Section 91 of the Constitution Act, 1867 () is a provision in the Constitution of Canada that sets out the legislative powers of the federal Parliament. The federal powers in section 91 are balanced by the list of provincial legislative powers set out in section 92 of the Constitution Act, 1867. 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 has been the source of much constitutional litigation since Canadian Confederation in 1867.
The Constitution Act, 1867 is the constitutional statute which established Canada. Originally named the British North America Act, 1867, the act continues to be the foundational statute for the Constitution of Canada, although it has been amended many times since 1867. It is now recognised as part of the supreme law of Canada.
Constitution Act, 1867
The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the supreme law of Canada.Peter Hogg and Wade Wright, Constitutional Law of Canada, 5th ed. (Thomson Reuters (looseleaf; current to 2025)), para. 1:4.Constitution Act, 1982, s. 52, s. 53, and Schedule, item 1. The Act sets out the constitutional framework of Canada, including the structure of the federal government and the powers of the federal government and the provinces. It was the product of extensive negotiations between the provinces of British North America at the Charlottetown Conference in 1864, the Quebec Conference in 1864, and the London Conference in 1866.Donald Creighton, The Road to Confederation (Macmillan Publishing, 1964; reprinted ed., Oxford University Press, 2012); online version.Christopher Moore, 1867 — How the Fathers Made a Deal (McClelland & Stewart, 1997). Those conferences were followed by consultations with the British government in 1867.Ben Gilding,"The Silent Framers of British North American Union: The Colonial Office and Canadian Confederation, 1851–67" (2018) 99:3 Canadian Historical Review. The Act was then enacted by the British Parliament under the name the British North America Act, 1867.Hogg and Wright, Constitutional Law of Canada, para. 1:2.British North America Act, 1867, 30 & 31 Vict., c. 3 (UK). In 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was renamed the Constitution Act, 1867. Since Patriation, the Act can only be amended in Canada, under the amending formula set out in the Constitution Act, 1982.Hogg and Wright, Constitutional Law of Canada, para. 4:1.Constitution Act, 1982, Part V.Canada Act 1982, 1982, c. 11, s. 2 (UK).
Text of section 91
Section 91 reads:
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. It has been amended three times since 1867.
Legislative history Quebec Resolutions: October 1864
Section 91 has its origins in the Quebec Resolutions which were prepared by the Quebec Conference in the fall of 1864. The proposed powers of the federal Parliament were set out in resolution 29, although there were some differences from that initial draft and the final version in section 91. The main differences were as follows:
Customs, excise, and taxation in general were set out in three clauses in the initial list from the Quebec Conference. The three types of taxes were combined into one clause in the act.Quebec Resolutions, resolution 29, clauses 3, 4, and 5, in G.P. Browne and Janet Ajzenstat (eds.), Documents on the Confederation of British North America (McGill-Queen's University Press, 2009; reprint of the 1969 edition), document 34, p. 158.Constitution Act, 1867, s. 91(3). Regulation of inter-provincial transportation and communication, including ships, railways, canals and telegraphs, as well as works declared to be for the general advantage, were all included in the initial list of federal powers. In the act, they were set out as exceptions to the provincial category of local works and undertakings. Federal jurisdiction over those subjects is provided by section 91(29).Quebec Resolutions, resolution 29, clauses 8, 9, 10, and 11, in Browne and Ajzenstat (eds.), Documents, document 34, p. 158.Constitution Act, 1867, s. 91(29), s. 92(10)(a), (b), (c). The proposed list included the power for the federal Parliament to make uniform laws for Ontario, Nova Scotia and New Brunswick relating to property and civil rights and court procedure. That provision eventually became section 94 of the act.Quebec Resolutions, resolution 29, clause 33, in Browne and Ajzenstat (eds.), Documents, document 34, p. 159.Constitution Act, 1867, s. 94. The proposed list gave the federal Parliament the power to create a general court of appeal for the country. That became section 101 of the act.Quebec Resolutions, resolution 29, clause 34, in Browne and Ajzenstat (eds.), Documents, document 34, p. 159.Constitution Act, 1867, s. 101. Immigration and agriculture were in the proposed list of federal powers. They were instead made concurrent federal and provincial powers, in section 95 of the act.Quebec Resolutions, resolution 29, clauses 35 and 36, in Browne and Ajzenstat (eds.), Documents, document 34, p. 159.Constitution Act, 1867, s. 95. The final clause of the list in resolution 29 established that Parliament had jurisdiction over all matters of a general character that were not specially and exclusively reserved to the provinces. A variant of this residual powers clause is included in the introduction to section 91 of the act, in the "peace, order, and good government" power.Quebec Resolutions, resolution 29, clause 37, in Browne and Ajzenstat (eds.), Documents, document 34, p. 159.
London Resolutions: December 1866
The next stage in the drafting process was the London Resolutions, prepared by the delegates from the British North American provinces at the London Conference of 1866. There were a few changes from the Quebec Resolutions: The three clauses relating to customs, excise, and taxation were combined into one clause, in wording similar to the final version in clause 91(3) of the act.London Resolutions, resolution 28, clause 3, in Browne and Ajzenstat, Documents, document 74, p. 221.Constitution Act, 1867, s. 91(3). The subject of statistics was added to the clause for the census.London Resolutions, resolution 28, clause 10, in Browne and Ajzenstat, Documents, document 74, p. 221.Constitution Act, 1867, s. 91(6). Sable Island was added to the clause dealing with beacons, buoys, and lighthouses.London Resolutions, resolution 28, clause 12, in Browne and Ajzenstat, Documents, document 74, p. 221.Constitution Act, 1867, s. 91(9). A new subject was added, the establishment, maintenance and management of penitentiaries, in wording ultimately used in the act.London Resolutions, resolution 28, clause 31, in Browne and Ajzenstat, Documents, document 74, p. 222.Constitution Act, 1867, s. 91(28). The provision authorising the federal Parliament to enact uniform laws in areas of provincial jurisdiction was amended, adding a statement that once Parliament enacted such laws, only Parliament could legislate in that area. That wording did not make it into the final version of section 94 of the act.London Resolutions, resolution 28, clause 32, in Browne and Ajzenstat, Documents, document 74, p. 222.Constitution Act, 1867, s. 94.
Drafting process
Following the preparation of the London Resolutions in December 1866, the drafting process began. The members of the conference were involved in that process, working with the Colonial Secretary, Lord Carnarvon, and the parliamentary drafter. One of John A. Macdonald's secretaries, Joseph Pope, subsequently published documents relating to the Confederation process, including five drafts of the bill, publishing them in 1895.Joseph Pope (ed.), Confederation, being a series of hitherto unpublished documents bearing on the British North America Act (Carswell, 1895).
Pope's collection was the basis for a subsequent collection, published by G.P. Browne in 1968, and re-issued with a new introduction by Janet Ajzenstat in 2009. Browne and Ajzenstat speculate that the number of drafts collected by Pope may not be complete, and that his notes suggest that there was a draft between January 23 and February 2, 1867 which is not in his text.Browne and Ajzenstat (eds.), Documents, document 79, p. 247, note.
Rough draft: January 1867
Following the approval of the London Resolutions, the delegates to the London Conference appointed the four provincial attorneys general as a committee to prepare a rough draft of the proposed bill.Creighton, Road to Confederation, p. 418. There were some differences in substance between that draft and the London Resolutions: the provision authorising the establishment of a general court of appeal was expanded, to include the creation of additional courts "in order to the due execution of the laws of Parliament"."Rough Draft of the London Conference for British North America Bill" (undated), clause 36(35); Browne and Ajzenstat (eds.), Documents, document 78, p. 239. a new provision was added, to empower the federal Parliament to enact laws for the salaries and allowances of the provincial governors, federal officials and judges, the judges of the superior, county and district courts, and admiralty judges, where they were paid by salaries."Rough Draft of the London Conference for British North America Bill" (undated), clause 36(36); Browne and Ajzenstat (eds.), Documents, document 78, p. 239. the previous provision giving the federal Parliament jurisdiction over matters not assigned to the provinces was expanded, to give Parliament jurisdiction to enact laws for the "peace, welfare, and good government of the Confederation", which would take priority over provincial laws. The new wording also provided that in areas of concurrent jurisdiction, federal laws would take priority."Rough Draft of the London Conference for British North America Bill" (undated), clause 36(37); Browne and Ajzenstat (eds.), Documents, document 78, p. 239.
Initial draft: January 23, 1867
The next step was the initial draft prepared by the British parliamentary drafter, dated January 23, 1867. There were again some differences: the provision establishing the general legislative power of the federal Parliament was moved from the end of the list to an expanded introductory clause at the beginning of the list, with "peace, order, and good government" substituted for the previous wording of "peace, welfare, and good government"."Initial Draft of the British North America Bill" (January 23, 1867), clause 38, Browne and Ajzenstat (eds.), Documents, document 78, p. 258. the four headings relating to inter-provincial transportation, canals, telegraphs, works declared to be of the general advantage, and interprovincial and international ferries were all taken out of the list of federal powers and instead listed as exceptions to the provincial jurisdiction over local works and undertakings. A new head of power at the end of the federal list gave Parliament jurisdiction over matters expressly excepted from the list of provincial powers."Initial Draft of the British North America Bill" (January 23, 1867), clause 37(10)(a), (b), (c), (d), and clause 38(27); Browne and Ajzenstat (eds.), Documents, document 78, pp. 257–259. the provision for federal uniform law relating to property and civil rights and court procedure in Ontario, Nova Scotia and New Brunswick was taken out of the general list of federal powers and made into a separate stand-alone provision."Initial Draft of the British North America Bill" (January 23, 1867), clause 40; Browne and Ajzenstat (eds.), Documents, document 78, p. 260.