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How Canadians Govern Themselves

by Eugene A. Forsey
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Powers of the National and Provincial Governments

Go to the Touchpoints Game
The national Parliament has power “to make laws for the peace, order and good government of Canada,” except for “subjects assigned exclusively to the legislatures of the provinces.” The provincial legislatures have power over direct taxation in the province for provincial purposes, natural resources, prisons (except penitentiaries), charitable institutions, hospitals (except marine hospitals), municipal institutions, licences for provincial and municipal revenue purposes, local works and undertakings (with certain exceptions), incorporation of provincial companies, solemnization of marriage, property and civil rights in the province, the creation of courts and the administration of justice, fines and penalties for breaking provincial laws, matters of a merely local or private nature in the province, and education (subject to certain rights of the Protestant and Roman Catholic minorities in some provinces).

The provincial legislatures have the constitutional right of direct taxation for areas under provincial jurisdiction, such as education.
Subject to the limitations imposed by the Constitution Act, 1982, the provinces can amend their own constitutions by an ordinary Act of the legislature. They cannot touch the office of lieutenant-governor; they cannot restrict the franchise or qualifications for members of the legislatures or prolong the lives of their legislatures except as provided for in the Canadian Charter of Rights and Freedoms.

Of course the power to amend provincial constitutions is restricted to changes in the internal machinery of the provincial government. Provincial legislatures are limited to the powers explicitly given to them by the written Constitution. So no provincial legislature can take over powers belonging to the Parliament of Canada. Nor could any provincial legislature pass an Act taking the province out of Canada. No such power is to be found in the written Constitution, so no such power exists.

Similarly, of course, Parliament cannot take over any power of a provincial legislature.
Parliament and the provincial legislatures both have power over agriculture and immigration, and over certain aspects of natural resources; but if their laws conflict, the national law prevails.

Parliament and the provincial legislatures also have power over old age, disability and survivors’ pensions; but if their laws conflict, the provincial power prevails.

By virtue of the Constitution Act, 1867, everything not mentioned as belonging to the provincial legislatures comes under the national Parliament.

This looks like an immensely wide power. It is not, in fact, as wide as it looks, because the courts have interpreted the provincial powers, especially “property and civil rights,” as covering a very wide field. As a result, all labour legislation (maximum hours, minimum wages, safety, workers’ compensation, industrial relations) comes under provincial law, except for certain industries such as banking, broadcasting, air navigation, atomic energy, shipping, interprovincial and international railways, telephones, telegraphs, pipelines, grain elevators, enterprises owned by the national government, and works declared by Parliament to be for the general advantage of Canada or of two or more of the provinces.

Social security (except for Employment Insurance, which is purely national, and the shared power over pensions) comes under the provinces. However, the national Parliament, in effect, established nation-wide systems of hospital insurance and medical care by making grants to the provinces (or, for Quebec, yielding some of its field of taxes) on condition that their plans reach certain standards. The courts’ interpretation of provincial and national powers has put broadcasting and air navigation under Parliament’s general power to make laws for the “peace, order and good government of Canada,” but otherwise has reduced it to not much more than an emergency power for wartime or grave national crises like nation-wide famine, epidemics, or massive inflation (though some recent cases go beyond this).

Canadian Navy ShipsCourtesy: Canadian Forces/MCpl Michel Durand
The Constitution gives the federal Parliament exclusive power over national defence.
However, the Fathers of Confederation, not content with giving Parliament what they thought an ample general power, added, “for greater certainty,” a long list of examples of exclusive national powers: taxation, direct and indirect; regulation of trade and commerce (the courts have interpreted this to mean interprovincial and international trade and commerce); “the public debt and property” (this enables Parliament to make grants to individuals — such as Family Allowances — or to provinces: hospital insurance and medicare, higher education, public assistance to the needy, and equalization grants to bring the standards of health, education and general welfare in the poorer provinces up to an average national standard); the Post Office; the census and statistics; defenceCourtesy: Canadian Forces/MCpl Michel Durand; beacons, buoys, lighthouses and Sable Island;* navigation and shipping; quarantine; marine hospitals; the fisheries; interprovincial and international ferries, shipping, railways, telegraphs, and other such international or interprovincial “works and undertakings” — which the courts have interpreted to cover pipelines and telephones; money and banking; interest; bills of exchange and promissory notes; bankruptcy; weights and measures; patents; copyrights; Indians and Indian lands (the courts have interpreted this to cover Inuit as well); naturalization and aliens; the criminal law and procedure in criminal cases; the general law of marriage and divorce; and local works declared by Parliament to be “for the general advantage of Canada or of two or more of the provinces” (this has been used many times, notably to bring atomic energy and the grain trade under exclusive national jurisdiction). A 1940 constitutional amendment gave Parliament exclusive power over Unemployment Insurance (now known as Employment Insurance) and a specific section of the Act of 1867 gives it power to establish courts “for the better administration of the laws of Canada.” This has enabled Parliament to set up the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court and the Tax Court of Canada.

As already noted, the national Parliament can amend the Constitution in relation to the executive government of Canada and the Senate and the House of Commons, except that it cannot touch the office of the Queen or the Governor General, nor those aspects of the Senate and the Supreme Court of Canada entrenched by the amending formulas. Though Parliament cannot transfer any of its powers to a provincial legislature, nor a provincial legislature any of its powers to Parliament, Parliament can delegate the administration of a federal Act to provincial agencies (as it has done with the regulation of interprovincial and international highway traffic); and a provincial legislature can delegate the administration of a provincial Act to a federal agency. This “administrative delegation” is an important aspect of the flexibility of our Constitution.

* The Fathers of Confederation evidently felt that Sable Island, “the graveyard of the Atlantic,” was such a menace to shipping that it must be under the absolute control of the national government, just like lighthouses. So they placed it under the exclusive legislative jurisdiction of the national Parliament (by section 91, head 9, of the Constitution Act, 1867). They also (by the third schedule of that Act) transferred the actual ownership from the Province of Nova Scotia to the Dominion of Canada, just as they did with the Nova Scotia lighthouses.

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