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Constitution - Division of Powers (2). 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 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 addressed the (non-Charter) constitutional 'division of powers' challenge, both at the 'characterization' and the 'classification' stages:(1) The Division of Powers
i. Overview
[32] Federalism is a “fundamental guiding principle” of our constitutional order: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para 21. The framers of the Constitution sought to achieve national unity by reserving to Parliament powers better exercised in relation to the country as a whole, while allocating broad powers to the provinces in order to recognize their diversity. In the result, “[e]ach head of power was assigned to the level of government best placed to exercise the power”: Canadian Western Bank v. Alberta, at para. 22.
[33] There are two stages to determining whether laws fall within the heads of power assigned to the enacting legislature. Courts apply the pith and substance doctrine to make this determination. First, the court characterizes the law in issue, identifying its pith and substance. Second, on the basis of that characterization, the court classifies the law by reference to the heads of power enumerated in the Constitution Act, 1867: Reference re An Act respecting First Nations, Inuit, and Métis children, youth and families, 2024 SCC 5, 488 D.L.R. (4th) 189, at para. 37.
[34] The fundamental objectives of federalism must guide this analysis. The court should aim “to reconcile unity with diversity, promote democratic participation by reserving meaningful powers to the local or regional level and to foster co-operation among governments and legislatures for the common good”: Canadian Western Bank, at para. 22. This “cooperative” approach to federalism requires that courts “facilitate interlocking federal and provincial legislative schemes and … avoid [imposing] unnecessary constraints on provincial legislative action”: Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189, at para. 18; Québec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1. S.C.R. 693, at paras. 17-19. Legislative overlap is “inevitable”, “proper and to be expected”: Canadian Western Bank, at paras. 24, 28.
[35] With these principles in mind, we dismiss the division of powers ground of appeal. However, we do so for different reasons than the application judge. In brief, we conclude that the application judge mischaracterized the TGEWA by describing its pith and substance as “educative”. In our view, the TGEWA’s dominant purpose is to affirm and commemorate the Tamil-Ontarian community’s experience of the Sri Lankan Civil War and thus promote, within Ontario, the values of human rights, diversity and multiculturalism. At the classification stage, we conclude that this purpose constitutes a valid exercise of Ontario’s powers over matters of a merely local or private nature in the province under s. 92(16) of the Constitution Act, 1867.
ii. Characterization
General Principles
[36] We begin by setting out some of the general principles applicable at the characterization stage of the division of powers analysis.
[37] At this stage, the court must identify a law’s “dominant purpose”: RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 29. The aim of this exercise is to determine the TGEWA’s “main thrust or dominant characteristic”: Reference re An Act respecting First Nations, Inuit, and Métis children, youth and families, at para. 39. In doing so, the court looks at both the Act’s purpose and its effects.
[38] In determining the TGEWA’s purpose, the court may look to both intrinsic and extrinsic evidence. Intrinsic evidence refers to the Act’s title, preamble, text, structure and any provisions setting out its purpose. Extrinsic evidence includes the Act’s legislative history and the legislative debates surrounding its enactment: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at paras. 58-62; Reference re Genetic Non-Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283, at para. 34.
[39] In determining the TGEWA’s effects, the court may look at both the legal effects that flow directly from the Act’s provisions and the practical effects that flow from its application: Reference re Genetic Non-Discrimination Act, at para. 51; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at para. 54.
[40] The court must keep the characterization and classification stages distinct – that is, it must identify the pith and substance of the TGEWA without regard to the heads of legislative power listed under ss. 91-93 of the Constitution Act, 1867: References re Greenhouses Gas Pollution Pricing Act, at para. 56. Failure to keep these two stages of the analysis distinct would create “a danger that the whole exercise will become blurred and overly oriented towards results”: Chatterjee v. Ontario (Attorney General), 2009 SCC 19, [2009] 1 S.C.R. 624, at para. 16.
[41] Additionally, the court should not describe the TGEWA’s pith and substance too generally. Instead, it “must strive to be as precise as possible, because a precise statement more accurately reflects the true nature of what [the legislature] did and what it intended to do”: References re Greenhouse Gas Pollution Pricing Act, at para. 69. Further, identifying the pith and substance of the law as precisely as possible “discourages characterization that is overly influenced by classification”: References re Genetic Non-Discrimination Act, at para 31.
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[53] Questions concerning the division of powers between Parliament and the provinces are questions of law: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 53, 55. The application judge’s determination that the TGEWA is intra vires Ontario is therefore subject to correctness review: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
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iii. Classification
General Principles
[78] Three general principles guide our classification analysis.
[79] First, in classifying the TGEWA, the focus must be on its dominant characteristic – as identified at the pith and substance stage of the analysis – and not on its “secondary” or “incidental” effects: Reference re Impact Assessment Act, 2023 SCC 23, 486 D.L.R. (4th) 379, at para. 113.
[80] If the legislation’s dominant characteristic falls within a provincial head of power then, generally, the fact that it “incidentally touches on a head of power belonging to [Parliament] does not affect its validity”: Reference re Impact Assessment Act, at para. 113; Reference re An Act respecting First Nations, Inuit, and Métis children, youth and families, at para. 103.
[81] “Incidental” effects are those that “may be of significant practical importance but are collateral and secondary to the mandate of the enacting legislature”: Canadian Western Bank, at para. 28. These effects are permissible and “should not be seen as altering the balance of constitutional powers”: General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641, at p. 669; Canadian Western Bank, at para. 28; Chatterjee, at para. 32.
[82] Second, legislation is presumed compliant with the division of powers. As the Supreme Court observed in Murray-Hall v. Québec (Attorney General), 2023 SCC 10, 425 C.C.C. (3d) 277, at para. 79:The presumption of constitutional validity remains a cardinal principle of our division of powers jurisprudence. According to this presumption, every legislative provision is presumed to be intra vires the level of government that enacted it. [Internal citations and quotations omitted.] [83] Although not a determining factor, Wagner C.J. also noted that a court should be particularly cautious about invalidating a provincial law under a division of powers analysis when (as here) the federal government does not contest its validity: Murray-Hall, at para. 82.
[84] Third, and relatedly, the principle of cooperative federalism must guide the analysis. The “dominant tide” of modern Canadian constitutional interpretation is “that a court should favour, where possible, the ordinary operation of statutes enacted by both levels of government”: Canadian Western Bank, at para. 37 (emphasis in original). This more flexible view of federalism “accommodates overlapping jurisdiction and encourages intergovernmental cooperation”: Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at para. 57.
[85] The double aspect doctrine – which we discuss in more detail below – gives effect to this principle. In Murray-Hall, at para. 76, the Supreme Court explained the doctrine as follows:[It] reflects the contemporary view of federalism and constitutional interpretation, which recognizes that overlapping powers are unavoidable. According to the double aspect doctrine, Parliament and the provincial legislatures may make laws in relation to matters that, by their very nature, have both a federal and provincial aspect. It will therefore be possible to apply the double aspect doctrine where each level of government has a compelling interest in enacting legislation on different aspects of the same activity or matter. In practice, without creating concurrent jurisdiction over a matter, the double aspect doctrine allows for concurrent application of both federal and provincial legislation. [Internal citations and quotations omitted.] . Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of two JRs, one which "challenged the validity of a report resulting from a regional assessment of offshore oil and gas exploratory drilling, conducted under the Impact Assessment Act" and the other to "quash a regulation made under the Act that exempts certain exploratory drilling activities from a number of impact assessment requirements".
Here, the court summarizes the recent constitutional division-of-powers IAA decision:[2] After our Court heard this appeal, the Supreme Court of Canada released its decision on the constitutionality of the Act: Reference re Impact Assessment Act, 2023 SCC 23 [IAA Reference]. The Supreme Court opined that the federal impact assessment scheme, consisting of the Act and its accompanying Physical Activities Regulations, S.O.R./2019-285 (Activities Regs), is unconstitutional in part.
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(2) The IAA Reference
[34] In the IAA Reference, the Supreme Court was asked to determine the constitutional validity of the Act and the Activities Regs. The Court held that the entire Act, except sections 81–91, is ultra vires Parliament and therefore invalid; consequently, the Activities Regs are also invalid. The Court conducted a division of powers analysis to reach this conclusion. This analysis has two steps: characterization and classification.
[35] First, at the characterization step, the Court considered the purpose and effects of the Act to identify its pith and substance. The Court concluded that the Act contains two distinct schemes: IAA Reference at para. 109. The first is a "“designated projects”" scheme, which assesses and regulates designated projects to mitigate or prevent their potential adverse environmental, health, social, and economic impacts. The second scheme, in sections 81–91, directs how federal authorities assess the significant adverse environmental effects of projects that they carry out or finance on federal lands or outside Canada.
[36] Second, at the classification step, the Court considered which head of power the Act’s pith and substance relates to. The second scheme (sections 81–91) was upheld for three reasons: (1) its constitutionality was unchallenged, (2) it resembles the legislation the Supreme Court upheld in Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 SCR 3 [Oldman River], and (3) it is severable from the rest of the Act: IAA Reference at paras. 207–211. However, the Supreme Court determined that the designated projects scheme, which comprises the balance of the Act, is unconstitutional. Two reasons prohibited the designated projects scheme from being classified under a federal head of power: IAA Reference at paras. 131–139. Firstly, truly federal effects do not drive the scheme’s decision-making functions: IAA Reference at paras. 141–178. That is, decision makers could blend their assessment of adverse federal effects with other adverse effects that are not federal. Secondly, decision-making is driven by considerations labeled "“effects within federal jurisdiction”". Despite this label, these considerations far exceed federal jurisdiction: IAA Reference at paras. 179–203. For these reasons, the Supreme Court ruled that the Act—with the exception of sections 81 to 91—and the Activities Regs exceeded Parliament’s jurisdiction. . Reference re Impact Assessment Act
In Reference re Impact Assessment Act (SCC, 2023) the Supreme Court of Canada considered (and largely allowed) a constitutional division-of-powers challenge to the federal Impact Assessment Act.
Here the court considers the preliminary division-of-powers stages, which are the pith-and-substance 'characterization', and the division-of-powers 'classification'. The following quotes address the 'characterization' analysis:[60] The division of powers analysis has two steps: characterization and classification. I will begin by canvassing the principles governing the characterization inquiry.
VI. Step 1: Characterization
A. The Governing Principles
(1) The Pith and Substance Analysis
[61] At the characterization step, a court must consider the purpose and effects of the challenged law in order to identify its “pith and substance” (Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580 (P.C.), at p. 587; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693 (“Quebec (Attorney General) 2015”), at paras. 28-29; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189, at para. 86; References re GGPPA, at para. 51). The objective of the characterization inquiry is to identify the precise “matter” to which the law in question relates (Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 26).
[62] In order to determine a law’s purpose, a court looks to both intrinsic and extrinsic evidence (Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 17; Canadian Western Bank, at para. 27; Reference re Genetic Non-Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283, at para. 34; References re GGPPA, at para. 51). Intrinsic evidence refers to material contained within the four corners of the law in question, including the text of the law, its preamble, its purpose clause, if it has one, its title and its overall structure. Extrinsic evidence refers to evidence that speaks to the context of the law in question, such as Hansard debates, the minutes of parliamentary committees and relevant government publications.
[63] In analyzing the effects of the challenged law, a court considers both legal and practical effects. Legal effects are those effects that “flo[w] directly from the provisions of the statute itself”, while practical effects are those “‘side’ effects [that] flow from the application of the statute which are not direct effects of the provisions of the statute itself” (Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at para. 54; see also Morgentaler, at pp. 482-83; References re GGPPA, at para. 51).
[64] Finally, the court must characterize the pith and substance of the challenged law “as precisely as possible” (References re GGPPA, at para. 52). If the pith and substance is characterized in overly broad terms, then “there is a danger of its being superficially connected with a power of the other level of government” (Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457, at para. 190). In other words, an imprecise formulation of the pith and substance of the law can infect the subsequent classification analysis. An artificially narrow characterization can similarly distort the analysis. The court should “capture the law’s essential character in terms that are as precise as the law will allow” (References re GGPPA, at para. 52; Reference re Genetic Non-Discrimination Act, at para. 32).
(2) Characterization Is Distinct From Classification
[65] When formulating the pith and substance of a law, litigants and courts may be inclined to glance ahead to the classification step and the catalogue of potential heads of power. It is imperative, however, that the characterization and classification analyses be kept distinct (References re GGPPA, at para. 56). In determining the pith and substance of a law, courts must not refer to the heads of power contained within the Constitution Act, 1867. Only after precisely stating the matter to which the law relates should a court proceed to the classification phase of the analysis and consider specific heads of power.
[66] The judges in the court below, the parties and the interveners adopt differing articulations of the impugned scheme’s pith and substance. With respect, several of these articulations erroneously combine or conflate the characterization of the scheme with its classification.
[67] The Attorney General of Canada submits that the pith and substance of the IAA is to “establish a federal environmental assessment process to safeguard against adverse environmental effects in relation to matters within federal jurisdiction” (A.F., at para. 47). The latter part of this characterization — “in relation to matters within federal jurisdiction” — predetermines the classification of the matter of the scheme under federal heads of power. It amounts to a statement that the main thrust of the scheme is to do what it does in a constitutionally valid manner.
[68] The majority of the Court of Appeal fell into the same error when it concluded, as part of its characterization inquiry, that the scheme’s purpose and effects reveal an “impermissible degree of federal jurisdictional overreach” (para. 373). This is the language of classification; the characterization step of the analysis must focus exclusively on the “pith and substance” or “dominant characteristic” of the law. . Murray‑Hall v. Quebec (Attorney General)
In Murray‑Hall v. Quebec (Attorney General) (SCC, 2023) the Supreme Court of Canada considered the analytic framework for categorizing legislative topics by the constitutional division of powers, including the specific situation where only parts of a statute are being challenged:(1) Analytical Framework
[21] The analytical framework for determining the constitutional validity of laws is well established and is not the subject of any particular controversy in this case, so a brief review will suffice.
[22] To decide whether a law or some of its provisions are constitutionally valid under the division of powers, courts must first characterize the law or provisions and then, on that basis, classify them by reference to the heads of power listed in ss. 91 and 92 of the Constitution Act, 1867 (Reference re Genetic Non‑Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283, at para. 26, citing Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 15).
[23] At the characterization stage, what must be determined is the pith and substance of the law (Reference re Genetic Non‑Discrimination Act, at para. 28, citing Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 26). In its jurisprudence, the Court has described the aim of this exercise as being to identify the “dominant purpose” of the law (RJR‑MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 29), its “dominant or most important characteristic” (Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at pp. 62‑63) or its “leading feature or true character” (R. v. Morgentaler, 1993 CanLII 74 (SCC), [1993] 3 S.C.R. 463, at pp. 481‑82). At the classification stage, in turn, what must be determined is whether the pith and substance thereby defined comes within one of the heads of power of the enacting legislature (Reference re Firearms Act, at para. 25).
[24] To ascertain the pith and substance of a law, courts look at its purpose and effects (Reference re Firearms Act, at para. 16). This essentially interpretative exercise is meant to be neither technical nor formalistic, to use the words of the late Professor Peter W. Hogg (Constitutional Law of Canada (loose‑leaf ed.), vol. 1, at p. 15‑12, cited in Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569, at para. 18). Indeed, in addition to the words used in the law itself, courts may consider the circumstances surrounding its enactment (Ward, at para. 17, citing Reference re Firearms Act, at paras. 17‑18, and Morgentaler, at p. 483).
[25] To analyze the purpose of a law, courts rely on intrinsic evidence, that is, the actual text of the law, including its preamble and purpose clauses, as well as extrinsic evidence, such as parliamentary debates and minutes of parliamentary committees (Canadian Western Bank, at para. 27; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at paras. 53‑54; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457 (“Reference re AHRA”), at paras. 22 and 184). In looking at the effects of the law, courts consider both its legal effects, namely those related directly to the provisions of the law itself, and its practical effects, that is, the “side” effects arising from its application (Kitkatla Band, at para. 54, citing Morgentaler, at pp. 482‑83).
[26] That being said, I would nonetheless emphasize that textual analysis is the focus of the characterization exercise. As Kasirer J. noted in Reference re Genetic Non‑Discrimination Act, “[i]n the final analysis, it is the substance of the legislation that needs to be characterized, not speeches in Parliament or utterances in the press” (para. 165).
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[30] Where, as in this case, only very specific provisions are being challenged and not the entire law, certain principles apply. A court should begin by characterizing the provisions rather than considering the validity of the law as a whole, a principle articulated by Dickson J. (as he then was) in Attorney General of Canada v. Canadian National Transportation, Ltd., 1983 CanLII 36 (SCC), [1983] 2 S.C.R. 206. However, Dickson J. added, this does not mean that the provisions must be read in isolation. A contextual analysis of the provisions is necessary when they are part of a regulatory scheme. Dickson J.’s remarks in this regard are as follows:It is obvious at the outset that a constitutionally invalid provision will not be saved by being put into an otherwise valid statute, even if the statute comprises a regulatory scheme under the general trade and commerce branch of s. 91(2). The correct approach, where there is some doubt that the impugned provision has the same constitutional characterization as the Act in which it is found, is to start with the challenged section rather than with a demonstration of the validity of the statute as a whole. I do not think, however, this means that the section in question must be read in isolation. If the claim to constitutional validity is based on the contention that the impugned provision is part of a regulatory scheme it would seem necessary to read it in its context. If it can in fact be seen as part of such a scheme, attention will then shift to the constitutionality of the scheme as a whole. [Emphasis added; p. 270.] [31] This Court has repeatedly emphasized the need to consider the impugned provisions in light of their interaction with the scheme to which they belong. In Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693 (“Quebec (Attorney General) 2015”), one of the issues was whether a provision requiring the destruction of long‑gun registration data related to the same matter — public safety — as the legislation repealing the registration scheme. Writing for the majority, Cromwell and Karakatsanis JJ. stated the following: “. . . the ‘matter’ of the provision must be considered in the context of the larger scheme, as its relationship to that scheme may be an important consideration in determining its pith and substance . . .” (para. 30).
[32] The principle enunciated by McLachlin C.J. in Ward, where the issue was whether a section of federal fisheries regulations prohibiting the sale of young seals was constitutionally valid, is also relevant: “The question is not whether the Regulations prohibit the sale so much as why it is prohibited” (para. 19 (emphasis in original)). In that case, therefore, the Court could not simply focus on the fact that the impugned provision imposed a prohibition on sale, trade or barter, which could have suggested that it fell within provincial jurisdiction over property or trade. When the why of the prohibition and its interaction with the rest of the scheme were considered, it became apparent that the purpose of the prohibition was to curtail commercial hunting and that Parliament was validly exercising its fisheries power.
[33] I would also note that reading the impugned provisions in the context of the scheme into which they are integrated is crucial in distinguishing the purpose of the law from the means chosen to achieve it. Indeed, in Ward, McLachlin C.J. cautioned against “confus[ing] the purpose of the legislation with the means used to carry out that purpose” (para. 25).
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[79] The presumption of constitutional validity of legislation remains a cardinal principle of our division of powers jurisprudence (Reference re The Farm Products Marketing Act, 1957 CanLII 1 (SCC), [1957] S.C.R. 198, at p. 255; Nova Scotia Board of Censors v. McNeil, 1978 CanLII 6 (SCC), [1978] 2 S.C.R. 662, at pp. 687‑88; Husky Oil Operations Ltd. v. Minister of National Revenue, 1995 CanLII 69 (SCC), [1995] 3 S.C.R. 453, at para. 162; Reference re Firearms Act, at para. 25). According to this presumption, every legislative provision is presumed to be intra vires the level of government that enacted it. At paras 28-82 the court walks through the case's facts on this analysis.
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