C. pogg as a Purely Residual Power

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 268-269

Page 268

The residual branch of pogg comes into play in relation to matters that fall outside the enumerated classes in section 92 and yet cannot be characterized as falling within any of the enumerated subjects in section 91. Since the distribution of legislative powers between Parliament and the provincial legislatures is exhaustive, matters that do not come within any of the enumerated classes of subjects in sections 91 or 92 must, by definition, fall within the opening words of section 91. For example, all of the legislative powers in section 92 are limited to matters "within the province." This means that provinces do not have any authority to directly regulate matters on lands or waters that fall within Canadian territory and yet are not within the boundaries of a particular province. Therefore, legislation regulating matters within such Canadian territory would necessarily have to be within Parliament’s jurisdiction. At the same time, there may not be any provision of the constitution explicitly conferring authority on Parliament to legislate in relation to certain Canadian lands or waters. If this is correct, then according to the residuary theory, legislation dealing with these matters must be within Parliament’s competence on the basis of pogg. This was precisely the analysis applied by the Supreme Court of Canada in Reference Re Seabed and Subsoil of Continental Shelf Offshore Newfoundland,¹³a case concerning whether the seabed off the coast of Newfoundland fell within the province of Newfoundland. Having determined that the seabed was outside the province, the Court disposed of the remaining issues in the case in a single paragraph, noting that legislative jurisdiction over the seabed fell with the Parliament’s pogg power "in its residual capacity."

A similar analysis was employed by the Supreme Court in Jones v. New Brunswick (A.G.).¹⁴The Court upheld the federal Official Languages Act, which dealt with the status of the English and the French languages in Parliament and in executive institutions. The regulation of the use and status of the English and the French languages within federal institutions could not fall within provincial jurisdiction, since the provinces cannot regulate the manner in which Parliament or the federal executive conducts its affairs. However, there was nothing in the enumerated subjects in section 91 that expressly conferred such legislative authority on Parliament. Therefore, the Court concluded that...