Federalism: Creation and Evolution
-S.91+92 (Be able to define each section)
-Money matters and how it is distributed amongst provinces is important. Tracking relations between
-1867: 3 colonies forming 4 provinces. Since then we have expanded enormously (Addition of all other
-Legislature: First Pillar of our system of government
-Federalism: Second pillar of our system of government
-Courts: Third pillar of our system of government
-All 3 acting at the same time.
-Federalism: A way of constraining government by dividing it. Powers/jurisdictions shall be exclusive to
provinces or to central government. Minimal degree of currency.
What is federalism:
-Two approaches to federalism:
-There shall be a degree of autonomy for national govts and central govt. Federations can be
centralized. Scope for provinces in initial legislations can be small, but it doesn't mean they are.
-CDN federation now is one of the most decentralized.
-Federal Principle: method of dividing powers
-Each govt is directly involved in governing people/individual CDN citizens.
-In a constitutional sense there in Unitary govt there is no division of territory. Ex: New Zealand: only
parliament has legislative function. Ex: Norway: Unitary Government.
-Centralized Govt: Central govt has most authority.
-Peripheralised Govt: Regional govt dominates (arguably never Canada)
-Confederation: Central govt has delegated responsibilities, more entrenched structure but similar to an
alliance. CDN politics is NOT a confederation, even if it is called "confederation"
-Classical Federalism: Provinces and federal govt have exclusively defined authorities. Province has
jurisdictions where federal govt has no role or authority to get involved. This is the same for the reverse.
S.91 + S.92 are described as exclusive powers...there are items where both governments can legislate.
Canada has 2 lists of exclusive powers. Water tight divisions.
-Why did Canada adopt a federal system in 1867?
1. Because of Qc (Canada East): The French: (education for French)
2. The American civil war. The U.S was a decentralized federation. Macdonald and others thought
that the reason the U.S. was engaged in such a violent war was because of how decentralized their
3. Maritime colonies were incentive for change. They started a conversation to create a maritime
union, but Macdonald managed to crash the conference and speak of a broader union (bringing
maritime together with the rest of Canada). He wanted to remain British. Whatever would be
created would remain an entity to the British crown. Macdonald also wanted to expand geographic footprint. He wanted to create a unitary state, or at least a very strong, very
centralized federation. Most region wish to have union but not unity.
-What was the nature of the federal system established in 1867?
-Hierarchal and centralized in constitution.
-Going so far as to say it was a quasi-federation.
The division of Power
-Federal Powers (S.91)
-Peace, Order and good government (POGG). Says that anything that is not exclusively mentioned
in 91 or 92, goes to the federal government. Like a residual clause, but the fed govt has to have a
reason to enter these issues, such as POGG. If you can argue that what you're trying to do isn't
mentioned exclusively mentioned in 92, and is part of POGG, the fed govt has reason to intervene.
-Trade and commerce
-Indians and Reserves
-Marriage and divorce
-Posta service, Census, Weights
-Provincial Power (S.92)
-Matters of a local or private nature
-Property and civil rights
-welfare and social services
-Management and Sale of public lands
-Administration of justice, including federal justice
-Direct taxes: applied to final purchaser/user of a commodity/good. Such as a sales tax, income tax
-Indirect taxation: Excise taxes, resource taxes opened to provinces in 1982 (resource royalties)
-No restrictions on how fed and prov govt can spend tax revenue. Ex: a govt can spend the $ on an issue
in another govts jurisdiction
-S.92: The federal govt can declare some local works to be federal (ex: building of railroad) and has since
been used for the fed govt to exert legislative capacities with respect to uranium development.
-Education: fed govt did have the power to (if decided) be the guarantor of education system.
-Constitution gives the fed govt power to appoint judges to prov courts.
-Fed govt can disallow prov jurisdiction.
-Two levels are not completely independent (even though S.91 and 92 set out exclusive powers). There
are still some concurrent powers: -S.95: Agriculture and immigration. Fed and Prov govt can both pass legislation and regulate with
respect to these issues
-Federal Paramountcy: A judicial doctrine. A rule to break a "tie". If a valid prov law and a valid fed law
are both inconsistent, the prov law is inoperative to the extent of the inconsistency. I.e. if you have
jurisdictions which both govts can legislate, to the degree that there is a conflict and you cannot comply
with both legislations at the same time, then the fed law trumps the prov law. The prov law is still valid,
but is trumped by the fed law.
Centralization vs Decentralization
-Scope of autonomy
-S.91 vs 92
-Spending power, how money is raised, how money is spent
-Election of Sir Wilfred Laurier (1896)
-John A Macdonald used disallowance (fed govt (GG) can disallow prov ruling) openly, but enthusiasm
for disallowance decreased when Laurier came into power. Has not been used since 1943 (due to