Eric M. Adams teaches Canadian Constitutional Law at the University of Alberta’s Faculty of Law.
Canada’s constitutional documents are not known for their poetry. Opting for the pragmatic over the inspirational, Canada’s constitution mostly provides little to stir the blood, and it isn’t much to quote at a party. And yet five simple words in Section 91 of the Constitution Act, 1867 – peace, order and good government, or POGG for short – have resonated over time as capturing something important about Canada and how it should be governed.
“It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons,” reads Section 91 of the Constitution Act, 1867, "to make Laws for the Peace, Order, and good Government of Canada in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces …”
More than a poetic ideal, POGG is also a matter of constitutional law, a grant of federal authority that this week lies at the heart of the year’s most important Supreme Court of Canada case. Lawyers from across Canada will gather (in person and digitally) in Ottawa for a historic hearing to grapple with a question of intense politics, constitutional debate and critical importance: is the Greenhouse Gas Pollution Pricing Act – Parliament’s legislation putting a price on carbon – constitutional? The answer, already the subject of division among Court of Appeal judges in Ontario, Saskatchewan and Alberta, will turn on whether POGG authorizes Parliament’s regulation of the greenhouse gases that cause climate change.
Although we have made POGG our own, versions of it existed long before Canada did. Similar phrasing began to appear in English statutes in the 15th century as a way of transferring law-making power from the British Crown to another entity. In Canada, POGG is used to mark the law-making terrain of the federal Parliament, as opposed to those of the provincial legislatures. But POGG’s legal role has never been entirely clear, since Section 91 goes on to list about 30 specific subjects of federal power (banking, coinage, criminal law). Lawyers have tended to turn to the concrete rather than the abstract in arguing cases.
Canadian courts have also understandably worried that the sweeping language of POGG could erode essential provincial jurisdiction. If a balanced federalism was going to be maintained, the judicial task would involve interpreting POGG’s poetry into more constrained constitutional prose.
Those limits have included moments when judges viewed POGG as solely a temporary emergency power when the life of the nation stood in danger. Judges came also to recognize that POGG included authority over subjects that did not exist at Confederation, hence Parliament’s ability to regulate the airline industry. A final aspect which has flickered in and out of fashion suggests that POGG could authorize federal laws over matters of significant “national concern” that lay beyond the capacity of provinces to effectively regulate.
POGG’s national-concern branch will be at centre stage in the Supreme Court this week, although it has been more than 30 years since the Court has upheld federal legislation under it. The elapsed time has faded its constitutional image, like a photo that’s been on the fridge for too long.
With some lawyers in masks behind plexiglass and others on screens, with nine judges spread throughout the courtroom and with smoke from American forest fires still lingering over Canadian provinces, the Court will ask what POGG’s poetry means in the very real era of climate change and in the face of powerful provincial arguments that the federal legislation reaches too far into provincial domains.
The Supreme Court’s challenge is to find a meaningful role for POGG in dealing with subjects that transcend provincial borders and capacities – such as greenhouse gases – while ensuring that POGG’s breadth does not undermine the balance between national unity and provincial diversity that defines Canadian federalism.
If we want peace, order and good government as aspiration and poetry, we’re going to need POGG as tangible constitutional law, too. In the policy challenge of our time, Canada’s constitution, and the POGG that helps to define it, must be up to the task.
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