Class Notes (838,386)
Canada (510,872)
POL316Y1 (31)
Lecture

Section 4.docx

9 Pages
81 Views
Unlock Document

Department
Political Science
Course
POL316Y1
Professor
Michael Stein
Semester
Fall

Description
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
More Less

Related notes for POL316Y1

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit