Is It Constitutional For The Federal Government To Transfer Provincial Health Powers To An International Organization Unilaterally?

Is It Constitutional For The Federal Government To Transfer Provincial Health Powers To An International Organization Unilaterally?

In September 1981 The Supreme Court of Canada ruled it unconstitutional for the Federal Government of Canada To Unilaterally Patriate the Constitution. Such action would affect Provincial Powers and needed by Constitutional Convention the approval of a substantial number of Provinces.

“SUPREME COURT OF CANADA

Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753

Date: 1981-09-28

IV—Conclusion

We have reached the conclusion that the agreement of the provinces of Canada, no views being expressed as to its quantification, is constitutional­ly required for the passing of the “Proposed Reso­lution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” and that the passing of this Resolution without such agreement would be unconstitutional in the con­ventional sense.”

Presently the Federal Government of Canada is indicating that it intends to sign the World Health Amended Regulations and Health Treaty which provides for The WHO to have powers over health matters in this country.

As the Supreme Court said in 1981 matters that affect Provincial powers need Provincial agreement .

In the subsequent Constitutional Act of 1982 the Amending formula Section 38 the Charter states:

“38 (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by

• (a) resolutions of the Senate and House of Commons; and
• (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.”

Does the Federal Government’s  power over the signing  of International Treaties override the sovereignty of provincial powers under the Constitution?

In a document entitled “ Canada’s Approach To The Treaty Making Process “ that I found in The Library of Parliament refthe following is stated :

“4.3 Cooperation with the Provinces

No discussion of Canada’s compliance with its international treaty obligations is complete without an examination of the role of the provinces. Although the federal government has sole authority to negotiate, sign and ratify international treaties, many treaties nonetheless deal with matters that fall under provincial jurisdiction. In Canada, Parliament and the provincial legislative assemblies may pass legislation in areas where they have jurisdiction under the Constitution of Canada. This division of legislative powers is provided for mainly in sections 91 and 92 of the Constitution Act, 1867.

While provincial consent is not required for ratification, the federal government nonetheless has a policy of consulting with the provinces before signing treaties that touch on matters of provincial jurisdiction.

As well, although the federal government is the only level of government responsible to the international community for compliance with the treaties that it signs, it cannot enforce compliance with international treaties in areas beyond its jurisdiction. In the 1937 Labour Conventions case,50 the British Judicial Committee of the Privy Council held that the federal government cannot use the need to comply with international treaties as justification for encroaching on areas of provincial jurisdiction.

Whenever a treaty concerns an area of provincial jurisdiction, the relevant provisions may be implemented only by the provincial legislative assemblies. Thus, treaty implementation and compliance are an area of federal, provincial and territorial responsibility.”

Have I missed something?

Has the Federal Government consulted the Provinces and have their agreement for implementation in areas of Provincial responsibility?

I doubt whether many people in Canada know of any such consultation if it occurred. And one would think that such a monumental decision of transferring powers from our country to a unelected international organization deserves extensive debate by the legislatures and people of this country.

Honourable A. Brian Peckford PC