Ontario (Attorney General) v. OPSEU

Ontario (Attorney General) v. OPSEU
Collection
Supreme Court Judgments
Date
1987-07-29
Report
[1987] 2 SCR 2
Case number
16464
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Ontario
Subjects
Constitutional law
Decision Content
Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2
Ontario Public Service Employees' Union, Marie Wilkinson, Edward E. Faulknor and Russell B. Smith Appellants
v.
Attorney General for Ontario Respondent
and
The Attorney General of Canada, the Attorney General of Quebec, the Attorney General of Nova Scotia, the Attorney General for New Brunswick, the Attorney General of British Columbia, the Attorney General for Saskatchewan and the Attorney General for Alberta Interveners
indexed as: opseu v. ontario (attorney general)
File No.: 16464.
1986: March 18, 19; 1987: July 29.
Present: Dickson C.J. and Beetz, McIntyre, Chouinard*, Lamer, Le Dain and La Forest JJ.
*Chouinard J. took no part in the judgment.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Division of powers ‑‑ Province restricting political activity of provincial civil servants and Crown employees in federal elections ‑‑ Whether or not restrictions intra vires the province ‑‑ Constitution Act, 1867, ss. 91 , 92(1) , (4) , (13) ‑‑ Constitution Act, 1982, s. 45 ‑‑ The Public Service Act, R.S.O. 1970, c. 386, ss. 12(1), (2), (3), (4), (5), 13(1), (2), 14, 15, 16, now R.S.O 1980, c. 418.
The Ontario Public Service Employees' Union is bargaining agent for Government of Ontario employees subject to The Public Service Act and each of the individual appellants is a Crown employee, a civil servant and a member of the appellant union. Each individual appellant wishes to engage in political activities currently prohibited by The Public Service Act, including: running for election to Parliament without taking a leave of absence; canvassing and soliciting funds on behalf of federal political parties; and expressing opinions in public on federal political issues. The appellants are concerned that pursuit of these political activities would subject them to disciplinary measures pursuant to The Public Service Act. A motion for an order declaring ss. 12‑16 of the Act unconstitutional was heard prior to the coming into force of the Charter and proceeded simply on distribution of powers grounds. The motion was denied by Labrosse J. The Court of Appeal affirmed this decision and the underlying rationale that provincial jurisdiction was grounded in s. 92(13) of the Constitutional Act, 1867. The three constitutional questions stated before the Supreme Court of Canada dealt with ss. 12‑16 of The Public Service Act. Were these sections unconstitutional or inoperative in that (1) they purported to restrain provincial civil servants and Crown employees from engaging in certain federal political activity, (2) they contravened ss. 2, 3 and/or 15(1) of the Charter, and (3) if so, whether or not they were justified under s. 1 of the Charter. Following this Court's decision on a preliminary issue that it would not hear or decide Charter issues, the case proceeded on submissions based upon the distribution of legislative powers and argument relying upon certain statements in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455.
Held: The appeal should be dismissed and the first constitutional question answered in the negative.
Per Beetz, McIntyre, Le Dain and La Forest JJ.: The impugned provisions constitute an ordinary legislative amendment of the constitution of Ontario, within the meaning of s. 92(1) of the Constitution Act, 1867 , and they also relate to the tenure of provincial office within the meaning of s. 92(4) . The legislation cannot be constitutionally justified on the sole basis that they are in pith and substance labour relations legislation and therefore a matter of property and civil rights in the province. The impugned provisions are not related to the field of federal elections.
In so far as this legislation can be said to confer rights, individual or collective, upon Ontario residents to have an impartial civil service, such rights are not civil but rather public or political rights. Although the Act provides for the general regulation of the hiring, dismissal and terms and conditions of employment of the provincial public service, many of its provisions, including the impugned provisions, can only be explained and justified by the fact that the employment in question is public employment. They cannot, therefore, be grounded only in s. 92(13) of the Constitution Act, 1867 but can be fully grounded in s. 92(1) and (4) .
The constitution of Ontario is not to be found in a comprehensive, written instrument called a constitution. An enactment can generally be considered as an amendment of the constitution of a province when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(1) , such as the offices of Lieutenant‑Governor and of the Queen. The fact that a province can validly give legislative effect to a prerequisite condition of responsible government does not necessarily mean it can do anything it pleases with the principle of responsible government itself. Thus, it is uncertain, to say the least, that a province could touch upon the power of the Lieutenant‑Governor to dissolve the legislature, or his power to appoint and dismiss ministers, without unconstitutionally touching his office itself. The principle of responsible government could, to the extent that it depends on those important royal powers, be entrenched to a substantial extent. The power of constitutional amendment given to the provinces by s. 92(1) does not necessarily comprise the power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system.
The provisions impugned here are constitutional for they bear on the operation of the Ontario Public Service, which is an organ of government, and they impose on its members the duty to abstain from certain political activities in order to implement the principle of impartiality of the public service which is considered as an essential prerequisite of responsible government. It can similarly be said that the public service in Ontario is a part of the executive branch of the government of Ontario.
The impugned provisions are not related to the exclusively federal subject of federal elections. Rather than affecting federal elections per se, these provisions create a disability from membership in the Ontario Public Service, thereby affecting a provincially created relationship.
This disability extended to federal elections in order to ensure global political independence for provincial officers. The object of political discourse, the ultimate form of political activity, remains indivisible even in federations with divided jurisdictions. Political activities in the federal field, therefore, had to be included in the impugned provisions to ensure the impartiality of the provincial public service. The alternative would have made the legislation miss its target altogether. The aim of the legislation, far from violating the federal principle, was to reinforce it and to secure the operation of responsible government within a federal framework; its effects on federal political activities were necessarily incidental. The constitutional validity of the impugned provisions may also be supported under s. 92(4) of the Constitution Act, 1867 , which in any event buttresses the argument already made under s. 92(1) .
In a distribution of powers case, once it is demonstrated that the enacting legislature is competent, the balancing of conflicting values depends on the political judgment of such legislature and cannot be reviewed by the courts without their passing upon the wisdom of the legislation.
The fundamental right in Canada to participate in certain political activities is not infringed by the impugned legislation; federal and provincial elections are only affected in an incidental way. The basic structure of the Constitution established by the Constitution Act, 1867 contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels. Neither Parliament nor the provincial legislatures may enact legislation which would substantially interfere with the operation of this basic structure. Quite apart from Charter considerations, the legislative bodies in this country must conform to these basic structural imperatives and can in no way override them.
Per Dickson C.J.: The Public Service Act is directed to the general regulation of the hiring, dismissal, and terms and conditions of employment in the public service and in essence governs the establishment, functions, responsibilities and employment relationships of the Ontario Public Service. Viewed in its entirety, it is easily and explicitly authorized by s. 92(4) of the Constitution Act, 1867 concerning provincial offices and appointments. The Act, which deals with many of the traditional components of an employer‑employee relationship, also falls within the province's property and civil rights power, since labour relations has long been a subject matter generally within provincial jurisdiction under s. 92(13) . Constitutional authority granted under s. 92(4) and (13) extends to the specific prohibitions against political activity in ss. 12 ‑16 of the Act. There was no reason, given the Act's validity as a whole under both s. 92(4) and (13) , to consider s. 92(1) with the attendant difficulties of assigning a precise content to the concept of "a provincial constitution".
The doctrine of interjurisdictional immunity is not a particularly compelling doctrine given its inconsistency with the basic pith and substance doctrine that a law "in relation to" a provincial matter may validly "affect" a federal matter. Furthermore Parliament, while it can easily enact appropriate laws effecting paramountcy over conflicting provincial laws, has not done so here. The Court, in light of the federal government's intervention in support of the Ontario law and its legislation based on the same constitutional approach adopted by Ontario, should be particularly cautious about invalidating a provincial law.
Appellants argued that the prohibitions were overbroad in that the prohibitions applied to all civil servants without distinguishing between the types of jobs performed and that they covered too wide a range of political activities. Overreach in the sense here used is not arguable in a distribution of powers case.
Appellants also argued, relying on a statement in Fraser v. Public Service Staff Relations Board, that Canadian constitutional jurisprudence recognized the existence of certain fundamental political rights and freedoms in the citizens to participate in federal political activities. Freedom of speech and expression is a fundamental animating value in the Canadian constitutional system. No single value, however, no matter how exalted, can bear the full burden of upholding a democratic system of government and some underlying and important values may even conflict. It would be inappropriate to enter into a detailed application of the Fraser principles to the facts of the present case because none of the individual appellants has actually been subjected to disciplinary proceedings.
Per Lamer J.: The Public Service Act is authorized by s. 92(4) of the Constitution Act, 1867 ; there was no need to consider s. 92(1) or (13) .
Cases Cited
By Beetz J.
Considered: Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; In re Initiative and Refer‑ endum Act, [1919] A.C. 935; distinguished: McKay v. The Queen, [1965] S.C.R. 798, reversing [1964] 1 O.R. 641, reversing [1963] 2 O.R. 162; referred to: Re United Glass & Ceramic Workers of North America and Domglas Ltd. (1978), 19 O.R. (2d) 353; Maritime Bank of Canada (Liquidators of) v. Receiver‑General of New Brunswick, [1892] App. Cas. 437; Attorney‑General of Ontario v. Mercer (1883), 8 App. Cas. 767; Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, affirming [1978] C.A. 351; R. v. Ulmer, [1923] 1 W.W.R. 1, 1 D.L.R. 304; Fielding v. Thomas, [1896] A.C. 600; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Valin v. Langlois (1879), 5 A.C. 115, affirming (1879), 3 S.C.R. 1; Attorney‑General for Canada v. Attorney‑General for Ontario, [1898] A.C. 247; Lenoir v. Ritchie (1879), 3 S.C.R. 575; Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248; Johannesson v. Municipality of West St. Paul, [1952] 1 S.C.R. 292; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Reference re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285.
By Dickson C.J.
Overruled: McKay v. The Queen, [1965] S.C.R. 798; referred to: Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; John Deere Plow Co. v. Wharton, [1915] A.C. 330; Great West Saddlery Co. v. The King, [1921] 2 A.C. 91; Attorney‑General for Manitoba v. Attorney‑General for Canada (Manitoba Securities Case), [1929] A.C. 260; Commission du Salaire Minimum v. Bell Telephone Co., [1966] S.C.R. 767; Walter v. Attorney General of Alberta, [1969] S.C.R. 383; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; Attorney General of Quebec v. Kellogg's Co. of Canada, [1978] 2 S.C.R. 211; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Oil Chemical and Atomic Workers International Union v. Imperial Oil Ltd., [1963] S.C.R. 584; Re C.F.R.B. and Attorney‑General for Canada, [1973] 3 O.R. 819; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573.
By Lamer J.
Overruled: McKay v. The Queen, [1965] S.C.R. 798.
Statutes and Regulations Cited
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14.
Canada Elections Act, S.C. 1960, c. 39, s. 71.
Canadian Charter of Rights and Freedoms, ss. 2 , 3 , 15(1) .
Constitution Act, 1867, ss. 58 ‑70, 82‑87, 91, 92(1), (4), (13).
Constitution Act, 1982, s. 45 .
Crown Employees Collective Bargaining Act, 1972, S.O. 1972, c. 67.
Executive Council Act, R.S.O. 1970, c. 153.
Legislative Assembly Act, R.S.O. 1970, c. 240.
Official Languages Act, R.S.C. 1970, c. O‑2.
Public Service Act, R.S.O. 1970, c. 386, ss. 2, 3, 10, 12(1), (2), (3), (4), (5), 13(1), (2), 14, 15, 16, 23, 24, 26, 27, 28, 28a, now R.S.O 1980, c. 418.
Public Service Employment Act, R.S.C. 1970, c. P‑32, s. 32.
Representation Act, R.S.O. 1970, c. 413.
Authors Cited
Clement, W. H. P. The Law of the Canadian Constitution, 2nd ed. Toronto: Carswells, 1904.
Garant, Patrice. La fonction publique canadienne et québecoise. Québec: Presses de l'Université Laval, 1973.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
APPEAL from a judgment of the Ontario Court of Appeal (1980), 31 O.R. (2d) 321, 118 D.L.R. (3d) 661, dismissing an appeal from a judgment of Labrosse J. (1979), 24 O.R. (2d) 324, 98 D.L.R. (3d) 168. Appeal dismissed; the first constitutional question is answered in the negative.
Stephen T. Goudge and Ian McGilp, for the appellants.
Blenus Wright and Carol Creighton, for the respondent.
Graham R. Garton, for the intervener the Attorney General of Canada.
Réal A. Forest and Alain Gingras, for the intervener the Attorney General of Quebec.
William M. Wilson, for the intervener the Attorney General of Nova Scotia.
Richard C. Speight, for the intervener the Attorney General for New Brunswick.
Joseph J. Arvay, for the intervener the Attorney General of British Columbia.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
William Henkel, Q.C., and Robert J. Normey, for the intervener the Attorney General for Alberta.
The following are the reasons delivered by
1. The Chief Justice‑‑This appeal involves an important area of constitutional law, namely, the scope of provincial jurisdiction to regulate certain political activities of provincial civil servants and Crown employees.
I
The Facts
2. The Ontario Public Service Employees' Union is bargaining agent for approximately 50,000 employees of the Government of Ontario who are subject to The Public Service Act, R.S.O. 1970, c. 386, now R.S.O. 1980, c. 418, of that province. Marie Wilkinson is employed by the Ontario Ministry of Community and Social Services as a counsellor at a centre for the care of the mentally retarded. Edward Faulknor is employed by the Ontario Ministry of Revenue as an assessor. Russell Smith is employed by the Ministry of Natural Resources as a laboratory technician.
3. Each of the individual appellants is a Crown employee, a civil servant and a member of the appellant union. Each individual appellant wishes to engage in political activities currently prohibited by The Public Service Act, including: running for election to Parliament without taking a leave of absence; canvassing and soliciting funds on behalf of federal political parties; and expressing opinions in public on federal political issues. The appellants are concerned that pursuit of these political activities would subject them to disciplinary measures pursuant to The Public Service Act.
II
The Legislation
4. The general thrust of the Ontario Public Service Act is the regulation of the hiring, dismissal and terms and conditions of employment in the public service. Within this general context there are five provisions which prohibit public servants from engaging in some political activities. These sections read as follows:
12.‑‑(1) Except during a leave of absence granted under subsection 2, a Crown employee shall not,
(a) be a candidate in a provincial or federal election or serve as an elected representative in the legislature of any province or in the Parliament of Canada;
(b) solicit funds for a provincial or federal political party or candidate; or
(c) associate his position in the service of the Crown with any political activity.
(2) Any Crown employee, other than a deputy minister or any other Crown employee in a position or classification designated in the regulations under clause u of subsection 1 of section 29, who proposes to become a candidate in a provincial or federal election shall apply through his minister to the Lieutenant‑Governor in Council for leave of absence without pay for a period,
(a) not longer than that commencing on the day on which the writ for the election is issued and ending on polling day; and
(b) not shorter than that commencing on the day provided by statute for the nomination of candidates and ending on polling day,
and every such application shall be granted.
(3) Where a Crown employee who is a candidate in a provincial or federal election is elected, he shall forthwith resign his position as a Crown employee.
(4) Where a Crown employee who has resigned under subsection 3,
(a) ceases to be an elected political representative within five years of the resignation; and
(b) applies for reappointment to his former position or to another position in the service of the Crown for which he is qualified within three months of ceasing to be an elected political representative,
he shall be reappointed to the position upon its next becoming vacant.
(5) Where a Crown employee has been granted leave of absence under subsection 2 and was not elected, or resigned his position under subsection 3 and was reappointed under subsection 4, the period of the leave of absence or resignation shall not be computed in determining the length of his service for any purpose, and the service before and after such period shall be deemed to be continuous for all purposes.
13.‑‑(1) A civil servant shall not during a provincial or federal election canvass on behalf of a candidate in the election.
(2) Notwithstanding subsection 1, a deputy minister or any other Crown employee in a position or classification designated in the regulations under clause u of subsection 1 of section 29 shall not at any time canvass on behalf of or otherwise actively work in support of a provincial or federal political party or candidate.
14. Except during a leave of absence granted under subsection 2 of section 12, a civil servant shall not at any time speak in public or express views in writing for distribution to the public on any matter that forms part of the platform of a provincial or federal political party.
15. A Crown employee shall not during working hours engage in any activity for or on behalf of a provincial or federal political party.
16. A contravention of section 11, 12, 13, 14 or 15 shall be deemed to be sufficient cause for dismissal.
5. Most of these prohibitions are qualified by leave of absence provisions. This case arose because the individual appellants either wanted to take part in some of the prohibited activities after working hours, or sought, and were refused, leaves of absence to engage in them.
III
Procedural History
6. 1. Supreme Court of Ontario
7. A motion brought on behalf of the appellants before Labrosse J. for an order declaring unconstitutional ss. 12, 13, 14, 15 and 16 of The Public Service Act was denied: (1979), 24 O.R. (2d) 324, 98 D.L.R. (3d) 168. The motion was heard prior to the date on which the Canadian Charter of Rights and Freedoms came into force and proceeded simply on distribution of powers grounds. The challenge to the Ontario law was that it could not limit in any way the activities of the appellants in a federal election because jurisdiction over federal elections rested exclusively with Parliament.
8. The position of the Attorney General for Ontario was that the entire law, including the prohibitions as applied to federal elections, was authorized by s. 92(1) , (4) and (13) of the Constitution Act, 1867 which provide:
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein‑after enumerated; that is to say,‑‑
1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor.
...
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
...
13. Property and Civil Rights in the Province.
It should be noted that s. 92(1) is now, with some modification of wording but not of substance, s. 45 of the Constitution Act, 1982 .
9. At the hearing of the motion, Labrosse J. accepted that the Act, including prohibitions, was essentially a labour relations law and therefore valid under s. 92(13) . He noted that the Act provides for the general regulation of the hiring, dismissal, and terms and conditions of employment of the civil service. The impugned sections, therefore, were found to be, in pith and substance, enacted to govern public sector labour relations in the province. In so far as they affected political activities in federal elections, Labrosse J. said they did so incidentally, as part of a wider legislative scheme to regulate labour relations.
10. 2. The Ontario Court of Appeal
11. A unanimous three‑judge panel of the Ontario Court of Appeal ((1980), 31 O.R. (2d) 321, 118 D.L.R. (3d) 661) affirmed both Labrosse J.'s decision and the underlying rationale that provincial jurisdiction was grounded in s. 92(13) . Although The Public Service Act includes restrictions on the federal political activities of employees, MacKinnon A.C.J.O., for the Court, found that the Act was essentially labour relations legislation and the prohibitions were conditions of employment designed to preserve the impartiality of the public service. As such, the Act, including the prohibitions, fell within provincial jurisdiction over property and civil rights.
12. MacKinnon A.C.J.O. included an overview of the constitutional significance of the political impartiality of the public service which he held to be crucial to the viability of a system of responsible government in Canada. He asserted that the public has a right to an impartial public service. The Public Service Act was intended to protect the civil rights of Ontario residents and was accordingly valid in a second sense under s. 92(13) of the Constitution Act, 1867 .
13. Finally, although he did not decide the point, because of his conclusions about s. 92(13) , MacKinnon A.C.J.O. said there was "considerable force" in the Attorney General's arguments based on s. 92(1) and (4) of the Constitution Act, 1867 .
14. 3. The Supreme Court of Canada
15. Leave to appeal was granted by this Court. The following are constitutional questions as stated by Laskin C.J. and as revised and supplemented by Dickson C.J.:
1. Are ss. 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386, as amended, unconstitutional insofar as they purport to restrain provincial Civil Servants and Crown Employees from engaging in certain federal political activity?
2. Do ss. 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386 as amended, infringe or deny the rights and freedoms guaranteed by ss. 2, 3 and/or 15(1) of the Canadian Charter of Rights and Freedoms insofar as they purport to restrain provincial Civil Servants and Crown Employees from engaging in certain federal and provincial political activity?
3. If ss. 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386 as amended, infringe or deny ss. 2 and 3, and/or 15(1) of the Canadian Charter of Rights and Freedoms , are these sections justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?
16. At the start of the hearing of the appeal before this Court, a preliminary issue was raised concerning the hearing of argument on Charter issues. It was contended by the Attorney General for Ontario, supported by several intervening Attorneys General, that the Court should not address the Charter issues because all of the activities in the case were pre‑Charter and neither of the Ontario courts had heard Charter arguments. After argument, the Court decided (Dickson C.J. and Chouinard and Le Dain JJ. dissenting) that the Court would not hear or decide the Charter issues. In the result, the case proceeded on submissions based upon the distribution of legislative powers and a hastily constructed argument relying upon certain statements in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455.
IV
The Distribution of Powers
17. The first step in any distribution of powers case is to characterize the law in question. This is not the ultimate legal step; it is not to classify the law as coming under one of the heads of s. 91 or s. 92 . It is simply a preliminary step, namely to identify and describe the dominant features, the essential coverage, of the law. The Act with which we are here concerned is, as mentioned above, directed to the general regulation of the hiring, dismissal, and terms and conditions of employment in the public service. In essence it governs the establishment, functions, responsibilities and employment relationships of the Ontario Public Service.
18. In light of this description, it can be seen that the Act, viewed in its entirety, is easily and explicitly authorized by s. 92(4) of the Constitution Act, 1867 which gives the provinces jurisdiction over "the establishment and tenure of provincial offices and the appointment and payment of provincial officers". Additionally, since The Public Service Act deals with many of the traditional components of an employer‑employee relationship and since labour relations has long been a subject matter generally within provincial jurisdiction under s. 92(13) of the Constitution Act, 1867 (see Toronto Electric Commissioners v. Snider, [1925] A.C. 396, and many subsequent cases), it follows that The Public Service Act is within provincial property and civil rights jurisdiction. Because the Act as a whole is clearly valid under both s. 92(4) and (13) , I see no reason to embark upon a consideration of s. 92(1) . I am reinforced in this conclusion by the difficulty of assigning a precise content to the concept of "a provincial constitution".
19. But what of the specific prohibitions against political activity in ss. 12‑16 of The Public Service Act? Does the constitutional authority for the Act, viewed as a whole, extend to the prohibitions? In light of the overall labour relations thrust of The Public Service Act it is reasonable to characterize ss. 12‑16 of the Act as being also labour relations provisions. The prohibitions against certain types of political activity are essentially terms and conditions of employment and can be supported, therefore, under s. 92(13) . Similarly, these prohibitions are terms and conditions of public employment. As such, they are clearly enacted in relation to the establishment and tenure of provincial offices and are therefore valid under s. 92(4) of the Constitution Act, 1867 .
20. The appellants, as I understand their position, do not really deny these conclusions as a matter of general distribution of powers analysis. They do, however, deny the conclusions on two other bases: first, that the prohibitions against political activity by provincial public servants in federal elections are outside the scope of provincial s. 92 jurisdiction; secondly, that the prohibitions are overbroad. It is to these two arguments that I now turn.
21. 1. The Appellants' Federalism Arguments
22. The crux of the appellants' federalism position is that The Public Service Act, admittedly valid in most respects, cannot prohibit the political activities of Ontario public servants in federal elections because:
(1) federal elections are within the exclusive domain of Parliament, and
(2) such a law does not meet the "in the province" limitation on the various heads in s. 92 of the Constitution Act, 1867 .
The appellants buttress these arguments by reference to the principle of interjurisdictional immunity and to this Court's decision in McKay v. The Queen, [1965] S.C.R. 798.
23. (a) Interjurisdictional Immunity
24. The appellants' first argument is based on the principle of interjurisdictional immunity which posits that legislation enacted by one order of government cannot interfere with, or have an impact on, subject matters under the jurisdiction of the other order of government. The doctrine had its origins in the so‑called "company law cases" where it was held that provincial laws could not sterilize or impair the status or essential powers of a federally incorporated company. See John Deere Plow Co. v. Wharton, [1915] A.C. 330; Great West Saddlery Co. v. The King, [1921] 2 A.C. 91; Attorney‑General for Manitoba v. Attorney‑ General for Canada (Manitoba Securities Case), [1929] A.C. 260.
25. After its initial development in the company cases, the doctrine expanded and had its greatest success in the context of the application of provincial laws to federal works and undertakings. The doctrine came to stand for the proposition that a provincial law could not affect a vital part of the management and operation of a federal undertaking. See, for example, Commission du Salaire Minimum v. Bell Telephone Co., [1966] S.C.R. 767. This formulation of the doctrine is important for two reasons. First, it extended the doctrine into new and important areas. "Federally incorporated companies" is not a particularly large field; "federal works and undertakings" is. Secondly, by using the terminology of "affecting a vital part" rather than the earlier phrasing of "sterilization" or "impairment", the Court perhaps signalled a broader reach for the doctrine.
26. However, even though the doctrine of interjurisdictional immunity has arguably expanded since its company law origins, it is, in my opinion, not a particularly compelling doctrine. Professor Hogg has offered two strong reasons to doubt its value (Constitutional Law of Canada (2nd ed. 1985), at p. 331). The first, doctrinal, reason is:
The theory behind the results [in the cases in which the doctrine has been applied] appears to be that federal heads of power not only confer power on the federal Parliament, but also operate "defensively" to deny power to the provincial Legislatures. In my view, this theory is inconsistent with the basic pith and substance doctrine‑that a law "in relation to" a provincial matter may validly "affect" a federal matter. And, indeed, for every case asserting an interjurisdictional immunity there are dozens which deny such an immunity by application of the pith and substance doctrine.
The second, policy, reason is:
From a policy standpoint, the immunity of federal undertakings seems unnecessary, because the federal Parliament can, if it chooses, easily protect undertakings within federal jurisdiction from the operation of provincial laws by enacting appropriate laws which will be paramount over conflicting provincial laws.
27. I favour both of these arguments of caution about the scope of the interjurisdictional immunity doctrine. The history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers. It is true that doctrines like interjurisdictional and Crown immunity and concepts like "watertight compartments" qualify the extent of that interplay. But it must be recognized that these doctrines and concepts have not been the dominant tide of constitutional doctrines; rather they have been an undertow against the strong pull of pith and substance, the aspect doctrine and, in recent years, a very restrained approach to concurrency and paramountcy issues. See, for example, Walter v. Attorney General of Alberta, [1969] S.C.R. 383; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; Attorney General of Quebec v. Kellogg's Co. of Canada, [1978] 2 S.C.R. 211; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161. In light of these decisions, I am not prepared to extend the doctrine of interjurisdictional immunity into a field‑‑federal elections‑‑which is unrelated to either the company law cases or the federal undertakings cases, the two historical roots of the doctrine.
28. Furthermore, as Professor Hogg implies, the federal Parliament always has a powerful weapon‑‑its own legislation. If Parliament does not approve of the application of a provincial law to a matter within federal jurisdiction it can easily legislate to prevent the unwanted application. In the present case, the Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, deals with permitted and prohibited activities in federal elections. Some of the provisions of that Act relate to various kinds of disqualification from certain political activities. If Parliament wanted to defend against the prohibitions contained in ss. 12‑16 of the Ontario Public Service Act it could do so. It hasn't. Indeed, it has done the opposite. By prohibiting federal public servants from engaging in certain activities during provincial elections, Parliament has indicated that it shares the approach (and the view on legality) of the Ontario legislature. It may be worth adding that most provincial legislatures have enacted legislation limiting the political activity of public servants in both federal and provincial elections.
29. I think it is important to note, and attach some significance to, not only the similar federal legislation but also the fact that the federal government intervened in this appeal to support the Ontario law. The distribution of powers provisions contained in the Constitution Act, 1867 do not have as their exclusive addressees the federal and provincial governments. They set boundaries that are of interest to, and can be relied upon by, all Canadians. Accordingly, the fact of federal‑provincial agreement on a particular boundary between their jurisdictions is not conclusive of the demarcation of that boundary. Nevertheless, in my opinion the Court should be particularly cautious about invalidating a provincial law when the federal government does not contest its validity or, as in this case, actually intervenes to support it and has enacted legislation based on the same constitutional approach adopted by Ontario.
30. (b) McKay v. The Queen
31. The appellants, however, support their argument with strong reliance on an important and factually relevant case, McKay v. The Queen. In McKay the Court held, by a majority of five‑four, that a municipal by‑law prohibiting the display of signs on residential property was inapplicable to federal election signs. In other words, the Court read down the law so that it would not apply in an impermissible context. The gist of the majority judgment, written by Cartwright J., was that the subject matter of federal elections was within the exclusive jurisdiction of Parliament and that a provincial law could not interfere in any way with this subject matter. He said, at p. 804:
I cannot think that it was the intention of the Council to so enact or that it was the intention of the Legislature to empower it to do so. Such an enactment would, in my opinion, be ultra vires of the provincial legislature. The power of the legislature to enact such a law, if it exists, must be found in s. 92 of the British North America Act. It is argued for the respondent that it falls within head 13, "Property and Civil Rights in the Province." Whether or not the right of an elector at a federal election to seek by lawful means to influence his fellow electors to vote for the candidate of his choice is aptly described as a civil right need not be discussed; it is clearly not a civil right in the province. It is a right enjoyed by the elector not as a resident of Ontario but as a citizen of Canada.
The appellants contend that the current appeal raises a virtually identical issue. They say that the Ontario law prohibits certain types of participation in federal elections and that, on the authority of McKay, such restrictions are unconstitutional.
32. The respondent seeks to distinguish McKay by relying on MacKinnon A.C.J.O.'s judgment in this case in the Court of Appeal at pp. 334‑35 (O.R.):
It is interesting to note that the majority does not say, presumably because the by‑law itself was not under attack, what was the pith and substance of the by‑law. Further, the Court there was concerned with a quasi‑criminal offence under the general by‑law. In the instant case the Act creates no offence; it is a matter of possible dismissal from the civil service. There was, in other words, an absolute prohibition in the McKay case; in the instant case if the individual were not prepared to accept the limitations of employment imposed upon him, he could seek a leave of absence or leave his job. I can only repeat that I view the legislation here under attack as legislation with relation to labour relations in the province and I do not think that the McKay case is of assistance on the facts of this case.
33. The intervener Attorney General of Canada suggests a different line of distinction between McKay and this case (paragraph 6 of its factum):
...in McKay ... the effect of the municipal by‑law was to prosc