Canada is governed by a federal constitution. The main constitutional documents are the Constitution Act, 1867, (formerly known as the British North America Act, 1867) and the Canadian Charter of Rights and Freedoms. In our federal system, sovereignty is divided between two levels of government. The constitution distributes powers and responsibilities by two lists of categories or classes. One list is for the federal parliament, the section 91 powers. The other list is for each of the provincial legislatures, the section 92 powers.
By far the most important of the class of subjects assigned to the exclusive jurisdiction of the provincial legislatures in section 92 is that of “property and civil rights in the province” since all legislation affects civil rights in one way or another. Some authorities have viewed the subject of “property and civil rights” as encompassing the entire field of law-making apart from criminal law.
The Constitution Act has divided responsibility for criminal law between the federal and provincial levels of government. Under section 91(27), the federal parliament is given the exclusive power to enact criminal law and criminal procedure. However, the enforcement of the criminal law is allocated to the provinces pursuant to section 92(14), which provides that the provinces have exclusive power in relation to the “administration of justice in the province.” Thus, the provinces have the right to lay charges, to prosecute offences, and to establish and maintain police forces. Criminal prosecutions are also conducted in courts established and maintained by the provinces.
In our federal system, the judiciary has the authority to resolve disputes over the distribution of powers in order to ensure that neither level of government exceeds the powers that are allocated to it under the constitution. Over the last century, there have been many important decisions about our constitution. Quite a few of them were made in England by the Judicial Committee of the Privy Council which was the court of last resort for appeals from Canada via the Supreme Court of Canada until 1949 when it ended.