Peace, order, and good government

Although the text of the act gives Parliament residuary powers to enact laws in any area that has not been allocated to the provincial governments, subsequent jurisprudence has limited the scope of the "peace, order, and good government" power. The limitation on the scope of this clause stems from the narrow interpretation of its branches and the expansive interpretation of provincial powers under section 92 of the Constitution Act, 1867. Particularly limiting is the breadth of provincial power over property and civil rights under s. 92(13). Although the Emergency Branch and the National Concern Branch may be viewed as delimited federal competencies like the enumerated clauses under section 91 (see e.g. AG Canada v AG Ontario (Labour Conventions), [1937] AC 326 (PC)), the clause remains residuary.

The powers under POGG must be interpreted in light of the subsequent jurisprudence on the limitations of the clause and the expansive powers of the provinces under their enumerated heads of power. If a matter does not fall within one of the enumerated classes in section 92, section 91, or the emergency or national concern branches, then it falls within the narrowly defined residual branch of POGG. The POGG power is best understood as a narrowly defined residual power limited to the following three branches.

POGG's gap-filling power covers issues such as drafting oversights and matters not within the boundaries of a province. Drafting oversights include things the drafters of the Constitution forgot to think about but would unambiguously have allocated to Parliament if they had. For instance, section 92 allocates responsibility for provincially incorporated companies to the legislatures but section 91 says nothing about federally incorporated companies: the gap branch allocates this jurisdiction to Parliament, per John Deere Plow Co v Wharton, 1915. Matters not within the boundaries of a particular province include Canadian territorial lands and waters that are within provincial boundaries such as the seabed off the coast of Newfoundland, per Reference Re Seabed and Subsoil of Continental Shelf Offshore Newfoundland, [1984] 1 S.C.R. 86.

The gap branch is rarely relied on because there is so little left to default to the federal government after taking into account the enumerated provincial power over property and civil rights under section 92(13) which applies to any transaction, person or activity that is found within the province.[7] Historically new subject matters, such as aeronautics, do not necessarily fall residually to the federal government, per Johannesson v West St Paul (Rural Municipality of), 1952.

Parliament may invoke emergency powers under the emergency branch of POGG. This began in 1882, when the Judicial Committee of the Privy Council (then the supreme authority over Canadian law) ruled in Russell v. The Queen that the federal government could legislate with regard to alcohol, because even though this would probably have been considered provincial jurisdiction in ordinary circumstances, the federal government was acting to ensure order in Canada. This concept further evolved during the 1920s, when in the 1922 Board of Commerce case, it was stated that POGG could be invoked in times of war and famine, to allow Parliament to intervene in matters of provincial jurisdiction. POGG was later used this way in the Anti-Inflation Reference of 1976, when the Supreme Court of Canada allowed Parliament to regulate inflation on the grounds that it posed a considerable economic problem for Canada. In that case, a great degree of deference was exercised in accepting what the federal government deemed to be an emergency.

The "national concern" doctrine (sometimes referred to as "national dimensions") was an alternate means of applying the POGG powers that found use in the mid-20th century. It allowed Parliament to legislate on matters that would normally fall to the provincial government when the issue became of such importance that it concerned the entire country.

The doctrine originated from a statement by Lord Watson in the Local Prohibition case (1896), wherein he stated:

Their Lordships do not doubt that some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their regulation or abolition in the interest of the Dominion.

After this case the doctrine was completely ignored until 1946 when Viscount Simons brought it back in the case of Ontario v. Canada Temperance Foundation, [1946] A.C. 193 (P.C.). The test as stated in Temperance Foundation was whether the matter "goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole".[8]

The above branches of the power are currently governed by the principles stated by Le Dain J. in R. v. Crown Zellerbach Canada Ltd.:[9]

The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature;

The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern;

For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution;

In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern it is relevant to consider what would be the effect on extra‑provincial interests of a provincial failure to deal effectively with the control or regulation of the intra‑provincial aspects of the matter.

Despite its technical purpose, the phrase "peace, order and good government" has also become meaningful to Canadians. This tripartite motto is sometimes said to define Canadian values in a way comparable to “liberté, égalité, fraternité” (liberty, equality, fraternity) in France or “life, liberty and the pursuit of happiness” in the United States.[10]

It has been used by some scholars to make broad characterizations of Canada's political culture. US sociologist Seymour Martin Lipset, for example, contrasted POGG with the American tripartite motto to conclude Canadians generally believe in a higher degree of deference to the law.[11] As Canadian historian Donald Creighton argued in his report to the Royal Commission on Dominion-Provincial Relations,[12] the expression was used interchangeably in the 19th century by Canadian and Imperial officials with the expression peace, welfare and good government. The term welfare referred not to its more narrow modern echoes, but to the protection of the common wealth, the general public good. Good government referred to good public administration, on the one hand, but also had echoes of what we now talk of as good governance, which incorporates the notion of appropriate self-governance by civil society actors, since one element of good government was thought to be its limitation to its appropriate sphere of responsibility.