Components of Canadian Constitution

CLN4U – Mr. Andrez

Federalism

• Canada's constitution divides law making power between the Parliament of Canada and provincial legislatures. • The division of legislative powers is done mainly

by sections 91-95 of the Constitution Act, 1867. • It is sections 91 and 92 that contain the main

constitutional provisions that assign law making power to Canadian legislatures.• These sections deal with the specific

responsibilities of the federal and provincial governments.

Sec. 91 - Federal Jurisdiction• gives the Canadian Parliament the power “to make

laws for the peace, order and good government of Canada.” • It defines and outlines the responsibilities and duties

of the federal or national government:

• Part 1 - the right to change the Act with respect to the powers given to the provincial legislatures • Part 2 - regulation of trade between countries • Part 2a - employment insurance • Part 3 - raising money by any method of taxation

Sec. 91 - Federal Jurisdiction• Part 5 - the census and

keeping of national statistics • Part 6 - national defence• Part 7 - federal

government salaries• Parts 9-13 - seas and

Great Lakes, fisheries, coastal boundaries • Parts 14-20 - banking,

the printing of money, and the setting of interest rates for borrowing

• Part 21 - bankruptcy, • Part 22 - inventions and

patents • Part 24 - Indian affairs,

reserves, and land claims • Part 25 - citizenship,

immigration, and deportation • Part 27 - criminal law • Part 28 - federal jails and

penitentiaries

Sec. 92 - Provincial Jurisdiction• This section defines and outlines the specific

powers given to the provincial governments in which the federal government may not interfere:

Sec. 92 - Provincial Jurisdiction• Part 2 - provincial

taxes (i.e., provincial sales tax) • Part 4 - hiring, paying,

and supervising provincial employees • Part 6 - provincial jails

and correctional facilities• Part 7 - hospitals • Part 8 - organizing and

setting up municipal governments

• Part 9 - licensing of shops, bars, and auctions • Part 10 -

interprovincial communication and trans-portation (e.g., ships, railways, canals) • Part 13 - civil and

property rights • Part 14 - enforcement

of provincial laws and penalties for violations

Residual Powers

• S. 91, confer on the Federal Parliament the power " to make Laws for the Peace, Order and good Government of Canada (P.O.G.G.), in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces". • This clause essentially gives the Federal government

"residuary" power over any matter that does not come within the power of provincial legislatures.• ensures that every area of legislation comes under

one or both of Canada's two orders of government.

Intra Vires and Ultra Vires

• What happens if there is a disagreement over an area that is claimed by two levels of government?• an authoritative answer can come only from the

courts.• If an action by a legislature (provincial or federal) is

within its jurisdiction that legislature has acted intra vires its authority• An action by a legislature (provincial or federal) that is

outside its jurisdiction that legislature has acted ultra vires its authority

Pith and Substance Doctrine

• Court uses the pith and substance doctrine to determine whether or not the action is legal in areas where both levels of government have claimed authority.• A pith and substance analysis scrutinizes the law to

discover: • the main purpose of the law • the legal effect of the law – the expected impacts that

are to happen if the statute works as planned • the practical effect of the law – the actual

consequences of the statute

Reference re Firearms Act (Can.), 2000 SCC 31• The Federal Gov’t enacted the Firearms Act in 1995• Changed the classification of some firearms and required all owners to

obtain licences and register their firearms • Criminal Law = Federal jurisdiction• Regulatory power of property = Provincial Jurisdiction• Alberta Gov’t challenged the Act claiming the law was merely

regulating lawful property• SCC upheld the law ruling that the pith and substance of the

Firearms Act was concerned with public safety which traditionally has been viewed as a criminal matter• i.e misuse of firearms and their potential risk to public safety