 Hello, this is Weyland Chow and this is Legal Fundamentals Module 1, Part B. In this part, we will look at how the Constitution divides lawmaking powers between our two different levels of government, federal and provincial. The Constitution of Canada does two basic things. The first is it sets out the rules which create our legal and political systems. In particular, it creates a federal system of government which means there is one national government and also various regional governments which we call provincial governments. In order to have a federal system, there has to be a division of lawmaking powers between the federal level government and the provincial level of government. Those rules are contained in the part of the Constitution called the Constitution Act 1867 because those rules were created back in 1867. The second purpose of the Constitution is to protect our basic individual rights and freedoms and that part of the Constitution is called the Charter of Rights and Freedoms Also specifically, it's under the part of the Constitution which is named the Constitution Act 1982. So that is when the Charter was created. The Constitution of Canada is made up of two pieces of legislation. The first is the Constitution Act 1982 and the second is the Constitution Act 1867. The Constitution Act 1982, which is what we see here, includes the Charter of Rights and Freedoms which we will talk about in the next part of this module. But it also includes the rule which makes the Constitution the supreme law of Canada. So what that means is that any law that's made by a government in Canada. So that would include the federal government, provincial governments and municipal governments. So any Canadian law, if it is inconsistent with the Constitution, that law is deemed to be invalid. What we also find in the Constitution Act 1982 is something called the amending formula. So the amending formula sets out the requirements for making an amendment or a change to the Constitution. So this amending formula is purposely set up to make it very difficult to amend the Constitution. So what it requires is the approval of, number one, the federal parliament, which would include both the House of Commons and the Senate. And we also need the approval of at least two thirds of all the provinces. And those provinces have to represent at least 50% or half of the population. So it's that second requirement of getting the two thirds and 50% population, which is usually very difficult to achieve. So practically speaking, it would be very difficult to get an amendment if one or two of the biggest provinces in Canada don't approve of an amendment. So those provinces would be Ontario, Quebec and DC. Our system of government in Canada is created by our original Constitution, which was created back in 1867, and this is a picture of it here. It was an act of the Imperial Parliament. So what that refers to is the British Parliament. So our original Constitution was a British law. It was an act for the Union of Canada, New Brunswick and Nova Scotia. So Canada refers to both Ontario, which is Upper Canada, and Quebec, which was lower Canada. So originally, Canada was made up of four provinces. So this act of the British Parliament was also known as the British North America Act. That British North America Act, or BNA Act for short, was renamed in 1982 to be the Constitution Act 1867, which I referred to in the previous slide. So it was renamed because in 1982, our Constitution became Canadian in the sense that it became a Canadian law. The Constitution Act 1867 was an act of the Parliament of Canada. So our Constitution was no longer British as of 1982, but became Canadian. So within the Constitution Act 1867, which was identical to what was in the British North America Act, so within there we find the rules which create our system of government. So firstly, it creates what's called one Parliament for Canada. So that Parliament is made up of the Queen, who is considered to be our head of state and a Senate and a House of Commons. It also creates legislative assemblies for each of the provinces. So a legislative assembly for Ontario, one for Quebec. So you'll notice in the provision for Quebec, it also refers to a legislative council of Quebec. So what that was, it was the equivalent of a Senate for Quebec. Back in 1968, that legislative council was abolished. And as well, the name of the legislative assembly of Quebec was changed to the Quebec National Assembly. And also, the Constitution Act 1867 or the BNA Act acknowledged the existence of the legislatures of the provinces of Nova Scotia and New Brunswick. So what the Constitution created was two levels of government in Canada. A federal level, which was the Parliament of Canada, and a provincial level, which were the provincial legislative assemblies. In a federal system of government like we have in Canada, we need rules which assign lawmaking powers to each level of government, the federal and the provincial levels. So we find these rules in the Constitution Act 1867 in sections 91, 92 and 93. So let's look first at section 91, which assigns lawmaking power to the federal parliament. So the beginning of section 91 is reproduced here. So it's a lot of very difficult to understand words, so let's try to make sense of it. So the first part refers to the Senate and the House of Commons is refers to the federal parliament. It's basically saying the federal parliament has the power to do these things. And then it also talks about, it says, all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces. So what that is saying is that there's a list of powers given to the provinces, which is in sections 92 and 93. So anything that's not listed and given to the provinces, so if there's a certain subject matter that is not assigned to the provinces, then it automatically belongs to the federal parliament. So that power is commonly called the federal residual power. So residual means what's left over. So what's not listed belongs to the federal parliament. But at the end, it's basically saying the following list is a list of subject matter which the federal parliament has exclusive right to make laws about. The provincial lawmaking powers are set out in the Constitution Act 1867, sections 92 and 93. Section 92 contains a long list of subject matter which the provinces have jurisdiction over. And section 93 specifically gives the provinces the power to make laws concerning education. Please now access the Constitution Act 1867 by either going to this link or use the link that is on slate. You will need to refer to the Constitution Act 1867 in order to do the quick quiz on the next slide. Time for a quick quiz. Referring to sections 91, 92 and 93 of the Constitution Act 1867, determine whether it is the federal government or federal parliament or the provincial legislatures that have the power to make laws regarding each of these subject matters. At this time, please pause the video and work on this quiz and once you're done restart the video. Okay, let's look at banks first. The power to make law about banking belongs to the federal parliament under section 91, 15. So specifically the legislation that the federal government has for banking is called the Bank Act. Property and civil rights belong to the provincial legislatures under section 92, 13. Now what we're talking about when it refers to civil rights is not human rights, which is the more modern meaning. Civil rights in the Constitution means private rights. So things, rights that arise from contract or from tort. So tort meaning the rules that regulate liability arising from a private wrong committed by one person against another. So if I negligently hit you with my car and cause damage to your car, that's considered to be a tort and you consume me to recover your losses. So that's considered to be civil rights and it's governed by the provinces. So this power to regulate property and civil rights from a business standpoint is very significant. And it even extends to give the provinces the right to regulate stock markets because what stock markets are about are contracts. There are contracts to buy and sell stocks. So that's why the provincial legislatures are specifically in Ontario. It's the Ontario Securities Commission. They regulate the stock markets. The next subject matter is taxation. The power to regulate taxation belongs to both the federal parliament and the provincial legislature. So the federal parliament has power to regulate taxation under section 93 and the provincial legislatures get their power to tax under section 92-2. The creation of municipalities belongs to the provinces under section 92-8. So it's up to the provinces to create cities like City of Mississauga or City of Toronto or Town of Lofield. They're the ones that create the municipal governments and give these municipal governments the power to make bylaws. The power to regulate navigation and shipping belongs to the federal parliament under section 91-10. And any matters of a local or private nature within a province belongs to the provincial legislatures under section 92-16. Copyright and any other intellectual property matters such as patent belong to the federal parliament. So copyright is regulated by a statute called the Copyright Act and that is under section 91-23. The issuance of money and currency belongs to the federal parliament. So the money is issued by the Royal Canadian Mint which is owned and operated by the federal government and that's under section 91-14. Employment insurance is under the jurisdiction of the federal government under section 91-2. The way says unemployment insurance actually which is the original name for employment insurance. It was under the government of Brian Mulroney when they changed the name from unemployment insurance to employment insurance. Corporations or more specifically the laws governing the creation of corporations belong to both the federal parliament and provincial legislatures. The provincial power is a more obvious one. Under section 92-11 the incorporation of companies with provincial objects. The federal power is not so obvious. It arises from section 91-2 the regulation of trade and commerce. The bankruptcy belongs to the federal parliament and the statute for that is called the Bankruptcy and Insolvency Act. And that's under section 91-2 of the Constitution Act 1867. Interprovincial and international trade and commerce belongs to the federal parliament. So that would cover with respect to international trade and commerce. So that would cover entering into international trade trees such as the recent one, the Trans-Pacific Partnership. And also interprovincial trade is the jurisdiction of the federal parliament. So conversely trade and commerce within a province is the jurisdiction of the provincial legislatures. And that's usually because of 92-13 which gives the provinces the right to regulate property and civil rights. And any matter that is not exclusively given to the provinces or in other words the residual power belongs to the federal parliament. And we've discussed this before. So under the opening words of section 91 it basically says that any subject matters that are not specifically given to the provinces belong to the federal parliament. So things that such as telecommunications and air travel which are clearly not mentioned at all anywhere in the Constitution Act 1867 because neither of those things existed at that time, both of those subject matters are regulated by the federal parliament. In applying the division of powers between the federal and provincial governments there are a couple of legal concepts that we need to be familiar with. The first concept is called the doctrine of federal paramountcy. So this deals with a situation where we have both a federal law and a provincial law that applies to the same situation and the two laws are inconsistent or in conflict between each other. So which law do you apply? So this doctrine says that we apply the federal law. The federal law is paramount over the provincial law. The other legal concept we need to be familiar with is the Latin term ultra-viries. When we say that legislation is ultra-viries it means that a court has declared that a particular law that was created by a provincial or federal government was created outside of the scope of that government's authority. And therefore that law is ineffective or of no force or effect. So what the court would be saying when it says a law is ultra-viries is that the government that created that law did not have the power to create that law as given to it under the Constitution. Let's now do a quick quiz question. Please pause this video to consider this question and feel free to go back and look at the previous slide. The answer here is C. The question is a province created a statute. A court ruled that the statute was ultra-viries. That means that C. The statute is invalid because the province acted beyond its powers under the division of powers set out by the Constitution.