Property and Civil Rights in the Province

• Author: Patrick J. Monahan, Byron Shaw
• Pages: 324-348

324

CH AP TER 10

PROPERT Y A ND

CIVIL RIGHTS IN THE

PROVINCE

A. DEFINING PROPERTY A ND CIVIL RIGHTS

The most important power assigned to the exclusive jurisdiction of the

provincial legislatures in section 92 of the Constitution Act, 1867,1 is

“property and civil r ights in the province.” Virtually all leg islation af-

fects civil right s in one manner or another. In a purely grammatical

sense, the subject “property and civ il rights” could be thought to en-

compass the entire f‌ield of law-making apart from crimin al law.2

In fact, this was generally the manner in which the Pr ivy Council

interpreted the property and civ il rights power. In the 1881 judgment

in Citizens’ Insurance Company v. Parsons,3 the Board upheld an Ontario

statute regulating the terms of insurance policies. Sir Montague Smith

observed that sect ion 94 of the Constitution Act, 1867 provided that Par-

liament could enact uniform laws rel ating to property and civil rights

1 The Constitution Act, 1867 (formerly the British Nor th America Act, 1867) (U.K.),

30 & 31 Vict., c. 3.

2 Of course, the sa me could be said of certain cl asses of subjects ass igned to the

exclusive juri sdiction of Parliament under s. 91 of the Constitution Act, 1867,

particul arly “Peace, Order and good Governme nt” and “Trade and Commer ce.”

However, as discus sed in Chapters 8 and 9, the Priv y Council narrowed the se

federal clas ses of subjects in s. 91 and simultane ously interpreted the scope of

provincial a uthority over “property and civ il rights in the prov ince” in an ex-

tremely broad manner.

3 (1881), 7 App. Cas. 96 [Parson s].

Property a nd Civil Rights in the Pr ovince 325

in the provinces of Ontar io, New Brunswick, and Nova Scotia, but not

in Quebec. In his view, the obvious intention underlying the exclusion

of Quebec from section 94 was to ensure t hat matters regulated by the

Quebec Civil Code would not be subject to uniform legislation enacted

by the federal Parliament. Accordingly, it followed that the term “civil

rights” in the Constitution Act, 1867 (including section 92(13)) must be

interpreted broadly in order to ensure th at the wide range of matters

dealt with by Quebec’s Civil Code would be excluded from the oper-

ation of section 94. Sir Montague Smith also observed t hat the terms

“property and civil r ights” had been used in their “largest sense” in the

Quebec Act, 1774 to encompass all matters apart from the criminal law.

This reinforced his conclusion that the dr afters of the Constitution Act,

1867 had intended that section 92(13) be interpreted in a broad and

expansive manner.

In effect, the provincial authorit y over property and civil right s

became a de facto residuar y clause during the Privy Council era. The

Privy Council held th at any laws regulating or dealing with legal r ights

in a province — which, as a practical matter, encompassed all manner

of laws apart from the cri minal law — fell within the subject property

and civil r ights.4 The specif‌ic enumerated categories in section 91 were

treated as exceptions to the power of the prov inces under section 92(13)

to enact legislation dealing with legal rights. Federal legi slation in rela-

tion to matters such as bank ing (section 91(15)), bills of exchange and

promissory notes (section 91(18)), interest (section 91(19)), bankruptcy

and insolvency (section 91(21)), patents (section 91(22)), and copyright

(section 91(23)) were upheld despite their incidental i mpact on prop-

erty or civil rights, since such matters were specif‌ically assigned to the

exclusive authority of Parliament. However, non-criminal enactments

that fell outside of the specif‌ic enumerations in s ection 91 were gener-

ally regarded by the Priv y Council as falling within provincial jurisdic-

tion under section 92(13), rather than within Parliament’s authority to

enact laws for the peace, order and good government (

POGG

) of Canada.

Diverse f‌ields as the regul ation of contractual rights,5 labour relations,6

4 It should also be noted t hat provincial laws th at in pith and substance relat e to

“property and c ivil rights” may incident ally affect the federal powe r over crim-

inal law. For example, in Be dard v. Dawson, [1923] S.C.R. 681, a provincial law

which authoriz ed the closing of “disorderly house s” (def‌ined as house s where

certain Crimin al Code offences had been committ ed) was upheld as valid. For

a discus sion of the provincial authorit y to enact penal legislat ion dealing with

matters of moral ity, see Chapter 11, Section C .

5 Parson s, above note 3.

6 Toronto Electric Commiss ioners v. Snider, [1925] A.C. 396.