The Use of the Peace, Order and Good Government Clause in Canada's Constitution.

AuthorMcKay-Panos, Linda

Recent events in Canada have caused a resurgence of reliance on the Peace, Order and Good Government (POGG) clause in section 91 of The Constitution Act, 1867. When federal and provincial governments seek to pass legislation, they must have authority under section 91 (federal government) or 92 (provincial governments). These sections list subject matters that each government has authority over. Section 91 provides:

" 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make 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; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, ... [this is followed by a list of subject matters; underline added] " There are different theories as to the purpose of the POGG clause. It is often described as a residuary clause. This means it covers subject matters that have developed since Confederation in 1867 (such as pollution, climate change and inflation) or those matters that are distinct from the list that follows the opening clause.

The courts have recognized two main branches to the POGG power:

  1. The Emergency Branch

  2. The National Concern Branch

    Emergency Branch

    The Emergency Branch of POGG was recognized in 1923 by the Privy Council in Fort Francis Pulp & Power Co v Manitoba Free Press Co., [1923] AC 965. This power contemplates "highly exceptional" or "abnormal" circumstances that require the federal government to assert jurisdiction as needed to address an emergency. The important criteria that the federal government needs to prove in order to rely on the Emergency Branch to pass legislation were set out in the Reference re Anti Inflation Act, [1976] 2 SCR 373:

  3. Legislation must be of a temporary nature (p 427).

  4. There must be evidence that it was rational to conclude there was a crisis (p 423).

  5. There must be an emergency (p 415).

    The federal government can use the emergency power to address matters that are usually under provincial jurisdiction. The above three key requirements must still be met.

    The recent...

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