Lecture 2-B – Federalism

Federal v Unitary

• What is the difference between a federal and a unitary state?

 Federal
Governmental power is divided between a central authority and regional authorities
neither authority derives from or can be interfered with by the other.
Regional and central authorities are partners in government.
 Unitary
Governmental power rests ultimately with a single national authority.
Subordinate governments are vested with power/authority from the national authority
- E.g. New Zealand and the UK
In realty where money is located direct where power/ attention is given (theoretical provinces
should all be equal)

Federal Supremacy

• Federal Supremacy
though federal and provincial authorities are coordinate with each other, it is still possible
for the laws of one to ‘win-out’ when there is a conflict.
- E.g. Criminal law is an example of federal supremacy
In Canada, federal laws trump provincial laws where inconsistencies arise (and both have
been properly enacted)
- Highway traffic is provincial
The doctrine of paramountcy: the idea that if provincial and federal laws conflict the federal
law always prevail

Some provinces are more equal than others

• An authority within a federation can be regarded as having ‘special status’ if it has

greater powers than its coordinates
if one province had more powers than the others.
• Does Quebec have special status?
Formally no.
However, it is recognized as a ‘distinct society’.
- This bring up the question of “what is the effect of having a
special/distinct power?” Some ague that there is no effect …just a
title
• This is an interpretative designation; it assigns no particular special powers to the
Quebec Legislature, but can be invoked to justify certain extra powers (over language
and culture).
It is debatable whether or not this rises to the level of ‘special status’, as all provinces have
some powers that the others do not.
Regions

• ‘Regions’ is an imprecise term, but one that has an important role in the structure of
Canadian government.
• Arguably, there are 5 ‘regions’:
 Ontario, Quebec, the Atlantic, the Western, and (more recently recognized) the Northern
provinces.
• Regions are used to determine the makeup of the Senate and the Supreme Court.
 Supreme Court
 3 judges must, by statute, be from Quebec. By convention, 3 are from Ontario, 2 from the
Western, and 1 from the Maritime provinces.
 Senate:
 Ontario, Quebec, the Maritime (Atlantic minus Nfld), the Western all have 24 Senators. Nfld
has 6; Yukon, NWT, Nunavut each have 1
 Regionalism has a notion of providing judges who understand things on a local context
These votes have no mentions of people from the north
*The northern often feel neglected …. Noting the high population of aboriginal culture
- They are high in resources yet neglected

 While regionalism does not figure directly in the seven-fifty formula, mathematically
some regionalism sneaks in through
 7 will always include one Atlantic and one Western, and 50% will always include Ontario or
Quebec.
• Also, the ‘regional veto statute’ indirectly reintroduces regionalism into the seven-fifty
formula, though not at a constitutional level (since it’s a federal statute; it could be
amended by normal legislative means).
 The regions for the statute are: Ontario, Quebec, B.C., the Prairies, the Atlantic.

Subsidiarity

What is the principle of subsidiarity?

The idea that local decisions should be made by local governments
 'a principle of social organization that prescribes that decisions affecting individuals should,
as far as reasonably possible, be made by the level of government closest to the individuals
affected.'
• Does Canadian federalism adhere to subsidiarity?
 Sort of: the BNA 1867 invested Legislatures with authority over property and civil rights,
courts, police, municipal institutions, hospitals, education.

Provincial:
Today, private property law, contract, tort, (most) commercial, consumer, environmental,
labour, health, and social services law are all provincial domain.
Federal:
Customs and excise, trade, commerce, banking and commerce were assigned to Parliament.

Read Down:
However, marriage and divorce, criminal law, and penitentiaries were also also assigned to the
federal level, though these would appear to be suitable for provincial control.
- (Some matters, such as marriage, have been ‘read down’ at the federal level to give
some authority to the provinces.)

Some Unitary Elements to Canada :

On paper, at least, Canada’s federalism has some unitary elements.
• However, most are now obsolete in the face of developed case law and newer
conventions
 judicial interpretation from the Privy Council (up to 1949) tended to elevate the provinces
to coordinate status.
 Provinces enjoy a high level of financial autonomy, though initially the opposite was true.
 The federal government has the power to disallow provincial statutes (Peace Order and
Governance Act); this hasn’t been exercised since 1943
 Federal government appoints Lt. Govs.; but the latter, practically speaking, answer to their
respective Legislatures.
 Moreover, while Lt. Govs. have the power to reserve their assent to bills, this almost never
happens any more, and the federal government is unlikely to instruct them to do so.
Canada in practice is very much a federalist state ….

 Federal cabinet does appoint judges at superior, district and county levels; could be
seen as in breach of federalism.
However, this is balanced by a strong tradition of judicial independence
moreover, cases involving provincial/ federal issues tend to be appealed outside of
provincial courts
• Federal power to remedy provincial education laws has never been exercised.
• Federal power to bring local works under federal control (for the general advantage of
Canada (POGG power) once used frequently (railroads_ now used rarely.
• The point?
Canada’s system has much stronger federal elements than might first appear, and, indeed,
its provincial is more clearly coordinate with the central elements than many other extant
federal systems

Cooperative Federalism
• Canada’s federalism can be described as ‘cooperative’—
- The idea that the provinces are unitary etc... is untrue and known by the courts
- It is known to be a cooperative federalist system

• What does this mean?

 While some actions can be taken by each of the 11 bodies of government, many require
cooperative action be taken by several.
Similarly, while each body has its own fiscal responsibilities and revenues, redistribution and
cost sharing are common (and necessarily see S. 36 of The Charter)

Why ferderalism?
• What reasons count in favour federalism in the Canadian context?
- Political necessary to effect Confederation
- Geographically expansive
- ethically and culturally diverse
- more efficient governing
- More responsive to regional needs and preferences
- Social laboratories

The provinces have the power to take each other to court….

Developing Judicial review
• s.52(1) of the Constitution Act, 1982:
the ‘Constitution of Canada’ is ‘the supreme law of Canada’;
‘any law that is inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.’
This replaced the similar ‘repugnancy’ doctrine of Colonial Laws Validity Act
• Who decides ‘consistency’?
The Supreme Court
This follows a practice established in United States in Marbury v. Madison (1803).
Established that the courts will strict down laws that are unconstitutional

Limits of Judicial Review

JR has two primary functions:
 Enforce division of powers between fed and provs
 Enforce restrictions on legislative power; (notably The Charter)
 The language and range of application of the constitution inevitably means that judges
cannot make solely ‘legalistic’ decisions—they will have to venture into questions of
value and policy.

– Are Supreme Court judges well situated for this?

–
*The courts have had a history of not taking a ‘legalistic’ decision but a social political one,
and high behind the idea of this legalistic decisions
- Supreme Courts are not political (not elected) thus should have a neutral stand which is
untrue since everyone has a political opinion
- Thus why have they been given the power to decide such cases?

• What are the alternatives?

 Remove federalism disputes from court’s jurisdiction?
Specialized constitutional tribunals?
A divided SC?
The charter has pushed the courts t oa more social and political stands
- This has been very controversial

*Succession…will be discussed in seminar