Notwithstanding this analysis, the limited precedent on what qualifies under the national concern branch of the POGG makes it is difficult to determine whether federal legislation that implements NAFTA would be upheld under this branch.
As explained above, the national concern branch of the POGG may also be an avenue for upholding federal regulation implementing NAFTA.
Privy Council and Supreme Court of Canada decisions related to the POGG
, treaty-making, and trade and commerce powers have also created a level of ambiguity regarding provincial international activity that does not exist in other federal states.
Also needing clarification is the extent to which the national concern and emergency branches of POGG
could be used to justify legislation that allows unilateral federal actions in the presence of a public health emergency that emerges in one province.
While the argument for the use of POGG
to regulate species that move across provincial and international boundaries is likely a winning one, it is less clear how a court would rule on intra-provincial species.
Part Three analyzes the prospects for the KPIA being upheld under four different heads of power: POGG, treaty implementation, Criminal Law, and Trade and Commerce.
Put another way, it has limited the breadth of matters that may be addressed, through the POGG power, and the depth of the tools that may be used, under the Criminal power.
It would also be interesting to consider a POGG basis to justify federal regulation of research ethics review, for example if one wants to avoid having to justify the use of criminal law sanctions.
The use of the POGG ground could perhaps also make it possible to support the argument that a comprehensive REB review system has to be developed on the federal level, covering not only clinical drug trials but also other forms of research.
The second observation is that the Supreme Court of Canada has permitted Parliament to regulate certain kinds of polluting activities under its POGG
and criminal law (subsection 91(27)) powers even though it has had to push the doctrinal envelopes governing those two heads of power in order to do so.
has been argued less often before the courts than has the criminal law power.
It remains that if the levy is to be a valid exercise of the POGG
power, it must meet the test set in R.