Federal System

Division of Power in a Federal System

In order to understand how to research statutes and regulations, it may be helpful to learn a bit about Canada’s political system, and how power is shared in a federal state:

A federal state is one that brings together a number of different political communities with a common government for common purposes, and separate “state” or “provincial” or “cantonal” governments for the particular purposes of each community. The United States of America, Canada, Australia and Switzerland are all federal states. Federalism combines unity with diversity. It provides, as Sir John A. Macdonald, Canada’s first Prime Minister, said, “A general government and legislature for general purposes with local governments and legislatures for local purposes.” . . . The provinces dared not remain separate, nor could they merge. They could (and did) form a federation, with a strong central government and Parliament, but also with an ample measure of autonomy and self-government for each of the federating communities.

When Canada was formed, an agreement was reached in the Constitution Act, 1867 as to how power would be distributed between the federal and provincial governments.

Under s. 91 of the Constitution Act, 1867 , the federal government of Canada is given exclusive power to “make Laws 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 Legislatures of the Provinces.” The federal government maintains jurisdiction over such topics as:

• the regulation of trade and commerce
• unemployment insurance
• postal service
• militia, military and naval service, and defence
• navigation and shipping
• banking
• patents and copyright
• marriage and divorce

Under s. 92 of the Constitution Act, 1867 , the provincial governments have exclusive jurisdiction over such topics as:

• direct taxation within the province to raise revenue for provincial purposes
• prisons (but not penitentiaries)
• the incorporation of companies with provincial objects
• the solemnization of marriage in the province
• property and civil rights in the province and generally all matters of a merely local or private nature in the province

Parliament and the provincial legislatures share jurisdiction over agriculture and immigration, and over certain aspects of natural resources. However, if federal and provincial laws regulating these topics conflict, the federal law prevails.

Parliament and the provincial legislatures also share jurisdiction over old age, disability and survivors’ pensions. However, if the laws regulating these topics conflict, the provincial law prevails.

Generally speaking, any subject not specifically listed as falling under provincial jurisdiction in theConstitution Act, 1867, falls under the jurisdiction of the national Parliament.

It is important to note that Canada’s constitution is not limited to the Constitution Act of 1867, but instead consists of a series of British and Canadian legislation. In 1982, the Trudeau government initiated steps to “repatriate” Canada’s constitution. At the same time, Canada introduced the Charter of Rights and Freedoms , a constitutional document that guarantees certain basic rights and freedoms for all Canadians.

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This entry was last updated: April 22, 2016