Not in My Backyard

Radio-Canada reports that Québec’s Chief Electoral Officer (CEO) and the (federal) National Capital Commission (NCC) are fighting over the right of candidates in Québec’s election to post signs on Gatineau’s Rue Laurier. The NCC has taken down some signs, citing its policy prohibiting the posting of any signs the streets that form its “Confederation Boulevard,” a showpiece route on both the Ottawa and the Gatineau sides of the river, which includes Rue Laurier. The CEO says that the policy doesn’t apply to provincial elections. The NCC says its lawyers are on the case.

I think the CEO is right, but the case is not free from doubt. Living in a federation ain’t easy.

The first question to consider is whether one of the two regulations at issue here is unconstitutional. As the Supreme Court held in Munro v. National Capital Commission, [1966] S.C.R. 663, the federal government has the competence, under the “national concern” branch of the “peace, order, and good government” power, which I discussed in some detail here, to legislate and make regulations for “the development, conservation and improvement of the National Capital Region in accordance with a coherent plan in order that the nature and character of the seat of the Government of Canada may be in accordance with its national significance.” (671) I would think that includes the power to regulate the appearance of the landmarks of the National Capital Region, for example by prohibiting the posting of signs. The province, of course, has the power to legislate with respect to the use of property, as well as to provincial elections. So both the NCC’s regulation and the provincial law authorizing the display of election posters on public property (section 259.2 and, more generally, Chapter IV.1 of Title IV of the Election Act, R.S.Q. c. E-3.3) are valid exercises of the respective powers of the two levels of government.

The next question is whether the provincial law, although generally valid, is inapplicable in this case pursuant to the doctrine of inter-jurisdictional immunity. As the Supreme Court explained in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at par. 58, this doctrine

is premised on the idea that there is a “basic, minimum and unassailable content” to the heads of powers in ss. 91 and 92 of the Constitution Act, 1867 that must be protected from impairment by the other level of government. … In cases where interjurisdictional immunity is found to apply, the law enacted by the other level of government remains valid, but has no application with regard to the identified “core.”

The Supreme Court stated the test for the application of the doctrine in Quebec (Attorney General) v. Canadian Owners and Pilots Association [COPA], 2010 SCC 39, [2010] 2 S.C.R. 536, at par. 27.

The first step is to determine whether the provincial law — s. 26 of the Act —  trenches on the protected “core” of a federal competence.  If it does, the second step is to determine whether the provincial law’s effect on the exercise of the protected federal power is sufficiently serious to invoke the doctrine of interjurisdictional immunity.

The “core of a federal competence” consists of the powers necessary to realize the purpose of the federal power (COPA, par. 35). It’s a rather vague definition, not least because the purposes of legislative powers are not well defined. Is it necessary for the purpose of ensuring “that the nature and character of the seat of the Government of Canada may be in accordance with its national significance” to be able to prohibit the posting on signs on municipal lamp posts? I’m not sure. But let’s assume that it is. I think that the second branch of the test is more clearly favourable to the CEO.

The second branch of the test requires a court to assess the seriousness of the provincial law’s interference with the federal power. It is not enough that the provincial law “affect” the federal power; in order to be inapplicable pursuant to the doctrine of inter-jurisdictional immunity, it must “impair” that power; that is, it must “seriously or significantly trammel[] the federal power” (COPA, par. 45). Although again this is a somewhat uncertain measure, I rather doubt that this test is met here. Even assuming that, as a general matter, it is important for the NCC to control the appearance of key streets in the National Capital Region, it is difficult to believe that the presence of election posters (which, annoying though they might be, tend to be neither especially big nor especially tasteless) for five weeks every fours years is a “significant” impairment with the NCC’s power to do so. The temporary presence of election posters does not prevent the NCC from keeping up “the nature and character of the seat of the Government of Canada.” It is hardly more than a very minor inconvenience.

The final question to consider, as in all cases where two valid and applicable federal and provincial laws seem to compel different outcomes, is whether the conflict between them is such as to trigger the doctrine of federal paramountcy, which makes the provincial law inoperative to the extent of its inconsistency with the federal one. As the Supreme Court explained in COPA, at par. 64, paramountcy applies either if it is impossible for the subject to comply simultaneously with federal and provincial law, or when compliance with the provincial law, although not actually a violation of the federal one, would frustrate its purpose. Here, it is obviously possible to comply with both laws, since nobody is required to put up election posters on Rue Laurier. But can it be said the the provincial law frustrates the purpose of the federal regulation? As the Supreme Court says in COPA, at par. 66, “the standard for invalidating provincial legislation on the basis of frustration of federal purpose is high,” and – essentially for the reasons I have given in the previous paragraph – I don’t think it is met here. The interference with the purpose of the federal regulation is minor and temporary. I don’t think it amounts to frustration.

So, that’s my two cents. But the applicable tests are vague, and the opposite case is certainly an arguable one. As a taxpayer, I hope the CEO and the NCC don’t waste my money on what it is, after all, a trivial disagreement. But as constitutional law junkie, I think it might make for an interesting case.