Section 91 of the Constitution Act, 1867

Section 91 of the Constitution Act, 1867 (French: article 91 de la Loi constitutionnelle de 1867) is a provision in the Constitution of Canada that sets out the legislative powers of the federal Parliament.

The dynamic tension between these two sets of legislative authority is generally known as the "division of powers".

The interplay between the two lists of powers have been the source of much constitutional litigation since the Confederation of Canada in 1867.

[1] It was the product of extensive negotiations by the governments of the British North American provinces in the 1860s.

[6] Section 91 reads: Legislative Authority of Parliament of Canada 91.

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, 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; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,— 1.

The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.

[7]Section 91 is found in Part VI of the Constitution Act, 1867, dealing with the distribution of legislative powers between the federal and provincial governments.

When the Act was enacted in 1867, "The Public Debt and Property" was listed as section 91(1), and stayed in that position until 1949.

In that year the British Parliament, on the request of the Canadian Senate and House of Commons, passed an amendment to the Act which re-numbered "The Public Debt and Property" as section 91(1A), and enacted a new version of section 91(1).

[8][9] That version of s. 91(1) was repealed in 1982 on the enactment of the Constitution Act, 1982, which contains a comprehensive amending formula.

Section 44 of that Act is the equivalent to the repealed version of s. 91(1), authorising limited amendments to the internal structure of the federal government.

That provision was added by the British Parliament on the request of the Senate and House of Commons, after unanimous agreement from the provincial governments.

[11] The amendment responded to the 1937 decision of the Judicial Committee of the Privy Council, the highest court for the British Empire, which had struck down an attempt by the federal government to pass unemployment insurance in response to the Great Depression.

The Judicial Committee ruled that unemployment insurance was a matter of exclusive provincial jurisdiction.

Canadian constitutional analysis uses the term ultra vires as shorthand for a matter that is outside the jurisdiction of a government, and intra vires for a matter that is within the jurisdiction of a government.

Although some of the Fathers of Confederation, such as John A. Macdonald, favoured a strong central government, other Fathers of Confederation, such as Oliver Mowat, were more inclined to broader provincial powers.

Quebec has traditionally favoured stronger provincial powers.

In the late 19th century and early 20th century, the Judicial Committee of the Privy Council issued a series of decisions which expanded provincial powers at the expense of federal powers.