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The distribution of powers (see division of powers) between the federal and the provincial governments under our Constitution has, at times, made it difficult for either level of government to deal with certain problems. ’Inter-delegation’– the delegation of federal power to the provinces or a provincial power to the federal government – was seen in the 1930s and 1940s as a solution to the problem. In 1950 however, the Supreme Court of Canada ruled against the constitutionality of such legislation as it would disturb the scheme of distribution of powers in the British North America Act (see Nova Scotia (A.G.) v. Canada (A.G.), [1951] S.C.R. 31).

In 1960 the First Ministers agreed on a constitutional amendment to permit inter-delegation. Parliament would be given power to delegate its authority to make laws in any area of federal jurisdiction if at least four provinces agreed. Equally, four provinces would be authorized to delegate to Parliament legislative jurisdiction over certain specified provincial matters. The 1960 plan was not then implemented and it was reintroduced at a First Ministers Conference in 1964. The agreement of 1964 failed when the government of Quebec reversed its position because of other aspects of the proposed amendment.

The constitutional position remains as it was left in 1964. The delegation of federal legislative power to a province (or group of provinces) or of provincial legislative power to parliament is not constitutionally possible.

The term ‘devolution’ exists in constitutional law but has not generally been used. In fact, it does not appear to be relevant to the constitutional problem at all. Therefore, if a devolution involved a transfer of legislative authority it would almost certainly be regarded legally as delegation.

Sources:

  • P. W. Hogg, Constitutional Law of Canada, looseleaf (Toronto: Carswell, 1977).
  • J. R. Hurley, Amending Canada’s Constitution: History, Processes, Problems and Prospects (Ottawa: Privy Council Office, Policy Development and Constitutional Affairs, 1996).
  • R.L. Watts, Comparing Federal Systems, 2d ed. (Kingston: Published for the
    School of Policy Studies, Queen’s University by McGill-Queen’s University Press, 1999).