Dear Sir or Madam:
Have you ever wondered why you need a new health card if you move to a different province, or why Alberta has no provincial sales tax? Or why you can only get beer in Ontario if it arrives to you on a conveyor belt? The answers to all of these questions are determined by section 92 of the BNA Act.
As we discussed before our Vader verdict detour, provincial governments have the exclusive power to make laws about certain aspects of Canadian society. Section 92 lists which areas the provinces control, and s. 91 provides the corresponding federal list. Some provincial powers include: regulating healthcare, provincial taxes, and trade within the province (alcohol and the beer conveyor fall into this category).
Last week we described the drafting challenges that the provincial delegates encountered in 1864; today, we’ll address the federal/provincial tug of war that has ensued since the BNA Act brought s. 92 into force. Which brings us to Marlon Brando, universal healthcare, oil & gas, and margarine. Though seemingly unrelated, they have all contributed to the enduring tension between sections 91 and 92.
In Nova Scotia (Board of Censors) v McNeil1, the Nova Scotia Board of Censors banned the Marlon Brando film Last Tango in Paris.2 A journalist challenged the legislation that empowered the board, arguing that the moral aspect of censorship was more closely tied to criminal law, a federal power under s. 91. If the provincial government enacts a law that is in the federal government's domain, or vice versa, a court can declare it unconstitutional. The Supreme Court of Canada held that the Board of Censors’ governing act concerned the regulation, supervision, and control of films—a form of private property—and therefore fits into the most expansive provincial power, s. 92(13), property and civil rights.3 This section includes the jurisdiction to legislate over any rights arising from a contract, and to regulate trade and industry within the province.
Health care and nonrenewable resources are two other areas under provincial control, though they are both contentious examples that demonstrate that hard-fought compromise was necessary to create Canada as we know it.
Section 92(7) grants the provinces exclusive authority to pass laws that affect the creation and administration of hospitals. Essentially, the provinces are responsible for delivering healthcare to the majority of Canadians. To create a national healthcare standard and avoid encroaching on provincial powers, the federal government’s role in healthcare is primarily financial. Under its spending power, the federal government can set conditions on disposing taxation revenue to the provinces.4 To receive federal funds for their insurance programs, the provinces must conform to the criteria outlined by the federal government in the Canada Health Act.5 The evolution of this provincial/federal compromise is complex but riveting, so stay tuned for more in later blogs.
The provincial power to pass laws on non-renewable resources (s. 92A) is another example of contentious compromise on jurisdiction. In 1980 the federal government introduced the National Energy Program, heavily taxing oil & gas revenues and causing outrage in western Canada. When the federal government sought to patriate the constitution in 1982, the resource provinces negotiated s. 92A, creating a rare addition to s. 92 in the BNA Act.
Now you are probably wondering how margarine fits into this equation. Well, we have only scratched the surface of Canada’s 91/92 tension, and for now we will tell you that margarine became entangled with the provinces’ powers over internal trade and the federal government’s powers over criminal law and inter-provincial trade and commerce. That, and more, in a later blog devoted entirely to margarine.
Until then, your humble and obedient servants,
1 2 SCR 662, 84 DLR (3d) 1.
21972, DVD (MGM, 1973).
3Supra note 1 at 688.
4Canada, The Standing Senate Committee on Social Affairs, Science and Technology, Interim Report on the state of health care system in Canada: The Health of Canadians - The Federal Role (O) vol 1 at 7.
5RSC 1985, c C-46.