What is the section 91/92 division of powers?

The section 91/92 division of powers is the federal-provincial division of legislative authority in Canada, set out in sections 91 (federal) and 92 (provincial) of the Constitution Act, 1867. Section 91 lists 29 specific federal heads of power plus the federal residual power for 'peace, order, and good government' (POGG). Section 92 lists 16 specific provincial heads of power. The two sections together establish the framework of Canadian federalism.

Federal heads of power under section 91 include the public debt and property; the 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 section 92); criminal law and procedure; penitentiaries; Indians and lands reserved for the Indians; and several others. The federal residual power for 'peace, order, and good government' covers matters not specifically allocated to either federal or provincial governments.

Provincial heads of power under section 92 include direct provincial taxation; provincial borrowing; the management and sale of provincial public lands; provincial prisons; hospitals (other than marine hospitals); municipal institutions; the solemnisation of marriage in the province; property and civil rights in the province (the largest provincial head, covering most contract law, tort law, and family law); the administration of justice in the province; and 'all matters of a merely local or private nature in the province'. Education is allocated to the provinces under section 93.

Modern federalism has evolved beyond a strict section 91/92 division through several mechanisms. Concurrent jurisdiction (areas where both federal and provincial governments have authority, such as agriculture under section 95, immigration also under section 95, and old-age pensions under section 94A) has expanded. The federal spending power has produced national programmes in areas of provincial jurisdiction. The double-aspect doctrine recognises that some subjects can have both federal and provincial aspects (driving offences, for example, are both federal criminal law and provincial highway-traffic regulation). Courts use the pith-and-substance doctrine to determine the dominant characteristic of legislation when allocating it to federal or provincial jurisdiction. Major Supreme Court decisions interpreting the section 91/92 framework include the Reference re Anti-Inflation Act (1976), the Reference re Securities Act (2011), and the Reference re Greenhouse Gas Pollution Pricing Act (2021).