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PEACE, ORDER AND GOOD GOVERNMENT CHAPTER

-17
RESIDUARY
NATURE
OF
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POWER-

GAP BRANCH
HISTORY
ON
NATIONAL
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CONCERN

BRANCH

PRESENT SITUATION:- Russell case

DEFINITION
OF
NATIONAL
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1.

Nationwide importance

2.

Geographic Dimension

3.

Provincial Inability Test:

4.

Distinctness (unique not common in provinces)

CONCERN

5.
NEWNESS
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EMERGENCY BRANCH
CONCLUSION:

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PEACE, ORDER AND GOOD GOVERNMENT - Chapter -17

RESIDUARY NATURE OF POWER
Section 91 of Constitution Act, 1867 gives federal parliament the power to
make laws for the Peace, Order and Good Government, the matters which
doesnt come with in the provincial heads, will fall under the federal power.
In the democratic government it was designed to create stronger central
government. But section 92 (13) Property and civil rights of the province
and 92(16) Matters merely of local and private nature in the province are
the sweeping heads of province, because most of the matters being covered
under these heads or it can be describes as an actual residuary power in the
hands of the province.
OConnor Report (1939) refused to agree with the POGG as a residuary
power, it was described in the report that enumerated heads of federal
power are merely the examples of the POGG, they are listed for the greater
certainty.
However, I disagree with the view of OConner report, my view is similar to P.
Hogg that it is clear from the opening words of the of section 91 that
enumerated heads are not the examples of the POGG, because if these
topics are considered to be merely examples then the topics given under
federal power (e.g. Trade and Commerce, Banking, Bill of exchange and
Promissory note, Copyright, Marriage and Divorce) would probably fall under
the section 92(13) Property and civil right of the province.
It was the historical necessity of describing these heads under the section
91, for limiting the broad scope of S.92(13).
Another reason for not agreeing with the OConner report, because courts
under the practice do not consider the enumerated head as merely
examples. These heads to be considered as exclusive power of central
government.
GAP BRANCH
Gap branch covers those cases and fills those gaps where a reference was
made to one aspect of subject matter and there is no mention of the other

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aspect of the same subject matter. Under the POGG, gap branch is the way
to fill the gap between the distribution of powers between provincial heads
and federal heads, there are the few gaps in distributing the powers between
and province and federal. e.g. section 92(11) empowers the provincial
legislature to make laws in relation to incorporation of companies with
provincial object. Question arises what about those companies who as object
to work in more than one state, the gap is covered under the POGG power.
Another e.g. Section 132 of constitution act 1867 gives power to federal
parliament to enact the laws for the obligations arising out as a part of
British Empire and treaties signed by the British Empire on the behalf of
Canada. But Section 132 is silent about the treaties signed by the Canada by
its own as an international person. Even it does not mention anywhere in S.
91 or S. 92. The gap is covered under the POGG power.
HISTORY ON NATIONAL CONCERN BRANCH
Russell V. The Queen (1882) Privy.C. upheld (by Sir Montague Smith) the
statute (Canada Temperance Act- for the control of excess consumption of
liquor) on the basis that it did not fall within any of the provincial heads of
legislature.
Above Russell case later explained by Privy Council in Local Prohibition
Case (1896) by Lord Watson and first time National Concern Branch defined
in the definition of POGG that no doubt some matters are local and provincial
in nature, which affects the whole body politic of dominion. Great caution
must be observed by Canadian Parliament before passing the law and the
matter ceasing to be local or provincial and become and national concern.
Although Russell Case was explained in the Local Prohibition Case, but the
decision of local prohibition case was different from the Russell case, court
upheld the provincial statute (Local-Option Temperance Scheme, which was
similar to federal law) under the property and the civil rights of the province
S. 92(13). This time court also established the double aspect doctrine, which
allows the both governments to enact the same law in the same field.
Viscount Haldane came into the Privy Council in 1911 and died in 1928,
under the tenure of Viscount Haldane Privy Council ignored the National
Dimension dictum, and insisted only the emergency branch of the POGG
power.
PRESENT SITUATION: Russell case was again challenged in A.-G. Ont. V.
Canada Temperance Act (1946) two arguments was presented

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1. Whether the Russell case was wrongly decided? OR

2. If the Russell Case was based on the emergency, the alleged emergency
of drunkenness had now passed away.
Court didnt answer the questions and Privy Council through Viscount Simon
refused to overrule the Russell case and said its been 60 years and case is
firmly rooted in the Constitution on Canada and held that Russell was not
decided on the basis of Emergency and POGG is not only confined to
emergencies. Viscount Simon gave the new test: that the real subject matter
goes beyond the local and provincial interest and become the concern of
dominion as whole.
Jonannesson V. West St. Paul (1952) S.C. held that aeronautics satisfied the
national concern test.
Munro V. National Capital Commission (1966) Quebec and Ontario became
unsuccessful in settling the national capital region area trough
cooperation and S.C. held that National Capital region satisfied the national
concern test.
R. V. Crown Zellerbach (1988) S.C. upheld the Federal Ocean Dumping Act
and marine pollution satisfied the National concern test, because it effects
the international waters and it is the matter of Canada as whole.
Ontario Hydro V. Ontario (1993) S.C. upheld the federal jurisdiction over
atomic energy under Federal Atomic Energy Control Act under S.92(10)(c)
and also the production, use and application of atomic energy is the matter
of national concern.
A)

DEFINITION OF NATIONAL CONCERN

Q. When does the subject matter of legislation satisfies the national

concern test?
1.
Nationwide importance of the subject of the legislation, but the
argument raised against only nationwide importance, because some
nationwide importance matter i.e. Law of contract, property, education, etc.
all are within the provincial jurisdiction.
2.
Geographic Dimension can also be a factor, but cannot be a sole
factor for satisfying the national concern branch. There are some cases
where uniform laws are not desired, but its essential, because its beyond
the provincial ability to deal with it.

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3.
Provincial Inability Test: Failure of one province to take preventive
measures. E.g. In Munro case failure of Quebec and Ontario to cooperate on
National Region matter.
4.

Distinctness (unique not common in provinces)

Only distinctness is not sufficient to satisfy, but provincial inability test is

required the matter to be admitted under the national concern branch of
POGG, otherwise the matter will fall under the provincial power of 92(13) or
92(16).
Anti-Inflation Reference (1976) S.C. upheld the federal wage and price
control under the Emergency Branch of POGG. But Beetz J. denied on the
national concern branch, because wages and price control is too broad topic
and under the national concern branch and matter must be a distinct for
passing under the national concern branch . This opinion was supported by
the majority and court upheld the federal wage and price control under the
emergency branch.
5.

NEWNESS

The matters which did not exist during the confederation and now they
cannot be put labeled under the provincial or federal power and the matter is
clearly new in nature, will be dealt as a new problem and comes under the
POGG power of central government. In The Queen V. Hauser(1979) Due to
the new subject matter S.C. held the federal Narcotic Control Act as a valid
exercise of POGG power. Later on in 2003 R. V. Malmo-Levine S.C. held the
possession of marihuana was a valid law power of criminal law and overruled
the decision of Hauser case.
Because the matter of drugs may also come under the criminal power of the
Central government, at that time, federal power to prosecute under the
criminal law was in doubt, thats why the courts tendency to move the laws
into another category.
Conclusion of newness: It is concluded that newness is irrelevant and
unhelpful in determining the content of residuary power.
Matter like Aeronautics, Atomic energy and National Capital region does not
come with in the any enumerated heads of power and covered under the
POGG power.

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EMERGENCY BRANCH
Viscount Haldane came into the privy council in 1911 and died in 1928,
under the tenure of Viscount Haldane privy council ignored the National
Dimension dictum, and insisted only the emergency branch of the POGG
power.
In Toronto Electric Commissioner V. Snider (1925) Privy Council through
Viscount Haldane said that POGG power was available only in the cases
arising out of some extraordinary peril to the national life of Canada, such as
the cases arising out of a war.
Anti-Inflation Reference (1976) After the Act had been in force for six
months, the federal government referred the act to the supreme court of
Canada for a decision as to its constitutionality and Court upheld the act as
an emergency measure.
Temporary character of law is the limitation on the federal emergency
power. Privy Council struck down most of the new deal legislation due to the
permanent nature of the new deal measures.
War, Apprehended insurrection, Inflation,
CONCLUSION: In order to classify the law, one will have a look at exclusive
lists of 91 and 92 and then proceed to different branches of POGG (Gap,
National and Emergency Branch).