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