appeal from Ontario)
994:, SCR 529 (28 June 1955)
965:, AC 437 (2 July 1892),
867:, SCR 505 (18 June 1925)
406:, holding that all Acts were
84:, SCR 461 (17 June 1936)
1290:Canadian federalism case law
1097: (on appeal from Canada)
1052:Labour Conventions Reference
969: (on appeal from Canada)
940: (on appeal from Canada)
503:of the Parliament of Canada.
194:Labour Conventions Reference
19:Labour Conventions Reference
1242:University of Calgary Press
800:University of Toronto Press
612:Reference re Securities Act
550:Statute of Westminster 1931
508:Appeal to the Privy Council
270:Statute of Westminster 1931
245:Balfour Declaration of 1926
1331:
1064:Hodge v The Queen (Canada)
184:Canada (AG) v Ontario (AG)
1300:1937 in Canadian case law
1154:A.G. for Ontario v. Scott
497:British North America Act
471:British North America Act
437:British North America Act
421:British North America Act
157:
23:
1305:Canadian labour case law
535:not determined by the ."
281:As a consequence of the
214:The federal treaty power
327:Supreme Court of Canada
261:Commonwealth of Nations
93:Supreme Court of Canada
1091:[1929] UKPC 86
1069:[1883] UKPC 59
963:[1892] UKPC 34
934:[1931] UKPC 93
686:
631:
607:Canadian Confederation
589:
560:
505:
455:
380:
277:The Labour Conventions
265:
237:
1004:Stevedoring Reference
617:
370:Aeronautics Reference
353:The Minimum Wages Act
189:[1937] UKPC 6
695:Bruce Ryder (1991).
575:Stevedores Reference
338:Parliament of Canada
283:Treaty of Versailles
226:Parliament of Canada
665:interjurisdictional
384:reference questions
243:of the Empire, the
203:Canadian federalism
172:Canadian federalism
1270:2014-09-09 at the
757:Labour Conventions
726:Labour Conventions
705:McGill Law Journal
674:pith and substance
634:External relations
373:, which declared:
131:Sir Sidney Rowlatt
809:978-0-8020-9193-2
772:978-90-5201-453-1
753:Hugo Cyr (2009).
745:978-0-494-59474-2
714:McGill Law School
605:the beginning of
516:. In his ruling,
180:
179:
167:Foreign relations
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978:SCC, pp. 512–513
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949:SCC, pp. 495–496
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906:S.C. 1935, c. 63
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568:Labour relations
547:Even though the
457:In his dissent,
429:case and in the
162:Labour relations
99:Court membership
28:
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1244:. p. 427.
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689:Further reading
678:aspect doctrine
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56:28 January 1937
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1158:1955 CanLII 16
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1144:, p. 213.
1134:
1130:1987 CanLII 71
1115:
1099:
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1055:
1044:
1032:
1030:, p. 312.
1020:
1018:, p. 212.
1008:
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865:1925 CanLII 77
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1142:Muirhead 2009
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1042:, p. 51.
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1021:
1017:
1016:Muirhead 2009
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1005:
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992:1955 CanLII 1
989:
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879:, p. 63.
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851:, p. 62.
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69:Case history
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1240:. Calgary:
1111:2005 SCC 56
798:. Toronto:
682:paramountcy
622:living tree
599:ultra vires
532:novus actus
514:ultra vires
501:ultra vires
479:Lord Watson
426:Aeronautics
409:intra vires
389:ultra vires
145:Decision by
126:Lord Wright
1284:Categories
1193:2012-01-12
1028:Ryder 1991
823:References
716:: 308–381.
657:Dickson CJ
592:Federalism
582:declared:
518:Lord Atkin
446:inter alia
209:Background
148:Lord Atkin
111:Lord Atkin
781:2031-0331
734:(LL.M.).
659:in 1987:
563:Aftermath
481:, in the
459:Rinfret J
257:the Crown
241:Dominions
61:Citations
1268:Archived
1006:, p. 592
916:Cyr 2009
877:Cyr 2009
849:Cyr 2009
755:"I: The
646:several
580:Abbott J
153:Keywords
1156:,
1128:,
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863:,
684:issues.
404:Duff CJ
80:,
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1246:ISBN
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