Canadian Municipalities and the Regulation of Radio Antennae and their Support Structures

III. An Analysis of Constitutional Jurisdiction in Relation to Radiocommunication

Introduction

The critical function served by the public communications industry upon the development and maintenance of the Canadian federation has been acknowledged by numerous commentators.Footnote 94 As observed by Martha and Roderick FletcherFootnote 95

"the mass media are generally recognized as playing a long-term role in the communication of social and political norms in a society and in the promotion of awareness of political leaders, domestic political issues, and a sense of shared identity or common political future."

The commercial side of communications has played an equally important role to foster the economic and social advancement of our nation. In view of the influence exerted by communications enterprises upon the political, cultural and economic future of CanadaFootnote 96 it is not surprising that issues related to regulatory competence have generated intense legal and political controversy involving questions of control over both technological advances and content.

The resolution of these jurisdictional disputes has had and will continue to have a profound impact upon the preservation of Canadian culture and social and economic growth.

The purpose of this section of the study is to examine the current constitutional structure respecting regulation of communications as such relates to radiocommunications. An analysis will be provided of the actual and potential extent of federal, provincial and municipal authority permitted by existing constitutional arrangements. In this respect, an effort will be made to identify the competing interests of federal, provincial and municipal governments in regulation of radiocommunications and to ascertain the degree to which such interests are either realized or frustrated by recent trends in constitutional interpretation. Finally, discussion will focus upon legal techniques which would enable a more flexible accommodation of national, regional and local objectives.

The nature of the interests involved

Central to any analysis of constitutional competence related to radiocommunications is an identification of national and regional interests pertaining thereto. Considerations arguing in favour of centralized authority reposed in the federal government are numerous. The very behaviour of radio energy in the environment would appear to require the intervention of the federal government to control at the very least the physical aspects of transmitting and receiving, including access to and assignment of radio frequency; antenna type, location, height, and engineering and structural specifications; and the technical standards for radio apparatus in order to ensure the integrity of inter-regional communications and the central co-ordination of research and development. Further, federal claims to authority over the technical facets of radiocommunications are reinforced by its interrelationship with other subject matters of national importance such as the transportation industry,Footnote 97 and defence. Finally, the need for centralized competence is demanded by the existence of international conventions, ratified by Canada, concerning the allocation and registration of radio frequencies and prevention of interference.

However, the federal interests in regulation of radiocommunications are not confined to technical activities associated with management of a limited global resource. A consistent premise of federal intervention has been derived from the desire to maintain the integrity of the federal state through the development of a broadcasting system which will "safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada."Footnote 98 As one commentator has noted, "the Canadian government … wants to protect the financial position of the Canadian broadcasting industry so as to achieve the larger goal of using the media as a tool for acculturation and promotion of national unity."Footnote 99 The 'nationalizing' impact of radiocommunications has both cultural and economic implications. The control of Canadian and foreign programming content and the transfer of ownership of undertakingsFootnote 100 as well as the regulation, through licensing, of market entry, signal carriage priority and carriage of foreign signals are examples of such implications. And, in this respect, "since control over the medium influences both access to audiences for Canadian programmes and the resources available to produce them" it is evident that federal claims to technological and substantive authority in relation to radiocommunications are inextricably linked.Footnote 101

Localized interests - both provincial and municipal - are equally obvious and to a large degree mirror rather than oppose federal objectives. Just as federal insistence on hegemony in the cultural dimension of radiocommunication has emphasized concern for national unity and national identity,Footnote 102 provincial claims to jurisdiction over programming content rely upon regional distinctiveness, rejecting either implicitly or explicitly the notion "that culture is primarily a federal responsibility or that national unity requires the development of a single dominant culture." Footnote 103 The possibility of provincial control over radiocommunication also bears upon regional economic and social welfare since the location and availability of radiocommunication facilities are critical to coherent regional development plans.Footnote 104 Such concerns are particularly acute at the municipal level. While the effect of the current constitutional framework is to impose upon the provinces primary responsibility for the economy, municipalities by delegation exercise extensive regulatory authority over local matters affecting the community's health, safety, morals, aesthetics and property values. To the degree that the presence of radiocommunication facilities, both amateur and commercial, may impinge upon legitimate municipal concerns relating to the health and safety of citizens, land-use and environmental impact, provincial and municipal claims appear equivalent to, if not co-extensive with, those advanced by federal authorities.

In short, the field of radiocommunications is one in which the desire for both territorial pluralism (regionalism) and the promotion of a national identity, combined with the need for uniform management of the spectrum resource, justify the recognition of a regulatory regime in which jurisdiction is, to some extent, shared between central and local governments. Such a regime would strike an appropriate balance between "the accepted need for a strong national system and the particular needs of localities" and would reflect "legitimate provincial objectives in culture and education as well as in economic and social development."Footnote 105 A regulatory structure accommodating both centralizing and decentralizing features would additionally exhibit receptivity and sensitivity to distinctive municipal objectives without significantly impairing "the federal government's capacity to ensure interregional communication and promote a national sense of community."Footnote 106

While, however, the cultural, political and economic importance of radiocommunications both at the national and regional levels favours, in a pragmatic sense, the intervention of both federal and provincial governments, any regulatory mechanism adopted must be one which is compatible with the present constitutional division of powers. Therefore, it is necessary to examine the ways in which the constitution contributes to or undermines federal/provincial co-operation and co-ordination in the development of national policies respecting the technological aspects of radiocommunications. Thus, this study will focus next upon judicial interpretation of those provisions of the Constitution of Canada which either directly or by analogy establish legislative competence in relation to radiocommunications.

The present constitutional framework

Canada, as a federal state, is characterized by a political structure in which legislative and executive powers are divided between the federal Parliament and the provincial legislatures. This distribution of legislative and executive authority is achieved by the terms of the Constitution Act, 1982 (as originally enacted, the Constitution Act, 1867), the effect of which is to impose jurisdictional limitations upon the federal and provincial legislatures, through section 91 which defines the scope of federal regulatory authority and section 92 describing that assigned to the provinces. In general terms, section 91 empowers the federal government to "make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the Legislatures of the Provinces." Section 91 further empowers Parliament to enact laws in relation to specific enumerated areas such as the criminal law, trade and commerce and taxation. Section 91 therefore assigns to the national legislature two grants of legislative authority: that in relation to the specified classes of subjects (the enumerations) and that in relation to the 'peace, order and good government of Canada' (the residuum). Section 92 allows the provincial legislatures to "make laws in relation to matters coming within the classes of subjects next hereinafter enumerated" including property and civil rights, local works and undertakings and local and private matters. The principle of distribution underlying section 91 and 92 is the distinction between matters which are of national significance and thus within federal jurisdiction and those which are of localized importance and thus within provincial competence. Through this constitutional division of powers, a delicate balance is achieved between the interests of uniformity and centralization on the one hand and diversity and decentralization on the other.

Under our constitutional system, the courts or the judiciary bear ultimate responsibility for the interpretation of provisions of the constitution and, therefore, for the determination of the validity of both legislative and executive action. The process of judicial review is dictated by the express language in which the power-conferring provisions of the Constitution Act are expressed. Since each grant of legislative authority is characterized as 'exclusive', action by either level of government which exceeds the constitutional boundaries created by sections 91 and 92 is characterized as ultra vires (beyond the legitimate scope of the enacting body). A law which is found to be ultra vires is invalid on jurisdictional grounds since "a statute emanating from a legislature not having power to pass it is not law.Footnote 107 When reviewing for constitutional validity it is therefore "the duty of the courts … to ascertain in what degree and to what extent authority to deal with matters falling within these classes of subjects exists in each legislature and to define in the particular case before them the limits of their respective powers."Footnote 108

A finding of ultra vires is reached by a process of judicial classification which consists of three stages. Initially, courts, when confronted with challenged legislation must isolate the 'matter' of the enactment. 'Matter' is equivalent to 'the primary matter dealt with', the 'pith and substance', the 'true nature and character' and the 'subject matter and legislative character.' The 'matter' may be discovered by reference to extrinsic aids such as regulatory impact statements, history, and precedent.

Secondly, courts must define the ambit of the classes of subjects enumerated in sections 91 and 92 by a process which has been described as 'mutual modification' according to which "the two sections must be read together and the language of one interpreted, and where necessary, modified by that of the other."Footnote 109 The principle of 'mutual modification' is designed to reconcile the competing claims of federal and provincial legislative authority which are an inevitable result of the general and abstract language employed in the Constitution Act, 1867. A glance at the classes of subjects contained in sections 91 and 92 reveals that many of the enumerations overlap. For example, the federal power in relation to 'trade and commerce' (section 91(2)) would appear to encompass provincial legislative power in relation to 'property and civil rights in the province' (section 92(13)). However, through mutual modification it is possible to achieve an accommodation of federal and provincial interests which would permit the maximum degree of the exercise of legislative competence consonant with the constitutional structure.

The third and final step in the process of judicial review for constitutional validity is the assignment of the legislation to that 'class of subject' (contained in either section 91 or 92) to which it exhibits the strongest affinities, or conceptual relationship. Legislative competence in relation to subjects such as, for example, aeronautics, which do not appear to be connected with any enumeration will be determined by reference to its scope or dimension. If the subject matter of the legislation possesses a 'national dimension', jurisdictional competence falls to the federal residuary power. If, conversely, the legislation under examination evidences no national concern but is of merely localized significance, then constitutional competence will be assigned to the provinces. Judicial review for constitutional validity therefore requires the court "to construe the challenged statute itself carefully to be sure of having determined its full meaning, that is, the full range of features by any of which or by any combination of which it may be classified" and then to "assess the relative importance of the respective federal and provincial features of the statute."Footnote 110

It should be observed, however, that this classificatory procedure is deceptively simple. Few, if any, enactments relate to merely one head of power in either the federal or provincial list. Instead most legislation can be justified constitutionally on a variety of bases. Moreover, while the jurisdiction of both federal and provincial authorities is described in the Constitution Act as 'exclusive', it is clear that the laws enacted by one level of government will almost invariably exert an impact upon the legislative jurisdiction of the other. For example, a provincial law imposing a tax upon banks clearly impinges upon a subject matter (banks) within the exclusive jurisdiction of the federal Parliament while at the same time involving an express head of provincial jurisdiction (taxation). Similarly, provisions contained within the federal Divorce Act concerning maintenance and custody of children would appear to intrude upon a realm of provincial legislative competence (property and civil rights in the province).

The possibility that laws enacted by one level of government will affect the exercise of legislative power by the other is an inevitable result of the classification procedure. Since laws are constitutionally characterized by their primary matter, incidental impact upon a field of competence assigned to the competing level of government becomes constitutionally irrelevant. If the interference may be described as ancillary or necessarily incidental to the effective operation of an enactment, the law will be upheld as valid. This 'ancillary' doctrine is designed to resolve the principal problem in constitutional review: whether a matter is fairly included within the class of subject to which it is sought to be assigned. Successive cases have determined that if there is 'a rational, functional connection' or sufficiently strong nexus between those portions of an enactment which are clearly valid and those which, viewed in isolation, would intrude upon the authority of the competing level of government, the latter will be validated as 'necessarily incidental' to the efficient exercise of the principal power. For example, while it is clear that provincial legislatures may regulate child custody, the 'ancillary' or 'necessarily incidental' doctrine has been employed to permit Parliament to enact laws in relation to child custody in the context of divorce on the basis that such jurisdiction is necessarily incidental to the effective exercise of the federal divorce power.

The 'ancillary' doctrine merely reflects practical reality -namely, the recognition that both federal and provincial legislatures, acting pursuant to independent and exclusive legislative powers may enact laws in relation to the same subject matter. The 'ancillary' doctrine acknowledges the existence of a common domain with gates of entry for both Dominion and Province. Such a common domain is otherwise described as a field of concurrent legislative authority. Concurrency permits joint legislative competence in respect of certain subject matters. The pre-condition for the concurrent operation of federal and provincial laws is the independent validity of the overlapping laws. As explained by the Privy Council in A.G. for B.C. v. A.G. for Canada, [1930] A.C. 111:

"First, there can be a domain in which provincial and dominion may overlap in which case neither legislation will be ultra vires if the field is clear." (at p. 118)

The catalogue of concurrent fields which has been recognized by Canadian courts includes such diverse matters as insolvency, highway traffic, securities transactions and retail sales.

The existence of common or shared fields of legislative competence raises the further possibility of conflict between federal and provincial enactments. The question then arises as to which enactment is to prevail. The answer to this inquiry has traditionally been as follows:

"if the field is not clear and the two legislations meet the Dominion Legislation must prevail." (A.G. for B.C. v. A.G. for Canada, [1930] A.C. 111 (at p. 118))

The suspension of provincial by federal legislation is described as the principle of paramountcy. Application of the principle of paramountcy cannot occur unless federal and provincial laws co-existing in respect of the same matter are, considered singly, independently valid. If either enactment is ultra vires there need be no further consideration as to whether paramountcy ought to apply. However, if both federal and provincial laws are jurisdictionally valid, paramountcy will be invoked to resolve conflicts between the termsof the two laws. Conflict in this sense denotes repugnancy or operational incompatibility in the sense that compliance with one law involves breach of the other. According to the recent decision of the Supreme Court of Canada in Multiple Access v. McCutcheon, [1982] 2 S.C.R. 161:

"In principle, there would seem to be no good reason to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; the same citizens are being told to do inconsistent things; compliance with one is defiance of the other." (at p. 191)

Since paramountcy will only apply in the event of an express contradiction between the federal and provincial laws, federal and provincial laws may supplement and even duplicate one another without any violation of basic constitutional principles.

Judicial interpretation of the power conferring provisions of the Constitution Act (sections 91 and 92) has therefore resulted in a relatively high degree of flexibility which allows maximum scope to both federal and provincial legislatures. While legislative jurisdiction is defined as 'exclusive', judicial construction of sections 91 and 92 (by emphasizing the importance of 'matter') has permitted one jurisdiction to exert a substantial impact upon the other as long as this intrusion represents only an ancillary or incidental effect of the law in question. Thus, constitutional validity is to be determined by 'primary' and not 'secondary' effects. This principle may be otherwise described as that of concurrency. In the event of conflict between federal and provincial laws affecting essentially the same subject matter, federal laws will prevail.

While these propositions are accurate depictions of general trends in Canadian Constitutional law, they are, to a certain extent, qualified by the existence of immunities enjoyed by certain instrumentalities such as federally-incorporated companies and federal works and undertakings. The existence of an immunity simply denotes the recognition of a privileged exemption from the operation of otherwise valid laws of general application. Cases tend to support the view that the extent to which federal instrumentalities are bound by valid provincial laws is governed by three general propositions. Such entities are subject to provincial laws of general application unless:

  1. the statute relates, in pith and substance, to a matter outside the province's legislative jurisdiction (the principle of ultra vires);
  2. the statute incidentally affects a legislative subject matter within federal jurisdiction and Parliament has enacted legislation in conflict with the provincial act (the principle of paramountcy);
  3. the effect of applying the statute to the federal instrumentality would be to impair its status or essential capabilities.

According to the doctrine of interjurisdictional immunity, undertakings which are within exclusive federal jurisdiction (such as interprovincial transportation operations) are exempt from otherwise valid provincial laws which would 'sterilize' or 'mutilate' essential aspects of the undertaking. Thus federal undertakings of this nature may be immune from provincial laws controlling routes, rates, labour relations, zoning and other municipal by-laws on the basis that such laws affect a vital part of the management and operation of the undertaking. The doctrine of interjurisdictional immunity is inconsistent with other, traditional principles of constitutional law which indicate that no enactment is to be invalidated simply on the basis of incidental, secondary impact. The constitutional validity of a statute is judged instead by reference to its dominant character. The exemption of federal undertakings from otherwise valid provincial laws must therefore be regarded as a constitutional anomaly - the scope of which is relatively uncertain.

Jurisdiction over radiocommunications

(a) Federal jurisdiction

Neither communications as a generic subject matter nor radiocommunications as a subclass of communications is mentioned explicitly in the Constitution Act, 1867. The failure to expressly assign jurisdiction in relation to electronic communications is explicable in terms of the state of technology in 1867. As a result, the determination of responsibility for the various media must be judicially inferred from analogous provisions in the original confederating statute and through the application of general principles of constitutional interpretation. Interpretation depends, in part, upon the mode of communications involved, and consequently, the scope of federal authority (and the rationale offered in justification) varies by mode. Since this paper is concerned solely with constitutional jurisdiction in relation to radio communications, only parenthetical discussion will be addressed to the issue of responsibility for telecommunications.

Although the Constitution Act, 1867 omits any allusion to communications as a global category of legislative competence, it does refer explicitly to responsibility for telegraphs, as the primary mode of communications (other than the postal service) known in 1867. The ultimate assignment of constitutional authority in relation to telegraph reflected the importance attached to the medium prior to 1867. Telegraphs, as the earliest form of telecommunications, had been the subject of pre-confederation legislation in both Upper and Lower Canada as well as of an international convention concluded in 1864 which extended to the British North American colonies. When the matter arose immediately prior to confederation, the significance of communications in the maintenance and expansion of the new state was immediately acknowledged as a factor supporting federal jurisdiction. Lord Carnarvon observed in 1867:

"Public works fall into two classes: first, those which are purely local, such as roads and bridges and municipal buildings - and these belong, not only as a matter of right, but also as a matter of duty, to the local authorities. Secondly, there are public works which, though possibly situated in a single Province, such as telegraphs, canals and railways, are yet of common import and value to the entire confederation, and over these it is clearly right that the Central Government should exercise a controlling authority."

The allocation of responsibility for telegraphs reflected the 'national' dimension inherent in communications while at the same time preserving some scope for the expression of purely regional concerns. Section 92(10) of the Constitution Act, 1867 confers on each province the exclusive power to make laws in relation to "local works and undertakings" subject to expressly designated exceptions which are reserved from provincial jurisdiction and assigned to Parliament. Section 92(10) provides that the Legislature of each Province may exclusively make laws in relation to:

"10. Local works and undertakings other than such are of the following classes:

  1. Lines of steam or other ships, railways, canals, telegraphs, and other works are undertakings connecting the Province with any other or others of the Province, or extending beyond the limits of the Province;
  2. Lines of steam ships between the Province and any British or Foreign country;
  3. Such works as, although wholly situated within the Province, are before or after their execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the Provinces."

Paragraphs 92(10)(a) and (b) function by assigning federal jurisdiction not according to the particular mode of transportation or communication but by reference to the extent to which transport or communicative undertakings exhibit an interprovincial or international character or, conversely, are localized in scope. Section 92 confers jurisdiction upon both 'works' and 'undertakings'. 'Works' have been described as physical things which enjoy a distinct physical existence. An 'undertaking', in contrast, is "not a physical thing, but is an arrangement under which … physical things are used." (Re Regulation and Control of Radio Communications, [1932] A.C. 304). While the structure of section 92(10) might suggest that federal authority applies only to the interprovincial or international aspects of the work or undertaking, judicial interpretation has consistently indicated that once a sufficient interprovincial feature is demonstrated, then the entire work or undertaking is subject to federal control. (See A.G. Ont. v. Winner, [1954] A.C. 541. Of the two exceptions from the grant of provincial authority contained in sections 92(10)(a) and (b), section 92(10)(a) is clearly the more relevant to the question of jurisdiction over communications.

Subsequent decisions concerning the operation of section 92(10)(a) in relation to telecommunications have established the extensive federal jurisdiction thereby created. First, it was held as early as l905 in Toronto Corporation v. Bell Telephone Co. (A.C. 52) that federal authority encompasses not only the interprovincial or international aspects of the communication enterprise but takes in, as well, purely local services which are functionally integrated with the interprovincial or international elements. The case involved the extent to which Bell Telephone, a federally incorporated company, was required to obtain the consent of the municipality of Toronto to establish lines on city streets. In rejecting the argument of the municipality that the local and long distance functions of Bell constituted two distinct and separate businesses the Privy Council observed:

"[T]he facts do not support the contention of the appellants. The undertaking authorized by the Act of 1880 was one single undertaking, though for certain purposes its business may be regarded as falling under different branches or heads. The undertaking of the Bell Telephone Company was no more a collection of separate businesses than the undertaking of a telegraph company which has a long-distance line combined with local business, or the undertaking of a railway company which may have a large suburban traffic and miles of a railway communicating with distant places." (at p. 59)

Toronto Corporation v. Bell Telephone Co. and its progeny thus clearly establish that the criterion of federal jurisdiction under s. 92(10)(a) is that of the character of the service involved. As a result if the operations of an otherwise purely local undertaking are so integral to the operations of an interprovincial undertaking (either because of a physical or functional connection), the undertaking will be constitutionally viewed as a single and indivisible entity subject to federal jurisdiction.

Secondly, again as established in Toronto Corporation v. Bell Telephone Co., once an undertaking has been characterized as interprovincial or international and thus, subject to federal jurisdiction, it enjoys a certain degree of immunity from the operation of provincial laws. With respect to the necessity of municipal consent, the Privy Council remarked:

"…It can hardly be disputed that a telephone company the objects of which as defined by its Act of incorporation contemplate extension beyond the limits of one province is just as much within the express exception as a telegraph company with like powers of extension. It would seem to follow that the Bell Telephone Company acquired from the Legislature of Canada all that was necessary to enable it to carry on its business in every province of the Dominion, and that no provincial legislature was or is competent to interfere with its operation, as authorized by the Parliament of Canada." (at p. 57)

While the Bell Telephone case clearly sustained federal jurisdiction in relation to telephones as a species of communications analogous to the telegraph, it did not in itself purport to extend this rationale to other emerging forms of communications such as radio communications. The question of regulatory competence in relation to radio and, by extension, television was, however, decided by the courts at a fairly early stage. In 1931 the issue was referred to the Supreme Court of Canada by Parliament in the form of two questions. First, "Has the Parliament of Canada jurisdiction to regulate and control radio communication, including the transmission and reception of signs, signals, pictures and sources of all kinds by means of Hertzian waves, and including the right to determine the character, use and location of apparatus employed?" Secondly, "If not, in what particular or particulars or to what extent is the jurisdiction limited?" By a bare majority of three to two, the Supreme Court sustained exclusive federal jurisdiction. Those members of the court ruling in favour of Parliamentary authority relied on several bases of justification. First, according to Anglin, C.J.C., radio communications resembled telegraphs and as undertaking connecting one province with another, constituted an interprovincial undertaking within the meaning of section 92(10)(a). Although this rationale was endorsed by the other two members of the majority (Newcombe, J. and Smith, J.), an alternative basis for the assertion of federal jurisdiction was proposed by Newcombe, J. According to Newcombe, J.:

"But while the Dominion has at least the authority to regulate and control Radio Activities, and to provide against confusion or interference, as affecting its own enumerated subjects, and for the performance of treaty obligations, it also has the comprehensive power involved in the declaration of its authority in relation to all matters not coming within the classes of subjects by the B.N.A. Act assigned exclusively to the Legislatures of the Provinces; … "radio communication" … is not, substantially or otherwise, a local or private matter in a Province … The subject is one which undoubtedly relates to the peace, order and good government of Canada." (Re Regulation and Control of Radio Communication, [1931] 4 D.L.R. 865. (at pp. 871-872)

Assignment to exclusive federal jurisdiction was viewed as supportable on pragmatic grounds related to the technology of the day. As observed by Newcombe, J. (at p. 869):

"… I must proceed on the assumption that radiocommunication in Canada is particularly Dominion wide; that the broadcasting of a message in a Province, or in a territory of Canada, has its effect in making the message receivable as such and is also effective by way of interference, not only with the local political area within which the transmission originates, but beyond, for distances exceeding the limits of a Province, and that, consequently, if there is to be harmony or reasonable measure of utility or success in the service, it is desirable, if not essential, that the operations should be subject to prudent regulation and control."

Additional factors favouring federal rather than provincial authority were discovered in specific federal enumerations such as sections 91(5) (Postal Service), 91(7) (Militia, Military and Naval Service), 91(9) (Beacons, Buoys, Lighthouses and Sable Island) and 91(10) (Navigation and Shipping), to which control over radio communications was regarded as necessarily incidental. Finally, the majority adopted the view that section 132, which provided that:

"The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries",

was sufficient to empower the federal government to implement the provisions of the 1927 International Radiotelegraph Convention.

The majority was not prepared to concede that radio communication as an undertaking could be divided into interprovincial and local components. In response to the argument that a distinction could be drawn between transmission and reception, the latter being a purely local and private matter, Newcombe, J. stated (at p. 873):

"In the course of discussion an attempt was made to distinguish between the transmission of a message and the reception of it; and it was said that the receiving instrument is property in a Province, and that a message is received in a Province when the instrument, being there, is adapted and worked for that purpose. But the question is directed, not to rights of property in goods or chattels situated in a Province, but to 'radio communication' - an effect which is not local, but interprovincial. There must be two parties to a communication; there may be many more; and, if the sender be in a foreign country, or in a Province or territory of Canada, and the receiver be within another Province, it is impossible, as I see it, to declare that the communication, is local, either to the transmitting or to the receiving Province."

In contrast, Rinfret, J. and Lamont, J. were prepared to recognize radio communications as a concurrent field. While both conceded that certain aspects of radio communications would fall within federal jurisdiction, according to Rinfret, J. (at 875 ff.):

"By themselves, the transmitting and receiving instruments are objects of property of a local nature situate in a Province within the meaning of s. 92…. I do not hold, therefore, with the claim that simply because a civil right or local work produces effects beyond a Province it acquires ipso facto a character which has the effect of withdrawing it from provincial jurisdiction … From a legal point of view, it is difficult to see the distinction between radio communication … and the transmission of sounds in any other way from one Province to another. And it is also fitting, on this account, to compare the receiving instrument to a simple amplification of the human ear, since its function is nothing more than to render perceptible to the ear sounds or signals diffused through the ether by the propagation of intangible waves. In these circumstances, the primary jurisdiction rests, therefore, with the Provinces, and this jurisdiction cannot be encroached upon unless there can be found in s. 91 subjects of federal jurisdiction which would give, within the limits of their particular application, the power to invade the field of this primary provincial jurisdiction."

An appeal to the Privy Council ([1932] 2 D.L.R. 81) resulted in an affirmation of exclusive federal jurisdiction. Two justifications were advanced. First, the Radiotelegraph Convention, while not a treaty strictu sensu within the meaning of section 132 of the Constitution Act, 1867, imposed international obligations which could only be effectively implemented by federal legislation. According to Viscount Dunedin:

"It is Canada as a whole which is amenable to the other powers for the proper carrying out of the Convention; and to prevent individuals in Canada infringing the stipulations of the Convention it is necessary that the Dominion should pass legislation which should apply to all the dwellers in Canada. Being therefore not mentioned explicitly in either s. 91 or s. 92 such legislation falls within the general words at the opening of s. 91 which assign to the Government of the Dominion the power to make laws "for the Peace, Order and good Government of Canada". (at p. 84).

Secondly, the Privy Council indicated a willingness to adopt an expansive definition of 'telegraph' to include radio communication and rejected the contention that a distinction existed between transmission and reception. In an attempt to retain some scope for the exercise of provincial authority, it had been argued that even if transmitters were of necessity subject to federal jurisdiction (in order to avoid interference), that it was not axiomatic that radio receivers which did not emit interprovincial signals (and hence could not cause interference) were similarly within federal jurisdiction. Rather, receivers could legitimately be regarded as either species of 'property and civil rights' within the province or as local and private matters. The Privy Council refused to entertain the possibility of a divided jurisdiction. In the view of the Council, radio communications operated as an unseverable undertaking extending beyond the limits of a single province and thus came within the scope of section 92(10)(a). As observed by Viscount Dunedin:

"Once it is conceded, as it must be, keeping in view the duties under the Convention, that the transmitting instrument must be so to speak under the control of the Dominion, it follows in their Lordships' opinion that the receiving instrument must share its fate. Broadcasting as a system cannot exist without both a transmitter and a receiver. The receiver is indeed useless without a transmitter and can be reduced to a nonentity if the transmitter closes. The system cannot be divided into two parts, each independent of the other…. 'Undertaking' is not a physical thing but is an arrangement under which … physical things are used. Their Lordships have therefore no doubt that the undertaking of broadcasting is an undertaking 'connecting the Province with other Provinces and extending beyond the limits of the Province'; But further … they think broadcasting falls within the description of 'telegraphs'. A divided control between transmitter and receiver could only lead to confusion and inefficiency." (at p. 83).

The perceived integrity of the system coupled with the inability to confine radio signals within the geographic boundaries of a single province compelled the Privy Council to conclude that jurisdiction over radio communication was reposed solely in the federal level of government. The language employed by the Privy Council in favour of federal authority over the technical aspects of radio communication was so expansive that federal regulatory competence in this area has remained unchallenged until recently, it apparently being a tacit assumption that the assignment of frequencies, the specification of structural and engineering standards and location of equipment were exclusively subject to the control of Parliament.

Subsequent cases have not repudiated nor restricted the reasoning of the Radio Reference but have, rather, employed its rationale to support the assertion of federal jurisdiction over more recently developed modes of communication, such as television, which utilize radio communication technology. The expansion of federal authority, which has been supported on the alternative basis of the peace, order and good government power and federal competence over interprovincial undertakings, has been addressed to two distinct matters: first, the issue of jurisdiction over cable television undertakings; secondly, the issue of jurisdiction in relation to programme content.

As to the former matter, it is now clearly established that cable television systems which receive television and radio signals "off air" and redistribute them to subscribers via coaxial cable networks constitute integral components of radio reception facilities and thus are indivisible from the interprovincial element of radio communications undertaking. This analysis of the operation of cable television formed the basis for the decision of the Ontario County Court in Regina v. Communicomp Data Ltd. (1974), 6 O.R. (2d) 680. Communicomp Data had been charged with operating a broadcasting undertaking contrary to s. 29(3) of the Broadcasting Act and ss. 3 and 11 of the Radio Act. Communicomp's operation involved the reception of signals from Canadian and U.S. stations and the distribution of such signals to subscribers via coaxial cable. Communicomp argued that its undertaking did not constitute a broadcasting receiving undertaking and that therefore federal regulation of the enterprise was ultra vires. The Ontario County Court held that the principle of federal jurisdiction articulated by the Privy Council in the Radio Reference in relation to the transmission of radio signals applied with equal force to the transmission of television signals. It determined further that the fact that ultimate distribution of the signal was by coaxial cable rather than through air was, for jurisdictional purposes, immaterial. The cable, regarded as a mere physical conduit for the transmission of signals, was characterized as an integral element of the broadcasting undertaking and therefore subject to exclusive federal jurisdiction.

The inclusion of cable systems within broadcasting undertakings was subsequently endorsed by the Supreme Court of Canada in Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al. (1977), 36 C.P.R. (2d) 1. Rogers Cable TV Ltd. and two affiliates had applied to the CRTC for a licence amendment permitting random deletion of U.S. commercials. Three of the American stations affected by the proposed amendment challenged its validity on five grounds, one of which addressed the constitutional validity of the Broadcasting Act in relation to cable operations. A majority of the Supreme Court rejected the argument of Rogers Cable that the enterprise could be severed into two distinct entities - reception of signals at the antenna (federal) and distribution of signals within provincial boundaries. According to Chief Justice Laskin the pragmatic analysis of the Privy Council evident in the Radio Reference was

"…even more applicable here to prevent a situation of divided jurisdiction in respect of the same signals or programs according to whether they reach home television sets and the ultimate viewers through Hertzian waves or through coaxial cables. (at p. l4)

The physical aspects of the cable operation were characterized as functionally integrated with the broadcasting enterprise since, in the opinion of the majority,

"Essentially a CATV system no more than enhances the viewer's capacity to receive the broadcaster's signals … The systems are clearly undertakings which reach out beyond the Province in which their physical apparatus is located … The fallacy in the contention … of the appellants is their reliance on the technology of transmission as a ground for shifting constitutional competence which the entire undertaking relates to and is dependent on extra-provincial signals which the cable system receives and sends on to its subscribers." (at p. 14)

An analogous conclusion was reached by the Supreme Court in Régie des Services Publiques et al. v. Dionne (1977), 38 C.P.R. (2d) 1, decided contemporaneously with Capital Cities. On behalf of the majority, Chief Justice Laskin observed:

"…more [should] be said here [about] the provincial submission [that] since the cable distribution operation was locally situate and limited in its subscriber relations to persons in Quebec it was essentially a local work or undertaking within provincial competence… The fundamental question is not whether the service involved in cable distribution is limited to intraprovincial subscribers or that it is operated by a local concern but rather what the service consists of … Divided constitutional control of what is functionally an interrelated system of transmitting and receiving television signals, whether directly through air waves or through intermediate cable line operations, not only invites confusion but is alien to the principle of exclusiveness of legislative authority, a principle which is as much fed by a sense of the constitution as a working and workable instrument as by a literal reading of its words." (at p. 9)

The combined effect of Communicomp Data, Captial Cities and Dionne demonstrates that federal jurisdiction over the mechanical aspects of a broadcasting undertaking includes not only transmitter and receiving apparatus but also encompasses cable operations which, through local works, are functionally connected to interprovincial undertakings to the extent that such operations utilize broadcast signals. Where the service provided is broadcasting, even if, as in Dionne only a small percentage of programming results from off air transmission, then the entire system, including the local element, is subject to federal control.

Similar reasoning has been invoked to determine jurisdiction over content, although it may be arguable that there exists a greater degree of judicial responsiveness to localized concerns. In 1973 in Re C.F.R.B. and A.G. for Canada, [1973] 3 O.R. 819, the Ontario Court of Appeal ruled that federal jurisdiction in relation to radio communications was not restricted to the physical system but subsumed regulation of content on the basis that:

"…it would be flying in the face of all practical considerations and logic to charge Parliament with the responsibility for the regulation and control of the carrier system and to deny it the right to exercise legislative control over what is the only reason for the existence of the carrier system, i.e. the transmission and reception of intellectual material." (at p. 824)

Identical sentiments were expressed by a majority of the Supreme Court in Capital Cities: (at pp. 15-16)

"… Nor can the contention that Parliament cannot regulate program content but only the equipment or machinery be accepted… To put the matter in another perspective, it would be as if an interprovincial or international carrier of goods could be licensed for such carriage but without federal control of what may be carried or of the conditions of carriage. This submission amounts to a denial of any effective federal legislative jurisdiction of what passes in interprovincial or international communication … Programme content regulation is inseparable from regulating the undertaking through which programmes are received and sent on as part of the total enterprise."

However, federal jurisdiction over the content of radio communications while extensive is not exclusive. In Attorney-General of Quebec v. Kellogg's Company of Canada (1978), 19 N.R. 271 a majority of the Supreme Court of Canada sustained a Quebec law prohibiting the use of cartoons in advertising directed at children in any media. The Court characterized the 'pith and substance' of the enactment as consumer protection, a matter falling within either 'property and civil rights' in the province or 'local and private matters'. The impact upon broadcasters was regarded as merely incidental since, in the opinion of the majority,

"… this regulation does not seek to regulate or to interfere with the operation of a broadcast undertaking. In relation to the facts of this case, it seeks to prevent Kellogg from using a certain kind of advertising by any means … The fact that Kellogg is prescribed from using televised advertising may, incidentally, affect the revenue of one or more television stations but it does not change the true nature of the regulation… Kellogg is not exempted from the application of restriction upon its advertising practices because it elects to advertise through a medium which is subject to federal control…" (at p. 286)

The implications of the Kellogg's case have not been fully explored. Since the law in question was directed to advertisers and not to the broadcasting undertaking itself and since the prohibition against advertising applied irrespective of medium, it was perhaps relatively simple for the majority of the Court to conclude that the law did not impair broadcasting per se as a federal instrumentality. However, the decision may be interpreted as presaging a greater judicial toleration, or at the very least acknowledgement, of the local interests implicated in radio communications.

The reach of federal jurisdiction in relation to radio communication may be summarized by the following propositions:

  1. According to the Radio Reference, jurisdiction is derived from the power in relation to both the 'peace, order ant good government of Canada' and to inter-provincial undertakings. A succession of cases have confirmed that the combination of these two bases of authority may be sufficient to embrace all facets of the technical aspect of radio communications.
  2. Any use of a signal which is under federal jurisdiction will support the assertion of federal competence in relation to the entire activity.
  3. Federal jurisdiction extends to regulation of content although in this respect, the Kellogg's case would appear to indicate that a province may exert a legitimate effect upon content if such impact is characterized as incidental. This concurrent authority would, of course, be subject to the operation of the doctrine of paramountcy.

(b) Provincial and municipal jurisdiction

Since the Radio Reference, there has been no serious challenge to exclusive federal authority to license and regulate users of the radio frequency spectrum to avoid interference between individual users and between Canada and other countries. Licensing authority in this respect includes television broadcasting stations and, as well, cable television broadcasting undertakings (even those which limit antenna reception to signals originating within the same province). While jurisdiction over broadcasting content is, to a certain degree, functionally concurrent, federal control over the physical broadcasting apparatus has been regarded as exclusive.

The exclusivity of federal constitutional authority should not, however, be construed as a denial of the existence of compelling local interests, both provincial and municipal. While broadcasting undertakings clearly possess economic and cultural dimensions justifying provincial regulation, with respect to the physical apparatus, municipal concerns may be even more prominent. As observed earlier, the erection of radio communication facilities directly impinges upon the recognized capacity of municipalities to regulate local commercial activities, to protect the health and safety of its residents, to stipulate land use and maximize property values, and to generate revenue to be applied to local purposes. While the integrality of the technical facet of broadcasting and its national and international dimension militate in favour of centralized jurisdiction, complete preclusion of the expression of provincial and municipal interests in certain phases of radio communication would result in the erosion of the exercise of constitutionally vested authority and create an imbalance in the federal/provincial distribution of power.

Section 92 of the Constitution Act, 1867 contains certain provisions which would, at first glance, support local claims to regulation. Of these provisions the most potentially significant are:

  1. s. 92(10): Local Works and Undertakings
  2. s. 92(13): Property and Civil Rights
  3. s. 92(16): Matters of a Local or Private Nature.

While these sections describe provincial grants of legislative authority, they are also material in terms of the powers afforded to a municipal corporation. Since a municipal corporation exercises its jurisdiction through a delegation from the provincial legislature (and is restricted in the exercise of such powers by the terms of the enabling provincial legislation) municipal by-laws purporting to regulate radio communication undertakings proceed from the same constitutional source as provincial legislation addressed to radio communications.

Of the constitutional provisions noted above, sections 92(13) and 92(16) are of greatest relevance. While section 92(10) conceivably supports provincial, and by implication municipal, authority in relation to physical apparatus, its utility has been greatly restricted, if not wholly eliminated by the Radio Reference in which the Privy Council repudiated the notion that the receiving apparatus could be characterized as a 'local work':

"The argument of the Province really depends on making … a sharp distinction between the transmitting and the receiving instrument. In their Lordships' opinion this cannot be done. Once it is conceded, as it must be, keeping in view the duties under the convention, that the transmitting instrument must be so to speak under the control of the Dominion, it follows in their Lordships' opinion that the receiving instrument must share its fate. Broadcasting as a system cannot exist without both a transmitter and a receiver… The system cannot be divided into two parts, each independent of each other." (at pp. 85-86)

In contrast, the broad grants of legislative authority effected by sections 92(13) and (16) afford a more fruitful source of competence. The combination of these two heads of authority empower local governments (both provincial and municipal) to regulate a wide variety of matters such as land use, commercial activities, health, safety and private rights, all of which are implicated in the physical apparatus of radio communication. And in this respect, it is significant that no decision has yet been rendered by the Supreme Court of Canada which determines the relationship of sections 92(13) and (16) to the physical apparatus of radio communication in any context other than that at issue in the Radio Reference itself. Consequently, while the range of federal power may be discerned with relatively little difficulty, the nature and extent of municipal competence is less clear. The paucity of litigation may be explicable as the product of several factors: a lack of understanding on the part of all parties as to their respective rights under the present constitutional framework; and, as a corollary, a tendency to resort to political, rather than legal, solutions to resolve jurisdictional uncertainty.Footnote 111

However, the preceding discussion is not intended to suggest that either municipal or provincial authorities have completely abdicated any claims to regulatory competence in relation to radio communications. While most of the federal/provincial controversies have been addressed to content (and therefore will not be further considered) the advent of CATV has prompted a reconsideration of the strength of municipal interests in regulation of physical apparatus. Technological developments coupled with recent trends of judicial interpretation may therefore be relied on to support an enlarged basis for the assertion of local jurisdiction.

As a preface to any discussion of the scope of provincial and municipal authority it is first necessary to locate the Radio Reference in the context of general principles of constitutional law. Although the question posed to both the Supreme Court and the Privy Council concerned the respective jurisdictions of both federal and provincial governments in relation to radio communications, both courts perceived that the criterion of jurisdiction was that of aspect. As observed by Anglin, C.J.C.:

"Dealing with the first question, the most important thing to observe would seem to be its subject matter. It does not concern the rights of property in the instruments used for communication, their ownership, or civil rights in regard to them. In other words, it is "radio communication" that is dealt with by this question, rather than the instruments employed in making it, which are alluded to merely incidentally." (at p. 866)

In other words, the effect of this and subsequent decisions is not necessarily to confide the entire factual subject matter of radio communication to Parliament but merely the radio communication elements of the enterprise.

Parenthetically, it is worth observing that the possibility of a certain level of provincial regulation of federal undertakings had in fact been anticipated in 1905 by the Privy Council in Toronto Corp. v. Bell Telephone Co. (referred to previously). While the Privy Council held that the Company was entitled as of right to enter upon the streets and highways of the city to construct conduits, lay cables and erect poles, it was noted that a certain authority (albeit contingent) existed in the municipality:

"[to] give the Council a voice in determining the position of the poles in streets selected by the Company and possibly in determining whether the line in any particular street is to be carried overhead or underground." (at pp. 60-61)

Since radio communications as interprovincial undertakings are not, therefore, per se immune from the operation of provincial laws, the application of conventional principles of constitutional interpretation would appear to dictate the following tentative conclusions. First, in a negative sense the primary restriction placed upon localized control by the Radio Reference relates to the capacity of either a province or a municipality to enact laws directly affecting a broadcasting undertaking. Such laws would obviously be ultra vires in inception. Secondly, in an affirmative sense, federal broadcasting undertakings will be subject to provincial and municipal laws of general application unless the effect of such laws is to 'sterilize' the undertakings, and, even more significantly, in theory, local authorities ought to be able to regulate a broadcasting undertaking if the legislation represents a legitimate exercise of a head of power contained in section 92 and if the impact upon the 'broadcasting' aspect of the Federal operation is merely incidental. In such a case the operation (as opposed to the validity) of the law would depend upon the existence of potentially conflicting Federal law.

The line of demarcation between federal and municipal authority would therefore be determined by an analysis of the interests implicated in any enactment: that is, is the subject matter in pith and substance 'radio communications' or does the subject matter relate to the non-communication aspect of a radio communication undertaking. The distinction is one simple to express but difficult to apply as a brief examination of cases concerning municipal regulation of radio communications reveals.

For purposes of analytic convenience, cases involving challenges to the validity of municipal by-laws directed to or incidentally affecting physical apparatus may be divided into two groups: those in which regulation relates to the viability of the business enterprise; those in which the regulation is addressed to the physical facility itself.

Illustrative of the first group is the decision of the British Columbia Court of Appeal in Re Public Utilities Commission and Victoria Cablevision et al. (1965), 51 D.L.R. (2d) 716.

Pursuant to section 10 of the Public Utilities Act. R.S.B.C. 1960, c. 323, the Public Utilities Commission served a demand on cable television operators for certain information related to subscribers, history of operations and subscription rates. All companies refused to divulge the information alleging immunity from provincial jurisdiction. The British Columbia Court of Appeal accepted the argument of the companies. Applying the reasoning of the Radio Reference, the Court characterized the cable operation as an integral component of 'broadcasting' and concluded:

"If the cables and rentals paid by the customers were subject to provincial legislation, then the legislature could restrict the right conferred by the Dominion. The Public Utilities Act, if applicable, would impose restrictions upon the respondents as follows: to furnish adequate service, not to abandon a service without permission to the Commission, to obey orders of the Commission, to furnish information to the Commission, not to begin construction or operation without a certificate of public convenience and necessity from the Commission, to charge rates fixed by the Commission, such sections even if applied to cables and rentals only, must operate upon the antennae to such extent as to invoke the comments of Lord Porter, "but can you emasculate the actual undertaking and yet leave it the same undertaking." In other words, if the Provincial Legislature's purpose is to operate on the cables and rentals, nevertheless it must affect the operation of the antennae so as to entrench upon section 92(10)(a) and therefore to enact that which is ultra vires of the Province and within the exclusive legislative jurisdiction of the Dominion." (at pp. 719-720).

The reasoning of Victoria Cablevision was subsequently adopted in Re Oshawa Cable T.V. Ltd. and Town of Whitby, [1969] 2 O.R. 18 in which the Ontario High Court found that refusal by the town council to allow a cable operator to erect equipment without a permit exceeded the powers of the municipal corporation and was additionally an unconstitutional interference with a federally-regulated undertaking.

Only one case exists to support the proposition that municipalities may regulate the commercial aspects of a broadcasting undertaking, that of R. v. City of New Westminister (1966), 55 D.L.R. (2d) 613 (B.C.C.A.). A federally incorporated cable television company holding a Department of Transport licence had applied for and been refused a municipal trade licence. The Company subsequently challenged the applicability of the City's trade licence by-law on the basis that it was both federally incorporated and, as a broadcasting undertaking, within exclusive federal jurisdiction. The Court of Appeal sustained the by-law on the basis that, since the broadcasting licence did not specifically exclude the company from provincial control, it was bound by relevant provincial laws and municipal regulations concerning business operations. This decision, which has been extensively criticized, is inconsistent with the bulk of authority and contradicted by subsequent decisions and must therefore be regarded as an anomaly. What can one conclude with respect to municipal competence to regulate the undertaking through licensing schemes related to the commercial aspects of physical structures? If the effect of the municipal by-law is to prohibit the capacity of the undertaking to engage in operations without a permit then the by-law will be held inapplicable on the principle of interjurisdictional immunity. Furthermore, attempted regulation of the 'communication' facets of the enterprise (such as rates, subscribers, etc.) will, according to Victoria Cablevision be construed as ultra vires efforts to legislate in relation to 'radio communication'. Illustrative is the unreported decision of the Supreme Court of Ontario (Jan. 10, 1981) in Grimsby v. Rogers Radio Broadcasting Limited. At issue was the effect of a zoning by-law governing land use upon the erection of transmitting antennae and related facilities. In the view of Craig J., "…the by-law is not expressly directed towards regulating broadcasting and transmitting facilities of the type licensed by CRTC", but is "a general zoning by-law in which the erection of broadcasting and transmitting facilities is not a permitted use." Since the Radio Reference had established exclusive federal control over radio communications as a matter within 'peace, order and good government' in section 92(10)(a), the Court concluded that "the by-law (though not void) is ineffective to the extent that it conflicts with the proposed use by the defendant." The Grimsby decision provides a contemporary parallel to that of Bell Telephone insofar as it supports the proposition that municipal efforts to determine the site of physical apparatus will be suspended, if framed as a law of general application. By extension, a municipal zoning by-law addressed specifically to prohibit the siting of radio antennae would clearly be invalid.

The cumulative effect of these cases confirms the description of municipal competence in relation to regulation of the physical apparatus provided by Peter Grant in 1970. Although his conclusions refer specifically to the matter of cable television operations, the underlying principles appear equally applicable to radio transmitting and receiving devices. According to Grant:Footnote 112

  1. A municipality cannot validly prohibit a federally-licensed CATV operator from commencing operation within the municipality, whether by a general prohibitory by-law or by setting up a licensing system which enables the council to refuse permission to an otherwise qualified applicant.
  2. A municipality, if given this authority by the province, can, however, set reasonable restrictions on the use of its highways by CATV operators and can probably enforce these restrictions by requiring the operator to obtain municipal permission before proceeding to construct his plant.
  3. The restrictions permitted to be imposed on the use of municipal highways, easements and airspace by CATV systems must be reasonably related to such matters as public safety, traffic control, maintenance and upkeep of the highway, and perhaps aesthetic value. The restrictions must not be unreasonable or discriminatory, but might include such requirements as:
    1. the overall coordination of the work through the supervision of a municipal official so that pole erection or plant construction can take place in conjunction with similar work by hydro or telephone companies.
    2. the prior notification and arrangement with municipal officials if or when traffic is to be stopped or impeded and the provision that this be done in accordance with local police requirements.
    3. the posting of a bond and/or the obtaining of liability insurance to ensure that the erection and maintenance is carefully done, and that no loss or injury be done to the public, and that whatever repairs are necessary to restore the street to a proper condition will be performed.
    4. safety restrictions (subject to any federal regulations on the question) requiring cables over streets to be a minimum height, or that poles be built within certain stress or construction standards, or that electrical outlets be properly grounded or protected.
  4. Municipal restrictions or by-laws affecting CATV operators will probably be held to be inoperative if they
    1. affect subscriber rates or installation charges;
    2. require an operator to use municipal utility commission poles (although if no other poles are in fact available, the operator may find himself obliged to negotiate for their use out of economic necessity);
    3. require an operator to set aside one or more channels for municipal or educational use, or require other programming commitments;
    4. require an operator to provide service free to schools or other institutions;
    5. relate to the operation, management or ownership of the CATV undertaking - e.g. requiring local ownership or financing, or requiring ownership in the cable to revert to the town;
    6. make municipal permission conditional upon the execution of a contract between the operator and the municipality stipulating any of the above requirements.

The case for a greater municipal role

Recent trends in constitutional interpretation would appear to buttress provincial and municipal claims to greater involvement in regulation of physical apparati, including antenna structures. Although, as observed earlier, the Supreme Court of Canada has yet to directly consider the interaction of federal jurisdiction over the physical aspect of radiocommunications, and provincial and municipal interests in the regulation of land use, development and related matters, certain developments in fields of federal competence analogous to radiocommunications, suggest an increased judicial responsiveness to local concerns.

The case of aeronautics is instructive. Since its inception, the subject matter of aeronautics has been considered to be within exclusive federal jurisdiction. In Re Regulation and Control of Aeronautics in Canada, [1932] A.C. 54 (decided four months prior to the Radio Reference), the Privy Council held that a Parliamentary enactment implementing the provisions of an international convention on aeronautics was valid either by virtue of the treaty power in section 132 of the Constitution Act, 1867 or as a matter related to the peace, order and good government of Canada. Subsequently in Johannesson v. West St. Paul, [1952] 1 S.C.R. 292, the Supreme Court of Canada referred to 'peace, order and good government' as the sole basis for federal competence due to the characterization of air traffic as a subject which "goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole." (at 308) The federal interests in regulation of air traffic are both obvious and compelling: the need to rationalize airline routes and to license interprovincial and international carriers. However, cases subsequent to Johannesson expanded the subject matter of aeronautics to include a host of activities, normally within provincial jurisdiction, on the basis that such matters were necessarily incidental to the exercise of federal jurisdiction. While the inclusion within aeronautics of airport location, hangars and noise pollution is readily classified as integral to air traffic, at one point, judicial interpretation expanded the power to encompass all matters factually connected to aeronautics even if, on an objective basis, such phenomena exhibited only a tenuous connection with air traffic. The zenith of this approach may be detected in a trilogy of cases in which the labour relations of municipal employees working at a federal airport,Footnote 113 employees working for a company whose main business was the servicing and maintenance of aircraft Footnote 114 and employees of a company whose main business was the sale of aircraftsFootnote 115 were held to fall within exclusive federal jurisdiction.

However, the Supreme Court of Canada has recently drawn back from this position. In Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754, the court held that provincial minimum wage legislation applied to workers employed by a Quebec building contractor who, under contract with the federal Crown, was engaged in construction work on runways of an international airport. While in many earlier cases "even the slightest factual suggestion of an airplane, airport or something even remotely connected with aviation… triggered an automatic judicial reaction against the applicability of provincial legislation",Footnote 116 Beetz J., for the majority, was prepared to hold only that an otherwise valid provincial law would only be inapplicable to a federal undertaking "if it is demonstrated that federal authority over these matters is an integral element of such federal competence." The determination of which phenomena were to be classified as integral was articulated by Beetz, J.:

"The construction of an airport is not in every respect an integral part of aeronautics. Much depends on what is meant by the word 'construction'. To decide whether to build an airport and where to build it involves aspects of airport construction which undoubtedly constitute matters of federal concern… This is why decisions of this type are not subject to municipal regulation or permission… Similarly, the design of a future airport, its dimensions, the materials to be incorporated into the various buildings, runways and structures, and other similar specifications are, from a legislative point of view [are]… matters of exclusive federal concern. The reason is that decisions made on these subjects will be permanently reflected in the structure of the finished product and are such as to have a direct effect upon its operational qualities and, therefore, upon its suitability for the purposes of aeronautics. But the mode or manner of carrying out the same decisions in the act of constructing an airport stand on a different footing…" (at pp. 770-771)

In other words, the location and scope of federal jurisdiction turned upon an assessment of the relative weight of the competing federal and provincial interests.

The significance of the Montcalm decision consists first in the judicial repudiation of the notion that federal undertakings constitute 'enclaves' immune from the operation of provincial laws of general application. Just as courts have recognized that federal control over such matters as Indian reserves, harbours and railways does not shield these areas from provincial jurisdiction (see generally Hamilton Harbour Commissioners v. Corp. of City of Hamilton (1977), 1 M.P.L.R. 133) Montcalm raises the possibility of a similar subjection of air-traffic related activities to local regulation. Secondly, and even more critically, Montcalm institutes a more rigorous test for the determination of the scope of 'aeronautics'. In dispensing with factual connection as a sufficient condition of federal jurisdiction and concentrating instead upon considerations of interest, the decision represents a shift in judicial interpretation in favour of a more balanced view of federal/provincial relations.

Such a decision has critical implications for decentralized regulation of the physical facets of radiocommunication. To a large degree the capacity of a municipality or province to regulate such federal undertakings is contingent upon the meaning to be attributed to the term 'radiocommunication.' The broader and more numerous the parameters of this topic, the greater the likelihood that relevant provincial or municipal laws will be held inoperative (on the basis of the theory of interjurisdictional immunity) or be classified as ultra vires. Conversely, if federal jurisdiction is restricted to those properties of the physical apparatus which bear directly upon the communications function, a greater latitude may be permitted for the expression of legitimate local concerns.

While it is beyond the scope of this paper to identify with any degree of precision which attributes of the physical apparatus are essential to the communicative function and which are merely peripheral, some guidance may be derived from the Radio Reference itself and the quality of the federal interests identified therein. If, as suggested by the Privy Council, the primary rationale militating in favour of centralized authority and against shared jurisdiction was located in the need for a single body capable of implementing international obligations respecting frequency assignment, spectrum management and interference, then it is evident that by analogy to Montcalm, federal jurisdiction must be exclusive with respect to all matters directly implicated in the efficient and co-ordinated management of radio signals (in both programme and non-programme uses). This jurisdiction would therefore include the certification of operators, assignment of frequencies, antenna siting, regulation of radiation emissions and conformity with aviation standards.

Recognition of the exclusivity of federal jurisdiction in relation to these matters does not, however, completely exhaust the ambit of the technical aspects of radiocommunication. The limitation of Parliamentary jurisdiction in this area to those attributes of apparatus integrally related to the radiocommunication activity results in a relatively large area available for the exercise of municipal regulation. For example, the federal interest in aesthetic values would seem to be negligible inasmuch as the visual appearance of physical apparatus does not generally relate to communication capability. Antenna height may be anomalous in this respect since height does affect transmission capability. Subject to this exception it is arguable that municipal by-laws regarding the visual appearance of radio apparatus ought to be constitutionally valid. Analogously, municipalities have strong claims to enact certain safety-based regulations minimizing the hazards posed by radiocommunications structures. While such competence would not include structural considerations intrinsically connected to radiocommunications, it would arguably extend, for example, to such matters as set-back regulation and the imposition of the requirement of anti-climb devices where appropriate. Municipal and provincial jurisdiction over such species of structural considerations could be supported either as an incident of section 92(10)(a): "Local Works and Undertakings" or section 92(13) "Property and Civil Rights."

Between these two extremes of evident federal and equally evident local concerns there exists a region characterized by jurisdictional obscurity. It is simply impossible to predict the ultimate locus of constitutional authority in relation to matters such as electrical safety and structural standards, in respect of which federal and provincial interests are equivalent. It may well be that in such cases jurisdiction is concurrent.

Conclusion

The current system is unsatisfactory for a number of reasons. First, it is characterized by a high degree of confusion and uncertainty with respect to the limits of provincial control. In the absence of any authoritative judicial statement respecting local authority over aspects which are at best ancillary to the radiocommunication function (such as aesthetics and safety), difficult questions of regulatory competence remain unanswered. The possibility that jurisdiction in such areas may be concurrent does not wholly resolve the issue. While the recognition of concurrent control permits the expression of localized concerns, it increases "the interdependence of the two levels of government and therefore also increases the amount of co-operation and negotiation needed to make the system work. Jurisdictional confusion and confrontation might well be the result."Footnote 117

Secondly, and more significantly, since the current constitutional framework clearly denies the relevance of local interests relative to certification of operators, antenna location and frequency assignment, the claims of regional diversity and controlled land use continue unrecognized. Although the rationale supporting federal exclusivity in this field is unassailable, local concerns are of pragmatic if not legal significance. At present, the constitutional division of authority raises the clear possibility of incompatibility between the location of such federal undertakings and local land-use schemes.

To the degree that the present division of powers does not afford meaningful opportunity for the expression of local concerns, a political solution may be demanded. What might be the salient features of such a solution? In the first place, any political mechanism must comply with the necessity of accountability. The need to ensure accountability and avoid confusion argues in favour of a single-tier rather than two-tiered system of regulation. Secondly, the significance of radiocommunications to national development and the character of the technology suggests that the responsible body ought to continue to be an agency of the federal government.

However, in order to accommodate diverse localized concerns, the institution of formal consultative mechanisms appears desirable as a way of encouraging co-operation in those areas in which local interests are politically, if not constitutionally, significant - for example, structure location and physical characteristics. Such a solution would have clear advantages: it would permit retention of technical control by the central government, allowing for the co-ordinated development of communications systems. It would, however, ensure an avenue for the voicing of local interests, an opportunity currently not mandated by the constitution, and thus minimize the likelihood of conflict between the two levels of government.

While determination of the precise nature of local representation in antenna siting and structural decisions is beyond the scope of this paper, it is worth observing that a rudimentary consultative structure already exists in the area of airport location. Jurisdiction over airport location functionally parallels jurisdiction in relation to antenna siting. Not only is the source of federal power in relation to aeronautics and radiocommunications derived from 'peace, order and good government' (although with respect to radiocommunications, federal jurisdiction is additionally supportable under section 92(10)(a)), but judicial decisions concerning the legitimacy of provincial and municipal regulation of the physical facilities are identical in their denial of local competence.

In Johannesson v. West St. Paul, [1952] 1 S.C.R. 692, a municipal by-law expressly prohibiting the construction of airports within certain areas was invalidated as an unconstitutional encroachment upon the federal power in relation to aeronautics. The principle of federal exclusivity has, however, been extended beyond the relatively straightforward factual situation presented by Johannesson. In Re Orangeville Airport Ltd. and Caredon (1976), 11 O.R. (2d) 546 (Ont. C.A.), the Ontario Divisional Court was confronted with a challenge to a municipal by-law which, although not expressly addressed to airports, zoned the area in which an airport was located as 'agricultural'. Pursuant to this by-law, the municipality refused to issue a building permit to a private airport for the construction of five new hangars, which had been approved by the federal Ministry of Transport. The by-law was not declared ultra vires but inapplicable:

"This is a case where the municipality, a creature of the province, has enacted a by-law which, though of general application, would with respect to buildings at an airport approved by the federal authority prohibit their erection. In my opinion, the by-law, though not ultra vires per se, is ineffective in this respect, and does not apply to the situation for which the building permits are required." (Divisional Court judgement is unreported)

The proposition that Parliament enjoys exclusive legislative power in relation to aeronautics and that, consequently, municipal zoning by-laws affecting the use of land for aviation purposes are either ultra vires or inoperative was recently endorsed in Re Walker et al. and Ministry of Housing for Ontario (1983), 41 O.R. (2d) 9 in which the Ontario Court of Appeal invalidated a municipal by-law which, rather than burdening, facilitated the use of airports. The comparison with antenna location-related issues is strengthened due to the similarity of the local interests implicated.

As a corrective to the constitutional preclusion of local concerns related to airport location and structures, formal and informal consultative models have been implemented. With respect to aerodrome sites belonging to or leased to the Queen in Right of Canada and airports, section 4.4(3) of the Aeronautics Act requires that the Governor in Council, prior to imposing zoning regulations, must first attempt to reach an agreement with the relevant provincial government to provide for the use or development of the land. An informal consultative procedure is applied to zoning for land use for airport development of locations not owned or operated by Transport Canada, according to which:

  1. The applicant is required to notify the land use/land planning authorities of a proposal to establish a certified aerodrome and to inform Transport Canada's Regional Office of the results.
  2. When notice to the land use authority has not occurred or the applicant has not provided results of the notification, the Regional Office will advise the concerned local authorities. The applicant will be advised of the intent to discuss the development with local authorities and will be invited to participate.
  3. If the land use authorities are opposed to the establishment of a certified aerodrome the aerodrome, certificate will not be issued by the Regional Office and the matter will be referred to Transport Headquarters for resolution.

Such procedures, while ensuring retention of ultimate zoning authority in federal hands permits de facto intervention by local bodies and in this way achieves a partial accommodation of federal desires to rationalize air routes and ensure operational safety and local wishes to implement coherent land use development.

This precedent may serve as a valuable model for reconciliation of federal and municipal concerns in the area of radiocommunication. Although other, more formal, techniques might be considered -such as delegation, federal/provincial accords - the institution of a consultative process, administered by federal authorities but allowing for the representation of local interests, may provide a rational alternative to the situation produced by the present constitutional structure.