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 of the Constitution Act, 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 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 Federal Jurisdiction Part 5 - the census and keeping of national statistics Part 6 - national defence Part 7 - federal government salaries Parts seas and Great Lakes, fisheries, coastal boundaries Parts 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 Provincial Jurisdiction This section defines and outlines the specific powers given to the provincial governments in which the federal government may not interfere:

Sec 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: 1.the main purpose of the law 2.the legal effect of the law – the expected impacts that are to happen if the statute works as planned 3.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