The constitutional distribution of legislative powers

One of the main characteristics of Federal States is the distribution of legislative powers between two or more orders of government. In Canada, there are two orders of government: the federal government and provincial governments¹.

1. Powers of the Parliament of Canada

The powers of Parliament, enumerated in ss. 91 and 92 (10) of the Constitution Acts, 1867 to 1982, concern matters of national interest (see also notes). They include the following:

• Public Debt and Property
• Regulation of Trade/Commerce
• Unemployment insurance (note 46)
• Direct/Indirect Taxation
• Postal Service
• Census/Statistics
• Defence
• Navigation/Shipping
• Quarantine
• Sea Coast and Inland Fisheries
• Ferries (interprovincial/  international)
• Currency/Coinage
• Banking /Incorporation of Banks/Paper Money
• Weights and Measures
• Bankruptcy
• Patents
• Copyrights
• Indians/Indian reserves
• Citizenship
• Marriage/Divorce
• Criminal law, including Criminal Procedure
• Penitentiaries²
• Works connecting provinces; beyond boundaries of one province; within a province but to the advantage of Canada/or more than one province

2. Exclusive Powers of Provincial Legislatures

The exclusive powers of Provincial legislatures, enumerated in ss. 92, 92(A) and 93 of the Constitution Acts, 1867 to 1982, concern matters of a local nature (also see notes). They include the following:

• Direct Taxation within Province
• Management/Sale of Public Lands belonging to Province
• Prisons
• Hospitals
• Municipalities
• Formalization of Marriage
• Property and Civil Rights
• Administration of Civil/Criminal Justice
• Education 
• Incorporation of Companies
• Natural Resources
• Matters of a merely local or private nature

3. Concurrent/Shared Powers

Concurrent powers are specified in ss. 94A and s. 95 of the Constitution Acts, 1867 to 1982 (also see notes):

• Old age pensions (see note 51)
• Immigration
• Agriculture

Certain areas of government action - some of which have become priorities over the years - are not specifically identified and assigned to one or both orders of governments in the Constitution Act, 1867.  The courts have found that these areas come under various legislative powers, some federal, others provincial. Two such areas are the environment and health.

4. Residuary Power

The Constitution Acts, 1867 to 1982, s. 91, confer on the Federal Parliament the power " 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". This power is "residuary" in the sense that any matter that does not come within the power of provincial legislatures comes within the power of the federal Parliament. This residuary power ensures that every area of legislation comes under one or both of Canada's two orders of government. 

5. Court Interpretation of the Distribution of Legislative Powers

When a question arises as to whether a law enacted by Parliament or a provincial legislature comes within their respective constitutional powers, an authoritative answer can come only from the courts. Thus over the years, through the process of judicial review, the content and scope of the federal and provincial legislative powers have been clarified, defined, limited or expanded.

• For example, the federal Trade and Commerce power (s. 91(2)) has been interpreted to mean that Parliament can regulate trade generally in Canada, as well as the flow of trade across provincial or international borders, but cannot regulate the operation of particular industries, businesses or professions within provinces. The provincial power over Property and civil rights (s. 92(13)) gives provinces the authority to regulate trade and commerce within their respective territory.

6. Amendments to the Constitutional Distribution of Legislative Powers

The distribution of legislative powers has been modified on a few occasions, notably :

• Constitution Act, 1930. This amendment concerns the provinces of Manitoba, British Columbia, Alberta and Saskatchewan. According to the Memorandum of Agreement for each of these provinces contained in the Schedule to this Act, these provinces were given jurisdiction notably over crown lands, or/and other public lands, or/and natural resources, thus giving them the same powers in these areas as the other provinces already had.³
• Constitution Act, 1940. The provinces yielded to the Federal Parliament some of their power over social policy allowing the establishment of the national program of employment insurance.
• Constitution Act 1951 and 1964.  The provinces yielded to the Federal Parliament some of their power over social policy allowing for the establishment of the national programs of old age pensions (1951) and supplementary benefits (1964).