Peace, Order and Good Government

"Peace, order and good government" is the introductory phrase of section 91 of the CONSTITUTION ACT, 1867, generally stating the scope of the legislative jurisdiction of Parliament. In the eyes of some of the FATHERS OF CONFEDERATION, this clause was a general power enabling Parliament to enact laws on matters not specifically conferred upon the provinces, ie, on "residuary" matters. When examining a particular law to ascertain which legislature had jurisdiction, it became necessary to review the 2 lists of enumerated powers, including the provincial power to legislate in the matters of "property and civil rights in the province." In the 1920s the power of this provision was emasculated by Lord Haldane's interpretation of it as an "emergency" power, an interpretation rejected by Lord Simon in the 1946 Prohibition case. The Supreme Court of Canada has, since 1949, done much to revive the clause, particularly through such references as the ANTI-INFLATION ACT REFERENCE.

It can now be stated with some certainty that the opening words of s91 have both a residuary and an emergency function. Parliament can invoke the residuary function of the words "peace, order and good government" when the subject matter of legislation is a genuinely new matter not included within any of the enumerated heads of ss91 and 92 and is of national dimension or importance. This is somewhat of a departure from the "dimensions" doctrine of the 1960s, in which the general power was interpreted to mean federal jurisdiction over local matters that have assumed a national dimension. Such matters included any local concerns that related to atomic energy, aeronautics and the green belt surrounding the national capital region. More recently, the Supreme Court of Canada has said that for a matter to qualify as a national concern or national dimension, among other things, it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern.

The emergency function can be invoked by Parliament to legislate matters which are normally under provincial jurisdiction, but which because of their perceived magnitude or nature are sufficiently critical to require a national or regional legislative response. The exercise of the emergency power by Parliament holds in suspension the normal distribution of powers set out in the Constitution Act, 1867; in these instances it is crucial that the legislation be temporary. For example, during WWI Parliament enacted the WAR MEASURES ACT, which empowered the government to make regulations on almost any subject. In addition to war, the courts have recognized famine, conditions arising out of war and famine, and certain types of economic emergencies as other instances where the emergency doctrine may be invoked by Parliament.

Author A.A. MCLELLAN Revised: GERALD L. GALL

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