Canadian Landscape

Division of Legislative Powers

Ottawa and the Canadian provinces have their division of powers set out in the 1867 British North America Act, long before tobacco control or almost any public health measure was contemplated. Consequently, authority over potential pieces of tobacco control legislation has to be interpreted into the division of powers as set out in the BNA Act.

Numerous judicial decisions make clear that both the provinces and the federal government have some jurisdiction in health matters. The application of jurisdiction to any specific piece of health legislation is determined by looking at the purpose and the effects of the legislation.

It should be noted that municipalities do not have a separate head of power in the constitution of Canada, but rather derive their powers from the provinces’ authority over municipal institutions in the province. The result is that municipalities have whatever jurisdiction their provincial government might delegate to them, but in no instance can that power exceed that which is constitutionally granted to the province itself.

Legislation doesn’t specify the constitutional provision head of power to justify its legislation.

Provinces most often find their tobacco control jurisdiction rooted in the constitution assigning them jurisdiction over “property and civil rights in the province.” They might also find jurisdiction for some aspects of tobacco control via provincial responsibility for matters that are “merely local or private in nature.”

Courts have found federal authority in tobacco control in the trade and commerce power, the criminal law power, and also the so-called POGG power to regulate for “peace, order and good government.”

Clearly, there is room for overlap between valid provincial and federal jurisdiction. Overlap, or concurrent jurisdiction, is most apt to occur when the province bases its jurisdiction on the subject matter and the federal government bases its jurisdiction on the chosen regulatory approach (usually by criminalizing the action).