Disponible en français: Le bien-être d’un pays : origine de l’expression « paix, ordre et bon gouvernement »
Some 150 years ago, Canada’s Fathers of Confederation hit upon a phrase that has come to define Parliament’s lawmaking authority in relation to the provinces. The phrase “peace, order and good government” is found in the opening to section 91 of the British North America Act, now the Constitution Act, 1867.
Sections 91 and 92 set out the distribution of federal and provincial powers. The reference to peace, order and good government establishes that the federal Parliament can 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 provision, commonly referred to as the POGG power, allocates residuary jurisdiction for the areas of law not otherwise set out in sections 91 and 92 to the federal Parliament. (In contrast, the constitutions of Australia and the United States, for example, allocate residuary powers to the state legislatures).
Over the past 150 years, the POGG power has been interpreted and used as a basis for federal legislation where there is a gap in the distribution of federal and provincial powers, for matters of national concern, and for emergency matters.
Yet the genesis of the POGG power is hardly orderly. Rather, its roots lie, of all places, in welfare. Indeed, the federal Parliament very nearly ended up with a PWGG power to create laws for peace, welfare, and good government.
The meaning and connotations of “welfare” and “order” can be quite different. According to Canadian philosopher and writer John Ralston Saul, the meaning of “welfare” through the Middles Ages and into the 20th century connoted ensuring the well-being of an individual within a society (John Ralston Saul, A Fair Country, (Viking Canada, Toronto, ON: 2008), at page 115.)
“Order”, on the other hand, could imply maintaining control, for example in cases of war or national emergencies (See for example H.A. Smith, “The Residue of Power in Canada”, Canadian Bar Review 4 (1926), pages 432-439).
A. Peace, welfare, and good government in Canada: Early origins leading to Confederation
The “peace, welfare, and good government” declaration of the relationship between the governing and the governed appears in Canada’s earliest British beginnings. It found expression in almost all Canada’s founding documents leading up to Confederation in 1867.
The phrase made its first appearance in Nova Scotia, first in instructions to Nova Scotia’s governor in 1749, and then again in 1758. It appeared with the proclamation announcing the first elections for a representative assembly in the territory, which would be empowered to make laws “for the public peace, welfare, and good government of the province.”
King George III’s Royal Proclamation of 4 October 1763 repeated the phrase in setting out the administration of British territories in North America that had previously been a part of New France. The Proclamation provided for the creation of civil government with a representative assembly and English law in the colonies of Quebec, East Florida, West Florida and Grenada. It enabled them to make laws for “the Public Peace, Welfare, and Good Government.”
The phrase was maintained in the Quebec Act of 1774. It specified that the colony was to be governed by a governor and appointed councillors that would have the “Power and Authority to make Ordinances for the Peace, Welfare, and good Government, of the said Province.”
“Peace, welfare, and good government” reappeared in the Constitutional Act (1791), which divided the Province of Quebec into two colonies, Upper Canada and Lower Canada. It showed up again in the Union Act (1840), which reunited the two colonies into one Province of Canada.
In the autumn of 1864, the Fathers of Confederation gathered in Québec City to continue discussions around confederation that had begun earlier that year in Charlottetown. They used the phrase “peace, welfare, and good government” to describe their understanding of the powers that would be distributed to the federal parliament, as set out in Resolution 29 of the Quebec conference’s 72 resolutions.
Just over two years later, in December 1866, the British North American delegates gathered in London, England, to prepare and finalize the details of confederation. They retained the reference to “peace, welfare, and good government” as the basis for federal jurisdiction in the London Resolutions (at resolution 28).
B. January 1867: “Welfare” becomes “order” as the British North America Act is drafted
However, sometime in January 1867, as the draft of the British North America Act came into being, “peace, welfare, and good government” was modified to become “peace, order, and good government,” the phrase that Canadian constitutionalists know so well today.
Various theories exist to explain the change. One idea, suggested by Stephen Eggleston, in his paper “The myth and mystery of POgG”, is that the “wording was due to nothing more than the terminological preferences of a British aristocrat and his bureaucratic underling.” He was referring to Colonial Secretary Lord Carnarvon, and chief legal drafter F.S. Reilly, both very involved in drafting the bill.
In contrast, John Ralston Saul dismisses the idea that the change from PWGG to POGG was “because of a drafting error, or that it was done on the initiative of a junior British bureaucrat [the drafter Reilly].” Rather, Saul argues that the Canadian delegates to London were “highly intelligent” men who “debated every word of the BNA Act among themselves and in detail.”
Saul suggests that the reference to “order” implied authority and power, and ultimately financial responsibility for policies and programs such as defence (John Ralston Saul, A Fair Country, (Viking Canada, Toronto, ON: 2008), at pages 154-156).
Another theory could relate to a perceived relationship among welfare, property and civil rights. Indeed, early drafts of the BNA Act saw elements of property and civil rights as being under concurrent jurisdiction. Perhaps the reference to “welfare” took on a connotation related to property and civil rights that was ultimately rejected by the delegates when it was determined that property and civil rights would be under provincial jurisdiction.
Whatever the ultimate motivation for changing the language in the drafting of the BNA Act from PWGG to POGG, the division of powers set out in section 91 and 92 of the BNA Act reflected an attempt to encapsulate the visions of the delegates and drafters of the nascent Canadian federation.
Lord Carnarvon, in introducing the BNA Act bill in the House of Lords (at second reading on 19 February 1867), highlighted the distribution of powers as “the most delicate and the most important part” of the bill creating the Dominion of Canada:
The real object which we have in view is to give to the Central Government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions that are of common import to all the Provinces; and, at the same time, to retain for each Province so ample a measure of municipal liberty and self-government as will allow and indeed compel them to exercise those local powers which they can exercise with great advantage to the community.
The intention of sections 91 and 92 of the BNA Act was to ensure that the federal government had the power to address issues of common concern to all the provinces (whether through PWGG or POGG), while each province would have the sovereignty to legislate for themselves. Some 150 years later, the division of powers remains delicate, yet intact.
Finally, while the division of powers sections of the constitution do not refer to “welfare”, the term does have prominence of place in the BNA Act’s preamble, which states that a union of the provinces into the Dominion of Canada “would conduce to the Welfare of the Provinces” as well as the British Empire.
– Stephen Eggleston, “The myth and mystery of POgG”
– John Ralston Saul, A Fair Country, (Viking Canada, Toronto, ON: 2008)
Author: Dara Lithwick, Library of Parliament