Federalism in Canada
Canadian federalism involves the current nature and historical development of the federal system in Canada.
Canada is a federation with eleven components: the national Government of Canada and ten provincial governments. All eleven governments derive their authority from the Constitution of Canada. There are also three territorial governments in the far north, which exercise powers delegated by the federal parliament, and municipal governments which exercise powers delegated by the province or territory. Each jurisdiction is generally independent from the others in its realm of legislative authority. The division of powers between the federal government and the provincial governments is based on the principle of exhaustive distribution: all legal issues are assigned to either the federal Parliament or the provincial Legislatures.
The division of powers is set out in the Constitution Act, 1867, a key document in the Constitution of Canada. Some amendments to the division of powers have been made in the past century and a half, but the 1867 act still sets out the basic framework of the federal and provincial legislative jurisdictions. The division of power is reliant upon the "division" of the unitary Canadian Crown and, with it, of Canadian sovereignty, among the country's 11 jurisdictions.
The federal nature of the Canadian constitution was a response to the colonial-era diversity of the Maritimes and the Province of Canada, particularly the sharp distinction between the French-speaking inhabitants of Lower Canada and the English-speaking inhabitants of Upper Canada and the Maritimes. John A. Macdonald, Canada's first prime minister, originally favoured a unitary system.
History
Origins
The foundations of Canadian federalism were laid at the Quebec Conference of 1864. The Quebec Resolutions were a compromise between those who wanted sovereignty vested in the federal government and those who wanted it vested in the provinces. The compromise based the federation on the constitution of the British Empire, under which the legal sovereignty of imperial power was modified by the conventions of colonial responsible government, making colonies of settlement self-governing in domestic affairs. A lengthy political process ensued before the Quebec Resolutions became the British North America Act 1867. This process was dominated by John A. Macdonald, who joined British officials in attempting to make the federation more centralized than that envisaged by the Resolutions.The resulting constitution was couched in more centralist terms than intended. As prime minister, Macdonald tried to exploit this discrepancy to impose his centralist ideal against chief opponent Oliver Mowat. In a series of political battles and court cases from 1872 to 1896, Mowat reversed Macdonald's early victories and entrenched the co-ordinated sovereignty which he saw in the Quebec Resolutions. In 1888, Edward Blake summarized that view: " a federal as distinguished from a legislative union, but a union composed of several existing and continuing entities... not fractions of a unit but units of a multiple. The Dominion is the multiple and each province is a unit of that multiple..." The accession of Wilfrid Laurier as prime minister inaugurated a new phase of constitutional consensus, marked by a more-egalitarian relationship between the jurisdictions. The federal government's quasi-imperial powers of disallowance and reservation, which Macdonald abused in his efforts to impose a centralised government, fell into disuse.
1914–1960
During World War I, the federal Crown's power was extended with the introduction of income taxes and passage of the War Measures Act, the scope of which was determined by several court cases. The constitution's restrictions of parliamentary power were affirmed in 1919 when, in the Initiatives and Referendums Reference, a Manitoba act providing for direct legislation by way of initiatives and referendums was ruled unconstitutional by the Privy Council on the grounds that a provincial viceroy could not permit "the abrogation of any power which the Crown possesses through a person directly representing it". Social and technological changes also worked their way into constitutional authority; the Radio Reference found that federal jurisdiction extended to broadcasting, and the Aeronautics Reference found the same for aeronautics.In 1926, the King–Byng Affair resulted in a constitutional crisis which was the impetus for changes in the relationship between the governor general and the prime minister. Although its key aspects were political in nature, its constitutional aspects continue to be debated. One result was the Balfour Declaration issued later that year, whose principles were eventually codified in the Statute of Westminster 1931. It, and the repeal of the Colonial Laws Validity Act 1865, gave the federal parliament the ability to make extraterritorial laws and abolish appeals to the Judicial Committee of the Privy Council. Criminal appeals were abolished in 1933, but civil appeals continued until 1949. The last Privy Council ruling of constitutional significance occurred in 1954, in Winner v. S.M.T. Limited. After that, the Supreme Court of Canada became the final court of appeal.
In 1937, Lieutenant Governor of Alberta John C. Bowen refused to give Royal Assent to three Legislative Assembly of Alberta bills. Two would have put the province's banks under the control of the provincial government; the third, the Accurate News and Information Act, would have forced newspapers to print government rebuttals to stories the provincial cabinet considered "inaccurate". All three bills were later declared unconstitutional by the Supreme Court of Canada in Reference re Alberta Statutes, which was upheld by the Judicial Committee of the Privy Council.
World War II's broader scope required passage of the National Resources Mobilization Act to supplement the powers in the War Measures Act to pursue the national war effort. The extent to which wartime federal power could expand was further clarified in the Chemicals Reference and the Wartime Leasehold Regulations Reference, which held that wartime regulations could displace provincial jurisdiction for the duration of an emergency. Additional measures were required in order to secure control of the economy during that time. Jurisdiction over unemployment insurance was transferred permanently to the federal sphere; the provinces surrendered their power to levy succession duties and personal and corporate income taxes for the duration of the war under the Wartime Tax Rental Agreement; and labour relations were centralized under federal control with the Wartime Labour Relations Regulations, in which the provinces ceded their jurisdiction over all labour issues.
Canada emerged from the war with better cooperation between the federal and provincial governments. This led to a welfare state, a government-funded health care system and the adoption of Keynesian economics. In 1951 section 94A was added to the British North America Act, 1867 to allow the Canadian parliament to provide for pensions. This was extended in 1964 to allow supplementary benefits, including disability and survivors' benefits. The era saw an increase in First Ministers' Conferences to resolve federal-provincial issues. The Supreme Court of Canada became the court of final appeal after the 1949 abolition of appeals to the Judicial Committee of the Privy Council and the federal parliament received the power to amend the constitution, limited to non-provincial matters and subject to other constraints.
1960–1982
1961 saw the last instance of a lieutenant governor reserving a bill passed by a provincial legislature. Frank Lindsay Bastedo, Lieutenant Governor of Saskatchewan, withheld Royal Assent and reserved Bill 5, An Act to Provide for the Alteration of Certain Mineral Contracts, to the Governor-in-Council for review. According to Bastedo, "his is a very important bill affecting hundreds of mineral contracts. It raises implications which throw grave doubts of the legislation being in the public interest. There is grave doubt as to its validity". The act was upheld in an Order in Council by the federal government.Parliament passed the Canadian Bill of Rights, the first codification of rights by the federal government. Prime Minister Lester Pearson obtained passage of major social programs, including universal health care, the Canada Pension Plan and Canada Student Loans. Quebec's Quiet Revolution encouraged increased administrative decentralization in Canada, with Quebec often opting out of federal initiatives and instituting its own. The Quebec sovereignty movement led to the victory of the Parti Québécois in the 1976 Quebec election, prompting consideration of further loosening ties with the rest of Canada; this was rejected in a 1980 referendum.
During the premiership of Pierre Trudeau, the federal government became more centralist. Canada experienced "conflictual federalism" from 1970 to 1984, generating tensions with Quebec and other provinces. The National Energy Program and other petroleum disputes sparked bitterness in Alberta, Saskatchewan and Newfoundland toward the federal government.
Patriation
Although Canada achieved full status as a sovereign nation in the Statute of Westminster 1931, there was no consensus on a process to amend the constitution; attempts such as the 1965 Fulton–Favreau formula and the 1971 Victoria Charter failed to receive unanimous approval from both levels of government. When negotiations with the provinces again stalled in 1980, Trudeau threatened to take the case for patriation to the British parliament " bothering to ask one premier". According to the federal cabinet and Crown counsel, if the British Crown exercised sovereignty over Canada, it would do so only at the request of the federal ministers.File:Chretientrudeau.jpg|thumb|left|alt=Pierre Trudeau and Jean Chrétien conferring, photographed from behind|Pierre Trudeau and Jean Chrétien at a session of the 1981 constitutional talks
Manitoba, Newfoundland and Quebec posed reference questions to their respective courts of appeal, in which five other provinces intervened in support. In his ruling, Justice Joseph O'Sullivan of the Manitoba Court of Appeal held that the federal government's position was incorrect; the constitutionally-entrenched principle of responsible government meant that "Canada had not one responsible government but eleven." Officials in the United Kingdom indicated that the British parliament was under no obligation to fulfill a request for legal changes desired by Trudeau, particularly if Canadian convention was not followed. All rulings were appealed to the Supreme Court of Canada. In a decision later known as the Patriation Reference, the court ruled that such a convention existed but did not prevent the federal parliament from attempting to amend the constitution without provincial consent and it was not the role of the courts to enforce constitutional conventions.
The Canadian parliament asked the British parliament to approve the Constitution Act, 1982, which it did in passage of the Canada Act 1982. This resulted in the introduction of the Canadian Charter of Rights and Freedoms, the transfer of constitutional amendment to a Canadian framework and the addition of section 92A to the Constitution Act, 1867, giving the provinces more jurisdiction over their natural resources.