(Disponible en français : Résumé – Le partage des compétences législatives : un aperçu)
The distribution of legislative powers among the various levels of government is a key feature of federalism. To guide this distribution, the Constitution Act, 1867 divides legislative powers between the Parliament of Canada and the provincial legislatures. Most of these powers are set out in sections 91 to 95 of the Constitution Act, 1867.
However, simply reading these provisions is not usually enough to determine which level of government has jurisdiction over which area. As new areas emerge and legislative authority becomes increasingly complex, questions remain, notably the following: Which areas fall under the jurisdiction of each level of government? Does a given level of government have the necessary authority to make laws in these areas? Fortunately, Canadian courts are regularly asked to consider these issues and, over time, have established some interpretive principles. The answers, nonetheless, remain complex.
This background paper focuses on the distribution of legislative powers between Parliament and the provincial legislatures in selected areas. First, it briefly describes the provisions of the Constitution Act, 1867 that concern legislative powers. Second, it examines how certain powers were assigned to the appropriate level of government in light of the interpretive principles established by the courts.
Legislative jurisdiction in Canada is a very broad issue. The paper does not look at the interpretive principles themselves or list every legislative power. Instead, it provides an overview of the distribution of powers in certain areas selected because of their greater complexity. The paper examines topics or legislation that fall under the aegis of both Parliament and the provincial legislatures, and cases where laws or legislative provisions have been ruled constitutional even though they infringe on the other level of government’s jurisdiction.
Finally, it is important to note that the principles for interpreting the distribution of powers are constantly evolving. There are various reasons behind this evolution, such as the emergence of new areas for legislative action and the recognition that Indigenous peoples have an inherent right to self-government. In constitutional law, the metaphor of a living tree is often used to describe Canada’s Constitution as a set of documents that must adapt to new situations and new social realities. The provisions of the Constitution Act, 1867 dealing with the distribution of powers are no exception to this concept.
Read the full text of the Background Paper: The Distribution of Legislative Powers: An Overview
Authors: Isabelle Brideau and Laurence Brosseau, Library of Parliament