Section 31 of theCanadian Charter of Rights and Freedoms is a part of theConstitution of Canada, which clarifies that the Charter does not increase the powers of either the federal government or the legislatures of theprovinces of Canada. As a result, only thecourts may enforce the rights in the Charter.

The section reads,

31. Nothing in this Charter extends the legislative powers of any body or authority.

As thegovernment of Canada notes, this shows the Charter does not disturb the balance of thedistribution of legislative powers under theConstitution Act, 1867.^[1] Constitutional scholarPeter Hogg has called section 31 a "cautionary provision." He specifically notes that section 31 denies the federalParliament of Canada any additional powers. Indeed, section 31 is a departure from theeducational rights in the Constitution Act, 1867. Section 93(4) of that Act gives the federal Parliament the power to intervene if a provincial government fails to respect certain rights. The federal government could then pass and enforce laws that would uphold the rights.^[2]

The adoption of section 31 was probably meant to avoid an unfavourable reaction against theCharter from the provinces. The provinces had opposed theCharter because of the potential limits on their powers, but the opposition would have been stronger had Parliament been able to exert its authority over the provinces.^[3]

As Hogg notes, section 31 also distinguishes the Charter from various rights in theamendments to the United States Constitution. In theUnited States, the federalCongress has the authority to enforce various rights, including those in theThirteenth Amendment, which prohibitsslavery, theFourteenth Amendment, which binds the states to respectdue process, and theFifteenth Amendment, which contains a partialright to vote.^[2]

While section 31 denies remedial powers in respect of the Charter for Parliament and the legislatures, the courts receive this authority throughsection 24 andsection 52 of theConstitution Act, 1982.

Section 31 is related to the theory offederalism in that if federalism means both the central and regional authorities are sovereign, the central authority should not be able to intervene to change a regional act. The Constitution Act, 1867 allows for this in regard to educational rights because in 1867 Canada was not designed to be a truly federal country. However, Parliament has never exercised its educational powers and it is now generally expected the federal government would not act that way.^[4]

In 1984, theAlberta Court of Appeal, in making its ruling onR. v. Big M Drug Mart Ltd., made reference to section 31. A lower court had found federal legislation compelling the observance of theChristianSabbath to be not only a breach ofsection 2 of the Charter (freedom of religion), but also outside Parliament's criminal law authority under the division of powers, despite earlier findings thatmorality could guide the definition of criminal law. As the lower court argued, the circumstances and values of the day no longer supported the view that Christianity can guide what constitutes valid criminal law. The Court of Appeal, however, overturned the finding on the division of powers. The Court of Appeal argued that the finding that new circumstances and values limited the scope of criminal law constituted "a redistribution of legislative powers in Canada" that section 31 guards against. The Court of Appeal added that it was also the intention that the Charter would not affect the division of powers, and went on to speculate that otherwise the Charter would create an "odd" situation in which a legislative body could unilaterally change the distribution of powers by reclaiming the powers it had lost under the Charter, by invoking thenotwithstanding clause.

In 2001, the Federal Court decided against claims thatsection 30 of the Charter should mean territories should be treated generally like provinces. The Court pointed to section 31, saying section 30 cannot increase the powers of the territorial legislature to the extent that a territory can achieve equality with the provinces.^[5]

• Congressional power of enforcement

• Canadian Charter of Rights and Freedoms
• Federalism in Canada

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