Duhaime's Law Dictionary


Interjurisdictional Immunity Definition:

The purported inability of the Canadian Federal government to legislate in an area assigned by the Constitution to the Provincial government, and vice versa.

Related Terms: Federal Paramountcy

In DFS Ventures, at ¶51-52, Justice Freedman of the Manitoba Court of Appeal wrote:

"[T]he constitutional doctrine of interjurisdictional immunity ... is an exception to the general rule that a valid provincial enactment of general application may apply to and affect federal matters or entities. The doctrine renders a valid provincial enactment of general application constitutionally inapplicable to a federal matter if ... the effect of the provincial law would be to affect a vital part of a federally-regulated enterprise. The doctrine addresses the issue of the applicability of the provincial law; it does not address the question of its validity, which for the purpose of analysis is assumed.

"If a matter falls within the enumerated subjects found in s. 91 of the Constitution Act, 1867, the federal government has exclusive jurisdiction over that matter and any vital, essential or integral aspect of it. Thus, any provincial law of general application will be inapplicable to any vital, essential or integral aspect of that federal matter."

In Canadian Western:

"[I]n certain circumstances, the powers of one level of government must be protected against intrusions, even incidental ones, by the other level. For this purpose, the courts have developed two doctrines. The first, the doctrine of interjurisdictional immunity, recognizes that our Constitution is based on an allocation of exclusive powers to both levels of government, not concurrent powers, although these powers are bound to interact in the realities of the life of our Constitution. The second, the doctrine of federal paramountcy, recognizes that where laws of the federal and provincial levels come into conflict, there must be a rule to resolve the impasse.Under our system, the federal law prevails."

In Burrardview, Canada's Supreme Court wrote, at ¶41:

"[T]here are circumstances in which the powers of one level of government must be protected against intrusions, even incidental ones, by the other level. This is called interjurisdictional immunity and is an exception to the ordinary rule under which legislation whose pith and substance falls within the jurisdiction of the legislature that enacted it may, at least to a certain extent, affect matters beyond the legislature's jurisdiction without necessarily being unconstitutional...."

In BC v Imperial Tobacco, Justice Wedge of the British Columbia Supreme Court wrote, at ¶39:

"[T]he term interjurisdictional immunity has different meanings in different contexts. The term has been used to describe the exclusivity or water-tightness of federal and provincial powers under sections 91 and 92 of the Constitution Act, 1867. However, it has also been used to describe the purported inability of the Crown in right of one jurisdiction to bind the Crown in right of another, even with respect to matters within its legislative capacity."

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