Peace, Order, and Good Government

AuthorPatrick J. Monahan/Byron Shaw/Padraic Ryan
The opening words of section 91 of the Constitution Act, 1867, 1 taken
literally, appear to represent a very broad grant of legislative 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 the Classes of Subjects by this Act assigned
exclusively to the Legislatures 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 Furthermore, section 91
goes on to provide that the enumerated subjects in sect ion 91 are merely
illustrative of the POGG power and should not “restrict the Generality of
Peace, Order, and Good Government.” However, as noted in Chapter 7,
the Judicial Committee of the Privy Council (JCPC) adopted a narrow in-
terpretation of the POGG power, construing it strictly as a residual power
that came into operation only with respect to matters not falling w ith-
in the enumerated subjects in sections 91 or 92. Furthermore, the JCPC
1 The Constitution Act, 1867 (formerly, the British North Ameri ca 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.
interpreted the provincial power over property and civil rights in sec-
tion 92(13) as all-encompassing. Since matters included within section
92 were automatically subtracted from the purely residual POGG p ower,
POGG was rarely invoked as a basis for upholding federal laws by the JCPC.
By the 1920s, POGG had been reduced to essentially a n 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 there are three distinct
branches of the POGG power, which can be relied on to support federal
legislation. The f‌irst is the emergency power the category that had
been established by the JCPC. The second is the gap or residual bra nch of
POGGthe power to legisl ate in relation to matters not included with in
any of the enumerated classe s of subjects in sections 91 or 92. The third
is the national concern branch the power to legislate in relation to
distinct matters of inherent national concern.
In addition, it is arguable that there is 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 matters of interprovincial concern or signif‌i-
cance under POGG is suff‌iciently di stinct from the f‌irst three branches so
as to merit recognition as a separate and independent source of federal
The leading case on the scope of the emergency branch of POGG is Ref-
erence Re Anti-Inf‌lation Act, 1975 (Cana da).3 The Anti-Inf‌lation Reference
arose out of the decision by the federal government in the fall 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 employees where the province had opted in to the scheme,
and to large private-sector f‌irms.4 If f‌irms or employees fell within
the Anti-Inf‌lation Act, all of their activities including transactions
or activities occurr ing entirely within a single province were sub-
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, con struction f‌irms w ith more than twenty employee s,
and professionals.

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