Constitution over convenience: Reaffirming the Labour Conventions rule on the application of the division of powers to international treaty implementation

Abstract

This thesis calls for the reaffirmation of the Labour Conventions rule, which holds that the authority to legislate in implementation of international treaties follows the division of powers as laid out in sections 91 and 92 of the Constitution Act, 1867. It argues that the criticism that has plagued the rule since its inception has neglected constitutional considerations in favour of an assertion that a federal treaty-implementation authority is necessary for reasons of international expedience. It contends that this assertion is irrelevant in the absence of evidence that such international considerations are themselves constitutionally mandated, as constitutionalism is not trumped by convenience. To this end, it maintains that neither established principles of constitutional interpretation nor the supposed intentions of the Fathers of Confederation provide grounds for ignoring one of the fundamental tenets of the division of powers, that one level of government cannot unilaterally usurp the other's authority.