Residuary Powers

Residuary Powers

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


Law is our Passion


This entry about Residuary Powers has been published under the terms of the Creative Commons Attribution 3.0 (CC BY 3.0) licence, which permits unrestricted use and reproduction, provided the author or authors of the Residuary Powers entry and the Encyclopedia of Law are in each case credited as the source of the Residuary Powers entry. Please note this CC BY licence applies to some textual content of Residuary Powers, and that some images and other textual or non-textual elements may be covered by special copyright arrangements. For guidance on citing Residuary Powers (giving attribution as required by the CC BY licence), please see below our recommendation of "Cite this Entry".

Cite this entry

Legal Citations Generator
(2014, 10). Residuary Powers lawi.ca Retrieved 06, 2017, from https://lawi.ca/
"Residuary Powers" lawi.ca. 10 2014. 06 2017 <https://lawi.ca/>
"Residuary Powers" lawi.ca. lawi.ca, 10 2014. Web. 06 2017. <https://lawi.ca/>
"Residuary Powers" lawi.ca. 10, 2014. Accesed 06 2017. https://lawi.ca/
International, 'Residuary Powers' (lawi.ca 2014) <https://lawi.ca/> accesed 2017 June 14






Usage Metrics

239 Views


Google Scholar: Search for Residuary Powers Related Content

 

Schema Summary

  • Article Name: Residuary Powers
  • Author: International
  • Description: Share this on WhatsAppResiduary Powers In all federal constitutions fields of jurisdiction are allocated, in one way or [...]


This entry was last updated: November 4, 2014

Author of this Entry:
This entry of the legal Encyclopedia was posted in Constitutional Law and published on on by You can follow any added content to this entry through the RSS feed. You may skip to the end and expand the entry. You will take 1 minute and 52 seconds to read this entry.

Caution: This Canadian legal encyclopedia contains clearly written statements of Canadian legal principle based on common law and legislation regarding Residuary Powers and other areas of law in Canada . But, legal information is not the same as legal advice (which involves applying laws, about Residuary Powers and other topics, to particular individuals and organizations and their particular circumstances). It is always a good idea to consult with an attorney to obtain advice as to how the law (in relation to Residuary Powers and other legal subjects) should be interpreted in light of the particularities of your situation. Also, you should be aware that legal aspects impacting Residuary Powers may change over time and, as such the information contained in this Canadian legal encyclopedia may become out of date.




Constitutional Law in other Legal Encyclopedias



Link Description
Residuary Powers Constitutional Law Category in the World Legal Wiki Encyclopedia
Residuary Powers Constitutional Law Category in the European Legal Wiki Encyclopedia
Residuary Powers Constitutional Law Category in the American Legal Wiki Encyclopedia
Residuary Powers Constitutional Law Category in the Latin American Legal Wiki Encyclopedia
Residuary Powers Constitutional Law Category in the UK Legal Wiki Encyclopedia
Residuary Powers Constitutional Law Category in the Australian Legal Wiki Encyclopedia
Residuary Powers Constitutional Law Category in the Canadian Legal Wiki Encyclopedia
Back to Top

Leave a Reply

Your email address will not be published. Required fields are marked *