Studies on the Canadian Constitution and Canadian Federalism

Last revised:
19 February 2001

The Powers of Disallowance and Reservation in Canadian federalism

Claude Bélanger,
Department of History,
Marianopolis College

Sections 55, 56, and 57 of the Constitutional Act, 1867, provide for mechanisms and ways by which the Governor-General of Canada may, in the name of the Queen, refuse to assent or reserve bills passed by the Parliament of Canada. Section 90 extends these powers, in so far as the provinces are concerned, to the Lieutenant-Governor and the Federal Government. Since the Statute of Westminster, in 1931, the British government does not disallow federal bills anymore but the provisions permitting the disallowance of provincial acts by the federal government are still in effect, although they have fallen into disuse.

The right to disallow provincial acts by the federal government runs contrary to the true principles of federalism as it undermines the concept of the sovereignty of the provinces in their sphere of jurisdiction. The last case of disallowance occurred in 1943 and reservation of provincial legislation by a Lieutenant-Governor last took place in 1961. It has been argued that the Lieutenant-Governor was in error, acting without instructions. In any case the law was subsequently accepted by the federal government. There now seems to be a convention that these powers will not be used again in the future.

Between 1867 and today, 112 provincial laws were disallowed (68 from 1867-1896, 28 from 1897-1920, 16 between 1921 and today. Disallowance of laws passed by the four western provinces accounts for 76% of all laws disallowed by the federal government. The single most important reason for disallowance of western laws was to support the National Policy. Between 1867 and today, 70 provincial laws were reserved by Lieutenant-Governors for decision by the federal government (57 from 1867-1896, 9 from 1897-1920, and 4 from 1921 to today). Reservation of laws passed by the four western provinces accounts for 52% of all cases of reservation. Many in Western Canada have interpreted the frequent use of both these powers against their region as attempts of "Imperial Canada" to thwart the wishes of the West and to keep their region as subservient to the interests of Central Canada.

Table 1

Provincial Laws Disallowed by the Federal Government (1867 to today)

Number of laws disallowed

(Each period corresponds to a specific party being in power in the federal government)

Note: The last provincial law disallowed was entitled An Act to Prohibit the Sale of Lands to any Enemy Aliens and Hutterites for the Duration of the War, Alberta 6 Geo. VI, c. 16. It was disallowed in April of 1943.

Table 2

Provincial Laws Reserved by the Lieutenant-Governors (1867 to today)

Number of laws reserved

(Each period corresponds to a specific party being in power in the federal government)

© 2001 Claude Bélanger, Marianopolis College