C. Federal Distribution of Legislative Powers

Author:Patrick J. Monahan - Byron Shaw

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1) Division of Powers in Sections 91-93

Part VI of the Constitution Act, 1867, made up of sections 91 to 95, distributes legislative powers between the Parliament of Canada and the legislatures of the provinces. Sections 91 to 93 confer what are described in the Act as "exclusive" powers on Parliament and the provincial legislatures.

Section 91, under the heading "Powers of Parliament," defines the legislative powers of the Parliament of Canada. There are two distinct parts to section 91. The first part - sometimes called the "opening words" or the "peace, order and good government" (pogg) clause - states that Parliament may 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." The phrase "peace, order, and good government" is similar to terminology that had been used in the Union Act, 1840 and the Constitutional Act, 1791 and was intended to signify a general grant

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of law-making power.21However, describing this clause as a "peace, order and good government" clause is somewhat misleading. In fact, the keywords in the clause are those that follow it: the authority of Parliament is limited to the enactment of laws in relation to matters not coming within the provincial classes of subjects set out in section 92. In this sense, the clause might more accurately be described as a "not coming within" clause.22It confers a residual power on Parliament, consisting of the residue of legislative power that is left over after taking into account the classes of subjects over which "exclusive jurisdiction" has been allocated to the provinces. The drafters of the Constitution Act, 1867 believed that conferring this residual power on the federal Parliament would lead to a strong national government and would avoid the mistake that had been made in the United States, where residual power was conferred on the states. In fact, during the confederation debates, John A. Macdonald boasted that the general government would be the dominant government because "we have expressly declared that all subjects of general interest not distinctly conferred upon the local governments and local legislatures shall be conferred upon the General Government and Legislature - We have thus avoided that great source of weakness which has been the source of the disruption of the United States."23The second part of section 91 consists of thirty specific classes of subjects over which "exclusive Legislative Authority" is assigned to the Parliament of Canada.24Section 91 states that the list of Parliament’s exclusive powers is included "for greater Certainty, but not so as to

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restrict the Generality of the foregoing Terms of this Section." Following the enumeration of these thirty classes of subjects, section 91 states that matters coming within any of these classes "shall be deemed not to come within" the class of matters of a local or private nature assigned to the provinces.

Section 92, under the heading "Exclusive Powers of the Provincial Legislatures," provides that the provincial legislatures may "exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated." A list of sixteen classes of subjects is set out. Many of the enumerated classes in section 92 are framed in very narrow and specific terms and have proven to be of limited significance in terms of the development of provincial jurisdiction. However, one of the classes in section 92, "Property and Civil Rights in the Province," has been particularly significant. Since virtually all provincial laws regulate "rights" in some way, almost all provincial laws could be said to be within the scope of section 92(13). The courts have interpreted section 92(13) extremely broadly. In fact, section 92(13), as interpreted by the courts, is so sweeping that there are usually only two ways in which a provincial law regulating rights can be found to be unconstitutional. The first possibility is if the provincial legislation deals directly with a particular matter that falls squarely within one of the classes of subject enumerated in section 91. The second possibility is that the provincial law deals directly with rights of individuals or entities outside the province such that the provincial law is not restricted to matters "within the province."25Section 92A, which was added in 1982, confers exclusive legislative authority on the provinces to enact certain laws dealing with non-renewable natural resources, forestry resources, and electrical energy within a province. The provinces are also granted non-exclusive or concurrent power to enact laws dealing with the export from a province to another part of Canada of these resources, and to impose indirect taxes on such resources.26Section 93 grants the provinces exclusive power to enact laws in relation to education, subject to the condition that these laws cannot prejudicially affect any rights or privileges enjoyed by

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religious minorities in respect of denominational schools at the time of Confederation.27There was also a right to appeal to the federal Cabinet from any provincial law or decision affecting the rights or privileges of a denominational minority and, in such cases, the federal Parliament could enact a remedial law implementing or giving effect to the federal Cabinet’s decision.28

2) Overlap of Federal and Provincial Powers

The lists of powers enumerated in sections 91 and 92 are each described as "exclusive." The difficulty with this description is that the powers of the federal Parliament overlap with those of the provinces. For example, the "Regulation of Trade and Commerce," which is an enumerated federal power, will inevitably involve the regulation of rights - particularly rights of contract or property - and, in this sense, appears to overlap with "Property and Civil Rights." How, then, can each of these powers be exclusive29The courts have struggled to give effect to the use of the term "exclusive" in sections 91 and 92 by interpreting the federal heads of power so as to exclude the provincial heads of power, and vice versa. This process of "mutual modification" proceeds by "cutting out of whatever may be the larger, the more general, the wider, the vaguer enumeration of one section, so much as is comprised in some narrower, more definite, more precise enumeration in the other section."30For example, the federal power over "Bills of Exchange and Promissory Notes," which is precise and narrow, has been excised from the more general provincial power over property and civil rights. Certain cases have even gone so far as to describe the federal and provincial classes of subjects as consti-

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tuting "watertight compartments" that do not in any way overlap with one another.31However, as discussed below and in more detail in Chapter 7, the courts have also developed a number of doctrines that permit considerable overlap between federal and provincial laws.32Today, in most areas of legislative policy, there is a significant regulatory presence of both the federal and the provincial levels of government. In fact, one survey of federal and provincial legislation and regulation found that the only exclusive federal areas33were military defence, veterans’ affairs, the postal service, and monetary policy; in all other areas of federal law and regulation, the provinces had enacted laws or regulations dealing with the same subjects or issues. Conversely, the only exclusive provincial areas were municipal institutions, elementary and secondary education, and some areas of law related to property and other non-criminal matters.34In this sense, it is misleading to conceive of the federal and provincial classes of subjects as being mutually exclusive watertight compartments.

3) General Federal Legislative Power: pogg

As noted, the pogg power is residual or secondary to the provincial list of powers. That is, pogg grants the federal Parliament power to enact laws only in relation to matters that have not been assigned to the provinces. What about the relationship between pogg and the enumerated classes of subjects in section 91 over which Parliament is granted exclusive authority? The text of section 91 states that the enumerated classes of subjects are included merely "for greater Certainty, but not so as to restrict the Generality" of the pogg power. This terminology has led some constitutional commentators to argue that the pogg clause represents the true grant of federal power, and that the enumerated classes of subjects are merely instances of the more general power of Parliament to legislate in relation to the peace, order and good gov-

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ernment of Canada.35However, as discussed in Chapters 7 and 8, the courts have taken precisely the opposite view. Section 91 has been interpreted as having two distinct components: the enumerated classes of subjects and the pogg power. Furthermore, as discussed above, pogg is a "residual" power and its application has been limited to situations in which a matter does not fall within any of the enumerated federal powers in section 91 or the enumerated provincial powers in section 92.

Some critics believe that this "two compartment" view of section 91 has stripped the opening words (or pogg clause) of its true meaning and...

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