I published the first edition of my book Constitutional Law of Canada in 1977. At that time, the primary constitutional issues before the courts were disputes about the division of powers between the federal and provincial legislatures. The doctrine of federalism dominated Canadian constitutional law.
The adoption of the Charter and the rest of the Constitution Act, 1982 revolutionized and in many ways reinvigorated the practice and study of constitutional law. In the years since, as courts have been occupied with the continuing work of defining concepts like equality, freedom of association, the principles of fundamental justice, and Aboriginal rights, some observers might be forgiven for concluding that the division of powers in this country was well-settled and uncontroversial.
This past year demonstrates why such an observer would be mistaken. My mind strains to think of another recent year in which so many interesting federalism cases have appeared in the courts and, indeed, the headlines. The doctrine of federalism is enjoying a renaissance.
In April, the Supreme Court of Canada released its eagerly-awaited decision in R v Comeau, which interpreted the “free trade” provision of the Constitution in the case of a man who received a $240 ticket for bringing beer over a provincial boundary. The Court gave fresh eyes to a constitutional provision that, up to now, has not figured prominently in the pages of the law reports. Time will tell whether the Court’s interpretation will give rise to more litigation in the future.
The spring also saw a dispute between the government of British Columbia and the governments of Canada and Alberta over British Columbia’s constitutional authority to pass environmental legislation affecting the Trans Mountain Expansion Project, a federally-approved and federally-regulated interprovincial transportation undertaking. British Columbia has referred the constitutionality of a draft environmental bill to its Court of Appeal, and in the meantime the federal government has purchased the pipeline. This case will doubtless be followed with great interest by constitutional lawyers and scholars.
That was not the only division of powers dispute this year concerning the energy industry and the natural environment. The governments of Ontario and Saskatchewan have recently announced their intention to challenge the federal Parliament’s authority to require provinces to implement carbon pricing, and have referred cases to their respective courts of appeal.
And, in February, the Supreme Court of Canada heard Orphan Well Association v Grant Thornton Limited, a paramountcy case about a potential conflict between the federal bankruptcy regime and a provincial environmental remediation law in the context of the oil wells of an insolvent company. The appeal is under reserve.
This past year has demonstrated that the division of powers is not an ossified area of law, but a fertile ground for fascinating and important constitutional debate. The authors whose work appears in this edition have done an admirable job of contributing to that debate.
Peter W. Hogg is Canada's leading constitutional law scholar and professor emeritus at Osgoode Hall Law School. He is a published author of numerous books and currently is part of Blakes unique Scholar in Residence program.