Property and Civil Rights in the Province

• Author: Patrick J. Monahan/Byron Shaw/Padraic Ryan
• Pages: 324-347

324

CHAPTER 10

PROPERTY AND

CIVIL RIGHTS IN

THEPROVINCE

A. DEFINING PROPERTY AND CIVIL RIGHTS

The most important power assigned to the exclusive jurisdiction of

the provincial legislatures in section 92 of the Constitution Act, 18671

is “property and civil rights in the province.” Virtually all legislation

affects civil rights in one manner or another. In a purely grammatical

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

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

In fact, this was generally the manner in which the Privy Council

interpreted the property and civil 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 section 94 of the Constitution Act, 1867 provided that Par-

liament could enact uniform laws relating to property and civil rights

1 The Constitution Act, 1867 (formerly the British Nort h 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 Commerc e.”

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 aut hority over “property and civ il rights in the provi nce” in an

extremely broad manner.

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

Property a nd Civil Rights in the Pr ovince325

in the provinces of Ontario, 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 that 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 that 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 that the terms

“property and civil rights” 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 drafters of the Constitution Act,

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

expansive manner.

In effect, the provincial authority over property and civil rights

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

Privy Council held t hat any laws regulating or dealing with lega l rights

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

of laws apart from the criminal law — fell within the subject property

and civil rights.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 legislation in rela-

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

promissory notes (section 91(18)), interest (section 91(19)), bankr uptcy

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

(section 91(23)) were upheld despite their incidental impact 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 section 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.

Fields as the regulation of contractual rights,5 labour relations,6 busi-

4 It should also be noted th at provincial laws th at in pith and substance relate t o

“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 provinci al law

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

certain Crimin al Code offences had been committe d) 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 Parsons, above note 3.

6 Toronto Electric Commissi oners v. Snider, [1925] A.C. 396.