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21 Mar 2012

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October 24 2011
Bring essays to class on OCT 31! (next monday) – submit on turnitin before turning it in on the 31st
Topic: Federalism
1. The Federal Principle
2. Origins of Confederation
3. Faces of Federalism
Stare Decisis
1. Comprehensive
2. Portable
3. Universal
4. Public Administration
5. Accessible
Factors in Federalism's Evolution
1. The Courts
2. Inter-Government negotiations
3. Fed. Spending power
4. Public Expectations
5. Technology
Federalism – second pillar of constitution (first being responsible government – a convention/unwritten),
federalism is codified – constitutional act of 1867(BNA)
What is Federalism? What is the Federal principle? Why did Canada adopt Federalism? What are the
factors that led to BNA?
1. The Federal Principle: idea that the power to legislate is divided among legislatures between a
national(central/federal) parliament and a regional (state/provincial) parliament
today there are 28 federal states in the world
but federal principle does not operate same way every country – different constitutions
federalism is part of internal architecture of Canadian constitution – SCC – there are four
principles: one of which is federal – is inherent internal
(federal- would control such areas that are considered essential to national identity- IR trade,
security) (provincial – would control more local concerns – education, roads,
In theoretically pure federalism neither legislature is superior or inferior – legislative jurisdiction
has been equally divided – the basic theory
in practice, this doesn't always happen.
Another feature of federal systems is the natural competition by both levels to try and expand
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their jurisdiction – push and pull – ie. Under our constitution, broadcasting is federal but in
Ontario we have TVO – because Ontario responsible for education – educational television?
The theory of federalism – neither leg. Superior or inferior
but in practice constitutions are bias in one way – what is an indicator of the bias/how is Canadian
constitution bias?
In favour of federal: control taxation, banking, finance – residual power(anything we havent
laid out in constitution is given to feds)
in practice though has the prov. Been favoured?
if there is a dispute between fed and prov governments how do you handle it ?
1) courts
2) inter-govern negotiations
because govt is centralized in hands of executives can make decisions that are much more likely
to be implemented
the boundaries between fed and prov are fuzzy – ie. s.91 and 92 – industry – prov control natural
resources/manufacturing/property but fed control – competition policy/ merger policy/ price
naming/weight/measures/trade and commerce
have overlapping interests
JCPC judicial committee of privy council – supreme court of canada on constitutional issues until
1949 – only constitutional issues
in 1949 the Supreme court became highest court (up until then the JCPC could overrule)
decisions of JCPC (mostly lawyers, judged etc) shifted a lot of power from feds to provinces
Why have powers of provinces grown?
provincial government have become more aggressive and powerful
ie. figure 1: Provincial spends more than federal and collects more money in taxes than federals –
federals also transfer money to provinces
upsurge in Quebec/quiet revolution: Quebec became more assertie about powers and pushed
jurisdictional power - but when the federal gave powers to Quebec they constitutionally had to
give these powers to all other prvinces too
Why are provinces more powerful?
Public Expectations:
people want governments to be active in many more arenas
many of the arenas are listed as the responsibility of provinces in constitution
provinces are responsible for modern welfare state
Federal Spending Power – feds have capacity to raise a lot of money but did not have power to create
programs thats were under provincial jurisdiction
Medicare – only provinces had power to establish this – how did the feds get around this? - the provinces
1. Comprehensive – can't pick and chose which illnesses to cover
2. Portable – has to apply no matter where you are in Canada
3. Universal – 90% of provincial pop has to be covered (now 100%)
4. Public Administration – cant be turned over to private heath company
Ottawa said that if provinces created such a program they would pay 50%.
federal government set conditions for program but the provinces run it.
In 1980s the federals revised this act and said this also has to be 5. Accessible - possible through
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