The Canadian Constitution: Jurisdictional Powers

Canada is a federation, which means that we have different levels of government, each with specific responsibilities Canada is a federation, which means that we have different levels of government, each with specific responsibilities The constitution outlines how these powers are distributed The constitution outlines how these powers are distributed

Distribution of Powers Section 91 sets out federal powers, such as criminal law, regulation of trade and commerce, national defence, currency, immigration, marriage and divorce Section 91 sets out federal powers, such as criminal law, regulation of trade and commerce, national defence, currency, immigration, marriage and divorce Section 92 sets out provincial powers, such as hospitals, property rights and “all Matters of a merely local or private Nature in the Province” Section 92 sets out provincial powers, such as hospitals, property rights and “all Matters of a merely local or private Nature in the Province” Section 93 sets out the provinces’ right to control education, as long as provincial laws do not prejudicially affect the rights held by separate or denominational schools Section 93 sets out the provinces’ right to control education, as long as provincial laws do not prejudicially affect the rights held by separate or denominational schools

Municipal Powers? Contrary to popular belief, municipalities have no constitutional rights – they are the creation of the provinces. Contrary to popular belief, municipalities have no constitutional rights – they are the creation of the provinces. Structure varies by province Structure varies by province Sometimes varies within provinces as well Sometimes varies within provinces as well

Residual Powers Powers not specifically granted to any particular level of government Powers not specifically granted to any particular level of government The preamble to section 91 of the constitution states that the federal government may make laws for the peace, order and good government of Canada concerning matters not given exclusively to the provincial legislatures The preamble to section 91 of the constitution states that the federal government may make laws for the peace, order and good government of Canada concerning matters not given exclusively to the provincial legislatures

Pith and Substance When there is dispute concerning the authority of a level of government to pass a law, the court will look to determine the dominant characteristic of the law When there is dispute concerning the authority of a level of government to pass a law, the court will look to determine the dominant characteristic of the law See Reference re Firearms Act on p. 146 See Reference re Firearms Act on p. 146

Intra and Ultra Vires Ultra Vires: Ultra Vires: outside the power of the legislature outside the power of the legislature When a legislature passes a law concerning a subject over which it has no constitutional authority, the courts can rule that the law has no effect and is invalid When a legislature passes a law concerning a subject over which it has no constitutional authority, the courts can rule that the law has no effect and is invalid Intra Vires: Intra Vires: within the power of the legislature within the power of the legislature When a law is constitutionally valid as it was passed by a legislature which has authority in the area When a law is constitutionally valid as it was passed by a legislature which has authority in the area

Intra and Ultra Vires See Re Protection of Children Involved in Prostitution Act on p. 145 See Re Protection of Children Involved in Prostitution Act on p. 145

Recap What is a “federal” style of government? What is a “federal” style of government? What are the advantages and disadvantages of this type of system? What are the advantages and disadvantages of this type of system? How are the concepts of intra vires and ultra vires used to resolve issues regarding the division of powers? How are the concepts of intra vires and ultra vires used to resolve issues regarding the division of powers?