Evolving Canadian Constitution
and Federalism
David Last
Key points
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Written vs. unwritten constitutions
key Canadian constitutional documents
Federal, provincial and concurrent powers
Financial relations – taxation and spending
Constitutionalism and liberal democracy
Amendment procedures
Meech Lake and Charlottetown
Right of secession
Constitution
•  framework for a system of government
•  formal statement of
–  the composition and powers of the key
branches of government
–  relationship between branches
–  guidance concerning respective powers of the
state and sub-units
•  codifies civil rights
•  includes both written and unwritten
elements
http://laws.justice.gc.ca/en/const/
Constitutionalism
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“there should be a framework”
individual inalienable rights
limited government
process of promulgating a constitution is a
step towards regime legitimacy
Constitutionalism
“Constitutionalism is the idea, often associated with the political theories of John
Locke and the "founders" of the American republic, that government can and should
be legally limited in its powers, and that its authority depends on its observing these
limitations. This idea brings with it a host of vexing questions of interest not only to
legal scholars, but to anyone keen to explore the legal and philosophical foundations
of the state. How can a government be legally limited if law is the creation of
government? Does this mean that a government can be "self-limiting," or is there
some way of avoiding this implication? If meaningful limitation is to be possible,
must constitutional constraints be somehow "entrenched"? Must they be enshrined in
written rules? If so, how are they to be interpreted? In terms of literal meaning or the
intentions of their authors, or in terms of the, possibly ever-changing, values they
express? How one answers these questions depends crucially on how one conceives
the nature, identity and authority of constitutions. Does a constitution establish a
stable framework for the exercise of public power which is in some way fixed by
factors like the original meaning or intentions? Or is it a "living tree" which grows
and develops in tandem with changing political values and principles?”
http://plato.stanford.edu/entries/constitutionalism/
Constitutionalism in the International
Community?
The Report of the International Commission on
Intervention and State Sovereignty (ICISS),
Responsibility to Protect, applies the idea of
limited state government to the international
community and suggests that states overstepping
their authority, abusing their citizens, or failing to
protect their citizens might be subject to collective
action by the international community.
Federal systems
•  19 States are organized as federations (Guy,
127)
•  Matured = high consensus about division of
powers (Australia, US)
•  Conciliatory = constitutionally designated
centralism, but ongoing compromises with
units (Canada, India)
•  Centralized = functions like a unitary state
(Brazil, Nigeria)
Reasons for Federalism in
Canada
•  language and religion assigned to provinces
to insulate national politics from divisive
conflicts
•  accommodate a strong sense or regional
identity that created some resistance to
confederation
•  Geographic barriers and difficulty
communicating across long distances in the
early years of state-formation generated
regional identity
Division of Powers
Section 91, 93
Federal
• Peace, order and
good government
• coin money
• public property
• banking
• navigation, shipping
• native people &
lands
• criminal law
• defence
• foreign relations
Section 95
Concurrent
• agriculture
• immigration
Nation building
Section 92, 93
Provincial
• local matters
• provincial credit
• administration of
justice
• licensing
• health and welfare
• municipal
institutions
• provincial lands
Conflict avoiding
Guy, 295
The Canadian “Constitution”
•  Both written and unwritten elements
•  Historical documents
–  1215 Magna Carta
–  1628 Petition of Right
–  1679 Habeus Corpus
–  1689 Bill of Rights
•  British Constitutional Precedents and Decisions
–  Orders in Council
–  Treaties on behalf of Canada
–  Decisions by British Courts on Canadian Cases
•  Canadian sources
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Organic laws (e.g. Citizenship)
Judicial decisions interpreting BNA Act or Constitutional docs
1867 BNA Act
1931 Statute of Westminster
1949 Supreme Court of Canada for final appeal
1982 Charter of Rights and Canada Act
Evolution of Federalism
•  Nation building and the
Federal-Provincial
pendulum (Perlin, V1D1,
Chapter 4)
•  Impact of World Wars and
depression
•  Emerging consensus on
the need for an
interventionist state
National effort to win the wars and
human costs of the depression
contributed to the emerging
consensus on the need for an
interventionist state
http://www.yesnet.yk.ca/schools/projects/canadianhistory/depression/depression.html
Consensus on Federal Activism
•  Federal intrusion on provincial jurisdiction
–  national standards for delivery of social programs
–  cost-shared programs based on the federal “spending
power” (ability to spend on anything in the national interest)
–  entered education with grants to the universities
•  Federal leadership in the national economy
–  investment in national infrastructure (transcanada highway, CBC)
–  spend more during economic down-turns (Keynesianism)
–  Regional development programs to support rural and poor regions
•  Federal encroachment on taxation and revenue collection
Centralisation and Decentralisation
Unitary
government
One level of
authority
Centralised
federalism
Decentralised
federalism
Two levels of
authority, centrl
government
dominates
Two levels of
authority,
regional
governments
dominate
Confederation
one level of
authority;
alliance of
coequal states
Federalism
Federalism
All powers to
federal
government –
no provincial
budget
powers?
All grants
conditional
All grants
unconditional
Feasible range defined by constitutions
Source: Jackson & Jackson, 5th edition, citing Riker, Federalism: Origin,
Operation, Significance
All powers to
provincial
government –
provincial
currency
areas?
Evolution of Canadian Federalism 1867-2000
Mercier &
compact theory
DUAL FEDERALISM
ERA 1883-1910
BNA, 1867
CONFEDERATION
ERA 1867-1883
Conditional
grants begin
WW1 and
conscription
crisis
Rowel-Sirois
Commission
CONTESTED
FEDERALISM
ERA 1976PRESENT
1998 ruling on
secession
Pro-provincial
rulings of JCPC
Mowat’s
rise
Meech and
Charlottetown
1995 Quebec
referendum
Provincial autonomy
Source: Jackson & Jackson, 5th edition
Quiet
WW2
revolution
Constituti
on Act
1982
PQ elected 1976
COOPERATIVE &
EXECUTIVE
FEDERALISM
ERA 1910-1960
Central government dominance
Federal Taxation
•  Federal exclusive rights to income and corporate
taxation dating from WW2
•  by 1947, all but Ont and Que agreed to continue
this arrangement
•  Federal payments to Provinces based on
population, amounted to a form of equalisation
payment
•  1957 tax sharing arrangement - both levels of
government tax income, but regulated
•  1970s - increasingly confrontational federalprovincial relations
(Perlin, v1d1, chapter 4)
Financial Relations - tax and
spend
•  1957-1967 federal tax adjustments
•  1967 - no more adjustments, force provinces to
raise taxes if they want more revenue
–  uniformity
–  “floor” for provincial social spending
•  Provincial complaints of rigid federal programs
and funding formulas
•  1977 - Established Programs Financing Act
•  1980s - big deficits all round
•  1999 - Social Union Agreement
Amendment formulas, Canada Act 1982
1
(HC+S) + (7prov>50% pop)
when reform alters provincial powers or powers of legislative bodies
2
(HC+S) + (all prov)
for matters affecting Queen, GG, LG, the use of English or French, number
of senators, composition of supreme court, amendment procedures
3
(HC+S) + (affected provs)
for any provision that applies to one or more, but not all provinces (e.g.
boundaries, language within province
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(HC+S)
matters affecting only the leg & exec branches of federal govt
5
(Prov)
matters affecting only the province making the amendment (e.g. PR for
provincial elections)
(Guy, 297-8)
Meech Lake, 1987
•  Quebec’s demands to “sign on”:
–  Recognise Quebec as a distinct society
–  Larger provincial role in immigration
–  Provincial input to supreme court
–  limitations to federal spending power
–  veto for Quebec on constitutional questions
•  All agreed at Meech
•  Failure to ratify by 1990
–  MB - Elijah Harper, no recognition of Natives
–  NFLD - concern about federal spending power
Charlottetown, 1992
•  Constitutional conference with AFN participation,
10 premiers
–  new clause expressing fundamental values
–  social and economic union provisions would have
entrenched universal health care, social services,
benefits, education
–  elected senate
–  aboriginal representation in HC
–  expanded areas of exclusive provincial jurisdiction\
•  National referendum in Oct 1992, high voter
turnout, rejected by 54% Only approved by
NFLD, PEI, NB, NWT
Quebec Referenda
•  (Perlin, V1d1, Chapter 3, p. 21 video and update)
•  PQ was in power in Quebec 1976-1985
•  1980 referendum
–  was “soft question” - “mandate to negotiate soveriegnty
association”
–  Trudeau promised constitutional change if “no” won the
referendum
–  59% NO, 40% YES
•  1995 referendum
–  potentially confusing question
–  some balloting fraud
–  50.6% NO, 49.4% YES
Secession Question
1996, Federal government referred the question of secession
by referendum to the supreme court
1. Can the government of Quebec take the province out of Canada
unilaterally?
–  No, it has to negotiate with rest of Canada
–  Right to Self-determination does not push aside constitutional relationship
–  if they voted yes in a referendum, Canada would have a responsibility to
negotiate separation in good faith
2. Does the province have the right of unilateral secession under
international law?
–  Right of secession only applies to colonized or subjugated peoples and this
is not the case in Quebec
3. If there is a conflict between Canadian and International law in Canada,
which takes precedence?
–  There is no conflict with international law
Seminar Questions
•  What stresses and strains have threatened canadian
unity, and how have they been addressed at the
federal level?
•  How have demands of Quebec nationalism been
addressed since 1960s?
•  How have federal and provincial governments
approached taxation and spending?
•  How are the “high road” of constitutional reform,
and the “low road” of fiscal reform linked in
federal-provincial relations?