Unit 7: Federalism

Question 1

K. C. Wheare’s definition of the federal principle

Answer 1

A method of dividing powers so that the general and regional governments are each, within a sphere, coordinate and independent.

This is referred to as the model of ‘classical federalism’.

the assumption of the division of powers as ‘water-tight compartments’

Question 2

The Federal Model

Answer 2

A number of institutional elements are necessary for a federal system:

Two orders of government

Non-hierarchal power relations between governments: ‘coordinate and independent’

Constitutional authority divided between orders of government with jurisdictional autonomy for each order.

Judicial review to function as the ‘umpire of federalism’ to resolve division of power disputes.

Wheare described Canada as quasi-federal because it violated key components of classical federalism.

Question 3

BNA Act as ‘Quasi-federal’

Answer 3

Because the BNA Act departed from the ‘federal principle’ in a number of regards, Wheare described the BNA Act as a highly centralized federation that best characterized as ‘quasi-federal’

Question 4

Quasi-federalism (1867-96)

Answer 4

Canada’s first Prime Minister, John A. Macdonald did not want a federal union but a legislative union.

A federal union was insisted upon by delegates from Canada East (Quebec) and the Maritime provinces.

As a compromise, a heavily centralized federation was adopted with the ‘great’ powers assigned to the federal government and matters of a ‘mere local or private nature’ to the provinces.

Question 5

Violations of the Federal Principle

Answer 5

The Division of Powers – not really divided nor equal.

The Federal Spending Power and unlimited reach.

The Declatory Power – section 92(10)(c)

The Lieutenant Governor

The Governor General

POGG and the Residual Power.

The absence of a Supreme Court

The BNA Act as a statute of the Westminster Parliament

Question 6

The Lieutenant Governors

Answer 6

The appointment, removal, and payment of salaries for the Lt. Governors by the federal cabinet (‘Governor General in Council’), as well as the powers of reservation (Lt. Governor) and disallowance (federal cabinet) were viewed as a violation of the federal principle.

Question 7

Remedial Powers

Answer 7

Education is a provincial responsibility but section 93 allows the federal cabinet to remedy provincial violations of denominational school rights.:
New Brunswick School Crisis 1872;
Manitoba School Crisis 1890.

Question 8

Peace, Order, and Good Government

Answer 8

POGG viewed as the ‘general power’ that would allow the Parliament of Canada to legislative in provincial areas if intended for ‘peace, order, and good government’ of Canada

Question 9

Provinces as ‘glorified municipalities’

Answer 9

The Parliament of Canada was considered to have t the ‘great powers of government’: Trade and commerce; banking; defense; money, etc.

The Provinces were not viewed as co-equal to the Parliament of Canada because of their meagre legislative responsibilities – viewed as ‘glorified municipalities’ by the Fathers of Confederation.

Question 10

Westminster and Canada

Answer 10

In addition to the Governor General, the Westminster Parliament retained final control over two key elements of the Canadian constitution:

The BNA Act was an act of the Imperial Parliament until 1982;
The Supreme Court of Canada was not established until 1873;
The JCPC remained the highest appellant court until 1949.

Question 11

The Umpire of Federalism

Answer 11

The absence of a Supreme Court of Canada in 1867 was a departure from an important institutional feature of federalism – the highest court as the ‘Umpire of Federalism’.

The Supreme Court of Canada would be established in 1873 but would not become the highest appellant court until 1949 when appeals to the Judicial Committee of the Privy Council were abolished.

Question 12

Toward Classical Federalism

Answer 12

A number of factors explain the rise of classical federalism by 1896:
The growth in the number of provinces;
The growth in the importance of the powers assigned to the provinces – the ‘great powers’ of the 20th Century;
The rise of the ‘provincial rights movement’ that used the courts as the ‘umpire of federalism’ to reinterpret provisions of the BNA Act that were incompatible with the federal principle.

Question 13

Judicial Review

Answer 13

The JCPC reinterpreted key provisions of the BNA Act 1867, moving Canada from quasi-federalism toward the classical model by the turn o the 20th century:

POGG
Trade and Commerce
Lieutenant Governor
Residual Power

Question 14

POGG – National Dimensions and Emergency Branch

Answer 14

Recognizing that POGG potentially undermined provincial autonomy, the JCPC created two branches of POGG that respected the division of powers:

Emergency Doctrine;
National Dimensions

Question 15

Trade and Commerce

Answer 15

Similar to POGG, the JCPC recognized that ‘Trade and Commerce’ posed a challenge to provincial sovereignty.
Created 3 categories:

International (federal)
Inter-provincial (federal)
Intra-provincial (provincial)

Question 16

Lieutenant Governor

Answer 16

The JCPC re-interpreted the Office of Lieutenant Governor from a ‘federal agent’ under section 58 to the Crown’s representative at the provincial level.

Instead of One Crown, Canada would now have Eleven Crowns.

Implications for the powers of reservation and disallowance and instruction on their use by the federal cabinet.

Question 17

The Constitutional Straight-jacket

Answer 17

The unworkable nature of classical federalism was revealed during the Great Depression:

The imbalance between the allocation of the division of powers and fiscal capacity prevented either the national government or the provincial governments from addressing the serious economic and social policy problems of the 1930s.

Question 18

Attempting to Escape the Straight-jacket

Answer 18

The appointment of a Royal Commission – the Rowell-Sirois Commission – in 1937 recommended constitutional realignment with the model of classical federalism:

A centralization of the Canadian federation – transfer social policy and unemployment insurance from the provinces to the federal government.

Question 19

Limited Acceptance of Rowell-Sirois

Answer 19

Modest amendment of the constitution – transferred powers to Parliament – occurred in response to the Rowell-Sirois report in 1940:
Unemployment insurance (1940)
Old Age Pensions (concurrent) 1951

Question 20

The Fiscal Imbalance of the State

Answer 20

Fiscal federalism, or cooperative federalism, was based on informal, flexible, agreements between the Prime Minister and the Premiers.

Referred to as ‘federal-provincial diplomacy’ as it was akin to international diplomacy and treaty making.

The marginalization of Parliament and provincial legislatures through the forum of First Ministers Conferences (FMC).

Question 21

Compromised Compartments

Answer 21

Cooperative federalism worked well, as an administrative framework, to allow the two orders of government – federal and provincial – to overcome the division of powers and build the modern welfare state.

The limitations of ‘fiscal federalism’ were revealed starting in the 1970s;
Federal unilateralism in funding;
The ‘democratic deficit’ resulting from ‘federal-provincial’ diplomacy