Poli 221 Lecture 7 Readings
Mallory: The Federal Distribution of Power
• BNA act speaks of Provinces being federally united into one domination…but no true
federation was created in strict terms in the BNA constitution.
• In the beginning provincial governments were belittled to essentially internal matters
• The power to legislate with external effect, to deal with other states/matters of concern to the
British empire as a whole was still retained by the parliament of the UK. —> powers of central
supervision of the provinces given to the GG.
• Dr K C’s federal government —> “by the federal principle i mean the method of dividing
powers so that the general and regional governments are each, within a sphere, co-ordinate
• Beginning relationship between federal and provincial governments is “Colonial” for two
1. The grand coalition that had negotiated confederation went on to form Macdonald’s first
government. The political talent of this group left little political weight in provincial
2. In addition, the inclusion of western provinces added new “colonies” to the political
tutelage of Ottawa
• At the time governors were seen as men of power and it was the Lt. Governor of a province
who inherited this imperial role and was expected to play it in the interests of the federal
government who appointed him.
• Colonial period —> Ottawa assumes role of mother country, using institutions of control the
provinces are used to due to colonial rule.
• After Macdonald’s first ministry Canada would never be a single unitary state once again
(except for during WWI and WWII) —> A more genuine and developed federalism came from
powerful centrifugal forces from provinces.
The Subordinate, rather than co-ordinate status of the provinces was made clear in 3 ways…
Why federal government ran the show at the time:
1. Through its powers of disallowance, the central executive could disallow an act of
provincial legislature whether or not the act fell within the powers exclusively
assigned to the province in the BNA act
2. The federal govt appoint the Lt. Governor of the province and could instruct him to
withhold his assent to provincial bills or to reserve them for the consideration of the
federal govt, which itself could give or refuse royal assent.
3. All judicial appointments to the superior courts of the provinces made by the federal
• Ultimate weapon of disallowance was much more likely to be deployed against a hostile
The disallowance power of the federal government is just as legal as it was when the supreme
court ruled it in 1938.. What has changed, probably irrevocably, is the political climate that
would permit its use. —> Federal government showing no disposition to disallow the Quebec
charter of the french language in 1977, preferring to the leave the courts to deal with the
constitutional issues it raised. • Lt. Governor has twin reserve powers of veto and reservation that are generally coupled with
disallowance as a technique for federal control over the provinces. However Lt. Governor
usually does not have authority to do such thing as these powers are prone to unskillful and
inappropriate use by Lt. Governors who was a class are not knowledgeable on the constitution
or rich in political experience
• Lt. Governor’s powers are a reminder to provincial governments of the “colonial” and inferior
status that these provinces once had.
• It has been proposed that these powers of the LG be abolished via constitutional amendment.
• There is an imperfect division of power between the two levels of government over the judicial
structure of the country.
• Objections to this:
Power of appointment is a political act, to deprive provincial goats of the right to appoint
their own judges is to deny them access to one of the highest kinds of appointment under
the crown in the province.
• The courts are not only arbiters of private life, but also interpreters of the constitution. —>
since the federal government appoints judges it is possible the federal government would
appoint judges that favour centralized government, or appoint judges that favour provincial
rights rather that federal ones.
• Protestant vs French catholic justice…
Supreme court can play a ‘nationalizing’ role of an institution which interprets and imposes the
sense of the whole community even where that consensus is openly rejected by a part of the
• Supreme court is the one institution which is capable of asserting and imposing common
The Distribution of Legislative Power
The Macdonald Interpretation (1867-):
Intention of BNAA appears to have been to assign a limited number of explicit functions to
the provincial legislatures and to confer the remainder on the Canadian parliament.
• Section 91: The provincial legislatures have limited and explicit powers, the parliament of
Canada has general and residual powers and authority over all else.
• Gives powers of tax, banks, currency, navigation, citizenship, defence and more to the
• Section 92: Provincial powers are established:
• local matters, taxation powers limited by type and object (direct, provincial taxation for the
province’s benefit), property and civil rights.. to protect the Quebec legislature and
preserve french civil law in the province.
Section 94 (not invoked) —> canadian parliament can make uniform laws in relation to
property and civil rights for other provinces with their consent.
• Goals of building a strong transcontinental economy
• Prospect of expansion into western canada that made confederation attractive, but it would
be costly. However, it was believed it would lead to economic strength and support… The
dominion of canada served as a credit structure by which capital became available with
• Parliament meant to be the chosen instrument for nurturing the transcontinental expansion
of a new nation. • Macdonald’s first administration embarked on a national policy of expansion which came
ultimately to embrace transportation, settlement, and industrial growth supported by the
The Judicial Committee and Judicial Review:
JCPC and other English judges refuse to admit they were making policy and making law
and they were not of a task of creative statesmanship.
• PCPC was in many respects an ideal court of constitutional appeal.. Free from Canadian
influence and divorced from Canadian affairs.
• Constitutional basis of JCPC gave it a unique role in the development of constitutional
government in the british empire.
• JCPC served as the ultimate singular court of appeal for the entire british empire.
• There were several benefits of the JCPC however, many people overseas beam
increasingly upset with the JCPC and as a result of colonial nationalism the JCPC lost
favour in many of these countries.
• Major difficulties of the JCPC:
• It became more and more intolerable that the final decisions of the courts—particularly
matters of public law—lay outside the sovereignty of a “self-governing” colony in the hands
of the british.
• Structural —> JCPC although composed of eminent judges, was not strictly speaking a
court and it department in one important particular from the usual court of appeal…
because it was a technically a committee of the Privy Council, the JCPC rendered advice
to the sovereign. Essentially, the advantage of a plurally of judges was replaced by a
system in which a single judge is the ultimate decision maker.
• PC had a lack of continuity from the variety and burden of its case load which had to be
adjusted to other judicial duties of its members.
The jurisdiction of the JCPC was an inevitable limitation on canadian autonomy in 1867 as
due to restrictions on Canadian legislative power it was difficult to remove or limit as long as
the Colonial Laws Validity act remained in force.
• As early as 1888 the Parliament of Canada had begun to limit the JCPC’s jurisdiction via
abolishment of appeals to the JCPC in criminal cases.
• Federal powers are residual because provincial powers are exclusive..
• The Dominion of Canada has the power to legislate under the general heading of Peace,
order, and good government (POGG)
While relations between federal govt and provinces at confederation were in the ‘colonial’
model of superior and subordinate, the courts saw this to me a more federal form in which
the provinces were within their jurisdiction, equals to the dominion.
• While Parliament could under enumerated heads of section 91, enact legislation which
affected the heads of section 92, it could not use the POGG power to encroach on any
subjects enumerated in s. 92.
• Two things should be emphasized about the legal battles between Canada and its provinces
1. In practically no case was there a successful attack on the constitutional validity of an
actual federal statute…the one notable exception when half of railway act was cut
2. Provinces were finding that their responsibilities for social and economic policy were
much more important than anyone had