Canadian federalism
Encyclopedia
Canada
is a federation with two distinct jurisdictions of political authority: the country-wide federal government
and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government. All the jurisdictions are linked together by the Canadian Crown, from which all derive their sovereignty and authority; each government includes the Queen-in-Parliament
, the Queen-in-Council
, and the Queen-on-the-Bench. The federal parliament and the legislative assemblies of the provinces are each independent of one another with respect to their areas of legislative authority; a few subjects are shared, such as agriculture and immigration, but most are either entirely within federal jurisdiction, such as foreign affairs and telecommunications, or entirely within provincial jurisdiction, such as education and healthcare.
The federal
nature of Canadian constitution 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
(Quebec) and the English
-speaking inhabitants in Upper Canada
(Ontario) and the Maritimes. Federalism 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 at first opposed a federalist system of government, favouring a unitary
system. He, however, later supported the federalist system after seeing the carnage of the American Civil War
; he sought to avoid the same violent conflicts by maintaining a fusion of powers rather than a separation of powers.
The division of powers between the federal and provincial governments was initially outlined in the British North America Act, 1867 (now the Constitution Act, 1867
), a key document within the Constitution of Canada
. Federalism is one of the three pillars of the constitutional order, along with responsible government
and the Canadian Charter of Rights and Freedoms
.
being a part of all equally. As such, the sovereignty of the each is passed on not by the governor general or federal parliament, but through the overreaching Crown itself as a part of the executive, legislative, and judicial operations in Canada's eleven (one federal and ten provincial) legal jurisdictions; though singular, linking the various governments into a federal state, the Crown is thus "divided" into eleven "crowns". The Fathers of Confederation viewed the system of constitutional monarchy as a bulwark against any potential fracturing of the Canadian federation
, and the Crown remains central to Canada's federalism.
and, after 1949, the Supreme Court of Canada
. Doctrines of judicial interpretation of federalism include pith and substance
, double aspect
, paramountcy
and interjurisdictional immunity
The Canadian constitution has created an overarching federal jurisdiction based upon the power known as peace, order and good government
(section 91). However, the Canadian constitution also recognizes certain powers that are exclusive to the provinces and outside federal jurisdiction (section 92). The preamble of section 91 makes this clear: "It shall be lawful for the Queen, [...] to make laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces;" Thus, the federal government of Canada is partly limited by the powers assigned exclusively to the provincial legislatures. For example, the Canadian constitution created a very broad provincial jurisdiction over direct taxation, property, and civil rights. Many disputes between the two levels of government revolve around conflicting interpretations of the meaning of these two powers.
A quick perusal of these powers shows that while the federal government has exclusive jurisdiction over criminal law
(defined in the Margarine Reference
) 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 which offer similar services as the federally chartered banks.
In relation to marriage
and divorce
, the federal government's exclusive authority over these subjects (section 91(26)) has given Canada uniform legislation on them, yet the provinces can pass laws regulating the solemnization of marriage (section 92(12)) and wide variety of subjects pertaining to civil and political rights (section 92(13)) and have created institutions such as common-law marriage
and civil union
.
Nowhere in the division of powers of the Constitution Act, 1867 is there a mention of a treaty power, reserved to the British Empire
. Power for external relations was granted to Canada only after the passage of the Statute of Westminster
in 1931. The domestic implementation of treaties, however, remains divided between the two levels of government.
and commerce
, the power given to Parliament is more broadly worded than that given to the U.S. government, but in Canada since Citizen's Insurance Co. v. Parsons
in the 1880s it has nevertheless been typically read more narrowly, as some judges have felt that it overlaps with the provincial authority over property and civil rights. Parliament's authority over trade and commerce is said to include its "general" aspects, although this was an ambiguous definition until the 1980s when in General Motors of Canada Ltd. v. City National Leasing
it was ruled Parliament could regulate trade and commerce if its object was to achieve something a provincial government alone could not achieve.
and civil rights in the province". In practice, this power has been read broadly giving the provinces authority over numerous matters such as professional trades, labour relations, family law and consumer protection. Property and civil rights is a term that predates the Constitution Act, 1867, and does not mean what it means today. It primarily refers to interactions between private persons. This would include the great majority of what any government would regulate, which means Parliament would be powerless if it were not for its enumerated powers in section 91 and for peace, order and good government.
have overlapping powers between the two jurisdictions. Section 92(10) gives the provinces power over "local work and undertakings". However, the section also excludes the provinces from undertakings related to "ship
s, railways, canal
s, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces", as well as ship lines, and such works "declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more provinces."
Further divisions of responsibilities by jurisdiction are as follows:
. Mainly, the Charter is meant to decrease powers of both levels of government by ensuring both federal and provincial laws respect Charter rights, under section 32
. The relationship between federalism and the Charter is directly dealt with in section 31
, in which it is made clear neither the federal nor provincial governments gain powers under the Charter.
In R. v. Big M Drug Mart Ltd.
(1985) it was found that if laws violate Charter rights, they cannot be justified under section 1
of the Charter if their purpose was inconsistent with the proper division of powers.
"; the structure within Canada was intended to be the same as that which existed between the government at Westminster and the governments of the Empire's North American colonies. The Macdonald government's use of disallowance and reservation
also reinforced the supremacy of the federal government at that time.
With the appointment of Sir Wilfrid Laurier
came a new phase of Confederation that Dyck refers to as "Classical Federalism". This was marked by a more equal relationship between the federal government and the provinces, as the Judicial Committee of the Privy Council settled several disputes in favour of the latter. The federal government also allowed its disallowance and reservation powers to fall into disuse. This style of governance continued throughout the early years of the leadership of Prime Minister William Lyon Mackenzie King
(although legislation from Alberta
was disallowed in the 1930s).
During the two world wars, 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 tax
es. Finally, during the Second World War, the federal government convinced the provinces to transfer jurisdiction over unemployment insurance to Ottawa.
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 government 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 (i.e., meetings between the prime minister and the provincial premiers).
After 1960 and Quebec's Quiet Revolution
, Canada moved toward a greater degree of administrative decentralization, with Quebec
often opting out of important federal initiatives, such as the Canada Pension Plan (Quebec created its own pension plan). As the federal government became more centralist in ideology. Under the leadership of Prime Minister 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).
In the lead up to the patriation of the constitution in 1982, Trudeau had, when negotiations with the provinces stalled at one point, threatened to take the case for patriation straight to the British parliament
"[without] bothering to ask one premier." The federal Cabinet and Crown counsel took the position that if the British Crown in council, parliament, and on the bench was to exercise its sovereignty over Canada, it did so at the request of the federal ministers of the Crown only. Eight provincial cabinets soon appealed to the courts. Justice Joseph O'Sullivan of the Manitoba Court of Appeal
found that the federal government's position was incorrect; the constitutionally entrenched principle of responsible government
meant that the Queen, as either Queen of Canada or of the UK, could not legislate for the provinces (i.e. alter their constitutions) only on the advice of her Canadian federal ministers; "Canada had not one responsible government but eleven." Further, officials in the United Kingdom indicated that the British parliament was under no obligation to fulfill any request for legal changes made by Trudeau, particularly if Canadian convention was not being followed.
The Progressive Conservative Party of Canada
under Joe Clark
and Brian Mulroney
favoured devolution of powers to the provinces, culminating in the failed Meech Lake
and Charlottetown
accords. After a merger with the heavily devolutionist Canadian Alliance
, the new Conservative Party of Canada
under Stephen Harper
has continued the same stance.
After the 1995 Quebec referendum
on Quebec sovereignty, one of several actions by then Prime Minister Jean Chrétien
was to put some limits on the ability of the federal government to spend money in areas of provincial jurisdiction. Thus, in 1999, the federal government and all provincial governments except Quebec's agreed to the Social Union Framework Agreement
, which promoted common standards for social programs across Canada. Former Prime Minister Paul Martin
has used the term asymmetrical federalism to describe this arrangement.
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
is a federation with two distinct jurisdictions of political authority: the country-wide federal government
Government of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government. All the jurisdictions are linked together by the Canadian Crown, from which all derive their sovereignty and authority; each government includes the Queen-in-Parliament
Queen-in-Parliament
The Queen-in-Parliament , sometimes referred to as the Crown-in-Parliament or, more fully, as the King in Parliament under God, is a technical term of constitutional law in the Commonwealth realms that refers to the Crown in its legislative role, acting with the advice and consent of the lower...
, the Queen-in-Council
Queen-in-Council
The Queen-in-Council is, in each of the Commonwealth realms, the technical term of constitutional law that refers to the exercise of executive authority, denoting the monarch acting by and with the advice and consent of his or her privy council or executive council The Queen-in-Council (during...
, and the Queen-on-the-Bench. The federal parliament and the legislative assemblies of the provinces are each independent of one another with respect to their areas of legislative authority; a few subjects are shared, such as agriculture and immigration, but most are either entirely within federal jurisdiction, such as foreign affairs and telecommunications, or entirely within provincial jurisdiction, such as education and healthcare.
The federal
Federation
A federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
nature of Canadian constitution was a reaction to the colonial diversities in the Maritimes
Maritimes
The Maritime provinces, also called the Maritimes or the Canadian Maritimes, is a region of Eastern Canada consisting of three provinces, New Brunswick, Nova Scotia, and Prince Edward Island. On the Atlantic coast, the Maritimes are a subregion of Atlantic Canada, which also includes the...
and the Province of Canada
Province of Canada
The Province of Canada, United Province of Canada, or the United Canadas was a British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham in the Report on the Affairs of British North America following the Rebellions of...
, in particular the strong distinction between the French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
-speaking inhabitants of Lower Canada
Lower Canada
The Province of Lower Canada was a British colony on the lower Saint Lawrence River and the shores of the Gulf of Saint Lawrence...
(Quebec) and the English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
-speaking inhabitants in Upper Canada
Upper Canada
The Province of Upper Canada was a political division in British Canada established in 1791 by the British Empire to govern the central third of the lands in British North America and to accommodate Loyalist refugees from the United States of America after the American Revolution...
(Ontario) and the Maritimes. Federalism was considered essential to the co-existence of the French and English communities. John A. Macdonald
John A. Macdonald
Sir John Alexander Macdonald, GCB, KCMG, PC, PC , QC was the first Prime Minister of Canada. The dominant figure of Canadian Confederation, his political career spanned almost half a century...
, who became the first Prime Minister of Canada
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
, had at first opposed a federalist system of government, favouring a unitary
Unitary state
A unitary state is a state governed as one single unit in which the central government is supreme and any administrative divisions exercise only powers that their central government chooses to delegate...
system. He, however, later supported the federalist system after seeing the carnage of the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
; he sought to avoid the same violent conflicts by maintaining a fusion of powers rather than a separation of powers.
The division of powers between the federal and provincial governments was initially outlined in the British North America Act, 1867 (now the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
), a key document within the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
. Federalism is one of the three pillars of the constitutional order, along with responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
and the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
The Crown
As a federal monarchy, the Canadian Crown is unitary throughout all jurisdictions in the country, with the headship of stateHead of State
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
being a part of all equally. As such, the sovereignty of the each is passed on not by the governor general or federal parliament, but through the overreaching Crown itself as a part of the executive, legislative, and judicial operations in Canada's eleven (one federal and ten provincial) legal jurisdictions; though singular, linking the various governments into a federal state, the Crown is thus "divided" into eleven "crowns". The Fathers of Confederation viewed the system of constitutional monarchy as a bulwark against any potential fracturing of the Canadian federation
Canadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
, and the Crown remains central to Canada's federalism.
Distribution of Legislative Powers in the 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 distribution, however, has been ambiguous, leading to disputes that have been decided by the Judicial Committee of the Privy CouncilJudicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
and, after 1949, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
. Doctrines of judicial interpretation of federalism include pith and substance
Pith and substance
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls...
, double aspect
Double aspect
Double aspect is a legal doctrine in Canadian constitutional law that allows for laws to be created by both provincial and federal governments in relation to the same subject matter. Typically, the federalist system assigns subject matters of legislation to a single head of power...
, paramountcy
Paramountcy (Canada)
In Canadian constitutional law, the doctrine of paramountcy establishes that where there is a conflict between valid provincial and federal laws, the federal law will prevail and the provincial law will be inoperative to the extent that it conflicts with the federal law...
and interjurisdictional immunity
Interjurisdictional immunity
In Canadian Constitutional law, interjurisdictional immunity is the legal doctrine that prevents a law from being applied to matters outside of the constitutional jurisdiction of the enacting head of power...
The Canadian constitution has created an overarching federal jurisdiction based upon the power known as peace, order and good government
Peace, order and good government
In many Commonwealth jurisdictions, the phrase "peace, order and good government" is an expression used in law to express the legitimate objects of legislative powers conferred by statute...
(section 91). However, the Canadian constitution also recognizes certain powers that are exclusive to the provinces and outside federal jurisdiction (section 92). The preamble of section 91 makes this clear: "It shall be lawful for the Queen, [...] to make laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces;" Thus, the federal government of Canada is partly limited by the powers assigned exclusively to the provincial legislatures. For example, the Canadian constitution created a very broad provincial jurisdiction over direct taxation, property, and civil rights. Many disputes between the two levels of government revolve around conflicting interpretations of the meaning of these two powers.
A quick perusal of these powers shows that while the federal government has exclusive jurisdiction over criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
(defined in the Margarine Reference
Margarine Reference
Reference re Validity of Section 5 of the Dairy Industry Act , also known as the Margarine Reference or as Can. Federation of Agriculture v. A.-G. Que., is a leading opinion of the Supreme Court of Canada on determining if a law is within the authority of the federal government under the...
) 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 which offer similar services as the federally chartered banks.
In relation to marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
and divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
, the federal government's exclusive authority over these subjects (section 91(26)) has given Canada uniform legislation on them, yet the provinces can pass laws regulating the solemnization of marriage (section 92(12)) and wide variety of subjects pertaining to civil and political rights (section 92(13)) and have created institutions such as common-law marriage
Common-law marriage
Common-law marriage, sometimes called sui juris marriage, informal marriage or marriage by habit and repute, is a form of interpersonal status that is legally recognized in limited jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage...
and civil union
Civil union
A civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...
.
Nowhere in the division of powers of the Constitution Act, 1867 is there a mention of a treaty power, reserved to the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
. Power for external relations was granted to Canada only after the passage of the Statute of Westminster
Statute of Westminster 1931
The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom. Passed on 11 December 1931, the Act established legislative equality for the self-governing dominions of the British Empire with the United Kingdom...
in 1931. The domestic implementation of treaties, however, remains divided between the two levels of government.
Trade and commerce
Section 91(2) gives Parliament the power to make law related to the "regulation of trade and commerce." In comparison with the U.S. Constitution's approach to tradeTrade
Trade is the transfer of ownership of goods and services from one person or entity to another. Trade is sometimes loosely called commerce or financial transaction or barter. A network that allows trade is called a market. The original form of trade was barter, the direct exchange of goods and...
and commerce
Commerce
While business refers to the value-creating activities of an organization for profit, commerce means the whole system of an economy that constitutes an environment for business. The system includes legal, economic, political, social, cultural, and technological systems that are in operation in any...
, the power given to Parliament is more broadly worded than that given to the U.S. government, but in Canada since Citizen's Insurance Co. v. Parsons
Citizen's Insurance Co. v. Parsons
Citizen's Insurance Company of Canada v. Parsons , 7 App. Cas. 96 is a major Canadian constitutional case decided by the Judicial Committee of the Privy Council...
in the 1880s it has nevertheless been typically read more narrowly, as some judges have felt that it overlaps with the provincial authority over property and civil rights. Parliament's authority over trade and commerce is said to include its "general" aspects, although this was an ambiguous definition until the 1980s when in General Motors of Canada Ltd. v. City National Leasing
General Motors of Canada Ltd. v. City National Leasing
General Motors of Canada Ltd. v. City National Leasing [1989] 1 S.C.R. 641, is a leading Supreme Court of Canada decision on the scope of the Trade and Commerce powers of the Constitution Act, 1867 as well as the interpretation of the Ancillary doctrine....
it was ruled Parliament could regulate trade and commerce if its object was to achieve something a provincial government alone could not achieve.
Property and civil rights
Section 92(13) gives the provinces the exclusive power to make law related to "propertyProperty
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
and civil rights in the province". In practice, this power has been read broadly giving the provinces authority over numerous matters such as professional trades, labour relations, family law and consumer protection. Property and civil rights is a term that predates the Constitution Act, 1867, and does not mean what it means today. It primarily refers to interactions between private persons. This would include the great majority of what any government would regulate, which means Parliament would be powerless if it were not for its enumerated powers in section 91 and for peace, order and good government.
Transportation and communication
Like many other powers, transportation and communicationCommunication
Communication is the activity of conveying meaningful information. Communication requires a sender, a message, and an intended recipient, although the receiver need not be present or aware of the sender's intent to communicate at the time of communication; thus communication can occur across vast...
have overlapping powers between the two jurisdictions. Section 92(10) gives the provinces power over "local work and undertakings". However, the section also excludes the provinces from undertakings related to "ship
Ship
Since the end of the age of sail a ship has been any large buoyant marine vessel. Ships are generally distinguished from boats based on size and cargo or passenger capacity. Ships are used on lakes, seas, and rivers for a variety of activities, such as the transport of people or goods, fishing,...
s, railways, canal
Canal
Canals are man-made channels for water. There are two types of canal:#Waterways: navigable transportation canals used for carrying ships and boats shipping goods and conveying people, further subdivided into two kinds:...
s, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces", as well as ship lines, and such works "declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more provinces."
Further divisions of responsibilities by jurisdiction are as follows:
Federal
- defence
- criminal law
- employment insurance
- postal serviceCanada PostCanada Post Corporation, known more simply as Canada Post , is the Canadian crown corporation which functions as the country's primary postal operator...
- censusStatistics CanadaStatistics Canada is the Canadian federal government agency commissioned with producing statistics to help better understand Canada, its population, resources, economy, society, and culture. Its headquarters is in Ottawa....
- copyrightsCanadian copyright lawThe copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921...
- trade regulationForeign relations of CanadaThe foreign relations of Canada are Canada's relations with other governments and peoples. Canada's most important relationship, being the largest trading relationship in the world, is with the United States...
- external relationsForeign relations of CanadaThe foreign relations of Canada are Canada's relations with other governments and peoples. Canada's most important relationship, being the largest trading relationship in the world, is with the United States...
- money and bankingBank of CanadaThe Bank of Canada is Canada's central bank and "lender of last resort". The Bank was created by an Act of Parliament on July 3, 1934 as a privately owned corporation. In 1938, the Bank became a Crown corporation belonging to the Government of Canada...
- transportationTransportation in CanadaCanada is a developed country whose economy includes the extraction and export of raw materials from its large area. Because of this, it has a transportation system which includes more than of roads, 10 major international airports, 300 smaller airports, of functioning railway track, and more...
- citizenship
- Aboriginal peoples in CanadaAboriginal peoples in CanadaAboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
Provincial
- property and civil rightsProperty and civil rightsIn Canadian constitutional law, section 92 of the Constitution Act, 1867 provides the provincial government with the exclusive authority to legislate on matters related to property and civil rights in the Province. Note that civil rights in this context is different from what is understood as civil...
- administration of justice
- natural resources and the environment
- educationEducation in CanadaEducation in Canada is for the most part provided publicly, funded and overseen by federal, provincial, and local governments. Education is within provincial jurisdiction and the curriculum is overseen by the province. Education in Canada is generally divided into primary education, followed by...
- health
- welfare
- municipalities
- water
- sewage
- waste collection
- public transit
- land use planning
- libraries
- emergency services
- animal control
- economic development
Federalism and the Charter
In 1982 the Canadian Charter of Rights and Freedoms was brought into effect. This was not meant to affect the workings of federalism, though some content was moved from section 91 to section 4 of the CharterSection Four of the Canadian Charter of Rights and Freedoms
Section Four of the Canadian Charter of Rights and Freedoms is one of three democratic rights sections in the Charter. Section 4 guarantees that federal and provincial elections must take place from time to time. Subsection 4 provides that the maximum term of the House of Commons, and of all the...
. Mainly, the Charter is meant to decrease powers of both levels of government by ensuring both federal and provincial laws respect Charter rights, under section 32
Section Thirty-two of the Canadian Charter of Rights and Freedoms
Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter. Only claims based on the type of law contemplated by this section can be brought before the Court....
. The relationship between federalism and the Charter is directly dealt with in section 31
Section Thirty-one of the Canadian Charter of Rights and Freedoms
Section Thirty-one of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada, which clarifies that the Charter does not increase the powers of either the federal government or the legislatures of the provinces of Canada...
, in which it is made clear neither the federal nor provincial governments gain powers under the Charter.
In R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, is a landmark decision by Supreme Court of Canada where the Court struck down the Lord's Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms...
(1985) it was found that if laws violate Charter rights, they cannot be justified under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the Charter if their purpose was inconsistent with the proper division of powers.
History
The relationship between Canada and the provinces has changed throughout time, with an increasing amount of decentralization taking place as years passed. Throughout the Macdonald era (1867–1873, 1878–1891), the Confederation was such that it has been described by political scientist K.C. Wheare and historian Paul Romney as "Quasi-Federalism". This meant that the political and judicial elites of the 19th century read the Constitution of Canada in a way that gave the federal parliament extensive powers that essentially made the provinces "subordinate to OttawaOttawa
Ottawa is the capital of Canada, the second largest city in the Province of Ontario, and the fourth largest city in the country. The city is located on the south bank of the Ottawa River in the eastern portion of Southern Ontario...
"; the structure within Canada was intended to be the same as that which existed between the government at Westminster and the governments of the Empire's North American colonies. The Macdonald government's use of disallowance and reservation
Disallowance and reservation
Disallowance and reservation are constitutional powers that theoretically exist in certain Commonwealth realms to delay or overrule legislation. Originally created to retain the Crown's authority over colonial authorities across the British Empire, these powers are now generally obsolete, or have...
also reinforced the supremacy of the federal government at that time.
With the appointment of Sir Wilfrid Laurier
Wilfrid Laurier
Sir Wilfrid Laurier, GCMG, PC, KC, baptized Henri-Charles-Wilfrid Laurier was the seventh Prime Minister of Canada from 11 July 1896 to 6 October 1911....
came a new phase of Confederation that Dyck refers to as "Classical Federalism". This was marked by a more equal relationship between the federal government and the provinces, as the Judicial Committee of the Privy Council settled several disputes in favour of the latter. The federal government also allowed its disallowance and reservation powers to fall into disuse. This style of governance continued throughout the early years of the leadership of Prime Minister William Lyon Mackenzie King
William Lyon Mackenzie King
William Lyon Mackenzie King, PC, OM, CMG was the dominant Canadian political leader from the 1920s through the 1940s. He served as the tenth Prime Minister of Canada from December 29, 1921 to June 28, 1926; from September 25, 1926 to August 7, 1930; and from October 23, 1935 to November 15, 1948...
(although legislation from Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
was disallowed in the 1930s).
During the two world wars, Ottawa expanded its powers greatly. This was done through the War Measures Act
War Measures Act
The War Measures Act was a Canadian statute that allowed the government to assume sweeping emergency powers in the event of "war, invasion or insurrection, real or apprehended"...
and constitutionally justified by the peace, order and good government clause. During the First World War, Parliament increased its taxation powers by establishing income tax
Income tax
An income tax is a tax levied on the income of individuals or businesses . Various income tax systems exist, with varying degrees of tax incidence. Income taxation can be progressive, proportional, or regressive. When the tax is levied on the income of companies, it is often called a corporate...
es. Finally, during the Second World War, the federal government convinced the provinces to transfer jurisdiction over unemployment insurance to Ottawa.
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
Welfare state
A welfare state is a "concept of government in which the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those...
and the health care
Health care
Health care is the diagnosis, treatment, and prevention of disease, illness, injury, and other physical and mental impairments in humans. Health care is delivered by practitioners in medicine, chiropractic, dentistry, nursing, pharmacy, allied health, and other care providers...
system (as the Canadian government 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
Keynesian economics
Keynesian economics is a school of macroeconomic thought based on the ideas of 20th-century English economist John Maynard Keynes.Keynesian economics argues that private sector decisions sometimes lead to inefficient macroeconomic outcomes and, therefore, advocates active policy responses by the...
were also introduced by the federal government through this system. The period was also marked by a number of First Ministers meetings (i.e., meetings between the prime minister and the provincial premiers).
After 1960 and Quebec's Quiet Revolution
Quiet Revolution
The Quiet Revolution was the 1960s period of intense change in Quebec, Canada, characterized by the rapid and effective secularization of society, the creation of a welfare state and a re-alignment of politics into federalist and separatist factions...
, Canada moved toward a greater degree of administrative decentralization, with Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
often opting out of important federal initiatives, such as the Canada Pension Plan (Quebec created its own pension plan). As the federal government became more centralist in ideology. Under the leadership of Prime Minister Pierre Trudeau
Pierre Trudeau
Joseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...
, Canada entered a stage of "conflictual federalism" that could be said to have lasted from 1970 to 1984. The National Energy Program
National Energy Program
The National Energy Program was an energy policy of the Government of Canada. It was created under the Liberal government of Prime Minister Pierre Trudeau by Minister of Energy Marc Lalonde in 1980, and administered by the Department of Energy, Mines and Resources.-Description:The NEP was...
sparked a great deal of bitterness against the federal government in Alberta; indeed, the federal government was also involved in disputes over oil
Petroleum
Petroleum or crude oil is a naturally occurring, flammable liquid consisting of a complex mixture of hydrocarbons of various molecular weights and other liquid organic compounds, that are found in geologic formations beneath the Earth's surface. Petroleum is recovered mostly through oil drilling...
with Newfoundland
Newfoundland and Labrador
Newfoundland and Labrador is the easternmost province of Canada. Situated in the country's Atlantic region, it incorporates the island of Newfoundland and mainland Labrador with a combined area of . As of April 2011, the province's estimated population is 508,400...
and Saskatchewan
Saskatchewan
Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
at this time. (These culminated in the addition of section 92A to the Constitution Act, 1867, by the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
; the new section gave the provinces more power with regard to these resources).
In the lead up to the patriation of the constitution in 1982, Trudeau had, when negotiations with the provinces stalled at one point, threatened to take the case for patriation straight to the British parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
"[without] bothering to ask one premier." The federal Cabinet and Crown counsel took the position that if the British Crown in council, parliament, and on the bench was to exercise its sovereignty over Canada, it did so at the request of the federal ministers of the Crown only. Eight provincial cabinets soon appealed to the courts. Justice Joseph O'Sullivan of the Manitoba Court of Appeal
Manitoba Court of Appeal
The Manitoba Court of Appeal is the highest Court of Appeal in the Canadian province of Manitoba. It was established in 1906. It is located in the Old Law Courts building at 408 York Avenue in Winnipeg, the capital city of Manitoba...
found that the federal government's position was incorrect; the constitutionally entrenched principle of responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
meant that the Queen, as either Queen of Canada or of the UK, could not legislate for the provinces (i.e. alter their constitutions) only on the advice of her Canadian federal ministers; "Canada had not one responsible government but eleven." Further, officials in the United Kingdom indicated that the British parliament was under no obligation to fulfill any request for legal changes made by Trudeau, particularly if Canadian convention was not being followed.
The Progressive Conservative Party of Canada
Progressive Conservative Party of Canada
The Progressive Conservative Party of Canada was a Canadian political party with a centre-right stance on economic issues and, after the 1970s, a centrist stance on social issues....
under Joe Clark
Joe Clark
Charles Joseph "Joe" Clark, is a Canadian statesman, businessman, and university professor, and former journalist and politician...
and Brian Mulroney
Brian Mulroney
Martin Brian Mulroney, was the 18th Prime Minister of Canada from September 17, 1984, to June 25, 1993 and was leader of the Progressive Conservative Party of Canada from 1983 to 1993. His tenure as Prime Minister was marked by the introduction of major economic reforms, such as the Canada-U.S...
favoured devolution of powers to the provinces, culminating in the failed Meech Lake
Meech Lake Accord
The Meech Lake Accord was a package of proposed amendments to the Constitution of Canada negotiated in 1987 by Prime Minister Brian Mulroney and ten provincial premiers. It was intended to persuade the government of the Province of Quebec to endorse the 1982 Canadian Constitution and increase...
and Charlottetown
Charlottetown Accord
The Charlottetown Accord was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October 26 of that year, and was defeated.-Background:...
accords. After a merger with the heavily devolutionist Canadian Alliance
Canadian Alliance
The Canadian Alliance , formally the Canadian Reform Conservative Alliance , was a Canadian conservative political party that existed from 2000 to 2003. The party was the successor to the Reform Party of Canada and inherited its position as the Official Opposition in the House of Commons and held...
, the new Conservative Party of Canada
Conservative Party of Canada
The Conservative Party of Canada , is a political party in Canada which was formed by the merger of the Canadian Alliance and the Progressive Conservative Party of Canada in 2003. It is positioned on the right of the Canadian political spectrum...
under Stephen Harper
Stephen Harper
Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...
has continued the same stance.
After the 1995 Quebec referendum
1995 Quebec referendum
The 1995 Quebec referendum was the second referendum to ask voters in the Canadian province of Quebec whether Quebec should secede from Canada and become an independent state, through the question:...
on Quebec sovereignty, one of several actions by then Prime Minister Jean Chrétien
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
was to put some limits on the ability of the federal government to spend money in areas of provincial jurisdiction. Thus, in 1999, the federal government and all provincial governments except Quebec's agreed to the Social Union Framework Agreement
Social Union Framework Agreement
The Social Union Framework Agreement, or SUFA, was an agreement made in Canada in 1999 between Prime Minister Jean Chrétien and the premiers of the provinces and territories of Canada, save Quebec Premier Lucien Bouchard...
, which promoted common standards for social programs across Canada. Former Prime Minister Paul Martin
Paul Martin
Paul Edgar Philippe Martin, PC , also known as Paul Martin, Jr. is a Canadian politician who was the 21st Prime Minister of Canada, as well as leader of the Liberal Party of Canada....
has used the term asymmetrical federalism to describe this arrangement.
Books
- Rand Dyck, Canadian Politics: Critical Approaches. Third ed. Scarborough, Ontario: Nelson Thomson Learning, 2000
- P.W. Hogg, Constitutional Law of Canada (2001)
- François Rocher and Miriam Smith, New Trends in Canadian Federalism. Second Edition. Peterborough Ontario, Broadview Press, 2003.
External links
- Federalism in Canada: Basic Framework and Operation | Mapleleafweb.com
- Interuniversity journal Federalism-e
- Canadian Federalism
- Studies on the Canadian Constitution and Canadian Federalism
- Maple Leaf Web: Atlantic Canada and Canadian Federalism
- Constitutional Law professor Hester Lessard on the Downtown Eastside and Jurisdictional Justice
- Canadian Governments Compared