Human Resources Committee on Oct. 18th, 2011

[The Chair, Conservative, Ed Komarnicki]

We'll call the meeting to order.

I'd like to thank Mr. Walsh, of course, for coming before the committee.

I have circulated your letter, which certainly goes through the various constitutional matters. I felt like I was in constitutional law class when I read through your letter setting out the various issues relating to provincial and federal jurisdiction. This committee is looking forward to hearing from you. There may be some questions afterwards. Take your liberty in just going through some of those points and educating us somewhat with respect to the area that we are in the process of studying.

I'll turn it over to you.

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chairman.

I have provided to the committee clerk a memo on this subject, which I understand has been distributed to members. I'll just speak briefly from that.

The Constitution Act, 1867, in sections 91, 92, and 93, divides legislative powers between the federal and the provincial levels. With respect to the foreign qualification process and foreign credential recognition program, three areas of legislative powers are affected: immigration, labour, and education.

Immigration was assigned to the federal government under subsection 91(25)—naturalization and aliens—and education was assigned to provincial governments under section 93 of the Constitution Act, 1867.

Labour has not been clearly assigned to either level. Although the Constitution Act, 1867, does not formally mention labour or employment, it has been interpreted to fall under subsection 92(13), “Property and Civil Rights”, or as a matter of a “merely local or private Nature in the Province”, under subsection 92(16), and therefore subject to provincial--not federal--jurisdiction.

Most of the legislative powers assigned under the Constitution Act,1867, are exclusive to either level of government. Neither level can legislate in an area assigned to the other. There can be exceptions, however, where the legislated provisions are necessarily incidental to an assigned area of jurisdiction. Labour legislation related to activities otherwise within federal jurisdiction--for example, federal crown corporations, banks, airlines, Indian reserves, telecommunications, and interprovincial transportation--is a valid exercise of federal legislative powers as “necessarily incidental” to the assigned areas of federal legislative jurisdiction.

Federal initiatives on foreign qualification recognition seem to be constitutionally legitimate, as they apply to immigration. In other words, their objective is to help immigrants who arrive in Canada with qualifications recognized by a foreign authority.

There is only one restriction on those initiatives: they must not interfere with matters that come under provincial constitutional jurisdiction, such as education or labour, unless, in the latter case, those initiatives are “necessarily incidental“ to federal immigration jurisdiction.

That's most of what I have to say, Mr. Chair.

I am available to answer any questions.

[The Chair, Conservative, Ed Komarnicki]

Thank you very much. We will open it up for questions to you, sir.

It seems that we have a peculiar sort of puzzle of various jurisdictions that have to find a way of working together. All of that said, it does take a measure of cooperation, I guess, and working at various levels of government to make a particular item work from coast to coast to coast, so to speak. I guess that's what makes our system of government very interesting.

Would you agree?

[Rob Walsh]

Our system of government certainly can be interesting from time to time.

[The Chair, Conservative, Ed Komarnicki]

Ms. Hughes, you have the first round of questioning.

Ms. Perreault?

[Manon Perreault, NDP, Montcalm, QC]

Good afternoon, sir.

I just have one simple question. Unless I am mistaken, the federal government provides the funding, but the provinces have the power to legislate. Is there an accountability mechanism that goes along with the federal funding?

[Rob Walsh]

Yes. It has to do with federal expenditures. The federal government could get involved in areas administered by the provinces through expenditures, but the areas are defined when it comes to legislative issues.

In addition, the federal government could spend money in the provinces on matters that, according to some, are not exactly in line with the federal government's legitimate objectives. Nevertheless, from time to time, the federal government does spend money in the provinces in areas that don't come under federal jurisdiction, as set out in the legislative regime.

[Manon Perreault, NDP, Montcalm, QC]

Okay, thank you.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

I want to continue down the line of what she's just asked. You've indicated that there are accountability mechanisms as part of the funding. Can you maybe just elaborate on what kind of accountability that is?

[Rob Walsh]

It was any spending by the federal government. The accountability is a parliamentary one, of course, although the federal government might spend federal funds in areas of provincial legislative jurisdiction. Nonetheless, it has to have an appropriation from Parliament for the spending of any funds. There is that initial stage of the federal government having to get its funds from Parliament. Then at the end of the year it reports to Parliament on how it spent those funds. In terms of process, there's an accountability by the federal government to Parliament regarding its use of the funds that had been provided to it by Parliament.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

I'm just wondering if there is any time where accountability measures go over the line and infringe on provincial prerogative.

[Rob Walsh]

Accountability measures as such?

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Yes.

[Rob Walsh]

I don't know that I understand how accountability measures as such could go over into provincial areas.

As you may know, there's been an ongoing debate for some years between the Province of Quebec and the federal government regarding spending by the federal government in that province. From time to time, if my memory serves me well, the view often expressed, or sometimes expressed, by the Quebec government is that you can spend that money in the other provinces, but in this province, just give us the money--don't you spend it; you give us the money and we'll see that it is appropriately used. Sometimes that is acceptable to the federal government, I suppose, and sometimes it's not.

The important consideration here is that the federal government is accountable to the Parliament of Canada, to the House of Commons in particular. It's not accountable to the provincial governments, but the actions of the federal government in areas of provincial legislative jurisdiction sometimes give rise to a debate between a province, or several provinces, and the federal government about the propriety of what the federal government is doing.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Do I still have more time?

[The Chair, Conservative, Ed Komarnicki]

You do. You have about a minute and a half.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Claude is going to ask you a question.

[Claude Patry, NDP, Jonquière—Alma, QC]

Thank you, Mr. Chair.

Mr. Walsh, could you explain to me how that works with the Government of Quebec? The federal government provides the funding, and Quebec wants to have the funds and administer them. When people come for training, for instance, how do you discuss that with them? Is there room for improvement? Is there anything negative or positive in all that?

[Rob Walsh]

It's not up to me to say whether the government's actions are positive or negative.

Unless I have misunderstood, you are asking whether there is an agreement between the province and the federal government. An agreement is negotiated for spending funds or for beginning a program related to education or labour in the provinces. We are talking about a cooperative regime between the two levels of government.

Sometimes that works, sometimes it doesn't.

[Claude Patry, NDP, Jonquière—Alma, QC]

Okay, thank you.

[The Chair, Conservative, Ed Komarnicki]

From listening to you, I gather that the federal government can't legislate or regulate in provincial areas, but they can expend funds with respect to matters that would be under provincial jurisdictions under certain circumstances.

[Rob Walsh]

That's correct.

[The Chair, Conservative, Ed Komarnicki]

Does that then give way for various levels of government to deal with various issues on a collaborative basis?

[Rob Walsh]

That's correct.

It's not too often that I think a provincial government will spend money in an area of federal legislation. It can happen in the reverse from time to time, and it gives rise to some debates.

[The Chair, Conservative, Ed Komarnicki]

Mr. Shory, it's your turn to go ahead.