Canadian federalism
From Freepedia
Canadian federalism is one of the three pillars of the constitutional order, along with responsible government and the Canadian Charter of Rights and Freedoms. It means that in addition to a central Canadian Parliament, Canada has provincial governments that are sovereign with regard to certain issues (such as property and civil rights). The United Kingdom did not follow this model when Confederation was realized, making Canada unique from its mother country in this respect.
The addition of federalism to the Canadian constitutional structure was a reaction to the colonial diversities in the Maritimes and the Province of Canada, in particular the strong distinction between the French-speaking inhabitants of Lower Canada and the British Canadians in Upper Canada. It was considered essential to the co-existence of the French and English communities. John A. Macdonald, who became the first prime minister of Canada, had opposed a federalist system.
The division of power between the federal government and the provinces was initially outlined in the British North America Act, 1867 (now the Constituion Act, 1867), which, with amendments (in the British North America Acts and the Constitution Act, 1982), form the Constitution of Canada.
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Distribution of Legislative Powers in the Constitution Act, 1867
- See also: Constitution Act, 1867
The federal-provincial Distribution of Legislative Powers (also known as the division of powers) defines the scope of the power of the federal Parliament of Canada and the powers of each individual provincial legislature or assembly. These are contained in sections 91, 92, 92A, 93, 94, 94A and 95 of the Constitution Act, 1867. Much of the distrubtion, however, has been ambiguous, leading to disputes that have been decided by the Judicial Committee of the Privy Council and, after 1949, the Supreme Court of Canada.
Unlike the United States Constitution (which awards residuary powers to the states), the Canadian constitution has created an overarching federal jurisdiction based upon the power known as peace, order and good government (in section 91). Minor residual jurisdiction is based in the provinces (with property and civil rights), but exclusive federal jurisdiction is distinguished from property and civil rights through the enumerated federal powers.
A quick perusal of these powers shows that while the federal government has exclusive jurisdiction over criminal law and procedure (section 91(27)) the provinces have jurisdiction over the administration of justice, including criminal matters (section 92(14)) and penal matters (section 92(15)) regarding any laws made within provincial jurisdiction. Thus Canada has a single Criminal Code but many provincial laws that can result in incarceration or penalty. The courts have recognized that the provinces and the federal government have the right to create corporations; only the federal government has the right to incorporate banks, though provinces may incorporate credit unions.
In relation to marriage and divorce while the federal government has exclusive authority governing marriage and divorce (section 91(26)) (giving Canada a single family law) the provinces can pass laws regulating the solemnization of marriage (section 92(12)). However since the provinces have jurisdiction over civil and political rights (section 92(13)) they can make statutes and common law (or civil law in the case of Quebec) creating such institutions as common-law marriage and civil union.
It is interesting to note that nowhere in the division of powers of the Constitution Act, 1867 is there a mention of a treaty power, this is because such power was still held by the British Empire, it was granted to Canada only after the passage of the Statute of Westminster in 1931.
History
The relationship between Canada and the provinces has changed throughout time, with an increasing amount of decentralization taking place as years progressed. Throughout the Macdonald era (1867-1873, 1878-1891), the Confederation was such that it has been described by political scientist Rand Dyck as "Quasi-Federalism". This meant that the courts read the Constitution of Canada in the way that it had been designed, to give the central Parliament extensive powers that essentially made the provinces "subordinate to Ottawa." The Macdonald government's use of disallowance and reservation also reinforced the supremacy of the federal government.
With the election of Sir Wilfred Laurier came a new phase of Confederation that Dyck refers to as "Classical Federalism". This was marked by more decentralization, as the Judicial Committee of the Privy Council began settling disputes by awarding more powers to the provinces. The federal government also employed disallowance and reservation less. This style of governance continued throughout the early years of the prime ministership of William Lyon Mackenzie King (although disallowance was famously used against Alberta in the 1930s). The exception to the rule were the years during the world wars, when Ottawa expanded its powers greatly. This was done through the War Measures Act and constitutionally justified by the peace, order and good government clause. During the First World War, Parliament increased its taxation powers by establishing income taxes.
Canada emerged from the Second World War with more association or cooperation between federal and provincial levels of government. This owed to the rise of the welfare state and the health care system (as the Canadian goverment acted to ensure that Canadians as a people had some common quality of service), to the fact that many of the jurisdictions of the two levels of government were closely related, and to the fact that this allowed the federal government to retain a great deal of control that they had enjoyed during World War II. Keynesian economics were also introduced by the federal government through this system. The period was also marked by a number of First Ministers meetings (ie., meetings between the prime minister and the provincial premiers).
After 1960 and the Quiet Revolution, Canada again moved toward decentralization, with Quebec often refusing to cooperate closely with the federal government. As the provinces increasingly demanded more and more powers and as the federal government became more centralist in ideology (under the prime ministership of Pierre Trudeau, Canada entered a stage of "conflictual federalism" that could be said to have lasted from 1970 to 1984. The National Energy Program sparked a great deal of bitterness against the federal government in Alberta; indeed, the federal government was also involved in disputes over oil with Newfoundland and Saskatchewan at this time. (These culminated in the addition of section 92A to the Constitution Act, 1867, by the Constitution Act, 1982; the new section gave the provinces more power with regard to these resources).[1] Despite Trudeau's strong federalist image, in his memoir Straight from the Heart, Jean Chretien (a cabinet minister under Trudeau), remarked that behind the scenes Trudeau saw substantial decentralization take place.
Notes
- ^ Dyck, pp. 416-420.
External Links
Source
- Rand Dyck, Canadian Politics: Critical Approaches. Third ed. Scarborough, Ontario: Nelson Thomson Learning, 2000
- P.W. Hogg, Constitutional Law of Canada (2001)
