Residuary
Powers
Claude Bélanger, Department
of History, Marianopolis College In
all federal constitutions fields of jurisdiction are allocated, in one way or
another, between two levels of government. However, It is quite impossible for
constitution makers to provide an exhaustive list of powers: something is bound
to be forgotten or new fields of jurisdiction are likely to appear in the future
Thus, it becomes necessary to provide some blanket clause which will determine
which of the two levels of government shall get those new powers. This is what
is usually called the residuary clause. In
Canada, the residuary powers were allocated to the federal government. The Fathers
of Confederation wanted to avoid the "weaknesses" of the American constitution
which had left all residual powers in the hands of the constituting states. The
conditions prevalent in British North America, at the time of Confederation seemed
to dictate the creation of a strong federal government endowed with sufficiently
large powers to withstand American pressures and create a strong national economy.
Residuary powers would assure, in the future, the continued strength of the Dominion
government. In a strict sense the whole
of s.91 is the residuary clause since the federal government was granted the power
to legislate "for the 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 Legislature of the Provinces." (my emphasis) In other
words, the Provinces were given a list of specified fields of jurisdiction
and the federal government was given the rest. The list of powers (ss. 1-29) given
in s. 91 was only an "illustrative list" of the types of powers granted
to the federal government and was included "for greater Certainty, but not
so as to restrict the generality of the foregoing Terms of this Section."
On the face of it, there were then only
two types of powers granted in the Constitution Act, 1867: 1) the specified list
of the provincial governments; 2) the rest that went to the federal government.
However, matters are not as simple as
they first appear: the provincial list contained two clauses which were not easily
defined unless reference was made to the 29 categories of s. 91; these two clauses
were 92-13 ("Property and Civil Rights") and 92-16 ("Generally
all Matters of a merely local or private Nature in the Province"). Thus,
instead of two, three compartments of powers eventually appeared in the Constitution
Act: 1) s.92; 2) the illustrative list of s .91 and 3) the residuary clause which
came into play only if powers could not be allocated through No. 1 or No.2. Thus,
part of the residuary clause came to rest in s. 92-13 and in 92-16 since the definition
of Property and Civil Rights could only be gathered by removing from it the 29
classes found under s.91; matters were to fall under the federal residuary clause
if it was proven that the disputed powers were undoubtedly of a general rather
than a local nature and could not be linked to one of the listed powers under
s. 91 or s. 92. The validity of this
position which evolved from decisions of the Judicial Committee is much debated
but remains largely academic as long as the critics of the J.C.P.C. do not present
a cogent list of powers which would have been wrongly allocated by using this
method of interpretation. ©
2001 Claude Bélanger, Marianopolis College |