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Sections 91 and 92

The distribution of powers, between the federal government called Canada and the provincial governments, largely takes place in sections 91 and 92 of the Constitution Act, 1867. The scheme of the distribution of powers is dependent on the concept of classes, which are described in these two sections, and matters which are the content of these classes.

These classes and matters are constitutional constructs, and to understand them you have to understand where they came from. 

From 1840 to confederation in 1867, the province of Canada created a de facto federalism. It was that federalism that formed the foundations of the classes and matters in sections 91 and 92. The bulk of that de facto federalism can be found in the documents included below.

Consolidated Laws of Canada

Consolidated Laws of Upper Canada

Consolidated Laws of Lower Canada

Civil Code of Lower Canada

Code of Civil Procedure

In addition, it is possible to get some understanding of the Constitution by examining those documents that recorded (to some extent) the major events themselves. These include:

 

  • Browne, G.P., Documents on the Confederation of British North America: A Compilation Based on Sir Joseph Pope's Confederation Documents Supplemented by Other Official Material (McCelland and Stewart, 1969) contains a record of the various constitutional conferences in Charlettotown, Quebec and London.

  • Unfortunately, this book is out of print. A reprint is available at McGill-Queen's Press: Janet Ajzenstat (ed), Documents on the Confederation of British North America (McGill-Queen's Press - MQUP, 2009).

  • Another excellent source of primary documents (although not nearly all of those that have been included here) is PrimaryDocuments.ca.  This site includes, among other things, copies of the debates in the UK and in Canada concerning the Constitution Act, 1867 and also includes material leading up to the creation and entrenchment of the Canada Act, 1982 containing the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms.

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