Federal/Provincial Distribution of Legislative Powers (Canada)

The Federal Provincial Distribution of Legislative Powers also known as the division of powers in Canada is one of the most significant sections of the Constitution of Canada. It defines the scope of the power of the federal Parliament of Canada and the powers of each individual provincial legislature or assembly. Many disputes have been decided by the Judicial Committee of the House of Lords and later by the Supreme Court of Canada regarding the exact length and breath of this division of powers. Unlike the United States Constitution this constitution has created an overarching federal jurisdiction based only upon peace, order and good government 92 (Preamble) with a minor residual jurisdiction based in the provinces and exclusive federal jurisdiction based upon the enumerated powers.

A quick perusal of these powers (reproduced below for the sake of clarity in this article} shows that while the federal government has exclusive jurisdiction over criminal law and procedure 92(27) the provinces have jurisdiction over the administration of justice, including criminal matters 93(14) and penal matters 93(15) regarding any laws made within provincial jurisdiction, thus Canada has a single Criminal Code, but many provincial laws that can result in incarceration or penalty. The courts have also recognized that both the provinces and the federal government have the right to create corporations, though only the federal government has the right to incorporate banks, though provinces may incorporate credit unions.

In relation to marriage and divorce while the federal government has exclusive authority governing marriage and divorce 92(26) (giving Canada a single family law) the provinces can pass laws regulating the solemnization of marriage 93(12). However since the provinces have jurisdiction over civil and political rights 93(13) they can make statutes and common law (or civil law in the case of Quebec) creating such institutions as common-law marriage and civil union.

It is interesting to note that nowhere in the divison of powers of the Constitution Act of 1867 is there a mention of a treaty power, this is because such power was still held by the British Empire, it was only granted to Canada after the passage of the Statute of Westminster in 1931.

There is much more we can discuss here about this constitution when someone gets around to it and there are some interesting cases that could be cited and linked here.

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Section 91 states the legislative authority of the federal Parliament of Canada.

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,

1. Repealed.

1A. The Public Debt and Property.

2. The Regulation of Trade and Commerce.

2A. Unemployment insurance.

3. The raising of Money by any Mode or System of Taxation.

4. The borrowing of Money on the Public Credit.

5. Postal Service.

6. The Census and Statistics.

7. Militia, Military and Naval Service, and Defence.

8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.

9. Beacons, Buoys, Lighthouses, and Sable Island.

10. Navigation and Shipping.

11. Quarantine and the Establishment and Maintenance of Marine Hospitals.

12. Sea Coast and Inland Fisheries.

13. Ferries between a Province and any British or Foreign Country or between Two Provinces.

14. Currency and Coinage.

15. Banking, Incorporation of Banks, and the Issue of Paper Money.

16. Savings Banks.

17. Weights and Measures.

18. Bills of Exchange and Promissory Notes.

19. Interest.

20. Legal Tender.

21. Bankruptcy and Insolvency.

22. Patents of Invention and Discovery.

23. Copyrights.

24. Indians, and Lands reserved for the Indians.

25. Naturalization and Aliens.

26. Marriage and Divorce.

27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

28. The Establishment, Maintenance, and Management of Penitentiaries.

29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

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Section 92 deals with subjects of exclusive provincial legislation.

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

1. Repealed.

2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.

3. The borrowing of Money on the sole Credit of the Province

4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.

5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.

6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.

7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

8. Municipal Institutions in the Province.

9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.

10. Local Works and Undertakings other than such as are of the following Classes:

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:

(b) Lines of Steam Ships between the Province and any British or Foreign Country:

(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

11. The Incorporation of Companies with Provincial Objects.

12. The Solemnization of Marriage in the Province.

13. Property and Civil Rights in the Province.

14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.

16. Generally all Matters of a merely local or private Nature in the Province.