LE POUVOIR ACCESSOIRE EN DROIT CONSTITUTIONNEL CANADIEN

Abstract

The ancillary (or necessarily incidental) power grants to the federal Parliament the power to enact legislation in relation to provincial matters. This principle was created by the courts in order to facilitate the practical operation of the distribution of powers and it call be applied only in case of necessity. Two tests have been enunciated by the courts to define the cases where it can be applied. The first considers an ancillary provision valid when it is necessary to the effectiveness of the legislative scheme of which it forms part, and the second when there is a direct link between the subject matter of such provision and a federal head of power. The exercise of the ancillary power might have been held to lead to a concurrent jurisdiction of the two levels of government over the subject matter in question, but it in fact seems rather to be treated as transferring to the federal Parliament jurisdiction over the provincial subject covered by the ancillary provision, while it is in force.