FELDSTED: Quebec recognized the incremental incursion of federal governments on provincial subjects and stood up for herself. We see the results of ensuing negotiations

One of the least understood portions of our constitution is the obligations of the federal government set out under Section 91:

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 ...

... and any matter coming within any of the Classes of Subjects enumerated of a local or private Nature ... assigned exclusively to the Legislatures of the Provinces.

We need to pause here and consider three very important principles:

• Under the initial clause of Section 91, it is clear that federal authority cannot override the classes of subjects assigned to the provinces;
• Under the final clause of Section 91 it is equally clear that classes of subject assigned to provinces cannot be construed as authority to override enumerated federal classes of subject; and
• The lists of classes assigned are not powers. They are classes of subjects assigned to the federal government as areas of responsibility in which to act on behalf of the people. It is a list of federal duties to the nation that cannot be legally transferred to the provinces.

We have long lived under a false premise, encouraged by successive federal governments, that the federal government is a higher authority than the provinces.

That is not so.

“Peace, order and good government” are the words used in section 91 of the British North America Act of 1867 (now Constitution Act, 1867) to define the Canadian Parliament’s lawmaking authority in relation to provincial authority. The phrase’s vague and broad definition of Parliament’s authority over provincial matters has caused tensions between federal and provincial governments over the scope of powers since Confederation. It has come to be considered the Canadian counterpart to the United States’ “life, liberty and the pursuit of happiness.”

~~ The Canadian Encyclopedia ~~

If you look at the list of subjects assigned to the federal government, they are either beyond the capability of a single province to administer, or are intended to prevent the chaos of having ten different sets of laws, for the conduct of ordinary affairs.

Federal subjects are different from but not superior to provincial subjects.

Quebec woke up to this some time ago, and recognized the incremental incursion of federal governments on provincial subjects, and stood up for herself. We see the results of ensuing negotiations.

Federal governments have used the first line of the Section 91 preamble to make laws on subjects not enumerated as provincial:

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;

Federal governments refer to this section as the Peace, Order and Good Government section, which gives it authority to expand the subjects assigned to it ... but then tries to avoid the responsibilities included.

For example, the federal government has no constitutional authority to spend funds on international aid. It cannot show Canadians that spending huge sums on foreign aid is in their best interests. It is ludicrous for a federal government to include large expenditures in foreign aid in a deficit budget.

It is in the best interests of Canadians to avoid deficit budgets and pay down the national debt.

The federal government is not in the compassion business and cannot make a case for the necessity of foreign aid when we have people living in poverty, unable to afford homes, suffering untreated mental ailments and insufficient medical personnel to meet the demands of an aging population.

Providing compassion to foreigners it refuses to extend to residents is not on.

The federal government is responsible for indigenous people, access to clean water, education, health care, housing, and municipal services.  They are failing thousands of people in hundreds of locations.

That is a constitutional responsibility. Foreign aid is not.

The federal government has no constitutional authority to participate in the United Nations, or to spend money on the United Nations, or any of its agencies. The UN has proven completely incapable of protecting any nation from internal rebellion, or outside attack, and has about 65 million refugees to prove it.

The Canadian government is not in the business of cleaning up after UN failures.

NATO and NORAD are different as they are organizations aimed at mutual defence of members and part of the federal obligation to protect Canada.

Stayed tuned as I will shortly be discussing, and taking a look at, the basic list of subjects assigned to provinces.

John Feldsted

Political Consultant & Strategist

Winnipeg, Manitoba