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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;[1] 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[2] is one of the three pillars of the constitutional order, along with responsible government and the Canadian Charter of Rights and Freedoms.[3]
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As a federal monarchy, the Canadian Crown is unitary throughout all jurisdictions in the country, with the headship of state being a part of all equally.[4] 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,[5] the Crown is thus "divided" into eleven "crowns".[6] The Fathers of Confederation viewed the system of constitutional monarchy as a bulwark against any potential fracturing of the Canadian federation,[7] and the Crown remains central to Canada's federalism.[8]
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 Council 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.
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 trade 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.
Section 92(13) gives the provinces the exclusive power to make law related to "property 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.
Like many other powers, transportation and communication 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 "ships, railways, canals, 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:[9]
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 Charter. 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 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".[10] 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 Ottawa"; 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.[10] 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 taxes. 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).[11]
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.[12] 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."[12] 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.[13]
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.[14] Former Prime Minister Paul Martin has used the term asymmetrical federalism to describe this arrangement.
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