Distribution of powers refers to the division of legislative powers and responsibilities between the two orders of government — federal and provincial — outlined in the Constitution Act, 1867. The distribution of powers has produced many decades of debate and tension between the provinces and Ottawa, however, this aspect of the Constitution has remained remarkably unchanged since Confederation.
Canada's Fathers of Confederation first divided up the legislative powers of the federal and provincial governments during their discussions on creating a country at the Québec Conference in 1864. These were then refined and formally spelled out in the Constitution Act, 1867, at the start of Confederation. They were interpreted, or judged, until 1949 by the Judicial Committee of the Privy Council, and from then on by the Supreme Court of Canada.
The distribution of executive power (the prime minister, premiers and their Cabinets) is theoretically similar to the distribution of legislative power. The distribution of powers among Canadian courts is also divided to some extent, although most of it falls under the judicial scope of the federal government.
How Power is Divided
Section 91 of the Constitution Act, 1867 grants broad powers to the federal government to legislate for "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." The Fathers of Confederation took as their guiding principle that jurisdiction over matters of national interest would be given to Parliament and those of particular provincial interest, to the provinces.
Because Québec was governed by a Civil Code, the provinces were granted jurisdiction over property and civil rights. Québec was excluded from section 94, which allowed for the possible standardization of private law for the rest of the provinces.
Parliament was also given greater residuary jurisdiction than the provincial legislatures — meaning that all powers (and new powers arising in the future) not specifically given to the provinces, would go to the federal government, as long as they were of a general, and not local, nature. Over time, the courts have interpreted federal residuary power to include the incorporation of businesses with federal objectives, as well as aeronautics, radio, television, nuclear energy, responsibility for the national capital, offshore mineral rights, official languages within the federal sphere, citizenship, foreign affairs and the control of drugs, and emergency powers in peace and war.
Other areas of federal jurisdiction include trade and commerce, direct and indirect taxation, currency, the postal service, census taking and statistics, national defence, the federal civil service, navigation, fisheries, banking, copyright, Aboriginals and Indian reserves, naturalization, marriage and divorce, criminal law, penitentiaries and interprovincial works and undertakings.
The division of powers can be changed. For example, by constitutional amendment Parliament gained exclusive jurisdiction over unemployment insurance in 1940.
In 1949, also by constitutional amendment (section 91.1 of the Constitution Act), Parliament was granted the power to amend the Constitution of Canada – except in matters affecting provincial jurisdictions and privileges. However, in a 1949 decision on the Senate, the Supreme Court of Canada restricted the interpretation of the expression "Constitution of Canada" by stating that this expression in section 91.1 referred to the internal federal Constitution and not to the Constitution of all Canada. For example, Parliament could not abolish the Senate, because it represents the provinces and is not exclusively a federal concern.
The Constitution Act, 1982 repealed section 91.1. As a result, section 44 of the 1982 Act states that, subject to provincial approval in certain cases, "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." In 2014 the Supreme Court clarified the issue by ruling that changes to the make-up of the Senate and the appointment of senators require the consent of the federal government as well as seven provinces with at least half of Canada's population, and that abolishing the Senate would require the consent of the federal government and all 10 provinces.
The provinces have had the right to amend their internal constitutions (except the office of the lieutenant-governor) since 1867.
Provincial legislatures have jurisdiction, among other things, over their internal constitutions, as well as direct taxation for provincial purposes, municipalities, school boards, hospitals, property and civil rights (their largest area of responsibility), administration of civil and criminal justice, penalties for infraction of provincial statutes, prisons, celebration of marriage, provincial civil service, local works and corporations with provincial objectives.
The courts have restrictively interpreted federal power over commerce and liberally interpreted provincial power over property and civil rights. There are four areas of power shared by the provinces and the federal government: agriculture, immigration, old-age pensions and supplementary benefits. In the case of dispute, federal legislation will prevail for areas under section 95 (agriculture and immigration) and provincial legislation will prevail for those under section 94A (old age pensions). Education is allocated to the provinces, but is subject to certain religious guarantees.
Even though each level of government is restricted to its own legislative sphere, frequently one or another has assumed responsibilities which did not clearly belong to it. The provinces have converted some originally indirect taxes, such as sales and purchase taxes, into direct ones.
The power to spend money remains an extremely vague and contentious area. Parliament assumes that it may do so where it does not necessarily have the power to enact legislation; such spending is usually well received by the provinces when it applies to equalization payments, but less so when it infringes on provincial fields such as health, social security and education.
Equalization and Natural Resources
Under the Constitution Act, 1982, the principle of equalization (Parliament equalizing provincial revenues so that all Canadians have access to comparable public services at comparable levels of taxation) is enshrined in section 36, but it is unclear how it should be implemented.
Provincial jurisdiction over natural resources was enlarged, in 1982, to include shared power in inter-provincial commerce and extra-territorial marketing (though with federal paramountcy). The provinces have also been granted the power of indirect taxation of their natural resources (see Intergovernmental Finance).
The history of Canadian federalism is basically an account of disputes over the distribution of powers. From the 1880s until the 1930s federal powers waned relatively, largely because the Judicial Committee of the Privy Council ignored the centralist intentions of many (but not all) of the Constitution's creators, favouring provincial autonomy in its interpretation of the Constitution Act, 1867. The Supreme Court of Canada, on the other hand, has in its judgements tended generally to strengthen the legislative powers of the federal government in some areas.
Despite several constitutional conferences between the provinces and the federal government, there have been few amendments to the division of powers. Even the Meech Lake Accord — negotiated in 1987 but ultimately never implemented — would have produced no significant changes to the distribution of powers set out in the Constitution, other than to expand provincial power in appointments to the Supreme Court and the Senate, and to create a slight provincial enhancement in the shared jurisdiction of immigration.