Chapter 4: Constitutional framework of our country

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• Division of powers
• Jurisdiction over sport
  • No exclusive power
  • Federal spending power
  • Federal legislation
• Intergovernmental relations over sport

Before we embark on a description of the relevant issues the Commission examined during its review, along with our findings and Calls to Action, it is important to recognize some of the constitutional and legal imperatives relevant to sport which had to be considered as part of our work, and may at times constitute obstacles to change. But as we describe in this report, these obstacles can be overcome through meaningful collaboration.

Division of powers

Canada is a federation. One of the features of federalism is the distribution of legislative powers between multiple orders of government. The Canadian Constitution divides the legislative powers between the federal and the provincial legislatures.^{Footnote 175} Each order of government is assigned respective spheres of jurisdiction by the Constitution Act, 1867.^{Footnote 176} However, it has been said that cooperation and coordination is required for the federation to succeed:

“[…] the federal government and the provincial governments are better described as ‘coordinate,’ having equal authority and independence in their distinct spheres.

In classical ballet, a pas de deux is a dance for two performers that involves solo variations by each partner that concludes with both partners dancing together to display their talent. The division of legislative powers between the federal Parliament and the provinces found in sections 91 and 92 of the Constitution Act, 1867 can be understood as such a dance, where each partner has a sphere of legislative competence, yet interaction and cooperation are required for the federation to succeed.”^{Footnote 177}

Jurisdiction over sport

No exclusive power

Sport is not an area of jurisdiction explicitly mentioned in the Constitution Act, 1867.^{Footnote 178} As a result, each level of government has enacted legislation reflective of its constitutional authority to support, stimulate or regulate sports programs.^{Footnote 179} Some legal scholars and commentators, including from Quebec, have argued that sport is an area of shared jurisdiction between the federal and provincial governments.^{Footnote 180}

Under the Constitution Act, 1867, the provinces have exclusive jurisdiction to make laws in relation to education, public land, municipal institutions, property and civil rights and general matters of a merely local or private nature. Since sport, recreation and physical activity include aspects of health, culture and education, the more direct responsibility for sport has generally fallen to private, community, municipal and provincial bodies for the development and participatory aspects of sport.^{Footnote 181}

Thus, generally, provincial and territorial jurisdiction allows for the development, implementation, operation and support of programs and regulatory standards of health, safety and integrity in sport.^{Footnote 182}

As for the federal government, scholars have suggested that Parliament may enact federal legislation related to sport based on its residual authority to make “Laws for the Peace, Order, and good Government of Canada” and on Parliament’s jurisdiction in trade and commerce, taxation, the military, shipping and inland fisheries, immigration and citizenship and criminal law.^{Footnote 183} It has also been suggested that whenever an issue is deemed to be of some national or international significance, the federal government may assert an interest.^{Footnote 184} That may be in part why the federal government, as matters of international presence and diplomacy, has a role in supporting participation in international competitions such as the Olympics and Paralympics, the Commonwealth and Arctic Winter Games.

During our engagement process, several participants analogized sport to culture. Like sport, neither level of government is allocated exclusive jurisdiction over culture under the Constitution, meaning that both the federal and provincial legislatures are free to enact laws with impact on culture. It has been suggested that culture is a matter of concurrent or shared jurisdiction, rather than one subject to the primary authority of either level of government, and that the federal government has an important role to play. Professor Patrick J. Monahan (as he then was) has suggested:

“In addition to its general ability to enact laws with cultural impact, the federal government has a particular role and responsibility to promote a distinct Canadian identity. This is a matter of distinct national concern and permits the federal government to undertake the regulation and support of the arts and cultural industries in Canada.

I have already referred extensively to the particular challenges facing the development of a distinctive Canadian identity. Ever since the Massey Commission in 1951, it has been widely accepted that the national government has a crucial role to play in responding to these challenges. What remains is to elaborate the constitutional significance of these circumstances. My view is that the promotion of a distinct national identity constitutes a matter of distinct national concern in Canada, and that this, therefore, qualifies as a matter falling within the ‘Peace, Order and Good Government’ (POGG) power of the federal Parliament.”^{Footnote 185}

Could it be argued that the same logic applies to sport in that it is a core element of Canadian identity? Some of the participants who engaged with the Commission were of the view that the regulation of national-level sport organizations and the safety and well-being of athletes, and Canadians generally, ought to be a matter of national concern. Courts have also opined that “the international connection [in a given sport] and the desire to coordinate the sport throughout Canada might help to justify federal legislation, if it existed, but they do not bring [the sport] under federal power in the abstract.”^{Footnote 186} However, this has yet to be tested in Canadian courts and the Supreme Court of Canada has emphasized that “the national concern doctrine can be applied only in exceptional cases, where doing so is necessary in order for the federal government to discharge its duty to address truly national problems.”^{Footnote 187} For example, the control of marine pollution by dumping of substances and the establishment of minimum national standards of greenhouse gas price stringency to reduce greenhouse gas emissions have been held to be matters of national concern.^{Footnote 188}

Further, some have noted that the federal government also has jurisdiction over the regulation of interprovincial or international trade and commerce, and interprovincial undertakings, which could serve as a source of authority for the federal government to regulate national-level sport organizations.^{Footnote 189} However, courts have found that sport participants traveling across borders for competitions does not make competition a form of international or interprovincial trade.^{Footnote 190} They also reasoned that national-level sport organizations facilitate and promote activities that are carried out at a local level, and that travel across provincial and national borders for competition is incidental to the competition itself. As a result, they ruled that competitions do not constitute interprovincial undertakings.^{Footnote 191}

Federal spending power

That said, there is no doubt that the federal government may provide support for sport through the exercise of its spending power, provided its intervention does not amount to a regulatory scheme relating to matters under provincial jurisdiction.^{Footnote 192} Indeed, the federal spending power allows Parliament to allocate funds, not only within, but also outside of its areas of legislative authority. The spending power enables Parliament to impose conditions on federal contributions to the provinces, including conditions that influence matters that come within provincial jurisdiction, and which could not be directly legislated by Parliament.

Provincial sectors where the federal government has exercised its spending power include health, pharmacare, childcare and school food programs.^{Footnote 193} It has also done so with respect to sport. While federal spending statutes generally set conditions that provinces must meet to receive funding, they do not require provinces to enact specific legislation or uphold a federal code or policy. Instead, federal spending legislation focuses on adherence to principles that provinces must operationalize in their own way, often through provincial laws or policies, which in several cases appear to have been agreed upon by the provinces in the context of a framework or a policy.^{Footnote 194}

The federal spending statute cannot amount to a regulatory scheme relating to matters under provincial jurisdiction. For example, the Canada Health Act^{Footnote 195} stipulates the terms on which federal funding can be granted to each province. Because the Act applies to federal spending and does not regulate the delivery of health care in each province, it is a valid exercise of the federal government’s spending power.^{Footnote 196}

Federal legislation

The federal government has a long history of involvement in sport, primarily through spending power and collaborative agreements, not direct regulation. Statutes such as the National Physical Fitness Act (1943), Fitness and Amateur Sport Act (1961), and Physical Activity and Sport Act (2003) have emphasized cooperation with provinces and territories.

In 1943, Parliament introduced the National Physical Fitness Act. The measure was introduced at the beginning of the war, as many Canadian citizens were declared unfit for active military service, making it necessary to take steps to improve the physical fitness of the population. The resolution proposing the adoption of the law states that it aims to (i) promote the physical fitness of the people of Canada, (ii) constitute a National Council on physical fitness to carry out such purpose, and (iii) establish a special account in the consolidated revenue fund out of money appropriated by Parliament to carry the purposes of the act, including grants to the provinces. Under the Act, provinces were required to contribute to 50% of the total cost and to implement the programs, while the federal government was responsible for providing guidance and support to the provinces.^{Footnote 197} Several provinces refused any costs-sharing agreements with the short-lived National Fitness Council and the statute was repealed in 1954.^{Footnote 198}

In 1961, the federal government passed the Fitness and Amateur Sport Act. Members of Parliament advocated for federal involvement in Canadian sport on the basis that sports were a national concern and fitness a national crisis.^{Footnote 199} The Act aimed to promote and develop fitness and amateur sport across Canada and provided a legal framework to support sport and fitness initiatives under provincial jurisdiction through its spending power.^{Footnote 200} The purpose of the Act, as stated in the House of Commons debates of September 1961, was to introduce a measure aimed at promoting physical fitness through amateur sport in Canada. It sought to provide grants to agencies, organizations and institutions, to provide contributions to provinces for programs relating to physical fitness and amateur sport, and to establish a National Advisory Council on Physical Fitness and Amateur Sport. The statutes emphasized the need for cooperation with provinces but also for cooperation with voluntary bodies concerned with fitness and amateur sport.^{Footnote 201}

We note that the legislator emphasized the benefits of this statute both for the citizens of the nation and the nation itself. It was said that citizens would see an increase in their enjoyment of life and reap the social benefits associated with athletics. As for the nation, Canadian prestige, international relations, national unity, and cultural development would all be enhanced.^{Footnote 202} The poor performance of Canadian athletes in recent Olympic Games was also cited as a reason for government assistance in fitness and amateur sport. The 1961 Fitness and Amateur Sport Act was repealed by the Physical Activity and Sport Act.^{Footnote 203}

Intergovernmental relations over sport

It has been observed that “[...] besides ice hockey, fighting over intergovernmental relations is one of the most popular sports in Canadian politics.”^{Footnote 204} Indeed, “clashes” over which one of the federal or provincial and territorial government has jurisdiction to act in a variety of policy fields has not escaped the area of sport.

However, as often noted, “if there is a will, there is a way.” There have been numerous instances of intergovernmental collaborations over the years. These include:

• a variety of different agreements including (i) agreement of a general nature to facilitate collaborative action towards shared objectives, such as the High Performance Athlete Development in Canada agreement of 1985 and the National Recreation Statement of 1987, (ii) action driven agreements such as the Canadian Policy Against Doping in Sport (initially developed in 1991) and (iii) multi-party agreements such as the Multi-Party Agreement that created the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games
• the Federal-Provincial/Territorial Ministers Conference and its sub committees, further discussed in Chapter 5
• bilateral agreements between the federal government and provincial and territorial governments.^{Footnote 205}

In particular, the 1987 National Recreation Statement (1987) provided an interesting example of collaboration. The policy document defined and affirmed the value of recreation and outlined the roles of each level of government in promoting it. The Statement recognized the primacy of the provinces in the field of recreation, while also acknowledging that primacy does not mean exclusivity.^{Footnote 206} The Statement defined the roles and responsibilities of the different levels of government and of the private sector in the provision of recreation opportunities to minimize duplication of effort and ensure that all resources are directed to meet the recreation needs of the 1980s in a coordinated, responsible and effective manner. The role of the federal government was defined as contributing to the development of recreation in Canada by:

1. providing, through national organizations and agencies, complementary opportunities for individuals to participate in recreation activities
2. ensuring Canadian representation, both internationally and within Canada, in recreation activities that serve a national purpose
3. contributing, at the national level, to the development of recreation services through the provision of resources and support to the public, voluntary and commercial sectors
4. developing and circulating nationally, promotional and resource materials which will encourage individuals to participate in recreation activities.^{Footnote 207}

Consequently, while we must work within the confines of the constitutional requirements, precedents make it clear that collaboration between the federal and provincial and territorial governments offers virtually unlimited possibilities and opportunities for improvement.