Section 91 of the Constitution Act, 1867 states that "It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures..." As Professor Lysyk points out at p. 347 of the text, the power conferred to the Parliament is not a sweeping power to legislate in relation to peace, order and good government. The power contained in the opening paragraph of s. 91 is only to legislate for the peace, order, and good government of Canada in matters not exclusively assigned to the provinces. Taking this view to the extreme, it could be argued that the power conferred could never result in a paramountcy analysis -- one could hardly pit the p.o.g.g. power against a provincial head of power, because, again, the p.o.g.g. power does not grant any legislative authority to the federal government in areas exclusively reserved to the provinces.

Of course, the constitutional jurisprudence does not accord with such an analysis. Professor Lysyk himself is quick to point out that, pursuant to the emergency doctrine within p.o.g.g., "Parliament may legislate in relation to matters which would ordinarily come within the classes of subjects assigned to the provinces." [at 349]. In Fort Francis Pulp & Power Co., the Privy Council explained that s. 91 contemplates emergency situations which change the nature of the power being exercised. When such situations occur, "s. 92 is not in any way repealed... but a new aspect of the business of Government is recognized as emerging" [at 390]. What sort of situations constitute emergencies? "Highly exceptional" or "abnormal" circumstances are required to constitute an emergency: Board of Commerce, Toronto Electric Commissioners v. Snider. The legislation must redress a "serious national concern" [Re Anti-Inflation, at text 391] where there is "an urgent and critical situation adversely affecting all Canadians" [ibid., per Ritchie J. at text 394]. If such an emergency does in fact exist, the federal power under the emergency branch is limited by the extent of the emergency. In other words, the existence of an emergency does not automatically confer unfettered powers to the federal government; the legislation must be "necessary" to address the emergency [Re Anti-Inflation per Laskin C.J.C. at 391 text].

The courts have been deferential in demanding proof from the federal government that an emergency exists. In fact, it appears that the burden is on those challenging the legislation to show than an emergency does not, in fact, exist. In Fort Frances, the Privy Council stated that "very clear evidence" would be required to overrule the decision of the government that exceptional measures were still required [text, at 390]. Moreover, Laskin C.J.C. in Anti-Inflation Reference seemed to require only the existence of a "rational basis" for finding that an emergency exists. In fact, only Beetz J. (dissenting) in Anti-Inflation Reference demanded that the federal government 'declare' that an emergency exist before relying on the p.o.g.g. power.

The second branch of p.o.g.g. is what is known as the "national concern" branch. Some matters, while on their face appear as provincial areas of competence, might "attain such dimensions" that the entirety of Canada is affected (Local Prohibitions). It is the nation-wide importance of a subject that determines whether it has the requisite "national concern" (Johannesson, Munro). The national concern branch also contemplates areas where uniformity of the law is essential, in the sense that the problem is beyond the power of the provinces to deal with it (although see LeDain's comments at text p. 377). In Crown Zellerbach, LeDain J. stated that the subject matter must "have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern..." [at text 376]. This requirement, drawn from the Anti-Inflation Reference led Justice LaForest (dissenting) to conclude that marine pollution was not distinctive and unsupportable under p.o.g.g.

There is a secondary consideration for the "national concern" branch that flows from the cases. In R. v. Hauser [at text 371], Justice Pigeon made reference to the fact that the Narcotic Control Act sought to deal with a "genuinely new problem which did not exist at the time of Confederation." The utility of searching for "new" subject matters is questionable. Professor Hogg points out that many "new" subject matters have been upheld under property and civil rights, and the search for "new" areas must mean "conceptually new" (see p. 403 of Hogg's 4th edition). I am not convinced that this is the correct approach either. In order for a "new" subject matter to be supportable under p.o.g.g., the new matter must be found to be wholly outside the ambit of s. 92. Perhaps the "provincial inability" test is still of some value (notwithstanding LeDain's comments above) in this regard. If the provinces are incapable of dealing with the new subject matter alone, then this may be indicative of the rationality under p.o.g.g.

The final question to be considered by the constitutional scholar is, when a 'matter' has been categorized as sustainable under s. 91, as aeronautics and telecommunications have been, when do activities fall outside the scope of that head? For example, take the example of an airport. Clearly, the power to legislate in relation to 'aeronautics' must include constructing runways for the planes to take off and to land on. And, it would equally seem obvious that legislation concerning air safety would also be supportable. But what of legislation regulating the wages of airport workers? Or, what of regulations dictating the fare taxis can charge airport passengers from Pearson airport? If a major hotel chain decides to build a hotel next to the airport, should that be regulated by the federal or the provincial government? What about the wages of those hotel workers? What about the valet parking in that airport? Hot dog vendors outside the airport?

The question then arises, do we need to consider each piece of legislation to determine whether it forms a component part of that indivisible, distinctive subject matter? Or, do we draw a circle around the airport and say "operations within this area are federal"? Obviously this cannot be the case, because, as stated in the interjurisdictional immunity section of the text (and this website), there is no such thing as a federal enclave. National Capital Commission v. Munro did not create a federal city-state of Ottawa to which no provincial laws could apply. So, the answer must be found in looking at the general subject-matter, identifying its distinctive and indivisible characteristics, and draw a conceptual circle around all secondary or subsidiary operations within that subject matter.

This may be easier said than done. Let us return to the airport again. Perhaps we can conclude that certain aspects of a terminal building are matters integral to aeronautics (at the minimum, this would include security, baggage handling areas, ticketing counters, and so on) and certain aspects of the building are not (perhaps the operations of hotdog vendors and shoe shine businesses). Now, when building the terminal building, one of either the federal or provincial Building Codes must apply. Should the federal code apply for the federal aspects, and the provincial code apply for the provincial aspects? The wall may be 5" thick for the security areas but only 3" for the hotdog vendors? The only satisfactory resolution of such concerns is to return to the tried-and-true method of "pith and substance". The regulation of the building of a terminal building would be, in pith and substance, regulation in relation to aeronautics. Of course there would be ancillary effects intruding into provincial competence. But, ancillary effects are of no consequence (Munro, supra).

See the materials contained in Constitutional Law of Canada, 8th edition.