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Claude
Bélanger, There has been much debate as to the meaning of the Peace, Order and Good Government clause used in the introductory paragraph of s. 91 of the Constitution Act , 1867 (see W.H. McCONNELL, Commentary on the British North America Act, Toronto, Macmillan, 977, pp. 136 –159). The term had already a long history extending back to the beginning of British rule in Canada and it had been used successively, in one form or another, in the Royal Proclamation (1763), the Quebec Act (1774), the Constitutional Act (1791) and the Union Act (1840-41). The sentence was even used by William Lyon Mackenzie in his proposed constitution for an independent Upper Canada (see the Constitution, Nov. 15, 1837). That Mackenzie, who otherwise proposed a rather republican form of government, used this phrase of the British Parliamentary system to provide for broad legislative powers, demonstrates clearly how strong and extensive was the use of the term by the beginning of the XIXth century. Historically, the term was used to grant the largest measure of authority to colonial legislatures as, in a sense, all legislation is supposed to be enacted for the "peace, order and good government" of the country. Therefore, it is clear that the Fathers of Confederation must have meant to bestow a large measure of legislative authority upon the federal government when they used this catch-all phrase. Furthermore, the term fitted well in an overall plan to create a strongly centralized form of government that seems to have been the ultimate design pursued by many of the Fathers of Confederation. However, should the clause be so construed as to assign to it such importance as to make it mean that the federal authorities could override the basic dictates of federalism which require legislative sovereignty for both levels of government in their spheres of jurisdiction? The interpretation of Macdonald and several of the leading centralists since 1867 has been affirmative. The Judicial Committee of the Privy Council was not prepared to go as far and upheld a different interpretation of the clause. Of the Peace, Order and Good Government clause, Louis-Phillippe Pigeon (formally of the Supreme Court of Canada) wrote in 1951: "It is significant that seldom do those who advance this contention (that the purpose of the clause was to reduce. the provinces to the rank of municipal institutions) quote the complete sentence. They speak of the importance of the grant of legislative authority for the "Peace, Order and Good Government of Canada." They point out that such expressions were traditionally used to grant legislative authority; but they pay slight attention to the fact that these pregnant words are immediately followed by the all important restriction: 'in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.' If due attention is paid to these words, it becomes impossible to interpret the grant of the residuary power otherwise than as saving Provincial autonomy instead of overriding it (my emphasis)". Ultimately, the Judicial Committee of a Privy Council interpreted the clause in much the same fashion. In the Local Prohibition's case, Lord Watson declared: "that the exercise of legislative power by the Parliament of Canada, in regard to all matters not enumerated in s. 91, ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance, and ought not to trench upon provincial legislation with respect to any of the classes of subjects enumerated in s. 92." One has to recognize the merit of that position because if it was admitted that the Parliament of Canada could legislate in relation to local matters in the provinces because it considers that such matters also concern "the Peace, Order and Good Government of Canada," then Parliament could conceivably legislate on all subject matters listed under s. 92 and provincial governments would become unnecessary. As it has been interpreted by the courts, the Peace, Order and Good Government clause has been given the meaning of four separate grants of power ,i.e. residuary power, national dimension, emergency power and federal paramountcy. i) Residuary Power: It has been held by the courts that anything which is not explicitly granted in either s.91 or s.92 and which is not clearly of a local nature automatically falls within the general words of the introductory paragraph of s. 91 and is thus assigned to the federal government. ii) National dimension: This doctrine permits the Parliament of Canada to legislate on subject matters that normally fall under provincial jurisdiction when such subjects have acquired such importance as it would concern the "Peace, Order and Good Government of Canada." In the Local Prohibition's case, Lord Watson explained the nature of the theory: "Their Lordships do not doubt that some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their regulation or abolition in the interest of the Dominion." The national dimension doctrine has not been consistently sustained by the courts and has often been assimilated to the emergency power. A minority of the Supreme Court used it to support their decision to sustain the anti-inflation law of the federal government in the 1970’s. iii) Emergency Power: The emergency power of the federal government also takes its source in the Peace, Order and Good Government clause. This power permits the Parliament of Canada to infringe upon provincial subjects of legislation when a sufficiently great threat imperils the existence of the country. The courts have held that war, invasion, famine or high inflation were perils that would justify the invocation of the emergency power. The argument to sustain this position was presented in the following fashion in the Fort Frances Pulp and Paper case (1923): "In the event of war, when the national life may require for its preservation the employment of very exceptional means, the provision of peace, order and good government for the country as a whole may involve effort on behalf of the whole nation, in which the interests of individuals may have to be subordinated to that of the community in a fashion which may require s.91 to be interpreted as providing for such an emergency. The general control of property and civil rights for normal purposes remains with the provincial legislatures. But questions may arise by reason of the special circumstances of the national emergency which concern nothing short of the Peace, Order and good Government of Canada as a whole." Note that such emergency powers last only as long as the emergency tat caused them to be invoked last. iv) Federal paramountcy: By virtue of the Peace, Order and Good Government clause, the federal government is assumed to have legislative priority over the provinces in case of conflicts in overlapping legislation. The principle was thus explained in a 1930 case before the Judicial Committee of the Privy Council: "There can be a domain in which provincial and dominion legislation may overlap, in which case neither legislation will be ultra vires if the field is clear, but if the field is not clear and the two legislations meet the dominion legislation must prevail." Thus, the scope of "Peace, Order and Good Government" is still considerable and there is evidence to suggest that the Supreme Court of Canada is prepared to apply the clause to an even greater extent. © 2001 Claude Bélanger, Marianopolis College |