What is Section 91 of the Constitution Act, 1867?
Answer
The section that lists exclusive federal powers, including national defence, currency, criminal law, and Indigenous affairs.
Explanation
Section 91 of the Constitution Act, 1867 (originally the British North America Act) lists the matters on which the federal Parliament of Canada may make laws exclusively, to the exclusion of the provincial legislatures. It is the foundational statement of federal authority in Canadian federalism and the counterpart to section 92, which lists exclusive provincial powers. Together the two sections divide the country's lawmaking authority between Ottawa and the provinces.
The section's opening words give Parliament authority 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 of the Provinces'. This 'POGG' power has been used to justify federal action in emergencies (the War Measures Act invoked in 1914, 1939, and 1970) and on matters of national concern (the National Capital Region, the regulation of marine pollution, anti-inflation legislation in 1976).
Section 91 lists 29 specific federal powers (the 'enumerated heads'), including the public debt and property, regulation of trade and commerce, raising money by any mode or system of taxation, postal service, militia and military service, navigation and shipping, currency and coinage, banking, weights and measures, bills of exchange, bankruptcy and insolvency, patents and copyrights, marriage and divorce (shared with provincial section 92), criminal law and procedure, penitentiaries, and (under section 91(24)) 'Indians, and Lands reserved for the Indians'.
Modern interpretation of section 91 has been shaped by Supreme Court decisions including the Persons Case (1929, women as persons under the BNA Act), the Patriation Reference (1981), the Quebec Veto Reference (1982), the Reference re Anti-Inflation Act (1976), and Reference re Securities Act (2011). Section 91(24) responsibility for First Nations was at the centre of the Indian Act (1876) and remains foundational to the federal-Indigenous relationship today.
Why this matters for your test
Section 91 is the constitutional bedrock of federal authority in Canada. Recognising its place in the 1867 Constitution Act, the POGG power, and the 29 enumerated heads gives candidates a clean answer to advanced federalism questions on the test.
Source: Department of Justice Canada; Constitution Act, 1867, s. 91
