It’s Not a POGGrom!

Canada’s “newspaper of record” has published an ignorant rant by Neil Reynolds, savaging alleged abuses, rhetorical, legislative, and jurisprudential, of  the “Peace, Order, and Good government” (a.k.a. POGG) clause of s. 91 of the Constitution Act, 1867, which sets out the powers of the federal Parliament. While the words “peace, order, and good good government” are indeed sometimes used to draw, or rather to provide rhetorical cover for, expansive and unwarranted conclusions about Canada and its constitution, most of Mr. Reynolds’ claims about the clause’s use by Parliament and courts are flat out wrong.

Mr. Reynolds’ first target is a “Canadian myth[] [that] holds that our constitutional mandate for peace, order and good government has made Canada a kinder, gentler place than the United States – debauched by its licentious pursuit of life, liberty and the pursuit of happiness.”  I’ve heard that line before, and I agree that it is silly. Mr. Reynolds is right that “POGG … was imperial boilerplate,” a perfunctory introduction to a clause vesting the legislative power in Parliament. It certainly does not give courts the right he strike down laws on the basis that they are not conducive to peace, order, and good government. (We might not have much of a statute book if it did.) It does not tell us much of anything about the sort of country we are. (I will have more to say about this in another post shortly.) [UPDATE: that post is here.]

Beyond that, however, Mr. Reynolds’ argument does not disclose much of an understanding of Canadian constitutional law. He claims that “POGG has been used from the very beginning to override” the division of powers between Parliament and provincial legislatures. Apart from bald assertions, his evidence for this claim consists of the Supreme Court’s decision to uphold the constitutionality of the Anti-Inflation Act, Pierre Trudeau’s application of the War Measures Act during the October Crisis, Parliament’s creation of Employment Insurance, and its use of the spending power to  “fund everything (or almost everything) and disperse it directly and indirectly, hither and yon, as they deem fit.” This is almost entirely wrong.

The POGG power, as defined over the years by the Privy Council and the Supreme Court of Canada, is quite narrow. It has two main “branches” – emergency, and “national concern.”

In an emergency, the POGG power allows Parliament to override the normal distribution of powers, but only for the duration of the emergency. That was the power pursuant to which the Anti-Inflation Act was found valid. Admittedly, whether high inflation ― and it wasn’t hyperinflation by any stretch of the imagination ― amounted to a national crisis is debatable. But it was at least a pressing and significant problem, which the Court did not invent. The decision might have been too deferential to Parliament, but does it really matter, as Mr. Reynolds believes, that Parliament did not use the actual word “emergency” in the legislation? Such silly formalism does not make for good law; nor is it useful to protect freedom or federalism.

The other branch of the POGG power allows Parliament to legislate over matters of “national concern.” This might look like a broad power, but it is limited by the requirement, stated in R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401 that “[f]or a matter to qualify as a matter of national concern … it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution.” The number of “matters” that have the requisite “singleness, distinctiveness and indivisibility” is not so large ― the environment, for example, is not one of them, as the Court held in R. v. Hydro‑Québec, [1997] 3 S.C.R. 213. And the “national concern” branch of the POGG power cannot be used to upset “the fundamental distribution of legislative power” between Parliament and the provinces. So there.

The other examples used by Mr. Reynolds are mostly irrelevant. Employment Insurance is the worst, since the power to implement it was explicitly assigned to Parliament by a constitutional amendment in 1940, which added subs. 2A to s. 91 of the Constitution Act, 1867. Parliament does fund a lot of other things. Some of this funding is dispensed  through equalization payments, which are specifically authorized by s. 36 of the Constitution Act, 1982. Some is not, and admittedly, the constitutionality of the general “spending power” has been called into question by academics (in Québec especially), albeit never tested in court. For many decades, provinces have effectively acquiesced in its use, though it is certainly debatable whether that, in itself, makes it constitutional. Finally, Trudeau’s resort to the War Measures Act, however questionable from the point of view of civil liberties, was hardly problematic from a federalism standpoint. It was made at the request of the province of Québec, which considered itself unable to deal with a terrorist crisis; it was temporary, and indeed fairly short; it did not alter the balance of legislative powers between Parliament and the provinces. As an abstract matter, it is hardly disputable that emergency legislation, including provisions to involve the federal government’s enforcement apparatus to counter-act a crisis, even in a single province, is a necessary thing. The October Crisis may or may not have been an occasion on which its use was required, but even if it was not, that does not tell us anything about the evils of the POGG power pursuant to which such legislation is enacted.

I’m not sure what prompted Mr. Reynolds to attack the POGG power with such senseless vigour. What I am sure of, though, is that the Globe ― which usually does a decent job reporting on legal matters ― should have done some fact-checking before publishing what amounts to no more than a rant.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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