Federal Oversight Of Extraprovincial Trucking Going Up In Smoke
December 1, 2009
Two recent incidents -both involving the enforcement and application of provincial laws or regulations to federally-regulated motor carriers -underscore the undermining of the Canadian constitution an...
Two recent incidents -both involving the enforcement and application of provincial laws or regulations to federally-regulated motor carriers -underscore the undermining of the Canadian constitution and the fading role of the federal government on national trucking issues.
The first involves obstruction of justice charges laid under the provincial Highway Traffic Act against the Canadian subsidiary of US trucking company for failure to provide Ontario Ministry of Transportation auditors with the company’s GPS records.
The carrier went to court seeking to have the charges quashed on the basis of the constitutional argument that the provincial hours-ofservice regulations are not constitutionally applicable to a federal undertaking and to proceed would be a miscarriage of justice. (One area where the Ontario hours-ofservice regulations appears to differ from the federal regulation is with regard to the “supporting documents” used to determine compliance with the hours-of-service regulations, that carriers are obliged to produce if asked).
The constitutional issue was heard before a Justice of the Peace earlier this year. The JP dismissed the constitutional question and the principles of inter-jurisdictional immunity and federal paramountcy out of hand.
While it’s unclear what if any precedent value the decision will have, it is a concern and a further indication of the way things seem to be heading.
There have been other decisions in other provinces in recent years that have reached similar conclusions.
The second incident involves the London-area driver working for a federally-regulated carrier who was charged by the OPP in October for violating the Smoke Free Ontario Act (SFOA) for smoking in his cab. This one got a lot of media coverage.
Again, the legal/constitutional issues of whether or not the province can lay charges under a provincial act when federally-regulated companies and their employees -who are subject to the Canada Labour Code -are involved.
Again, we think not and it is clear to us from their public comments that not only did the OPP officer who laid the charge apparently not understand the constitutional difference between federal and provincial undertakings, but neither did the OPP’s official spokesperson, local health unit spokespeople, or a number of Ontario cabinet ministers.
If all of these senior officials speaking on record in the media didn’t understand the law, there’s no reason to believe that front line enforcement staff have been properly informed of how to apply the SFOA in the case of trucking companies.
At the time of writing it was unknown if the charge against the driver would be dropped, but it should.
For better or for worse, the de-centralization of the Canadian federal political system and the devolution of power to the provinces have been going on for decades now.
In the case of truck transportation, it all started in the 1950s when the federal government delegated the administration of extraprovincial trucking to the provinces.
However, it did not give up its constitutional authority. But, it has not chosen -at least recently -to exercise or defend this authority, either.
The result, for the trucking industry, has been the proliferation of a hodge-podge, patchwork quilt of regulations and standards from coast-to-coast.
Perhaps the best (or worst) example of this is the fact that not one of the National Safety Code standards has been uniformly adopted or enforced by the provinces.
In reality, the National Safety Code is neither national, nor is it a code. This is even true of the only NSC standard that has been codified (put into law) by the federal government -the federal hours-ofservice rules -which has yet to be adopted in any form by at least four provinces.
Transport Canada seems disinterested in defending its constitutional authority, preferring instead to remain a bystander.
The department seems disinterested in intervening on the legal issues. It has no interest in leveraging the infrastructure dollars it gives to the provinces as a way to get provincial cooperation on national standards as is the case in the US, for example.
We all know and appreciate the Canadian political peculiarities. And, admittedly, the local industry is sometimes supportive of the differences between their province’s standards and that of the federal standard or another province’s regulations -at least as far as intraprovincial versus extraprovincial standards go.
Still, as a result of all of the above, prospects for the harmonization of trucking laws and regulations around a common national standard seem ever more remote.
While we must continue to try and work towards national harmonization or at least compatibility, we must also face this reality.
The Canadian economy is increasingly a collective of quite different regional economies. So, it is not surprising that we should hear about regional trade and transportation agreements, of Memorandums of Understanding between provinces and of joint cabinet meetings.
Over the past year, we have seen various initiatives and agreements consummated by the Atlantic Ministers of Transportation, the Ontario-Quebec trade agreement, the B.C.-Alberta Trade, Investment and Labour Mobility Agreement and most recently the Saskatchewan-Alberta MoU. There are “gateway and trade corridor” initiatives in the West, in Central Canada and in the Maritimes.
Who knows where all of this will leave the country? If the courts and our political institutions cannot defend our constitution where does this leave our justice system?
These are questions for greater thinkers than me. Setting aside the legal issues, perhaps it will be easier to harmonize between three or four regions than between 10 provinces.
Our track record has not been great up until now. Perhaps harmonization with the US on things like heavy vehicle configurations stand a better chance of success on a region- to-region basis than it does on a nation-to-nation basis. Only time will tell. •
-David Bradley is president of the Ontario Trucking Association and chief executive officer of the Canadian Trucking Alliance.
‘Perhaps it will be easier to harmonize between three or four regions than between 10 provinces.’