TO THE CRIMINAL LAW POWER: DIFFERENT WAYS OF SAYING THE SAME THING?
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.
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.
Back in 1993, the Royal Commission emphasized POGG
as the main constitutional justification for national ART legislation.
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.
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.
We see here an expansive interpretation of the residual nature of the POGG
clause: it covers all powers not held by the provinces.
It is thus no surprise that, in a subsequent case (Hydro-Quebec), his majority opinion steered away from POGG
and relied, instead, on the federal "criminal law" power to affirm the federal pollution control measure at issue.
Another example is found in his development of a fourth source of federal authority under the POGG
power: "Parliament may enact legislation directed to persons, transactions, or activities within particular provinces, as long as it does so in order to remedy or deal with the interprovincial impacts or effects of such matters" (246).
It can also regulate polluting activities that harm the fisheries (80) and the waters of the territorial sea (81) because it has jurisdiction over "seacoast and inland fisheries" and the territorial sea under subsection 91(12) and the POGG