Peace, Order, and Good Government

• Author: Patrick J. Monahan, Byron Shaw
• Pages: 262-285

262

CHA PTER 8

PEACE, ORDER, AND

GOOD GOVERNMENT

A. SCOPE OF THE PEACE, ORDER, AND GOOD

GOVERNMENT (POGG) POWER

The opening words of section 91 of the Constitution Act, 1867, 1 taken

literally, appear to represent a very broad grant of legisl ative authority

to the Parliament of Canada. Parli ament is authorized to enact laws “for

the Peace, Order, and Good Government of Canada, in relation to all

Matters not coming within t he Classes of Subjects by thi s Act assigned

exclusively to the Legislature s of the Provinces.” Similar language had

been employed in earlier British statutes establishing colonial govern-

ments in British North A merica to signify a general grant of law-mak ing

authority on any matter of public importance.2 Furt hermore, section

91 goes on to provide that the enumerated subjects in section 91 are

merely illustrative of the

POGG

power and should not “restrict the Gen-

erality of Peace, Order, and Good Government.” However, as noted in

Chapter 7, the Judicial Committee of the Privy Council (

JCPC

) adopted

a narrow interpretat ion of the scope of the

POGG

power, construing it as

strictly a residual power that came into operation only with respect to

1 The Constitution Act, 1867 (formerly, the British North Amer ica Act, 1867) (U.K.),

30 & 31 Vict., c. 3.

2 See, for example, the l anguage employed in the Constitutional Act, 1791 (U.K .),

31 Geo. III, c. 31, and the Union Act, 1840 (U.K.), 3 & 4 Vict., c. 35, discussed in

Chapter 2.

Peace, Order, and Good Gover nment 263

matters not falling within the enumerated subjects in sections 91 or 92.

Furthermore, the

JCPC

interpreted t he provincia l power over property

and civil rights in section 92(13) as all-encompassing. Since matters in-

cluded within section 92 were automatically subtracte d from the purely

residual

POGG

pow er,

POGG

was rarely invoked as a basis for upholding

federal laws by the

JCPC

. By the 1920s,

POGG

had been reduced to es-

sentially an emergency power, available only in cases of war or other

similar national crises.

The Supreme Court of Canada has broadened the scope of the

POGG

power somewhat. It is now recognized that t here are at least three dis-

tinct branches of the

POGG

power, which can be relied on to support

federal legislation. The f‌irst is the emergency power — the c ategory

that had been est ablished by the

JCPC

. The second is the gap or residual

branch of

POGG

— the power to legislate in relation to matters not in-

cluded within any of the enumerated cla sses of subjects in sections 91

or 92. The third is the national concern bra nch — the power to legis-

late in relation to distinct m atters of inherent national concern.

In addition, it is arguable that there i s a fourth branch of

POGG

,

which permits Parliament to legislate in relation to matters of inter-

provincial concern or signif‌icance. This branch, although not yet iden-

tif‌ied as a separate source of authority under

POGG

, is arguably implicit

in decisions of the Supreme Court. As we argue below, the power of

Parliament to deal with m atters of interprovincial concern or sign if‌i-

cance under

POGG

is suff‌iciently distinct from the f‌irst three branches

so as to merit recognition as a sepa rate and independent source of fed-

eral authority.

B. THE EMERGENCy BR ANCH

The leading case on the scope of the emergency branch of

POGG

is Ref-

erence Re Anti-Inf‌lation Act, 1975 (Canada).3 The Anti-Inf‌lation Reference

arose out of the decision by the federal government in the fal l of 1975

to impose a comprehensive program of controls on wages, prices, and

prof‌its. The program applied to the federal public sector, to provincial

government employee s where the province had opted in to the scheme,

and to large private-sector f‌irms.4 If f‌irms or employees fell within the

3 [1976] 2 S.C.R. 373 [Anti-Inf‌lation Reference].

4 The Anti-Inf‌lation Act, S.C. 1974–75–76, c. 75, applied to f‌irm s with more than

f‌ive hundred employees, c onstruction f‌irms w ith more than twenty employee s,

and professiona ls.