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20 Const. F. 1 (2011)

handle is hein.journals/consfo20 and id is 1 raw text is: Canada's re-emerging division of powers and the unrealized force of reciprocal interjurisdictional immunity Dwight Newman* Introduction In recent decades, up to the middle of the first decade of the twenty-first century, Canadian division- of-powers jurisprudence seems to have been in a period of quiescence, with modern doctrine imposing few constraints on the fed- eral government's implementation of national programs. The Supreme Court of Canada had shown a readiness to uphold federal legislation in previously unanticipated areas, such as in the substantial federal roles developed in economic and environmental regulation. In the process, federal powers like trade and commerce and criminal law grew beyond their prior bounds. The Court simultaneously spoke of its innova- tions as if they marked an era of so-called co- operative federalism. In the last five years, however, division of powers constraints on the federal government have re-emerged. In 2007, the decision in Canadian Western Bank (released with a companion decision in Lafarge to the same effect) contained a surprise twist: for the first time, the Court explicitly affirmed the reciprocal application of interjurisdictional immunity (IJI)l to protect the core of provincial works and undertakings from federal interference.2 Although the doctrine of IJI should be reciprocal, protecting provincial works from federal incursions by federal laws and federal works from incursions by provincial laws, Canadian courts have previously applied the doctrine in an asymmetrical fashion consistently in favour of federal laws. In the two Bell Canada cases, for example, federal jurisdiction over interprovincial telecommunications won out over provincial jurisdiction in relation to labour relations. The decisions in these two cases resulted in a situation where provincial labour standards are inapplicable to federally regulated telecommunications companies and other federally regulated industries. However, this traditional application of the IJI doctrine provides no explanation for why the core of provincial labour relations jurisdiction counts for nothing. The subsequent decision in Canadian Western Bank came with a stricter test for IJI, seemingly applying IJI only where one government sterilizes an entity regulated by the other. This strict test has been removed again in a recent pair of aeronautics cases in Qubbec that have applied a less strict test again, as explained further below. The implication of IJI applying more broadly again, along with the decision that it is available in favour of the provinces, is that provincial IJI claims may now have teeth. One example is present in the Insite case, in which the British Columbia Court of Appeal held in favour of a provincial IJI claim Constitutional Forum constitutionnel 1

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