B. Identifying the Relevant Jurisdiction (Step 1)

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 68-70

Page 68

Step 1 in the legislative research checklist is to identify the level of government that has jurisdiction to legislate on the topic being researched. In Canada, there is a division of power between the federal and provincial governments. Another level of government and legislation in the form of bylaws exist at the municipal level. When researching a particular topic, it is important to know which level of government has the power to enact laws for that subject or whether power to legislate may be shared by more than one level of government.

For example, under section 91 of the Constitution Act, 1867,⁴the federal government of Canada is given exclusive power to "make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces." Some of these federal powers to legislate include such topics as the regulation of trade and commerce, unemployment insurance, the postal service, militia, military and naval service, defence, banking, and patents and copyright. Federal statutes were last published as an up-to-date consolidated set in the mid 1980s as the Revised Statutes of Canada (1985), a multi-volume bilingual set that was published over approximately four years that includes a number of supplemental volumes and an index.⁵

Page 69

Under section 92 of the Constitution Act, 1867, the provincial governments have exclusive power over such areas as direct taxation within the province to raise revenue for provincial purposes, prisons (but not penitentiaries), the incorporation of companies with provincial objects, the solemnization of marriage in the province, property and civil rights in the province, and generally all matters of a merely local or private nature in the province. Ontario, for example, has recently published its statutes as up-to-date consolidated bilingual sets every decade, with the most recent set being the Revised Statutes of Ontario (1990).⁶Power is shared between the federal Parliament and the provincial legislatures over agriculture, immigration, and over certain aspects of natural resources; but federal laws would prevail in the event of any conflict between federal and provincial laws over these subject areas.⁷

Parliament and the provincial legislatures also have power over old age, disability, and survivors’ pensions; but provincial laws would prevail if there were conflicts...