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Constitution - Peace, Order and Good Government (POGG). 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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