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POL316Y1 (31)

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Political Science
Michael Stein

s.4 Constitutional Conflicts and Canadian Federalism 1. Introduction: the issue of constitutional congruence with the underlying socio-economic, political and cultural forces (Livingston); “inherited” versus “new” constitutional issues (Smiley) - Framework: the issue of constitutional congruence - Lack of congruence between underlying social, economic and cultural structures give rise to this structure - Reforms arise when there is a lack of congruence between underlying structures of society and the way in which institutions are functioning - Constitution serves as blueprint for government and defines jurisdictions more than any other factor - When there is joint participation in decision-making; two neatly defined jurisdictions: federal and provincial, they define separate and autonomous jurisdictions so the two levels operate independently of each other - When one level of government according to court is given ultimate authority, then there is tendency for other level of government to defer to the authority that has primacy - To what extent does the root of ongoing conflict between federal-provincial and Quebec-Canada relations lie in the structural (institutional and constitutional) inadequacy of the constitution? o Structural inadequacy in institutions or constitution itself  Constitution does not recognize Quebec unique nature - Is constitution not adaptive to global socio-economic challenges today? o Government didn’t get involve with environment, social, health, post- secondary policies in 1867 as they are today. o You cannot function by regulating environment within own border, that’s when the section of environmental policies must be broadened to include other countries - Is there a lack of fit between federal structural frameworks that operates with respect to Canada and underlying socio-economic challenges that are faced by Canada? o Climate change facing Alberta in comparison to other provinces  Alberta gives priority to jobs in energy sector, so they consider climate change as secondary - Other political observers ask the question that are the current constitutional inadequacies made up by governmental elites? o Constitutional contexts are made up by elite to put forward their agendas (Cairns) o Constitution must not be considered as driver of change o It needs to be changed to correct certain inequalities of today - Should all current efforts at addressing constitutional issues be put on the backburner? o Two last constitutional changes failed, all attempted reforms under the two accords were rejected; o Many proposed reforms are unresolved, many issues remain unresolved o It may be a mistake for Canada - Content of constitutional issues – can they be traced to deficiencies in the original constitutional act of 1867 or are they new issues? 2. Sources of these “inherited” and “new” constitutional issues  Economic, social and demographic factors  Most important factors giving rise to new constitutional issues  Changing economic and social structures radically altered political equilibrium among the different regions and provinces giving rise to new woes and demands  Example o Industrialization and Urbanization changed nature of federalism o In 1880, Canada was a largely rural society, 80% rural o By 1920, Canada became 60% industrialized – change was radical in that period; therefore it is not surprising that new constitutional issues arose o Demands for a welfare state – manifested after WW2; demands for healthcare, old age pension and security, issues of communication emerged with underlying changes in Canadian social and economic structure o Whatever was provided for in original constitution could not be a meaningful guide for two levels of government in those policy areas. o Prime demands that changed came from provinces who demanded more economic control over natural resources, greater tax-spending o Constitutional reforms were demanded by provinces in areas where it was allowed o Federal government aimed to increase authority in welfare state o If federal government were shut up from certain areas, it would stop them from applying certain Keynesian policies to establish maximum well-being for Canadians – so it became their task to carry out constitutional reform  They asked provinces to transfer unemployment insurance to federal government – example of state intervention in managing economy and preventing collapse o Changing birth rates, immigration and internal migration patters from one province to another – had effect of strengthening some provinces and weakening others, giving rise to greater representation in government by stronger provinces without formal constitutional change  Ethnic-linguistic and cultural factors  French-speaking minority with the Quiet Revolution  Immigrant groups  Native people  Women’s groups  All of them strove to bring about greater economic and social equality  Quebec had to reorient themselves to manage ethno- linguistic and cultural factors given the large rate of immigration in English-speaking Canada  Internal institutional factors  Weaknesses in original constitution can be traced back to early reforms  Judicial Council of the Privy Council (JCPC) was final court, Supreme Court was second in command, sometimes the Supreme Court could be bypassed and gone straight to JCPC – first demands to JCPC was to transfer full authority to Supreme Court, until 1949 they were the main court.  Inefficiency of senate – upper house didn’t serve its function to articulate concerns of different regions o They only played the role of a second reader of bills 3. Inherited constitutional issues  The distribution of powers  Section 91 gave more power to federal government, initial vision was so that a civil war could be avoided  Direct and indirect power over taxing to federal government  When direct income tax and corporate taxes came about, the provinces had authority over that  Natural resource revenues to provinces after reform  Health-care?  The role of the upper house (Senate)  Development of party system and the fact that all senators are part of same party results in leaders of governing party to ‘whip’ so that everyone votes according to caucus  Use senate to reward former partisans  The amending procedure  First became an issue 1926 when Canada became self- governing dominion  British government still made decision in foreign affairs and it wasn’t uncommon to submit amendments to British House of Commons  Once Canada became an independent country, it became inappropriate for them to submit amendment for acceptance to the British  In 1927, first effort at finding an amending formula entirely within Canada, and it went on until 1960’s, 4-5 efforts; finally succeeded under Trudeau in 1982, but it didn’t make Quebec happy  As founding member Quebec felt they required a veto  Need to keep constitution flexible and need for fluidity, because if unanimity were required for amendments then nothing would get done.  Issue was to find formula that would satisfy all parties and remain somewhat flexible  Constitutional entrenchment of the Supreme Court and the rules governing its selection and composition  Supreme Court Act, 1875 wasn’t entrenched in Constitution Act, 1867  If Supreme Court was to be legitimate, it would be better to define the role of Supreme Court – jurisdiction in situation of conflict between federal and provincial government, also in conflict with regards to the Bill of Rights  No urgency in entrenching Supreme Court in the constitution  7/50 formula: case for most amendments o 7 out 10 provinces and 50% of total population of Canada is required o Problem is that it is a very rigid amending formula  Full entrenchment of Charter of Rights protections for both individual and minority groups  This became an issue of Diefenbaker, his Bill of Rights applied to federal legislation and there was no way of enforcing it among the provinces  Supreme Court did not impose Bill of Rights on any provinces, with respect to federal government  As Supreme Court faced a number of situation where rights were not being protected, o Jehovah’s Witnesses were being arrested as they were thought to be preaching their faith during World War 2 o Communists  Demand for change became strong during this period, Trudeau pushed for the Charter, but Quebec felt it would infringe on some of its ethnic and linguistic concerns o Quebec rejected proposal for the Charter  Canadian Charter protects both groups and individuals, and they are not absolute  Notwithstanding an
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