Nov 16, 2020

Inter-provincial Travel Ban: How does Burrage J. get past Lord Watson's approach to division of powers in Union Colliery?

Taylor v. Newfoundland and Labrador, 2020 NLSC 125 (CanLII)

In Taylor v Newfoundland and Labrador, Burrage J. upheld a provincial order barring an individual from entering Newfoundland.

The fact that this person was a Newfoundlander and Canadian citizen going home is of no moment in division of powers analysis.

The question is: can a province prohibit entry of a person?

There is good reason why there is a relative absence of case law showing provinces prohibiting entry. The few times that provinces have purported to prohibit entry, or do something analogous, older courts, those with an older view of the constitution, have explained why provinces can’t do this.

Burrage J. uses Union Colliery v Bryden [1899] PC in his judgement. Typically, Burrage distinguishes. Burrage, you will see, does a lot of distinguishing. The main case he turns to for his pith and substance guidance (Ward) is decided in favour of Ottawa against Newfoundland. That little detail has to be distinguished.

In Union Colliery v. Bryden, (1899) PC, British Columbia passed a coal mining regulation saying that no boy under the age of twelve years and no woman and no girl of any age and no Chinaman shall be employed or allowed to be, for the purpose of employment, in any mine.

On its face, this is ‘labour’ legislation, or its mining legislation. Either way, it seems, on its face to be provincial. Here is what the Privy Council said on this point:

There can be no doubt that, if Section 92 of the Act of 1867 had stood alone, and had not been qualified by the provisions of the clause which precedes it, the Provincial Legislature of British Columbia would have had ample jurisdiction to enact Section 4 of the Coal Mines Regulation Act. The subject-matter of that enactment would clearly have been included in Section 92 (10) which extends to provincial undertakings such as the coal mines of the Appellant Company. It would also have been included in Section 92{13), which embraces "Property and Civil Rights in the Province."

The Privy Council found that once Canada in its exclusive jurisdiction over aliens, permits an alien into Canada, it is Canada and not a province which can impose disabilities upon the status of being an alien.

Union Colliery is a problem for Burrage J. A problem Burrage J. sees fit not to see. Lord Watson says that the matter looks on first glance to be s.92 provincial matter. But when s.91 is overlaid, it clearly shows that a s.91 matter is engaged (aliens and naturalization), regardless of the apparent provincialness of labour, mining and civil rights.

Burrage fails to follow the Watson statement that once s.91 is overlaid, any superficial provincial aspect to the legislation (barring aliens), has upon second glance, now through the 92 plus 91 prism, loses its provincial primacy as against federal control over immigration and naturalization. Following Watson’s rule, Burrage’s ‘health’ description should have been overtaken by numerous s.91 subjects.

Burrage’s ‘health’ matter suffers from disabilities. Provinces don’t own ‘health’. ‘Health’ doesn’t exist, per se, in s.92. Burrage say, in effect, ‘well, health has for all intents and purposes been conceded to the provinces.’

But ‘health’, if that is to be the chosen ‘pith and substance’, disables the legislation. Health doesn’t get the matter into provincial control because ‘heath’ only comes to the province under s.92 (16) local and private matter.

Once Burrage does this, he is open to attack from the words in s.91 that says that any ‘pith and substance’ that touches upon a s.91 power cannot by definition be treated as a local and private matter.

If Burrage had held for any other provincial power (i.e. hospitals) well then Burrage could play the ‘concurrency’ game whereby supreme court judges give provinces powers from the federal list because, well, that’s how the new testament operates. Provinces get to trench on s.91 federal powers if provinces also have a s.92 power in the same ‘matter’ equation.

This concurrency rule does not operate for local and private undertakings. So the only way for Burrage to run the table for the province is for Burrage to clear the field of all competing federal claims.

How does Burrage clear the field for the province and what does he miss in his construction?

There is wisdom lurking with Union Colliery that Burrage, in his haste to find for Newfoundland, chose not to notice. Lord Watson agreed, that on its face, the legislation looked like ordinary mining legislation (just like Burrage finding that the travel restriction was straight-forward ‘health’ legislation).

But the leading feature of the enactments consists in this: that they have, and can have, no application, except to Chinamen…

They are also of opinion, that the whole pith and substance of the enactments of Section 4 of the Coal Mines Regulation Act, in so far as objected to by the Appellant Company, consists in establishing a statutory prohibition which affects aliens or naturalized subjects, and therefore trench upon the exclusive authority of the Parliament of Canada.

The judgement at first instance in Union Colliery was of the view that because Ottawa had not specifically addressed aliens in Dominion legislation, this was therefore license to the province to so legislate. This is precisely the argument that Burrage uses. Ottawa banned international flights under its quarantine power, but Ottawa didn’t prohibit inter-provincial movement. Therefore Newfoundland can do it.

Here’s what the Privy Council in Union Colliery said of that Burrage logic:

The abstinence of the Dominion Parliament from legislating, to the full limit of its powers, could not have the effect of transferring to any Provincial Legislature, the legislative power which had been assigned to the Dominion by Section 91 of the Act of 1867.

Does this Privy Council statement not imply that Ottawa’s failure to prohibit inter-provincial movement as a quarantine measure (within the federal quarantine legislation that banned international travel), means that Ottawa retains possession of this power? Does it not imply that Ottawa has chosen, by absence of restriction, to address quarantine in a manner which intentionally does not include internal movement restrictions?

Burrage distinguished Union Colliery by saying that inter-provincial restriction is not the same as alien restriction. Burrage thinks he has thereby escaped the clutches of the old testament. Has he?