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Constitution (Non-Charter) - 'Local or Private Nature' [The Constitution Act, 1867, s.92(16)]. 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”.
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