The “Declaratory Power” in the Canadian Constitution

The Parliament of Canada is empowered by virtue s. 91 (29) to enact legislation in relation to “Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.” A close examination of s. 92 reveals that the scope of s.91(29) is limited to the exceptions listed in s.92 (1) (Lieutenant-Governor) and s.92 ( 10 a, b, c). Under s. 92 (10 c) the Parliament of Canada is empowered to legislate on “Such works as, although wholly situated within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the provinces.” Such is the declaratory power of the Parliament of Canada; to a large extent, one could easily argue that the declaratory power enables Parliament to reapportion the distribution of legislative power in the Constitution Act, 1867 as there are, really few limitations imposed on the exercise of that power by Parliament. It alone is the judge as to whether or not a “work” is of “a general advantage (to) Canada.” The role of the courts is limited to determining whether or not the Parliament of Canada is dealing with a “work” in the sense used in s.92 (l0c).

The Fathers of Confederation said next to nothing about the exercise of this power. One of the rare mentions of it was made by Macdonald (Confederation Debates, p. 40). He gave as an example of the possible use of the declaratory power the Welland Canal. This was not a particularly enlightening example as canals had otherwise been declared to fall under federal jurisdiction in any case!

Courts have held that”works” have to be interpreted to mean something tangible, a “thing” or an “integrated activity” that would be presumably man-made since the clause contains the words “before and after their execution.” The courts have further held that the declaration has to be made by statutory enactment and that such transfers of jurisdiction as are effected under s. 92 (10c) are not necessarily permanent and that Parliament might repeal or modify any declaration.

Among others, local railways, grain elevators, Bell telephone, flour mills, feed mills, feed warehouses, seed cleaning mills, uranium exploration, atomic production, research and refining establishments have all been declared to be “to the advantage of Canada” and transferred under federal jurisdiction.

Recently there have been recommendations to limit the declaratory power of the Parliament of Canada and to subject it to one form or another of provincial consent or judicial review.

Use of the Declaratory power by periods (1867-1961):

1867-1873: 25 1911-1921: 30
1873-1878: 11 1921-1930: 16
1878-1891: 121 1930-1935: 6
1891-1896: 65 1935-1957: 17
1896-1911: 176 1957-1961: 3

Total: 470

396 federal declarations (84,2%) dealt with railways and 116 affected Quebec (24,6%).

© 2001 Claude Bélanger, Marianopolis College

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This entry was last updated: November 4, 2014