I am very pleased to report that my paper, “Watertight Compartments: Getting Back to the Constitutional Division of Powers,” has been selected for publication in the upcoming edition of the Alberta Law Review. In this paper I argue that ss. 91 and 92 of the Constitution Act, 1867 (formerly the B.N.A. Act, 1867) establish mutually exclusive jurisdictional spheres – what the Privy Council once termed “watertight compartments” – that leave very little room for legitimate overlap. The modern trend of “flexible” or “cooperative” federalism that facilitates overlap between federal and provincial powers is directly contrary to what the Constitution says.
This year, as we celebrate the 150th anniversary of Confederation, let us also return to the words of our original Constitution, and its vision of exclusive, divided, and limited legislative powers.
Below is an excerpt for those who are interested. The full paper can be accessed on SSRN.
Lord Sankey will forever be associated with the phrase “living tree,” a metaphor that he used to describe Canada’s constitutional order in the famous Edwards decision (better known to many as the Persons case). However, two years later he offered another analogy that, while far less known and cited, is no less relevant. In the Aeronautics Reference, Lord Sankey warned against judicial interpretations moving slowly but surely away from the original meaning of the text – “from what has been enacted to what has been judicially said about the enactment” and then offered the following analogy and admonition:
To borrow an analogy; there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make any distinction between the two, and yet at the one end of the range the colour may be white and at the other end of the range black. Great care must therefore be taken to consider each decision in the light of the circumstances of the case in view of which it was pronounced, especially in the interpretation of an Act such as the British North America Act, which was a great constitutional charter, and not to allow general phrases to obscure the underlying object of the Act, which was to establish a system of government upon essentially federal principles. Useful as decided cases are, it is always advisable to get back to the words of the Act itself and to remember the object with which it was passed.
If that were not clear enough, Lord Sankey added that “[t]he process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded.”
In recent decades, Canada’s federalism jurisprudence has begun to pass through Lord Sankey’s “sixty colours.” The Supreme Court is gradually, but steadily, “whittl[ing] down the provisions of the original contract” by turning away from the textually-embedded exclusivity principle and toward a flexible model of federalism built upon overlapping jurisdiction.
This trend is arguably inconsistent with the Court’s own stated method of constitutional interpretation. While the Court has repeatedly affirmed the modern living tree doctrine, it has also continued to recognize “the primacy of the written text of the Constitution,” which, as the Court has acknowledged, “promotes legal certainty and predictability” and “provides a foundation and a touchstone for the exercise of constitutional judicial review.” Constitutional interpretation must always “begin with the language of the constitutional law or provision in question,” and “the analysis must be anchored in the historical context of the provision.”
In a similar vein, the Supreme Court has acknowledged the fundamental importance of constitutionalism and the rule of law in Canada’s constitutional order. As Justice Rothstein said at a recent conference, the rule of law demands, among other things, that judicial decisions be made in accordance with the law. Under the Constitution Act, 1982, the power to amend the Constitution is given exclusively to the legislative branch. Sections 91 & 92 of the Constitution Act, 1867 similarly state that Parliament and the provincial legislatures have the “exclusive” authority to legislate – a principle “won four centuries ago at the cost of much bloodshed.” The role of the judiciary is to decide cases and apply the law. The power to strike down legislation flows from, and is necessarily incidental to, this primary function. At base, it is the application of the supreme law – the Constitution – to inferior laws. If, in applying the supreme law, judges marginalize the text or alter its meaning, then they alter the law and thereby exceed their own constitutional authority.
This is not to argue that there can be no role for the judiciary in guiding the course of the Constitution to ensure that it remains applicable to modern Canadian society; and indeed, much ink has been spilled on how an “originalist” approach to constitutional interpretation may be qualified by modest judicial interventions. My aim here is not to advance that discussion; it is simply to state that if the text is indeed of primary importance as the Supreme Court has said, then that primacy requires, at a minimum, the courts to develop judicial doctrine with a close eye to constitutional language and structure.