Canada is a federation that consists of twoprincipal linguistic communities (French and English). Major formal amendmentof the constitution in response to changing social and economic circumstancesthat meets the needs of both communities has proven to be almost impossible.The lack of major formal amendments to the constitution does not mean thatsignificant changes have not taken place to meet new challenges facing thefederation. The federation has evolved largely through the non-constitutionalprocesses of intergovernmental relations. Negotiations between theexecutives from each order of government (“executive federalism”) have allowedthe federal government to pursue general policy objectives while at the sametime leaving the provinces a major role in designing and financing the programsthat meet the federal government’s Canada-wide objectives. This process has also been flexibleenough to accommodate many of the particular needs of the provinces, but thehistorical demands of Quebec, for a greater degree of fiscal and policyautonomy from the federal government has put a considerable strain on theprocess of intergovernmental relations. These demands by Quebec have made itincreasingly difficult for the federal government to pursue Canada-wide policyobjectives while at the same time accommodating Quebec’s pressures for greater fiscal andpolicy autonomy. In recent years the larger and wealthier provinces have beganto articulate a position similar to Quebec’s. As early as the 1970s Albertaargued that they needed greater fiscal and policy autonomy in order to pursueprovincial economic strategies. More recently the province of Ontario, and onoccasion British Columbia, have made similar arguments.
Nevertheless, the informal(non-constitutional) process of intergovernmental relations has becomeone of the primary methods for responding to social and economic changesaffecting the federation. These processes of intergovernmental relations haveresulted in a complex series of fiscal arrangements between the federal andprovincial governments. These fiscal arrangements, made in response to socialand economic changes, have largely taken the place of formal constitutionalchange which has proven to be politically divisive and almost impossible toachieve.
Role of Law in the Decision-MakingProcess
As already indicated, the non-constitutionalprocess of intergovernmental relations has played a central role in issues thataffect federalism and fiscal arrangements between the federal and provincialgovernments. Although this is the primary venue for resolving disputes overissues of federalism, the courts and the formal provisions of the constitutionhave played, and continue to play, a significant role in affecting thesedisputes and how they are resolved by providing the framework within whichintergovernmental relations occurs.
One of the central features of the CanadianConstitution is the division of powers contained in the Constitution Act, 1867.Since 1867 the courts have had the responsibility of interpreting theseprovisions and determining whether an Act or some provision of an Act is withinthe legislative jurisdiction of Parliament or of a provincial legislature. Thecourts may only intervene in a dispute over the division of powers if a case isbrought before the court or when a government requests the court’s opinion through a procedureknown as a “reference.”23
Section 91 of the Constitution Act, 1867 specifies the listof exclusive federal powers and gives the federal government residual powers byassigning them legislative and regulatory powers that are not assigned to theprovinces. It is through the provisions in s.91 of the Constitution Act, 1867that the federal government is said to have been assigned all residual powersexcept in local matters.
Although the constitution assigns residualpowers to the federal government this has not resulted in an expansion of itslegislative powers because the courts have given a broad and expansiveinterpretation to the powers of the provinces under s.92 of theConstitution. By giving an expansive interpretation of the provincial authoritythere has been very little room for the federal government to assume newlegislative powers.
To summarise, the courts have played acritical role in defining the relative powers of the federal parliament and theprovincial legislatures. The court’s narrow interpretation of the federal governments powers and abroad interpretation of the provinces’ powers has meant that the federalgovernment has a narrower range of powers than the constitution would seem tosuggest and the provinces have a much wider range of powers. However, as notedearlier, the courts have given a broad interpretation of the federalgovernment’s spendingpower which has allowed the federal government to significantly expand itsde facto policyjurisdiction.
The Constitutional Amending Formula andthe Difficulty of Amending the Constitution
Amending the constitution in Canada has beena politically contentious and difficult task that has, at times, seriouslythreatened the unity of the federation. As a result, the federation has evolvedmainly through a non-constitutional process of intergovernmental agreements.
Canada’s original Constitution of 1867did not specify a process whereby the Constitution could be amended in Canada.The issue of the amending formula for the Constitution was so politicallycontentious that it was the subject of over fifty years of constitutionaldebates between the federal government and the provinces until a formalamending process was adopted in 1982.24 The 1982 amendments to theConstitution only exacerbated the Constitutional tensions, however, becauseQuebec refused to sign the new constitution.
A new federal government was elected in 1984and initiated two rounds of major constitutional negotiations with Quebec andthe other provinces in an attempt to get Quebec to sign the Constitution. Bothof these major attempts at constitutional reform failed and further threatenedthe unity of the country.
The difficulty of formally amending theConstitution and the threat that constitutional negotiations pose for nationalunity means that the primary method of adapting to changing circumstances hasbeen through the non-constitutional process of intergovernmental agreementsand, in this regard, the instruments of fiscal federalism have played a keyrole.
An important role played by the courts inmatters that affect the powers of the federal and provincial governments istheir ability to provide advisory opinions to the federal and provincialgovernments concerning the constitutionality of legislation. The basis for thisfunction is not found in the Constitution but is found in federal andprovincial legislation.
The Supreme Court Act gives the Supreme Courtthe function of providing advisory opinions to the federal government onquestions that it refers to the Court.26 Provincial governmentscannot direct a reference to the Supreme Court but all of the provinces havelegislation that allows them to request references from the highest provincialcourt. Once a provincial court of appeal has rendered its decision on a casethere is a right of appeal to the Supreme Court which has the effect ofallowing the provincial governments to secure a ruling from the Supreme Court.The reference procedure has been used mainly for constitutional questions andthey usually concern the constitutionality of a federal or provincial law (or aproposed law).
Appointments to the AppealCourts
The important role played by the courts ininterpreting the constitution has meant that the method of appointing judges tothe courts has attracted some political attention. The Constitution gives thefederal government the power to appoint all superior court judges, whichincludes the judges on all of the highest provincial courts and the justices ofthe Supreme Court.27 This gives the federalgovernment the power to appoint federal and provincial judges that areresponsible for interpreting the constitution and the relative powers of thefederal and provincial governments. Because of the role the courts play,especially the provincial appeal courts and the Supreme Court, in interpretingthe constitution on matters that relate to federalism the appointment processhas been the subject of constitutional negotiations.
There are a number of constitutionalconventions that are respected in the appointment of Supreme Court judges thatensure regional and linguistic representation on the Supreme Court but theseconventions are not specified in the constitution. The provinces have arguedthat the constitution should be amended to give them a formal role in theappointment of judges to superior courts and that there should be guaranteeswritten into the constitution of regional and linguistic representation on theSupreme Court.
Role of Politics in the Decision-MakingProcess
As indicated above, there is almost a totallack of attention to the issue of intergovernmental relations in the provisionsof the constitution. This means that the process of intergovernmental relationsis governed almost entirely by a series of conventions and informalintergovernmental agreements. In the post–war period the process ofintergovernmental relations in Canada has come to be a process called“executive federalism”. Executive federalism is a process in whichintergovernmental relations are carried out by the executive branches of thefederal and provincial governments (this takes place at both the political andbureaucratic levels). The result is that most intergovernmental relations areconducted by the premiers and the prime minister or by ministers and officialsthat are under their direct control. The federal government and most of theprovincial governments have separate ministries responsible forintergovernmental relations. The increasing significance of intergovernmentalrelations for both orders of government also means that the largest departmentsin the federal and provincial governments also have specific personnel, or insome cases entire bureaucratic divisions, that focus on intergovernmentalissues.
The highest profile and most public meetingsthat take place between the federal and the provinces are the FirstMinisters’ Conferencesthat are attended by the Prime Minister and the premiers of the provinces.These meetings are called by the Prime Minister and usually concern issues thatare of the greatest political concern. There are also a variety of othermeetings that take place among the premiers, without the prime minister. Atthese meeting the premiers may discuss issues that relate to provincial orfederal social and economic policies, constitutional issues, and other issuesthat maybe of particular concern. Examples of these meeting includes: theAnnual Premiers’Conference, the Council of Maritime Premiers, Conference of Atlantic Premiers,the Western Premiers’Conference, and the Council of New England Governors and Eastern CanadianPremiers. There are also extensive sectoral meetings (Ministerial Conferences)between cabinet ministers from the different orders of government that haveresponsibilities that require a great deal of intergovernmental consultation.Much more numerous are the meetings that take place at the bureaucratic levelbetween the civil servants in the federal and provincial governments. Thesemeetings are primarily concerned with implementing agreements that have beenmade at a higher level and ensuring that the necessary coordination is takingplace on important policy issues.
It was the building of the modern welfarestate in the immediate post-war period that initiated and accelerated theprocess of executive federalism. The provinces had constitutional jurisdictionin many of the policy areas that are a central part of the welfare state but,at that time, the provinces lacked sufficient financial resources to fulfilthese responsibilities. Therefore the federal government, with greater fiscalresources and fewer expenditure responsibilities, took a lead role ininitiating and financing new major social programs through the use of itsgeneral spending power.28 As the range of socialprograms expanded the federal and provincial governments became moreinterdependent. Although the constitution assigned the provinces exclusivepowers over most areas of social policy the federal government used itsspending power (and the conditions which it attached to it) to help finance andinfluence major social policies that were in the constitutional jurisdiction ofthe provinces. Therefore, despite assigning most social policy powersexclusively to the provinces the significant role played by the federalgovernment means that these are in practice concurrent powers.29
The Differences Between theProvinces
As indicated earlier, the provinces play acentral role in the process of executive federalism. The provinces haveconstitutional jurisdiction in most social policy areas and they have access toa broad base of tax revenues. However, there is still a considerable degree ofvertical fiscal imbalance between the federal government and the provincialgovernments (see section B). It is this imbalance that creates a role for thefederal government to use its spending power to influence the design anddelivery of social programs in areas such as healthcare, post-secondaryeducation and welfare that are within the constitutional jurisdiction of theprovinces. Although the data in section B (theEconomic Numbers) indicates that the federalgovernment’s role insocial policy spending has been declining over the last forty years, it was thefederal government that initiated many of the programs that are now funded to alarger extent by the provinces. In addition, although the contribution of thefederal government has been declining it continues to play a central role ininfluencing the financing and delivery of social programs at the provinciallevel.
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