Cameron Miranda
The Canadian Constitution divides areas of activity between the federal and provincial governments. The federal government has the power to disallow or veto provincial laws, a power that has been used 121 times in Canada's history. This power is outlined in the Constitution Act in Sections 55 and 90, with the authority resting with the governor general in council. The last time this power was used was in 1943 when the federal government invalidated Alberta's law that limited land sales to Hutterites and other enemy aliens.
| Characteristics | Values |
|---|---|
| Number of times the federal government has disallowed a provincial law | 121 times |
| Last time the federal government disallowed a provincial law | 1943 |
| Reason for the last instance of disallowance | Alberta's law that limited land sales to Hutterites and other "enemy aliens" was invalidated |
| Number of times the power of reservation has been exercised by the governor general | 21 times |
| Number of times the power of reservation has been exercised by lieutenant governors | 70 times |
| Most recent case of reservation | Saskatchewan in 1961 |
| Reason for the most recent case of reservation | Lieutenant governor reserved assent on a bill related to mining contracts |
| Country with the power to disallow federal law in Canada | United Kingdom |
| Number of federal laws disallowed by the United Kingdom since Confederation in 1867 | 1 |
| Number of times the federal government has disallowed a provincial law in the 20th century | 1 |
| Number of times the federal government has disallowed a provincial law in the 21st century | 0 |
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What You'll Learn
- The Canadian Constitution divides areas of activity between federal and provincial governments
- The federal government can disallow a provincial law
- The power of disallowance is not retroactive
- The last time the federal government disallowed a provincial law was in 1943
- The disallowance power is outlined in the Constitution Act in Sections 55 and 90
The Canadian Constitution divides areas of activity between federal and provincial governments
The Canadian Constitution divides areas of activity between the federal and provincial governments. This division of powers is based on the principle of exhaustive distribution, where each legal issue is assigned to either the federal Parliament or the provincial legislatures. The federal government has the power to disallow any provincial law, also known as the disallowance power. This power is outlined in the Constitution Act, with the authority resting with the governor general in council. The disallowance power has been used 121 times in Canada's history, with the most recent instance occurring in 1943 when the federal government disallowed Alberta's law limiting land sales to Hutterites and other "enemy aliens".
The power to disallow a provincial law allows the federal government to veto an act of the provincial legislature. This power was most often used in the early years of Confederation when the federal government believed a provincial law was encroaching on its jurisdiction or when it deemed a provincial law to be unjust. For example, the federal government disallowed several B.C. provisions that discriminated against Japanese-Canadians as it conflicted with relations between the British Empire and Japan. However, the use of this power has drastically declined, and it has not been used in over 75 years, leading to debates about whether it is still a legitimate constitutional tool.
The division of areas of activity between the federal and provincial governments also includes exclusive areas. For instance, the postal service is a federal area, while education is a provincial matter. There are also overlapping areas where both levels of government can create laws and policies, such as in the case of the environment.
The federal government's disallowance power is distinct from its reserve power, although the two are similar. The power of reservation has been exercised 21 times by the governor general, all before 1878, and 70 times by various lieutenant governors, with the most recent case in 1961. Despite the existence of these powers, some have questioned why the federal government hasn't used them to disallow certain provincial legislation, such as Quebec's laws restricting the rights of religious minorities.
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The federal government can disallow a provincial law
The Canadian Constitution divides areas of activity between the federal and provincial governments. The federal government can disallow a provincial law, a power outlined in the Constitution Act in Sections 55 and 90, with the authority resting with the governor general in council. This power was most often used in the early years of Confederation when the federal government believed a provincial law was encroaching on federal jurisdiction or was deemed unjust. The last time the federal government disallowed a provincial law was in 1943, when Alberta's law that limited land sales to "enemy aliens" and Hutterites was invalidated.
The power of disallowance is not retroactive, meaning that any action lawfully done under an act's terms before it is disallowed remains legal. This principle was outlined in the Judicial Committee of the Privy Council decision in Wilson v. Esquimalt and Nanaimo Railway Co. The disallowance power is distinct from the federal government's reserve power, although the two are similar. The reserve power has been exercised 21 times by the governor general, all before 1878, and 70 times by various lieutenant governors, with the most recent case in 1961 in Saskatchewan.
In 1868, John A. Macdonald laid out four scenarios in which the disallowance power might be used. The first two are if the legislation in question is illegal or unconstitutional, in whole or in part, the third, in instances of jurisdictional dispute, and the fourth, "as affecting the interests of the Dominion generally," such as in cases of foreign policy. As an example of the latter, the federal government disallowed several B.C. provisions that discriminated against Japanese-Canadians, as it conflicted with relations between the British Empire and Japan.
In recent years, there have been calls for the federal government to use the disallowance power to overturn Ontario's Bill 28, which included the notwithstanding clause to prevent constitutional challenges to legislation imposing a contract on 55,000 Ontario education workers. There have also been calls to disallow Quebec's legislation that restricts the rights of religious minorities. However, the federal government has not used the disallowance power since World War II, and it has been suggested that in modern Canada, it is the courts, not the federal government, that should decide if a provincial law respects the Constitution.
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The power of disallowance is not retroactive
The power of disallowance allows the federal government to "disallow" provincial law and prevent it from coming into force. This power is not retroactive, meaning that any actions taken or decisions made under an act's terms before its disallowance remain legal and valid.
The power of disallowance was first established in the Constitution Act of 1867, which outlines the authority of the federal government to override provincial laws. This power was intended to ensure constitutional compliance and prevent provincial legislatures from overstepping their bounds. However, it has been criticised as an unwarranted interference in provincial affairs and a tool for political interference.
The use of disallowance has evolved over time, with the last disallowance of a provincial law occurring in 1943, relating to Alberta legislation restricting land sales to "enemy aliens" and Hutterites. While the power of disallowance still formally remains in place, it is generally considered dormant or obsolete through disuse. In recent years, there have been debates about whether the federal government should use this power to override certain provincial laws, such as Quebec's legislation restricting the rights of religious minorities.
The fact that the power of disallowance is not retroactive means that any actions taken or decisions made under a law before it is disallowed are still valid. This distinction is important because it prevents chaos or legal uncertainty that could arise if actions taken under a disallowed law were suddenly invalidated. It also respects the rights of those who acted in good faith under the assumption that the law was valid.
In conclusion, the power of disallowance gives the federal government significant authority over provincial laws and ensures that they do not exceed their constitutional bounds. However, the lack of retroactivity of this power also demonstrates the careful balance that must be struck between federal and provincial powers, ensuring that the federal government cannot arbitrarily undo the effects of provincial laws.
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The last time the federal government disallowed a provincial law was in 1943
In Canada, the federal government has the power to "disallow" a provincial law, which means it can invalidate it. This power is derived from Sections 55 and 90 of the Constitution Act, 1867, which outline the division of powers between the federal government and the provincial governments. The last time a provincial law was disallowed by the federal government was in 1943, when Alberta's law restricting land sales to Hutterites and other "enemy aliens" was invalidated. This law was deemed to be within the exclusive authority of the federal government, as it related to the identification and restriction of enemy aliens.
The power to disallow provincial laws has been used by the federal government 112 times since Confederation in 1867, with the last occurrence being in 1943. This power was used more frequently in the early years of Confederation, with the peak usage occurring in the third and fourth decades of the 20th century. The federal government's power to disallow provincial laws was retained to prevent the provinces from having too much power and to ensure a consistent federal vision for the country.
The process of disallowance involves the governor general in council (federal cabinet) annulling a provincial act, or statute. This power is outlined in Section 55 of the Constitution Act, with Section 90 extending it to provincial legislation. The lieutenant governor, appointed by the governor general, plays a key role in this process, as they must advise the legislature of the disallowance and annul the act. The power of disallowance is not retroactive, meaning any action taken under an act before it is disallowed remains legal.
While the federal government has the power to disallow provincial laws, it has been criticized for not using this power in certain cases, such as with Quebec's legislation restricting the rights of religious minorities. On the other hand, there have also been calls for the federal government to use its power of disallowance more cautiously, as it may cause political harm.
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The disallowance power is outlined in the Constitution Act in Sections 55 and 90
The disallowance power is a historical constitutional mechanism that allows the federal government to "disallow" provincial laws and prevent their implementation. This power is outlined in Sections 55 and 90 of the Constitution Act, 1867, which specify the authority and process for disallowing an act of a provincial legislature.
Section 55 of the Constitution Act addresses the role of the Governor General in granting or withholding the Queen's Assent for bills passed by the Houses of Parliament. It states that the Governor General has the discretion to assent, withhold assent, or reserve the bill for the Queen's Pleasure, subject to the provisions of the Act and the instructions of the Queen. This section sets the framework for the disallowance power, giving the Governor General the authority to withhold approval for a bill, thereby preventing it from becoming law.
Section 90 of the Constitution Act extends the powers of disallowance and reservation to provincial legislation. It substitutes the Governor General of Canada for the Queen-in-Council and the lieutenant governor for the governor general. This section provides the legal basis for the federal government to override or veto provincial laws, ensuring that they comply with the Constitution and do not conflict with federal interests.
The power of disallowance has been used in Canadian history to address illegal or unconstitutional provincial legislation, jurisdictional disputes, and matters affecting the interests of the Dominion, such as foreign policy. It was also intended to protect the rights of minorities and ensure that provincial laws did not infringe upon federal powers. However, the use of disallowance has evolved and become less frequent over time, with the last disallowance of a provincial law occurring in 1943.
While the power of disallowance remains formally in place, it is generally considered dormant and politically obsolete in modern times. There have been debates about whether it has effectively become obsolete through disuse, with some scholars arguing that it has fallen into "constitutional desuetude." Nonetheless, the federal government still retains the power to disallow provincial laws if necessary, demonstrating the enduring federal influence over provincial legislation in Canada.
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Frequently asked questions
Yes, the federal government can disallow any provincial law.
Disallowance is the decision by a representative of the Crown to veto an act of the Parliament of Canada, or a provincial legislature.
The power of disallowance is outlined in the Constitution Act in Sections 55 and 90, with the authority resting with the governor general in council.
The last time the power of disallowance was used was in 1943, when the federal government invalidated Alberta's law that limited land sales to Hutterites and other "enemy aliens".
The use of the power of disallowance has declined and has not been used since World War II. This is because the courts, not the federal government, now decide if a provincial law respects the Constitution.
