Peace, Order and Good Government
“Peace, order and good government” are the words used in section 91 of the British North America Act of 1867 (now Constitution Act, 1867) to define the Canadian Parliament’s lawmaking authority in relation to provincial authority. The phrase’s vague and broad definition of Parliament’s authority over provincial matters has caused tensions between federal and provincial governments over the scope of powers since Confederation. It has come to be considered the Canadian counterpart to the United States’ “life, liberty and the pursuit of happiness.”
The phrase “peace, order and good government” has historically been used in a British colonial context to confer legislative authority (the power to make laws) to local bodies. The New Zealand Constitution Act of 1852, the Commonwealth of Australia Constitution Act of 1900, the South Africa Act of 1909 and the Government of Ireland Act of 1920 all use the phrase. In Canada, variants such as “peace, welfare and good government” appear in the Royal Proclamation of 1763, the Quebec Act of 1774, the Constitutional Act in 1791 and the Act of Union in 1840–41. “Peace, order and good government” first appeared in Canada with the Proclamation of British Columbia in 1858.
Following years of consultation and deliberation, the British North America Act was approved by the Imperial Parliament in 1867. The Act merged the Province of Canada (now Ontario and Québec), New Brunswick and Nova Scotia into a federal dominion that was to be run by the Government of Canada with limited interference from Imperial authorities. The new country was a Dominion in the British Commonwealth, having its own House of Commons, Senate and judicial system. The power to create laws was divided between the federal and provincial governments. Due to the factional regionalism that destabilized pre-Confederation politics, the Canadian government operated on a federal structure, which was intended to preserve a degree of local autonomy in the provinces.
Distribution of Powers
Part VI of the British North America Act comprises sections 91 through 95, and details the distribution of powers between the federal government and the provinces. The Fathers of Confederation intended to create a system in which jurisdiction over national affairs fell to the federal government, while local affairs would be the responsibility of provincial governments. In addition to defining explicitly the jurisdiction of the federal government, section 91 provides the power “to make laws for the peace, order and good government of Canada” in all matters not exclusively the jurisdiction of the provinces. Section 92 defines the provincial powers in which the federal government is not allowed to interfere, such as provincial taxation, natural resources, prisons, charitable institutions and hospitals. If a matter that required legislation whose jurisdiction was not defined by sections 91 or 92 arose, then the principle of “peace, order and good government” ascribed responsibility to the federal government.
The broad scope implied by the phrase “peace, order and good government” can be interpreted to mean that the federal government should have comprehensive authority over any matters not immediately pertaining to the provinces. In practice, federal authority has been interpreted by the courts as pertaining to matters concerning four branches outside of federal and provincial jurisdiction: residual, emergency, national concern and federal paramountcy.
The residual branch pertains to any matter not explicitly described in sections 91 and 92. This branch is rarely used. Although matters not in existence at the time of Confederation were not typically the immediate jurisdiction of the federal government, the Supreme Court of Canada affirmed the federal government’s authority over aeronautics in 1952, in Johannesson v. West St Paul (Rural Municipality of). That case set the precedence for modern interpretations of “peace, order and good government.”
In exceptional circumstances, the federal government may invoke a state of emergency, which grants Parliament special emergency powers. These powers allow for the federal government to infringe on provincial jurisdiction when the country is perceived as facing an existential crisis, such as invasion or widespread political unrest. Such emergency powers are only to last as long as the emergency itself. During the First World War, the federal government passed the War Measures Act, which enabled Parliament to legislate on almost any matter. The emergency doctrine was described in the Supreme Court’s 1976 Reference re Anti-Inflation Act.
National Concern Branch
Under the national concern branch, the federal government can pass legislation on matters described in section 92 when those matters affect the principle of “peace, order and good government.” In 1896 and 1946, two cases related to the prohibition of alcohol provided examples of local matters concerning the federal government. In 1988, the Supreme Court ruled that this doctrine applies to matters that did not exist in 1867 — such as matters related to polluting the ocean — and provincial matters that are of national concern, but are not yet emergencies.
Federal Paramountcy Branch
If there are overlapping federal and provincial laws, the legislation passed by the federal Parliament takes precedence. Historically, this has meant that in the case of conflict or overlap, federal laws were used. However, in November 2015, the Supreme Court held that federal paramountcy should only apply if federal and provincial legislation directly contradict one another.
Canada’s lack of a single constitutional document led to the phrase “peace, order and good government” becoming a central mediating mechanism in the distribution of powers between federal and provincial governments (see Constitutional History). Although initially intended as a strong, centralized government, legal interpretations of “peace, order and good government” over the course of the 20th century have more explicitly defined the limits of federal authority over the provinces.
The conception of national identity articulated by “peace, order and good government” is part of a constellation of beliefs and selected memories that makes up the myth of the Peaceable Kingdom. Canada, it is believed, is a gentler, safer country than the United States. The phrase “peace, order and good government” has taken on a value of its own with Canadians beyond its constitutional purpose. It has come to be seen as the Canadian counterpart to the American “life, liberty and the pursuit of happiness” and the French “liberty, equality, fraternity.” Canadians have long defined themselves in contrast to Americans, and “peace, order and good government” provided a convenient vocabulary for explaining perceived differences. In a clear example of this belief, in 2004, Michael Ignatieff, at that point a Harvard professor, advocated for using “peace, order and good government” as the basis for Canadian foreign policy.
Hakeem O. Yusuf, Colonial and Post-Colonial Constitutionalism in the Commonwealth: Peace, Order, and Good Government (2013)a