This is Part 1 of a two-part article exploring the doctrine of federal paramountcy, which is on the ballot in Alberta’s October 2026 referendum. In this first part, I explain the constitutional context needed to understand the doctrine, and Alberta’s objection to it. Then, in Part 2, I advance the argument that federal paramountcy is an important and indeed required component of Canada’s federal system.
Introduction
On October 19, 2026, Alberta is scheduled to hold a province-wide referendum with ten ballot questions.[1] Ballot Question 9 asks Albertans whether they support the government of Alberta pursuing constitutional change to replace the doctrine of federal paramountcy with a new constitutional rule of provincial paramountcy.
Canada’s longstanding doctrine of federal paramountcy holds that where there is a conflict between a federal and provincial law, the federal law prevails to the extent of the conflict. Taking issue with this, the Government of Alberta proposes that the provincial law should prevail instead, “to make sure that provincial autonomy is respected.”[2] But what would this constitutional reform mean for the autonomy of the people within the provinces, as opposed to the autonomy of provincial governments? Answering this question requires an understanding of the existing doctrine of federal paramountcy, which this article aims to provide.
The Constitutional Division of Legislative Powers
Canada’s federal system constitutionally divides legislative powers between the federal Parliament and the provincial legislatures. This division is mainly set out in sections 91 and 92 of the Constitution Act, 1867.[3] These sections assign specific subjects to the federal and provincial legislatures, granting each the exclusive power to make laws in relation to their designated subjects.
Section 91 grants the federal Parliament exclusive legislative power over 31 subjects, including trade and commerce, defence, navigation and shipping, and the criminal law. Section 92, on the other hand, grants the provinces exclusive legislative power over 16 subjects, such as hospitals, municipalities, property and civil rights, and natural resources.[4]
A law is constitutionally valid only if it relates to a subject assigned to the government that enacted it. Accordingly, a grant of exclusive legislative power has two effects: “It empowers, enabling one order of government to enact laws dealing with a subject, and disempowers, prohibiting the other order from doing so.”[5] That said, the fact that the legislative powers in sections 91 and 92 are framed as “exclusive” has not stopped the federal and provincial laws enacted pursuant to them from overlapping and even, on occasion, conflicting.
But How Can Laws Conflict?
Federal and provincial laws can conflict because federal and provincial legislative powers can overlap, in the sense of applying to the same matter (meaning the same fact situation). Such overlap is clearly anticipated under sections 94A and 95, which grant concurrent legislative powers to the federal and provincial legislatures.[6] Yet, “there is now a good deal of jurisdictional overlap in Canada’s federal system — much more than the text of the division of powers seems to contemplate.”[7] The explanation for this is that overlap can also occur between exclusive legislative powers. But if these powers are “exclusive,” how is this possible? It is possible because the courts said so! — though they had good reason for doing so.
Initially, the dominant judicial approach to the division of powers was premised on a “strong” understanding of exclusivity.[8] Under this approach, exclusive legislative powers were seen as “watertight compartments,” or mutually exclusive.[9] Put another way, exclusive federal and provincial legislative powers were not intended to apply to the same matters. Accordingly, the courts adopted a general approach whereby “overlaps between the[se powers] were to be avoided to the extent possible.”[10]
However, courts quickly realized that some degree of overlap between these powers is “often inevitable and sometimes (if not usually) a good thing.”[11] Consequently, courts have moved toward a more flexible “modern” approach to the division of powers, which allows for “a fair amount of interplay and indeed overlap between federal and provincial powers.”[12] Under this approach, frequently described as “cooperative federalism,” several constitutional doctrines (pith and substance, double aspect, and ancillary powers) are applied to “interpret exclusivity in a weaker manner.”[13] Bruce Ryder explains what this weaker conception of exclusivity entails:
The modern approach to exclusivity simply prohibits each level of government from enacting laws whose dominant characteristic (“pith and substance”) is the regulation of a subject matter with the other level of government’s jurisdiction.[14]
While the need for the modern approach is not controversial, its application is. The more liberally its doctrines are applied, the greater the degree of overlap. This is a source of concern because the greater the degree of overlap, the greater the chance that a federal and provincial law will come into conflict — a situation which has significant implications for provincial autonomy.
Conflicting Laws
“If overlapping powers are unavoidable, so too will be occasional conflicts between the legislative regimes resulting from them.”[15] Basically, where federal and provincial legislative powers overlap, a situation may arise where both orders of government validly regulate the same matter but impose incompatible requirements. Because of this, there must be a rule for resolving conflicts between federal and provincial laws — that is, a paramountcy rule.[16] As the Supreme Court of Canada (“SCC”) explains:
The doctrine of paramountcy is of fundamental importance in a legal system with more than one source of legislative authority, because it provides a guide to courts and ultimately to citizens on how to reconcile seemingly inconsistent legal obligations.[17]
However, “the Constitution Act, 1867 is silent on the issue [of paramountcy], with three very specific, narrowly defined exceptions.”[18] Eugénie Brouillet and Bruce Ryder provide a summary of these exceptions:
Section 94A provides that provincial laws will prevail over conflicting federal laws in the context of old age pensions; section 92A(3) and section 95 provide that federal laws will prevail over conflicting provincial laws in relation to export of natural resources, immigration, and agriculture.[19]
With respect to the rest of the subjects, however, a paramountcy rule is “nowhere to be found.”[20] It was therefore left to the courts to develop a rule, and the rule they developed is the doctrine of federal paramountcy.
The Doctrine of Federal Paramountcy
The doctrine of federal paramountcy holds that where a valid federal law and a valid provincial law conflict, the federal law prevails. Where the doctrine applies, the provincial law is not rendered invalid, nor is it repealed. Rather, the provincial law is rendered inoperative to the extent of the conflict. In practical terms, this means that any parts of the provincial law that conflict with the federal law are deprived of any force or effect for as long as the conflict exists. The significance of this is that “if the federal law is repealed, the provincial law will automatically revive (come back into operation) without any reenactment by the provincial legislature.”[21]
The SCC currently recognizes two forms of conflict: 1) operational conflicts, where compliance with both the federal and provincial law is impossible,[22] and 2) conflicts of purpose, where the operation of the provincial law would frustrate the purpose of the federal law.[23]
In Alberta (Attorney General) v Moloney, the SCC found an operational conflict between the federal Bankruptcy and Insolvency Act (“BIA”) and Alberta’s Traffic Safety Act (“TSA”).[24] By virtue of the BIA, Moloney obtained a bankruptcy discharge that released him from the obligation to pay a motor vehicle judgment debt. The TSA, however, authorized the province to suspend Moloney’s driver’s license until the debt was paid, even though it had been released. The SCC concluded that the application of the two laws resulted in an operational conflict because the provincial law permitted the enforcement of the debt, whereas the federal law prohibited it: “[t]his is a case where the provincial law says ‘yes’ (‘Alberta can enforce this provable claim’), while the federal law says ‘no’ (‘Alberta cannot enforce this provable claim’).”[25] As a result, the TSA was declared inoperative to the extent that it was used to enforce a debt released in bankruptcy.
In Law Society of British Columbia v Mangat, the SCC found that the BC Legal Profession Act (“LPA”) frustrated the purpose of the federal Immigration Act (“IA”).[26] The IA authorized non-lawyers to represent a party before the Immigration and Refugee Board for a fee. The LPA, on the other hand, prohibited non-lawyers from engaging in the practice of law for a fee. Technically, a non-lawyer could comply with both laws either by becoming a lawyer or by not charging a fee. However, the SCC concluded that this would clearly frustrate the purpose of the IA’s authorization, which was to establish “an informal, accessible (in financial, cultural, and linguistic terms), and expeditious process.”[27] Consequently, the LPA was declared inoperative to the extent of the conflict.
Determining whether a conflict exists is not always as straightforward as one would think. While the two-pronged test provides important guidance, it is still susceptible of expansive interpretations. This is especially true of the “frustration of purpose” branch. This matters because “the choice between a narrow and a broad conception of ‘conflict’ has profound implications for the balance of power between the federal and provincial levels of government.”[28]
Put simply, a broad interpretation of conflict “has the effect of expanding the powers of the central government.”[29] The trouble is that the potential for overly broad interpretations of conflict opens the door to more provincial laws being rendered inoperative than warranted. In this way, the doctrine of federal paramountcy, on its face, poses a serious threat to provincial autonomy. In light of this, the SCC has repeatedly affirmed that the doctrine ought to be applied with restraint.[30] In other words, conflict must be narrowly construed.[31] This is because “a narrower interpretation tends to give provincial governments more latitude.”[32] The directive principle of this “restrained approach” to the doctrine of federal paramountcy is that “harmonious interpretation of federal and provincial legislation should be favoured over interpretations that result in incompatibility.”[33]
The Problem with the Doctrine of Federal Paramountcy
Perhaps the most common critique levelled against the doctrine of federal paramountcy is that it favours federal authority to the detriment of provincial autonomy, and is out of sync with the modern, cooperative approach to federalism. Supposedly, federal and provincial governments are “coordinate and not subordinate one to the other.”[34] This would seem to imply that “within their sphere of jurisdiction, the provincial legislatures are sovereign, which sovereignty connotes provincial power to act — or not act — as they see fit.”[35] However, as noted by Hoi Kong, “if there is a conflict, the paramountcy doctrine has the effect of precluding a provincial legislature from achieving legislative objectives that are within that province’s constitutional authority.”[36] This effect is heightened when federal powers and the concept of conflict are interpreted broadly, as all of this increases the odds of a conflict being found. Because of this, the doctrine of federal paramountcy has the potential to erode provincial legislative competence, and to create an intergovernmental imbalance that is arguably at odds with the idea that the federal and provincial governments are equally sovereign within their respective spheres. As noted above, to avoid this danger, courts have often favoured or taken a restrained approach to federal paramountcy. For Alberta, however, this is insufficient to prevent federal overreach and protect against unjustified intrusions into provincial autonomy.
Taking issue with the doctrine, the Government of Alberta contends that federal paramountcy “enables the federal government to [override] what elected legislatures are trying to accomplish.”[37] Of course, a federal system of government necessarily implies some limits on provincial autonomy, but it is worth asking if there is a paramountcy rule that better safeguards the autonomy of the provinces, and better fits the modern, cooperative approach to federalism. According to the government of Alberta, there is: provincial paramountcy. However, to determine whether this rule really is more desirable, it is necessary to inquire further into why the doctrine of federal paramountcy exists in the first place. This is the question taken up in Part 2.
***
Alexis Vander Linden is a 3L law student at the University of Alberta and worked as a Centre for Constitutional Studies Summer Student in 2026
[1] Elections Alberta, “Referendum” (last visited 31 July 2026), online: <elections.ab.ca> [perma.cc/DU3V-CZLN].
[2] Government of Alberta, “Constitutional Questions” (last visited July 31 2026), online: <albertareferendum2026.ca> [perma.cc/3D94-9YJ8].
[3] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, ss 91-92, reprinted in RSC 1985, Appendix II, No 5 [Constitution Act, 1867].
[4] The provincial legislatures are also granted exclusive legislative power over education (subject to four limitations) under section 93 of the Constitution Act, 1867.
[5] Wade K Wright, “Canadian Federalism’s Underlying Question: What It Is and Why It Matters” (2020) 53:2 UBC L Rev 531 at 536.
[6] Section 94A of the Constitution Act, 1867 grants concurrent legislative power over old age pensions and supplementary benefits. Section 95 grants concurrent legislative power over agriculture and immigration.
[7] Wright, supra note 5 at 531.
[8] Bruce Ryder, “The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations” (1991) 32:2 McGill LJ 308 at 312 [Ryder, “Demise and Rise”].
[9] Canadian Western Bank v Alberta, 2007 SCC 22 at para 34 [Canadian Western Bank].
[10] Reference re Securities Act, 2011 SCC 66 at para 56.
[11] Carissima Mathen & Patrick Macklem, Canadian Constitutional Law, 6th ed (Toronto: Edmon Montgomery Publications, 2022) at 207.
[12] Ontario (Attorney General) v OPSEU, 1987 CanLII 71 (SCC) at para 27.
[13] Bruce Ryder, “Equal Autonomy in Canadian Federalism: The Continuing Search for Balance in the Interpretation of the Division of Powers” (2011) 54 SCLR 565 at 579.
[14] Ryder, “Demise and Rise,” supra note 8 at 312.
[15] Andrew Leach and Eric M Adams, “Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Emissions Legislation on Provincial Jurisdiction” (2020) 29:1 Const Forum Const 1 at 9.
[16] Peter W Hogg, “Paramountcy and Tobacco” (2006) 34:11 SCLR 335 at 335.
[17] Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (SCC) at para 98 [Reference re Remuneration of Provincial Judges].
[18] Mathen & Macklem, supra note 11 at 225.
[19] Eugénie Brouillet & Bruce Ryder, “Key Doctrines in Canadian Legal Federalism” in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (New York: Oxford University Press, 2017) 501 at 514.
[20] Reference re Remuneration of Provincial Judges, supra note 17 at para 98.
[21] Peter W Hogg & Wade K Wright, Canadian Constitutional Law, 5th ed (Toronto: Thomas Reuters, 2026) at ch 16:10.
[22] Multiple Access Ltd V McCutcheon, 1982 CanLII 55 (SCC) at 191.
[23] Bank of Montreal v Hall, [1990] 1 SCR 121 at 151-152, 1990 CanLII 157 (SCC).
[24] Alberta (Attorney General) v Moloney, 2015 SCC 51 [Moloney].
[25] Ibid at para 63.
[26] Law Society of British Columbia v Mangat, 2001 SCC 67 [Mangat].
[27] Ibid at para 72.
[28] Mathen & Macklem, supra note 11 at 226.
[29] Canadian Western Bank, supra note 9 at para 70.
[30] Murray-Hall v Quebec (Attorney General), 2023 SCC 10 at para 86 [Murray-Hall].
[31] Bank of Montreal v Marcotte, 2014 SCC 55 at para 72.
[32] Canadian Western Bank, supra note 9 at para 70.
[33] Saskatchewan (Attorney General) v Lemare Lake Logging Ltd, 2015 SCC 53 at para 21.
[34] Reference re Securities Act, supra note 10 at para 71.
[35] References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 394, Brown J.
[36] Hoi Kong, “The Spending Power, Constitutional Interpretation and Legal Pragmatism” (2008) Queen’s LJ 305 at para 23, n 47.
[37] Government of Alberta, supra note 2.