Distribution of Powers

Historical Background

Canada’s Fathers of Confederation first divided up the legislative powers of the federal and provincial governments during their discussions at the Quebec Conference in 1864. (See Quebec Resolutions.) These were then refined and formally spelled out in the Constitution Act, 1867 (formerly called the British North America Act) at the start of Confederation. They were interpreted, or judged, by the Judicial Committee of the Privy Council until 1949. From then on, they were interpreted by the  Supreme Court of Canada.

The distribution of executive power (the prime minister, premiers and their  Cabinets) is theoretically similar to the distribution of legislative power. The distribution of powers among Canadian courts is also divided to some extent; most of it falls under the scope of the federal government.

How Power is Divided

Section 91 of the Constitution Act, 1867 grants broad powers to the federal government to legislate 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.” A guiding principle of the Fathers of Confederation was that jurisdiction over matters of national interest would be given to Parliament. Those of regional interest would be given to the provinces.

Because Quebec was governed by a Civil Code, the provinces were granted jurisdiction over property and civil rights. Quebec was excluded from section 94; it allowed for the possible standardization of private law for the rest of the provinces.

Federal Powers

Parliament was also given greater residuary jurisdiction than the provincial legislatures. This means that all powers (and new powers arising in the future) not specifically given to the provinces would go to the federal government, so long as they are of a general, and not local, nature. Over time, the courts have interpreted federal residuary power to include: the incorporation of businesses with federal objectives; aeronautics; radio; television; nuclear energy; responsibility for the national capital; offshore mineral rights; official languages within the federal sphere; citizenship; foreign affairs; the control of drugs; and emergency powers in peace and war. (See also: War Measures Act; Emergencies Act.)

Other areas of federal jurisdiction include: trade and commerce; direct and indirect taxation; currency; the postal service; census taking and statistics; national defence; the federal civil service; navigation; fisheries; banking; copyright; Indigenous peoples and reserves; citizenship; marriage and divorce; criminal law; prisons; and interprovincial works and undertakings.

Amending Powers

The division of powers can be changed. For example, Parliament gained exclusive jurisdiction over employment insurance through a constitutional amendment in 1940. In 1949, also by constitutional amendment (section 91.1 of the Constitution Act, 1867), Parliament was granted the power to amend the Constitution of Canada — except in matters affecting provincial jurisdictions and privileges. However, in a 1949 decision on the Senate, the Supreme Court of Canada restricted the interpretation of the phrase “Constitution of Canada.” It stated that this phrase in section 91.1 referred to the internal federal Constitution and not to the Constitution of all Canada. For example, Parliament could not abolish the Senate, because it represents the provinces and is not exclusively a federal concern.

The Constitution Act, 1982 repealed section 91.1. As a result, section 44 of the Act states that, subject to provincial approval in certain cases, “Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” In 2014, the Supreme Court clarified the issue. It ruled that changes to the make-up of the Senate and the appointment of senators must adhere to the 7/50 rule; the consent of the federal government and seven provinces representing at least 50 per cent Canada’s population would be required. The court also ruled that abolishing the Senate would need the consent of the federal government and all 10 provinces.

The provinces have had the right to amend their internal constitutions (except in relation to the office of the lieutenant-governor) since 1867.

Provincial Powers

Among other things, provincial governments have jurisdiction over: their internal constitutions; direct taxation for provincial purposes; municipalities; school boards; hospitals; property and civil rights (their largest area of responsibility); administration of civil and criminal justice; penalties for breaking provincial statutes; prisons; celebration of marriage; provincial civil service; local works; and corporations with provincial objectives.

The courts’ interpretations of federal power over commerce have tended to be restrictive; their interpretations of provincial power over property and civil rights have tended to be more liberal.

Crossover Powers

There are four areas of power shared by the provinces and the federal government: agriculture, immigration, old-age pensions and supplementary benefits. In the case of dispute, federal legislation prevails for areas under section 95 (agriculture and immigration); provincial legislation prevails for those under section 94A (old age pensions). Education is allocated to the provinces but is subject to certain religious guarantees.

Each level of government is restricted to its own legislative sphere. However, there have been many times where one has assumed responsibilities that did not clearly belong to it. For example, the provinces have converted some originally indirect taxes, such as sales and purchase taxes, into direct ones.

The power to spend money remains a vague and contentious area. Parliament assumes that it may spend where it does not necessarily have the power to pass legislation. Such spending is usually well received by the provinces when it applies to equalization payments, but less so when it infringes on provincial fields such as health, social security and education.

Equalization and Natural Resources

Under the Constitution Act, 1982, the principle of equalization (ensuring that all Canadians have access to comparable public services at comparable levels of taxation) is enshrined in section 36. However, its implementation is unclear.

In 1982, provincial jurisdiction over natural resources was enlarged to include shared power in inter-provincial commerce and extra-territorial marketing (though with federal paramountcy). The provinces have also been granted the power of indirect taxation of their natural resources. (See Intergovernmental Finance).

Federal-Provincial Tension

The history of Canadian federalism is basically an account of disputes over the distribution of powers. From the 1880s until the 1930s, federal powers were reduced. This was largely because the Judicial Committee of the Privy Council ignored the centralist intentions of many (but not all) of the Constitution’s creators. Instead, it favoured provincial autonomy in its interpretation of the Constitution Act, 1867. The Supreme Court of Canada, on the other hand, has generally tended to strengthen the legislative powers of the federal government.

Despite several constitutional conferences between the provinces and the federal government, there have been few amendments to the division of powers. The Meech Lake Accord — negotiated in 1987 but never implemented — would have expanded provincial power in appointments to the Supreme Court and the Senate. It also would have slightly enhanced provincial power in the shared jurisdiction of immigration. Overall, however, it would have produced no significant changes to the distribution of powers set out in the Constitution.

See also: Editorial: The Death of the Meech Lake Accord; Constitution of Canada; Constitutional History; Constitutional Law; Constitutional Monarchy; Constitution Act, 1867 Document; Statute of Westminster; Patriation Reference; Patriation of the Constitution; Constitution Act, 1982 Document.