Distribution of powers, the legislative competences of the federal and provincial orders of government as outlined in the CONSTITUTION ACT OF 1867 and interpreted by the JUDICIAL COMMITTEE OF THE PRIVY COUNCIL until 1949, and from then by the SUPREME COURT OF CANADA. The distribution of executive power is theoretically similar to the distribution of legislative power; judicial power is also divided to some extent, although most of it belongs to the federal government.

The Constitution Act, 1867 (s91), grants broad powers to the federal government to legislate for "Peace, Order and good Government in Canada in relation to all Matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." The Fathers of Confederation took as their guiding principle that jurisdiction over matters of national interest would be given to Parliament and those of particular interest to the provinces.

Because Québec was governed by a CIVIL CODE, the provinces were granted jurisdiction over property and civil rights and Québec was excluded from s94, which allowed for the possible standardization of private law for the provinces. Parliament was also given greater residuary jurisdiction than the provincial legislatures. Areas of federal jurisdiction include trade and commerce, direct and indirect taxation, currency, the postal service, census taking and statistics, national defence, the federal civil service, navigation, fisheries, banking, copyright, Indians and Indian reserves, naturalization, marriage and divorce, criminal law, penitentiaries and interprovincial works and undertakings. By constitutional amendment, Parliament gained exclusive jurisdiction over unemployment insurance in 1940.

In 1949, by amendment (s91.1) to the Constitution Act, Parliament was granted the power to amend the Constitution of Canada except in matters affecting provincial jurisdictions and privileges. In a 1949 decision on the Senate, the Supreme Court of Canada restricted the interpretation of the expression "Constitution of Canada" by stating that this expression in s91.1 referred to the internal federal Constitution and not to the Constitution of all Canada. For example, Parliament could not abolish the Senate because it represents the provinces and is not exclusively a federal concern. The Constitution Act of 1982 repealed s91.1. Section 44 of the Act states that, subject to sections 41 and 42,

"Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons."

The provinces have had the right to amend their internal constitutions (except as regards the office of the lieutenant-governor) since 1867. Through jurisprudence, federal residuary power has come to include (partly or wholly) the incorporation of businesses with federal objectives, aeronautics, radio, television, nuclear energy, responsibility for the national capital, offshore mineral rights along the British Columbia coast, official languages within the federal sphere, citizenship, foreign affairs and the control of drugs. Again, through jurisprudence, the introductory clause to s91 now includes emergency powers in peace and war.

Provincial legislatures have jurisdiction, among other things, over their internal constitutions, direct taxation for provincial purposes, municipalities, school boards, hospitals, property and civil rights (their largest area of competence), administration of civil and criminal justice, penalties for infraction of provincial statutes, prisons, celebration of marriage, provincial civil service, local works and corporations with provincial objectives.

The courts have restrictively interpreted federal power over commerce and liberally interpreted provincial power over property and civil rights. There are 4 concurrent jurisdictions: agriculture, immigration (s95), old-age pensions and supplementary benefits (s94A). In the case of dispute, federal legislation will prevail for areas under s95 and provincial legislation for those under s94A. Education is allocated to the provinces (s93), but is subject to certain religious guarantees. The conditional and supplementary powers allocated in s93 to Parliament have fallen into disuse.

Even though each level of government is restricted to its own legislative sphere, frequently one or another has assumed responsibilities which did not clearly belong to it. The provinces, through a legal fiction recognized by the courts, have converted some originally indirect taxes, eg, sales and purchase taxes, into direct ones.

The power to spend money remains an extremely vague and contentious area.

Parliament assumes that it may do so where it does not necessarily have the power to enact legislation; such spending is well received by the provinces when it applies to EQUALIZATION PAYMENTS, but less so when it infringes on provincial fields such as health, social security and education.

Under the Constitution Act of 1982, the principle of equalization is enshrined (s36), but it is unclear how it can be implemented. Provincial jurisdiction over natural resources was enlarged, in 1982, to include concurrent power in interprovincial commerce and extraterritorial marketing (though with federal paramountcy). The provinces have also been granted power of indirect taxation of their natural resources .

The history of Canadian FEDERALISM is basically an account of disputes over the distribution of powers.

From the 1880s until the 1930s federal powers waned relatively, largely because the Judicial Committee of the Privy Council ignored the centralist intentions of many (but not all) of its creators and favoured provincial autonomy in its interpretation of the Constitution Act of 1867; the Supreme Court of Canada, on the other hand, has in its judgements tended generally to strengthen the legislative powers of the federal government in some areas.

Despite several conferences between the provinces and the federal government, there have been few amendments to the division of powers. Other than expanding provincial power in the area of appointments to the Supreme Court and the Senate and a slight provincial enhancement in the shared jurisdiction of immigration, the failed MEECH LAKE ACCORD would have produced no significant changes to the distribution of powers.

Author GÉRALD-A. BEAUDOIN