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Constitution - Peace, Order and Good Government (POGG). Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)
In Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute'.
Here the court considers the federal division-of-powers 'POGG' power [The Constitution Act, 1867, s.91 preamble]:[114] Second, the TGEWA also does not trench upon the federal POGG power.
[115] To qualify as a “national concern”, a matter “must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution”: R. v. Crown Zellerbach Canada Ltd., 1988 CanLII 63 (SCC), [1988] 1 S.C.R. 401, at p. 432. See also References re Greenhouse Gas Pollution Pricing Act, at paras. 132-66. As Wagner C.J. stressed in References re Greenhouse Gas Pollution Pricing Act, at para. 142, the national concern branch is a residuary power to be exercised with “great caution.”
[116] In this case, the Coalition Appellants’ conclusory assertion that the “subject of genocide” is a matter of national concern for division of powers purposes fails to meet the stringent test articulated by the Supreme Court. The subject of a historical genocide and its present-day impacts in a current setting lacks the single, distinct and indivisible nature that is required for the matter to fall within the national concern branch. Indeed, a categorical federal jurisdiction over the subject of genocide would unnecessarily foreclose provincial jurisdiction on any issue that related to genocide, including, for example, provincial education on the Holocaust. That result would not be consistent with the proper division of powers and cooperative federalism, both of which animate the national concern doctrine.
[117] There is likewise no merit to the Coalition Appellant’s argument that because the prohibition against genocide is peremptory and universal, the subject of genocide is inherently a matter of national concern reserved exclusively to Parliament. While we accept that the prohibition against genocide is a peremptory norm of international law, it does not follow that Parliament has exclusive and categorical authority to legislate on the subject of genocide such that Ontario has no authority to legislate on a premise that a genocide occurred.
[118] In any event, the TGEWA does not engage the peremptory norm prohibiting genocide. The Act prohibits nothing. It does not implement or enforce any prohibition. The Coalition Appellants’ submission that a “false declaration of genocide” against a state may be justiciable under the Genocide Convention is a red herring.
[119] We therefore conclude that the TGEWA does not fall under or encroach on the federal POGG power. . Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)
In Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute'.
Here the court locates the statute within the 'local or private nature' head of The Constitution Act, 1867, and notes that scholars have analogized this with the federal POGG powers:Analysis
[92] For the following reasons, we conclude that the TGEWA constitutes a valid exercise of Ontario’s powers under s. 92(16). Supporting an Ontarian community by way of a commemorative week observed solely within Ontario is a matter “of a merely local or private Nature in the Province.”
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[95] That leaves the local matters power under s. 92(16).
[96] There appears to be no established test for determining when s. 92(16) applies. Nevertheless, two principles arising from the s. 92(16) jurisprudence suggest that the power embraces legislation like the TGEWA.
[97] First, provincial legislation may be valid under s. 92(16) even if it addresses a topic that is of extra-provincial interest or if it has extra-provincial effects. For instance, the Supreme Court has long held that the provinces have “extensive” jurisdiction under s. 92(16) over the local dimensions of public health: see e.g., Schneider v. The Queen, 1982 CanLII 26 (SCC), [1982] 2 S.C.R. 112, at p. 136-37, 141; Murray-Hall, at para. 73; see also Reference re Genetic Non-Discrimination Act, at paras. 93-94; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 68; R. v. Hydro-Québec, 1997 CanLII 318 (SCC), [1997] 3 S.C.R. 213, at para. 131. That is so even though disease crosses borders and, as a result, extra-provincial actors are clearly interested in the public health measures that the provinces choose to adopt.
[98] Second, the Supreme Court has expressed a preference for applying s. 92(16) to broaden provincial jurisdiction, carving out overlapping areas of legislative competence. In Canadian Western Bank, Binnie and Lebel JJ. noted, at para. 43:While it is true that the enumerations of ss. 91 and 92 contain a number of powers that are precise and not really open to discussion, other powers are far less precise, such as those relating to the criminal law, trade and commerce and matters of a local or private nature in a province. Since the time of Confederation, courts have refrained from trying to define the possible scope of such powers in advance and for all time. For example, while the courts have not eviscerated the federal trade and commerce power, they have, in interpreting it, sought to avoid draining of their content the provincial powers over civil law and matters of a local or private nature. [Internal citations omitted]. [99] To this end, the Supreme Court has often cited s. 92(16) when applying the double aspect doctrine, holding that Parliament and the provinces have independent jurisdiction over the national and local aspects, respectively, of the same general matters of regulation. In addition to public health, examples include environmental regulation (Reference re Impact Assessment Act, at paras. 114-24, 205) and Indigenous child welfare (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, at para. 98). This approach is consistent with the principle of cooperative federalism: Reference re Impact Assessment Act, at para. 122.
[100] In this vein, some jurists have also observed that the federal government’s POGG powers and the provinces’ s. 92(16) powers are really two sides of the same coin – they grant each level of government some role over unassigned matters. For instance, in References re Greenhouse Gas Pollution Pricing Act, Rowe J. – dissenting, but not on this point – noted the following at paras. 492-93:The federal residual clause has typically been seen as the sole residual power, such that all matters not coming within those assigned to the federal and provincial legislatures come within the federal power. However, there is a strong case for viewing the opening words of ss. 91 and 92(16) as setting out a parallel structure of complementary federal and provincial residua.
There is much to be said for the theory that the two sections complement and modify each other, with the federal residuum dealing with matters of a general character and the provincial residuum encompassing matters of a merely local or private nature. [Internal citations and quotations omitted; emphasis in original.] [101] With these principles in mind, we conclude that the TGEWA falls within Ontario’s s. 92(16) powers.
[102] The Act’s dominant purpose is to affirm and commemorate the experience of a local community: Tamil-Ontarians. It accomplishes this purpose by way of a commemorative week observed solely within the province. The experience of the local community and the topic of the commemorative week may be subjects of international debate. Members of the Tamil diaspora, as well as communities affected by other genocides, may reside in other parts of Canada. But that does not change the fact that the matter of this regulation is inherently “local”. The commemorative week and the Tamil community to which it is addressed are both “local”. . La Rose v. Canada
In La Rose v. Canada (Fed CA, 2023) the Federal Court of Appeal considered a political plaintiffs' appeal from a trial court's striking of pleadings, here where aboriginal and youths sued the government for causing - and failing to mitigate - climate change.
In these quotes the court considers the non-Charter constitutional 'peace, order and good government' (POGG) doctrine, here in an unsuccessful form:VII. Peace, order and good government / The general power
[63] The Dini Ze’ initially claimed that Canada’s power to make laws for the peace, order and good government of Canada under section 91 of the Constitution Act, 1867 imposed a positive obligation on Parliament to enact laws that effectively reduced its GHG emissions. In response to Canada’s motion to strike, the Dini Ze’ sought leave to amend their statement of claim. They now describe section 91 as a provision that “limits [Canada’s] powers to pass laws that are inconsistent with its constitutional duty to the [Dini Ze’] and with its international commitments to keep global warming to well below 2°C” (Dini Ze’s amended statement of claim at para. 85).
[64] McVeigh J. rejected the Dini Ze’s proposed amendments and struck their claim under section 91 of the Constitution Act, 1867 without leave to amend (Misdzi Yikh Reasons at para. 114). She concluded that their proposed amendments presented only “a semantical change” that did not cure their characterization of the general power as a power dictating that the government enact specific laws (Misdzi Yikh Reasons at para. 46).
[65] The Dini Ze’ argue that McVeigh J. misinterpreted their proposed amendments as imposing a positive duty on Canada, instead of a limitation on what Canada may legislate. They also say that their claim has a reasonable prospect of success given two UK decisions (R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, [2001] QB 1067 [Bancoult (No. 1)] and R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, [2008] UKHL 61 [Bancoult (No. 2)]).
[66] These arguments are unpersuasive and I agree with the reasoning of McVeigh J.
[67] Decades of jurisprudence have described the contours of the general power under section 91: it serves as an important residual source of federal jurisdiction. The purpose of the general power is to ensure that every possible subject of legislation belongs to one or other of the federal Parliament or the provincial Legislatures. In this way, the general power facilitates the division of powers by authorizing Parliament to act where there are gaps in the distribution of powers, in matters of national concern, or in the face of emergencies (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, 455 D.L.R. (4th) 1 at para. 115 [GGPPA References]; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571 at para. 72; Ontario Hydro v. Ontario (Labour Relations Board), 1993 CanLII 72 (SCC), [1993] 3 S.C.R. 327, 107 D.L.R. (4th) 457 at 379; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, 1979 CanLII 190 (SCC), [1980] 1 S.C.R. 914, 110 D.L.R. (3d) 594 at 944-945; Re: Anti-Inflation Act, 1976 CanLII 16 (SCC), [1976] 2 S.C.R. 373, 68 D.L.R. (3d) 452 at 403; Peter W. Hogg and Wade K. Wright, Constitutional Law of Canada, 5th ed. Supp., vol. 1 (Toronto: Thomson Reuters, 2021) (loose-leaf updated 2022, release 1), ch. 17 at 17-2).
[68] The Dini Ze’—pointing to Canada’s enactment of legislation that effectively licenses GHG emissions and its approvals of high GHG-emitting projects by way of Orders in Council—claim that Canada is legislating outside of its constitutional authority by not promoting peace, order and good government. Despite their argument that their proposed claim under the general power focuses on a limitation rather than a duty, the Dini Ze’ have nevertheless framed the claim in a way that rests on a requirement that Parliament legislate in a particular manner.
[69] There is no anchor for this proposition in the 156 years of Confederation. Section 91 is a source of Parliament’s legislative power, not a limit; it is an unqualified grant of legislative power, not an obligation. The general power is not an overarching obligation that requires Parliament to maintain a standard of “peace, order and good government of Canada” with every legislative decision. Whether the Dini Ze’s argument is cast as a positive duty or a limit on Parliament’s power is a distinction without a difference; the substance of the argument is that section 91 requires Parliament to enact laws that achieve what the judiciary determines to be necessary for the peace, order and good government of the country.
[70] As noted earlier, the appellants rely on two decisions from UK courts to support their interpretation of section 91.
[71] In Bancoult (No. 1), the UK’s Queen’s Bench Division was tasked with determining whether an ordinance which prohibited the Indigenous people born in the British Indian Ocean Territory from returning to and residing in their homeland was unlawful for upsetting the “peace, order and good government” of the territory. The Queen’s Bench decided that the executive’s power to legislate for the “peace, order and good government” of the British Indian Ocean Territory did not extend so far as to permit the executive to remove the inhabitants of the territory for political reasons (Bancoult (No. 1) at 1104).
[72] In Bancoult (No. 2), however, the UKHL upheld an Order in Council similar to the ordinance found to be ultra vires in Bancoult (No. 1). Lord Hoffman of the UKHL expressly disagreed with the Queen’s Bench’s interpretation of “peace, order and good government” at para. 50):[T]he words “peace order and good government” have never been construed as words limiting the power of a legislature. Subject to the principle of territoriality implied in the words “of the Territory”, they have always been treated as apt to confer plenary law-making authority... The courts will not inquire into whether legislation within the territorial scope of the power was in fact for the “peace, order and good government” or otherwise for the benefit of the inhabitants of the Territory. So far as Bancoult (1) departs from this principle, I think that it was wrongly decided. I note that the UKSC upheld the UKHL’s decision in Bancoult (No. 2) in R (on the application of Bancoult (No. 2)) v. Secretary of State for Foreign and Commonwealth Affairs, [2016] UKSC 35.
[73] The Bancoult decisions do not therefore assist the appellants.
[74] In any event, constitutional analysis is principally informed by Canadian jurisprudence, which is in turn shaped by our political and social history and only draws upon decisions of foreign courts or principles of international or comparative law in exceptional circumstances (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426 at paras. 43-47). This practice is driven by the obvious reality that measures adopted in other contexts may be of scant relevance, a point particularly apposite in respect of the Bancoult decisions.
[75] I agree with McVeigh J.’s conclusion that the UK cases relied upon by the Dini Ze’ were not instructive (Misdzi Yikh Reasons at para. 40) and her conclusion that “the POGG power has never been used in such a way, and… that even this novel attempt must fail” (Misdzi Yikh Reasons at para. 46). I would accordingly uphold her decision to strike this part of the claim without leave to amend. . Reference re Greenhouse Gas Pollution Pricing Act
In Reference re Greenhouse Gas Pollution Pricing Act (SCC, 2021) the Supreme Court of Canada issues it's latest statement of the Constitution's federal peace, order and good government ('POGG') power. In a case which must be some sort of record (over 600 paragraphs), the court upholds the constitutionality of a federal greenhouse gas statute that imposes regulatory charges [paras 47-211].
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