150 Years On: Why don’t we get clear on where the Canadian federal distribution of legislative powers (legally) comes from?

Although I can understand the desire to explain the distribution of legislative powers simply, it is misleading, not only in informal talks but also as the Supreme Court itself too often does, to suggest this distribution is set out only in sections 91 and 92 of the Constitution Act, 1867, or only in this Act. See e.g. Carter v Canada, para 50; Tsilhqot’in Nation v British Columbia, para 131; Reference re Securities Act, para 54.

The federative distribution of legislative competencies is effected not only by these sections, not only within Part VI of the CA 1867, and again not even only within this Act, but also in other enactments that form part of the supreme law, including the Constitution Act, 1982.

It is true that, under sections 91 and 92 of the CA 1867, federal parliament and provincial legislatures, respectively, are attributed exclusive jurisdiction in many matters listed in numbered paragraphs. In addition to these, they are, under these very sections 91 and 92, given exclusive residual jurisdiction, one that is limited, the other that is really, fully residual. According to subsection 92(16), each provincial legislature has jurisdiction over “[g]enerally all Matters of a merely local or private nature in the Province”, whereas, by virtue of section 91’s opening words, the federal parliament has the competency “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”. But federal parliament and provincial legislatures are conferred concurrent jurisdiction over interprovincial trade in certain natural resources and electricity (federal legislation is paramount), old-age pensions and supplementary benefits (provincial legislation is paramount), and agriculture and immigration (federal legislation is paramount), and this, by sections 92A (2)-(3), 94A, and 95 of the CA 1867, respectively.

Moreover, federal parliament is given exclusive jurisdiction over various sections of the CA 1867. One of them is found in Part VI: 94 (uniformisation of the “property and civil rights” and procedure laws of Ontario, New Brunswick, and Nova Scotia with the assent of their legislatures; never used, see M.-A. Adam). The others are not: 18 (Parliamentary Privilege; re-enacted in 1875; for all practical purposes replaced by jurisprudence); 35 (Quorum of the Senate); 40, 41, 47, 51, 52 (electoral law, absence of speaker, and number and allocation of seats of the House of Commons); 100 (remuneration of superior, including appeal, courts); 101 (“Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada”); 105 (salary of Governor General); 60 (salaries of Lieutenant Governors); 106 (appropriation of the federal consolidated revenue fund); 120 (form of “Payments to be made under this Act, or in discharge of Liabilities created under any Act of the Provinces of Canada, Nova Scotia, and New Brunswick respectively, and assumed by Canada; obsolete); 122 (“Customs and Excise Laws of each Province”; now obsolete); 132 (“all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries”; obsolete). The “Right of Canada to assume any Lands or Public Property required for Fortifications or for the Defence of the Country” provided for by section 117 presumably was that of the federal parliament, and thus one more exclusive attribution to it.

Other federal exclusive legislative attributions come, or came, from other constitution acts. It is by virtue of section 4 of the Constitution Act, 1871, that federal parliament has exclusive jurisdiction over all matters concerning territories that are part of Canada, but not part of any province.

The Constitution Act, 1886, empowered federal parliament to provide for the representation of the territories in the Senate and the House of Commons.

Section 44 of the CA 1982 reads: “Subject to sections 41 and 42, 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”. Like the 1949-introduced subsection 91(1) of the CA 1867 it has replaced, this section of the CA 1982 presumably covers what do sections 18, 35, 40, 41, 47, 51, and 52 of the CA 1867, as well as the CA 1886, so as to make them obsolete.

As for provincial legislatures, apart from the subject matters listed at section 92, they are given exclusive jurisdiction over education by the opening words of section 93 of the CA 1867, as well as over the exploration for non-renewable natural resources and over development, conservation, and management of such resources, forestry resources, and electricity production sites and facilities in the province by subsection (1) of the 1982-introduced (by s. 50 CA 1982) section 92A of the CA 1867.

Provincial legislatures also are attributed exclusive, but somewhat residual, competency over “the constitution of the province” by section 45 of the CA 1982.

Lastly, let us not forget subsection 4(2) of the Canadian Charter of Rights and Freedoms (Part I) of the CA 1982, which is complementary to sections 44-45 and confers, not a concurrent jurisdiction, but two respective exclusive and very specific competencies to the federal parliament and provincial legislatures: “In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.”

So, if one wants to simplify what precedes, she or he can even more simply (and correctly) say something like: « The division of powers provided by our constitutional acts » or « … by our supreme law ».

I thank Patrick F. Baud and Léonid Sirota for their very useful comments.