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Studies on the Canadian Constitution and Canadian Federalism


Last revised:
19 February 2001

Emergency Federalism in the Canadian Constitution

Claude Bélanger,
Department of History,
Marianopolis College

The Constitution Act, 1867, was a constitution designed for a peaceful country. When Canada entered the First World War, the federal government had to take stringent measures to safeguard the security of the country. In taking these steps, it followed closely the legislation enacted in the United Kingdom. The federal government took over a wide range of powers over matters of property and civil rights which, in peacetime, belonged to the provinces. It also transferred from the legislative branch to the executive branch of government a number of powers. In both these cases, the measures violated the text and the conventions of the constitution.

In cases that were brought before the Courts that alleged that the federal authorities had overstepped their powers, the Judicial Committee of the Privy Council decided that wartime was a situation that transcended the terms of sections 91 and 92 of the constitution. The Court recognized that the federal authorities needed increased powers to meet the emergency that war evidently constituted. This interpretation is what came to be known as "emergency federalism". The effect of these decisions was to make Canada, for the duration of the war, a quasi-unitary state.

Attempts by the federal authorities to widen the scope of emergency federalism after the war were foiled by the Judicial Committee of the Privy Council (see In re The Board of Commerce 1919, Combines and Fair prices 1919 and Fort Frances Pulp and Power Company v. Manitoba Free Press 1923 cases). However, in recent years, the Supreme Court of Canada has been willing to widen the scope of emergency federalism holding, for example, that the anti-inflation law of the federal government was intra vires because inflation was a serious enough problem to constitute an emergency. Consequently, in this case heard in the mid-1970’s, it allowed the federal government to override certain provincial fields of legislation.

© 2001 Claude Bélanger, Marianopolis College