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Political Science
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Political Science 2230E
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Prof
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Fall

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(1) A BRIEF OVERVIEW OF CANADIAN HISTORY 10,000 BC (or so) - 1500: North America settled by countless tribes (the vast majority from Asia); these develop into 500 or so 'nations' by the time of European colonization; these tribes had little to do with concepts such as state sovereignty but wars were fought for land 1500-1763: North America settled by the English (later, British), French and Spanish (with smaller Dutch, Swedish and Russian settlements); the British heavily colonize the Atlantic coast; the French colonize the St. Lawrence valley; most Native peoples suffer under the European expansion (some co-operate with certain Whites, others resist and are killed or are driven out; many others die of European diseases); by early 1760s, France is defeated in North America by Britain (the core of New France eventually become Quebec) 1776-1787: most of the British colonies revolt and defeat Britain in the War of Independence; the United States is fully formed by the late 1780s; thousands of British-backers ('Loyalists') move to the remaining British North American colonies (eg. what became Upper Canada/Ontario) 1791: 'Canada' made into two provinces, 'Lower Canada' (mainly French-speaking and Catholic) and 'Upper Canada' (mainly English-speaking and Protestant) but Anglos begin to dominate the economy of all the colonies; gov't in each colony is appointed (2) 1812-1815: 'War of 1812' between Britain (and many Native allies) and the USA is mainly fought on 'Canadian' soil; no clear victor 1837-1840: Rebellions in Upper and Lower Canada about the notion of responsible gov't (executive beholden to elected assembly); these led to the Durham Report and the Union of 1840 which united Upper and Lower Canada (but these areas were still known as East and West Canada); responsible gov't was eventually established in all the BNA colonies 1860s-1867: the threat of American power leads the BNA colonies to discuss a formal union within the British Empire; this is accomplished in 1867 to form the federation of Canada (four provinces join initially: Ontario, Quebec, New Brunswick and Nova Scotia) 1870: Manitoba joins Canada 1871: British Columbia joins Canada 1873: Prince Edward Island joins Canada 1876: the Indian Act attempts to reorganize Natives in Canada 1885: Second Riel Rebellion leads to the death of L. Riel (a Metis/French leader) and divides French and English-speaking Canadians (3) 1890s: Manitoba restricts the French language in gov't and schools; Quebec is outraged 1905: Alberta and Saskatchewan join Canada 1914-1918: Canada automatically enters WW1 as a part of the British Empire; French Quebeckers oppose the war 1921: all women are allowed to vote for the first time in a federal election (decades earlier the vote had been gradually extended to all men) NOTE: Natives were not allowed to vote in federal elections until 1960 1931: the Statute of Westminster takes Canada out of colonial status but certain ties to Britain remain 1939-1945: Canada voluntarily enters WW2; French Quebeckers again strongly oppose the war 1945-1950s: Canada becomes a firm part of the Western alliance against communism; Canada joins NATO and becomes more integrated with the US militarily and economically 1949: Newfoundland and Labrador join Canada 1960-1980: the 'Quiet Revolution' in Quebec (1960-1970) upsets the balance of Canadian federalism and threatens the unity of the country; by 1980, 40% of Quebeckers vote to leave Canada in a referendum (4) 1981-1993: constitutional wrangling between Ottawa and the ten provinces leads to some results (eg. Charter of Rights and Freedoms in 1982) but to many failures (eg. Meech Lake and Charlottetown Accords); major free trade deals with the US and Mexico (now known as NAFTA) 1993-present: regionalism strong; national unity uncertain for the future; 1995 referendum in Quebec comes close to breaking up Canada (49.4% of Quebeckers wanted out); economic (and military?) reliance on the US growing; despite the creation of the territory of Nunavut in 1999, most Native problems remain unresolved; general fiscal crisis of governments but this eased in recent years after cutbacks and fairly strong economic growth; the current economic crisis poses new challenges for the Canadian state with new deficits (5) The Canadian State - a brief overview 1867-1914: - minimal state at all levels of gov't, mainly occupied with internal and external security; no welfare state; taxes very low 1914-1918: - state grows for a time (mainly federal) as a response to WW1 1918-1939: - state still very small even with the introduction of a few social programs; however, state is inadequate to meet the needs of Canadians suffering through the Great Depression (1929-1939) 1939-1971: - massive growth in the size of the state due to original wartime involvement and later creation of the Canadian welfare state (all levels of gov't grow in size); taxes increase greatly; state-sponsored macro-economic management (Keynesians) 1971-present: - gradual cutbacks in program delivery (drastic ones in the mid-1990s) has weakened the welfare state; tax cuts and globalization has led to a serious 'fiscal crisis of the state' in Canada; the role of gov't has been reduced in many ways (privatization, de-regulation, cuts, etc.); the federal gov't has been especially weakened (6) THE FABRIC OF CANADIAN SOCIETY 1/ political culture - individual attitudes, beliefs, orientations and behaviour towards gov't and politics - more broad than ideology a/ G. Almond and S. Verba's classic study of political culture (1961): Types: 1/ 'parochial' - populace is mainly ignorant of politics eg. many African countries 2/ 'subject' - populace is aware of politics but is passive towards those in authority eg. Nazi Germany 3/ 'participatory' - populace is aware of politics and participates in governing eg. U.S. Main idea: If political institutions are not congruent with a certain political culture, then those institutions are unstable; political culture changes slowly. Using this approach, Canada is said to have a 'participatory' political culture. Others claim Canada has a 'quasi-participant' political culture. Criticisms of this approach: a/ assumes there is one political culture in a nation - are there not powerful 'subcultures'? b/ heavily dependent on survey research which can be biased (7) b/ Fragment theory of political culture in Canada and the U.S. (L. Hartz/G. Horowitz) Main idea: Canada and the U.S. are colonial 'fragments' of European political cultures. - U.S. formed by those seeking freedom in Europe and those who rejected British oppression ('liberal fragment') - French Canadians originally conservatives from absolutist France and British Canadians originally a mix of 'Loyalists' (pro-British Crown conservative 'tories') and liberals; Canada is mainly liberal with a 'tory-touch' - therefore, Americans are revolutionary, anti-authoritarian, classical liberals - therefore, Canadians are like Americans but are non- revolutionary, defer more to authority, are more collectivist, and are more conservative - more socialism in Canada than in U.S. perhaps explained by this theory (more acceptance of a strong, paternalistic state) c/ Lipset's 'formative events' thesis: - Canadian and American political culture shaped here after certain formative events eg. American revolution - Canada's evolutionary response to the radicalism of its southern neighbour has led to more conservative (NOTE: not neo-conservative) attitudes: eg. on collectivism (the role of the state for the common good of society); on gun control; on the paying of taxes (8) - Lipset argues that Canadians are more - a/ class conscious; b/ elitist; c/ law-abiding; d/ statist; e/ collectivelly-oriented; and f/ particularistic - than Americans d/ N. Nevitte's 'decline of deference' thesis - critique's Lipset's approach - argues that Canadians and Americans are both becoming 'post-materialistic' (Inglehart's theory that Western populations are embracing values such as environmentalism and feminism) and are increasingly questioning those in authority 2/ national character - all nations have dominant cultural traits that define them What is it to be 'Canadian'? What is our national character? - is it to be 'anti-American'? - is it to be 'multicultural'? - is it deference to authority? - is it peacefulness? - is it tolerance? (acceptance?) - is it a sense of ruggedness? - is it generosity? (9) 3/ regional political cultures in Canada a/ Quebecois political culture - Quebecois seen as a 'nation' - Quebecois seen as 'distinct' - more collectivist - more drawn to charismatic leaders? b/ Western political culture - more individualistic? - more American-like? - distrustful of bilingualism and centralization? c/ Eastern political culture - more collectivist - more traditional? - feelings of distinctiveness? - acceptance of centralization d/ Ontario political culture - self-centred? - becoming more American-like? - becoming less traditional? e/ Northern political culture - rugged/individualistic (non-Natives) - collectivist (Inuit)? (10) 4/ Poverty in Canada - the 'poverty line' in Canada is considered by Statistics Canada to be calculated as the following: those who spend 56.2% or more of their income on food, clothing and shelter; the Canadian Council on Social Development considers the 'poor' to be those who have 50% or less of the average disposable income - StatsCan’s similar ‘low income cutoff’ measure: 9.4% of Canadians (3.1 million people) in low income group in 2008 (down from 15.7% in 1996) - most Western nations have similar poverty rates (the U.S. higher, Western Europe lower, than Canada) a/ Problems with the above measures and others like them: - they are subjective (no one firm standard) - 'today's needs were yesterday's luxuries' (what is a 'need'?) - most of the Canadian 'poor' would be rich by Third World standards or by the standards of Canadian history - relative poverty may never be eliminated completely – even socialist states were/are unable to do this. b/ Canadians have tried to deal with poverty by a progressive tax system (the poor pay little tax), relief programs (i.e ‘welfare’) job creation/retraining programs and education. The effort is complicated because it involves the co-ordination of 3 levels of gov’t: federal, provincial and municipal. Despite homelessness (often due to substance abuse and mental illness), most absolute poverty is gone in Canada. (11) 5/ gender in Canada - females make up just over half of Canada's population, but historically, have had much less legal, political and economic than Canadian men; while women have been entering the workforce in growing numbers since the 1960s, they still earn less money on average than men (in 2008, 64.4% of men’s average wages) - despite recent gains, women are still underrepresented in political life (eg. House of Commons) a/ some key milestones for women in Canada 1916: Manitoba becomes the first province to allow women to vote in provincial elections 1917: limited voting for women in the federal election (female army personnel or wives voting for absent male soldiers) 1921: first federal election in which all adult women can vote (Agnes MacPhail elected as an MP) 1922: PEI grants women the provincial vote (by this date, only Quebec still had not done so) 1929: British Judicial Committee of the Privy Council overturns Supreme Court decision in 1928 that women are not 'persons' and may not serve as Senators 1940: Quebec finally allows women the vote at the provincial level (12) 1955: married women allowed to work in the federal civil service 1980s-present: - women, Natives, people of colour and the disabled have historically been underrepresented at all levels of the federal public service - solution to problem of underrepresentativeness: 'employment equity' (this may range from the simple consideration of certain groups in a hiring process still based on merit, to 'quota' hiring based on racial or sexual profiling) - in a sense, 'employment equity' in its minimal form has been an informal part of hiring for years and has led to more women and Francophones in the federal bureaucracy - the Employment Equity Act of 1986 required Crown corporations and companies which have contracts with the federal gov't (and have 100 employees or more) to give reports about the ethnic and gender makeup of their workforces and to prove that underrepresentation is not due to racism or sexism - the Employment Equity Act of 1995 expanded the 1986 Act to include those employed by the Public Service Commission/Treasury Board; as well, some training and development is given to target groups and the recruitment process now openly looks for qualified people from minority groups (NOTE: no 'quota' system currently exists at the federal level, although the Rae gov't in Ontario came close to creating one for Ontario in 1994 - something which was totally disbanded by Harris in 1995) (13) - 'pay equity' is a related issue to the above: 'equal pay for work of equal value' is demanded by women who have historically been underappreciated and underpaid in the federal public service - in 1998, the Canadian Human Rights Commission ordered the gov't to give some 200,000 women financial compensation on the basis that they had been underpaid (cost: 4 billion dollars); the public service has undertaken controversial efforts to rank jobs according to their level of difficulty (based on questionnaires) - recently, the Harper government has tried to move pay equity away from human rights commissions - some gains have been made: today, 50% of the federal bureaucracy is female - we have had a few women Premiers and one female PM (Kim Campbell - for a brief time in 1993); the head of Canada's Supreme Court was a woman (Beverly McLachlin) Pros of Employment Equity 1/ Still is mainly based, in theory, on merit 2/ Can help to encourage women/minorities to strive for non- traditional jobs 3/ Can right historical wrongs 4/ May only be temporary 5/ May make sexism/racism unacceptable (14) Cons of Employment Equity 1/ In practice, merit may be overlooked 2/ May create a sense of ‘tokenism’ which may stigmatize women/minorities in their own eyes as well as others 3/ May be unable to help the actual historical victims of sexism/racism 4/ May not be temporary 5/ May create ‘reverse’ sexism/racism 6/ May not help poor women or minorities 7/ May be impossible to precisely define ‘historically disadvantaged groups’ and their members (15) 6/ the main linguistic/ethnic cleavage in Canada Language/ethnicity, more than any other factor, including religion, class and gender, has shaped Canadian politics. It is the division between Francophones (the 'French') and Anglophones (the 'English') which has created so much of the political landscape. - almost 23% of Canadians claim French as their first language (2001); 81% of these are concentrated in Quebec, most of the others are in New Brunswick (about 30% of New Brunswickers are Francophones) and Ontario - most Canadians are not bilingual, although many have a basic understanding of both languages a/ major linguistic landmarks since 1867 in Canada 1867: Parliament and the Quebec Legislature is made bilingual (BNA Act Section 133) but no other guarantees are made 1885-1896: Manitoba Schools Question - Manitoba abolishes French in schools and opens the West to Anglophone settlement and dominance early 20th century: Canada increasingly becomes Anglophone as immigrant groups mainly adopt English; only the high (16) Francophone birth rate keeps the French language alive in parts of Canada 1960-1970: Quiet Revolution in Quebec - Francophones assert their rights and begin to weaken the Anglophone dominance of the Quebec economy late 1960s - present: official bilingualism at the federal level all across Canada; many provinces have also embraced bilingualism in provincial services although Quebec claims to be officially unilingual (cemented by Bill 101 in 1977), despite at least 600,000 Anglophones in Quebec (many also left Quebec in the last 3 decades); there has been some attempt to hire proportionate amounts of Francophones in the federal public service The Problem: although Canadians have embraced things like French Immersion Schools in places, Trudeau's dream of a Canada in which a Francophone or Anglophone can be comfortable in any part of Canada remains elusive. The divide is clearly between Francophone Quebec and the Rest of Canada (ROC) which is Anglophone. (17) 7/ the media in Canada - 'communications media': newspapers, magazines, pamphlets, books, radio, television, recordings, films, Internet, direct mail - political actors realize how powerful the media is; they need to manipulate it - a/ 'spin doctors' (political public relations specialists); b/ televised debates; c/ paid political advertising; d/ public-opinion polling; e/ direct mail campaigns a/ Role: - the media usually tries to be objective but it must make certain value judgements 1/ agenda-setting - the media selects what is newsworthy 2/ priming - the media must select certain phrases to describe persons and events: these can be value-loaded - the media, especially the print media, in Canada is not state- controlled but many newspapers are controlled by wealthy individuals eg. Conrad Black; the concentration of media power may make the media less objective b/ Polling - is generally an accurate reflection of public opinion; politicians often have their own pollsters - based on random sampling (usually of about 1000-2000 persons, by phone) (18) - example of a poll: 65% of Canadians want lower taxes, margin of error: + or - 3% 19 times out of 20 (this means the actual result - if all 30 million Canadians were polled - is between 62% and 68%, 19 polls out of 20 - there is a 1 in 20 chance that the sample poll is totally off) - problems with polls: a/ snapshot of public opinion (opinions can easily change); b/ public is often uninformed; c/ politicians should not always be about doing what the public immediately wants (there are long term goals to be considered); d/ some concerns about cell phones - in 1998, the Supreme Court ruled that polls could be held right up until the day of an election Questions: 1/ Is the media ‘biased’? 2/ Is the media diverse enough? 3/ Is the media ‘dumbing’ down Canadians? (eg. image over substance) 4/ Is the media discouraging good people from seeking political office? (19) 8/ The Aboriginal Dimension in Canada a/ Definition of an 'aboriginal' ('Indian', 'Native') - over 1 million Canadians claim some Native ancestry, including Inuit and Metis - over 600,000 are 'status' Indians under the Indian Act (about 60% of these live on reserves) NOTE: in 1985, the number of status Indians began to increase dramatically because Native women who had married non-Native men (and their offspring) became eligible as status Indians (also, non-Native spouses of status Indians could apply) - only around 200,000 can speak a Native language - about 600 Indian bands exist (the largest, Six Nations has around 30,000 people in six tribes) b/ The Indian Act - since 1876, the Indian Act has been the source of legal authority for most Natives in Canada - the Act (and later amendments to it), which built upon an earlier paternalistic Crown-Native relationship, established the following: i/ the definition of a Status Indian; ii/ that Status Indians are under the protection of the Crown (federal gov't); iii/ a system of land holdings ('reserves') which is owned by the Crown but is for the use of Native bands (there are around 2,200 reserves); historically, bands could not sell reserve land without federal approval; NOTE: the federal gov't has recently tried to give bands more autonomy in the use of lands held for (20) them but there is much resistance to radically changing the Indian Act iv/ a system of entitlements for Status Indians eg. tax breaks, free post-secondary tuition; etc. NOTE: Natives who gave up their status under the Act were allowed to become full Canadian citizens. Since 1960, however, all Natives can vote in federal elections. As well, the federal gov't maintains relations with some non-Status bands (eg. some Inuit groups) which are similar to that of the Indian Act. c/ Current problems with the Indian Act - most reserves provide little in the form of economic opportunities for bands; unemployment on some reserves is 80-90%; welfare is a way of life for many - depression, alcoholism, family abuse, drug use and suicide are severe problems on many reserves - most entitlements are not enough to overcome the above - Native leaders (and bureaucrats) often seem to benefit more than the people they represent (NOTE: this is controversial) d/ Solutions? i/ more autonomy for Natives: a/ self-government (eg.municipal models, Nisga’a deal, Nunuvut); b/‘treaty federalism’ (nation to nation sovereign relationships/ new treaties); c/ land claims resolution for existing treaties; d/ (21) aboriginal ‘third order of gov’t’ (eg. Aboriginal parliament, reserves as province-like) ii/ better administration of Indian Act: a/more money for programs; b/more job creation programs; c/further decentralization of programs; d/better accountability (NOTE: decentralization of administration has been going on for decades; the 2002 attempt to introduce more accountability was rejected; the 2005 Kelowna Accord, which would have increased money by billions, was cancelled by Harper) iii/ symbolic gestures: a/ apologies; b/recognition of Native distinctiveness; c/giving back cultural items NOTE: Harper apologized for Native residential schools iv/ assimilation of Natives into Canadian multicultural society (NOTE: this was seriously suggested in 1969) e/ the complexity of the problem - Native/gov’t relations are broken into hundreds of cases involving Native tribes/bands/nations - all are unique historical cases with unique developments: some are treaty based, others are not – i.e. some involve treaty misunderstandings/violations (eg. Cree) and some are situations where Native sovereignty was violated outright (eg. Nisga’a); some involve non-traditional lands (eg. Six Nations); some involve mixed groups which may not have many proper lands (eg. Metis); in some cases, disease or (22) murder has led to genocide and few, if any, remain to seek redress (eg. Beothuk) - as well, Natives off reserve often face different problems to on reserve Natives; bands have different resources/lands in different locations which give some advantages over others (23) THE CANADIAN CONSTITUTION - set of rules in Canada that: 1/ establish branches of gov't and their roles; 2/ clearly divide powers between levels of gov't; 3/ establish 'bills of rights'; 4/ establish amendment procedures - has legal force but also comprises conventions (practices) which are not legally binding 1/ The Canadian Constitution: major parts - blend of 'unwritten' and 'written' styles 1/ 'unwritten' - conventions inherited from U.K. such as role of Prime Minister and Cabinet 2/ 'written' a/ British North America Act 1867 (now known as Constitution Act 1867) and amendments made from 1867 to 1982 -established the divisions of powers between the federal government and the provinces b/ Statute of Westminster 1931 - took Canada out of British colonial status - Canadian Parliament essentially became independent (24) c/ Constitution Act 1982 (including Charter of Rights and Freedoms) - finally codified an amendment formula - gave the provinces more powers - established a true Canadian bill of rights which was superior to the 1960 Bill of Rights which only affected the Canadian federal government - never signed by Quebec (but Quebec is legally bound by it) 2/ specific parts of the Canadian Constitution to know for exam: a/ BNA Act 1867: Section 91 - gives the federal government power to make laws for the "Peace, Order, and good Government of Canada" - gives list of federal powers - note powers over "Indians, and Lands reserved for the Indians."(24); "The raising of Money by any Mode or System of Taxation."(3) and what is known as the federal government's 'reserve powers' (last lines in Sec.91) Section 92 - gives list of provincial powers - note important powers over Health (7); "Municipal Institutions in the Province."(8); "Property and Civil Rights in the Province."(13); and "Generally all matters of a merely local or private Nature in the Province."(16) - note that provinces can only use direct taxation (2) (25) Section 93 - gives provinces power over education, although they are subject to certain restrictions eg. protects minority separate schools in some of the provinces: remember, powers for Roman Catholic and Protestant schools were a very controversial issue over 100 years ago (and can still be) Section 95 - establishes that agriculture and immigration are concurrent powers of the federal gov't and the provinces b/ Constitution Act 1982 i/ Charter of Rights and Freedoms Section 1 - idea of "reasonable limits" Section 2 - Fundamental Freedoms: a/ religion; b/ speech; c/ peaceful assembly; d/ association Sections 3-5 - democratic rights Section 6 - mobility rights Sections 7-14 - legal rights Section 15 - equality rights note: 15(2) permits affirmative action Section 33 - 'Notwithstanding clause': allows Parliament or provinces to pass or uphold legislation which may contravene or is proven (by the courts) to contravene section 2 or sections 7-15 of the Charter ii/ rest of 1982 Act (26) Section 36 - guarantees equalization (payments to poorer provinces) Section 38 - general amending formula: Parliament (House of Commons and Senate) and at least 2 thirds of the provinces (7) which have at least 50% of the population of all the provinces (27) MEGA CONSTITUTIONAL BARGAINING AND RESTRUCTURING 'Mega-constitutional' (P. Russell) politics describes the quest for massive constitutional change and has been evident since at least 1981. Canada's constitution has been problematic for much of the twentieth century. Amendments to the Constitution Act 1867 had to be approved by the British Parliament. Although this was merely symbolic, it was a constant affront to Canadian nationalists. Therefore, by the 1920s, Canadian politicians were beginning to look for a Constitution with a domestic amending formula and one which would satisfy all political actors in Canada. This has been a long and frustrating quest. Much constitutional bargaining in Canada has been between federal-provincial executives. 1/ HISTORY OF 'BRINGING THE CONSTITUTION HOME' (1867-1981) 1931 - Statute of Westminster - takes Canada out of colonial status (but Canada still a constitutional monarchy) - no domestic amending formula agreed upon, so British Parliament still gives final approval on constitutional amendments 1949 - Supreme Court fully takes over from JCPC (28) - in areas affecting the federal gov't alone, federal Parliament allowed to make amendments without references to provinces or Britain - areas affecting provinces still need Britain's approval - convention begun that amendments which affect provinces must have approval of all of them 1964 - Fulton-Favreau formula (failed) - unanimous consent for amendments affecting division of powers and language provisions - for other items affecting Canada as a whole: federal Parliament + 2/3 of provinces having at least 50% of population - Quebec rejected it at last minute fearing constitutional paralysis if implemented 1971 - Victoria Charter (failed) - general amending formula: federal Parliament + all provinces with more than 25% of population (then Quebec and Ontario) + at least 2 Atlantic provinces + at least 2 Western provinces having 50% of the population of the West - would have constitutionalized equalization and the federal Bill of Rights - provinces to have some say in Supreme Court appointments - Quebec demanded that the federal gov't abandon many policy fields (eg. family allowances) but this was rejected (Quebec then refused to sign Victoria Charter) (29) 1970-1980 - no significant agreements reached - the threat of sovereignty-association for Quebec forces the Trudeau gov't to promise Quebec much during the Quebec referendum campaign of 1980 - by late 1980, PM Pierre Trudeau had enough of provincial wrangling and proceeded to try to drastically amend the constitution unilaterally: the provinces ordered a court challenge which resulted in the federal gov't being told that it needed a 'substantial degree of provincial consent' (but not unanimity) for mega-constitutional change - Trudeau wanted: 1/ a domestic amending formula; 2/ a Charter of Rights and Freedoms; 3/ a centralized federal system; 4/ no special legal status for Quebec THE 1981 NEGOTIATIONS - initially, all provinces were sceptical of Trudeau's actions - however, soon Ontario and New Brunswick took the federal side - the other provinces were very wary of the Charter which they felt could severely limit the authority of provincial legislatures - in order to solidify the opposition to Trudeau and his proposed Charter, Quebec separatist Premier Rene Levesque (PQ) promised to drop Quebec's traditional demand for a Quebec constitutional veto (but all took the position that individual provinces could 'opt out' of any transfers of functions to Ottawa and get compensation); Levesque then headed the 'Gang of Eight' opposition - Trudeau countered with a threat to take the Charter idea to a general referendum (30) - in a mysterious move (to cause chaos?), Levesque joined the federal gov't on its idea of a referendum which then suddenly pit Quebec against the rest of the 'Gang of Eight' - in very secretive talks (at one point, a few top officials - including former PM Jean Chretien - in a kitchen), the English-speaking provinces worked out a deal with Trudeau in October 1981; the Quebec delegation team is left out and claimed it was betrayed - it refused to sign deal 2/ THE CONSTITUTION ACT 1982 (INCLUDING THE CHARTER OF RIGHTS AND FREEDOMS) The final deal was a compromise between the 9 provinces and the federal gov't. Trudeau got the amending formula he wanted (no general Quebec veto) and most of the kind of Charter he wished for as well. The provinces accepted the Charter but got Section 33 (the 'notwithstanding clause') inserted to protect themselves from court rulings in certain areas. Generally, Trudeau did not get a more centralized federation. The Constitution was finally fully 'home'. NOTE: Just because Quebec did not sign the Constitution Act 1982 does not mean it is not legally bound by it. NOTE: Section 33 has been used by Quebec (they symbolically declare all their legislation 'notwithstanding' the Charter) - most infamously, it was used to pass Bill 178 (1988) in order to defend French only signs (earlier Bill 101 had been struck down by Supreme Court as a violation of Section 2); Section 33 has been used once by Saskatchewan (anti-scab legislation) in 1986 (in order to preempt a Court decision) (31) 3/ THE MEECH LAKE ACCORD (1987) The refusal of Quebec to formally join the constitutional fold in 1981-82 created a great wound in the federation. Quebec could claim, with at least some legitimacy, that any package which excluded them was morally wrong. In 1984, new PM Brian Mulroney promised to reverse Trudeau's exclusion of Quebec. In 1985, the PQ was ousted in Quebec and the new federalist Premier Robert Bourassa promised to work with the federal gov't in creating a new constitutional package. Bourassa had five demands: 1/ recognition of Quebec as a distinct society (whatever this meant in legal terms); 2/ increased jurisdiction over immigration; 3/ participation in Supreme Court appointments; 4/ veto on constitutional amendments; 5/ opting out of national programmes in provincial areas of jurisdiction, with compensation. At Meech Lake in 1987, in secret meetings, the first ministers quickly created a large package. Quebec got most of what it wanted; the compromise seemed to be based on the following: most of what Quebec got, all the provinces got as well. a/ distinct society clause - Quebec was declared a 'distinct society' within Canada and the National Assembly of Quebec was to 'preserve and promote' this distinctiveness; it was unclear what legal ramifications this clause was to have: for example, did it amount to a kind of automatic Section 33 for Quebec? b/ increased provincial control of immigration (32) - federal government to negotiate immigration agreements with the provinces - Quebec to be guaranteed an annual share of immigrants proportionate to its population - federal standards in receiving new immigrants to be upheld c/ participation in Supreme Court appointments - Supreme Court fully entrenched - provinces to submit lists to federal government of candidates - 3 judges to be from Quebec (entrenched) d/ increased list of items requiring unanimous consent for amendment - Quebec did not get a blanket veto for constitutional amendments but items such as the Senate and the creation of new provinces were put under the unanimity rule e/ the limitation of the federal spending power - provinces to be able to opt out of shared-cost programmes in provincial areas of jurisdiction, with compensation, provided provincial plans still met 'federal objectives'; it was unclear whether 'national objectives' meant the same as 'national standards' (federally set); it was unclear who would set and enforce 'objectives' Other parts of Meech Lake Accord: (33) f/ - Section 40 of Constitution Act 1982 to be amended to give compensation not just for education and culture but any field g/ - provinces to give list of Senate candidates to federal gov't when a vacancy arises h/ - yearly first ministers' conferences on the Constitution and the economy Aftermath: The Meech Lake Accord was a triumph of executive federalism. Quebec, the West and every other region seemed to be satisfied with the complex deal. All legislatures in Canada had three years to ratify the Accord. This proved to be too long a period. Opposition to the Accord grew: 1/ centralists, like Trudeau, hated it; 2/ many resented Quebec's 'distinct society' clause (such as Newfoundland Premier Clyde Wells) and claimed it gave Quebec a better place in Confederation than any other province; 3/ aboriginal and women's' groups felt excluded; 4/ the deal was seen as elitist; 5/ the package was seen to be too rigid to allow for further reforms. Most legislatures quickly ratified the Accord. Newfoundland, New Brunswick and Manitoba held up the deal. Even after some last minute negotiations, both Newfoundland and Manitoba refused to sign. The package died in June, 1990. (34) 4/ THE CHARLOTTETOWN ACCORD After the failure of Meech, pressures mounted for another, better, grand package. Quebec initially refused to co-operate. Even Quebec federalists were now demanding much more than they had previously (the Liberal Allaire Report called for wholesale functional decentralization in Canada). Politicians intended for the next round to involve the public this time and several forums and commissions were established (eg. Spicer Commission). By 1992, executive federalism was in full swing again. Amazingly, the first ministers (and some aboriginal representatives) were able to hammer out another deal in Aug., 1992. This time, the package would be put to a (non-binding) national referendum (and a separate one in Quebec). The 'yes' side had to win in all ten provinces before the federal gov't would ratify the Accord. Even then, it still had to pass in the provincial legislatures. a/ the Canada clause including the distinct society clause - this time the distinct society clause was lumped together with a list of other Canadian 'characteristics' including such items as democracy, the federal system, equality and diversity of the provinces and gender equality (to name only some) - again, it was uncertain as to the legal implications of the items in the 'Canada clause' and if their ranking order meant anything (distinct society ranked third) b/ triple-E Senate (35) Elected (almost): every province and territory would elect Senators except Quebec (appointed by National Assembly) Effective (almost): a rejection of most bills in Senate would not kill a bill; instead, bill would be sent to a joint sitting of all members of House and Senate (where House would outnumber Senate); however, some items could be vetoed by Senate outright (eg. taxation on natural resources; some federal appointees to national institutions); items dealing with French language and culture would have to be passed by the Senate and a majority of francophone Senators; money bills could be rejected in Senate but would be sent back to House only for re-vote; could still initiate legislation except for money bills Equal (almost): every province would get 6 Senators and the two territories 1 each, for a total of 62 - Quebec and Ontario to be given 18 Commons seats each to compensate for loss of Senators - Quebec to be guaranteed 25% of Commons seats forever c/ division of powers - same as Meech for spending power - federal gov't to abandon fields of forestry, mining, tourism, recreation, housing, and municipal and urban affairs (at provincial request) - federal government to abandon culture (except for certain national cultural institutions) and labour market training (36) - telecommunications and regional development to become concurrent jurisdictions - Meech immigration deal upheld d/ aboriginal self-government - aboriginal governments to constitute 'third order' of government in Canada Other items: e/ - Meech provisions for Supreme Court nominations f/ - Meech provisions for Section 40 amendment g/ - same list for amendments requiring unanimity as Meech (except for creation of new provinces) h/ - a non-justiciable Social Charter to be created i/ - Meech provisions for annual first minister meetings j/ - the abolishment of the federal reserve, disallowance and declatory powers Aftermath: This 'mother of all deals' tried to please everyone and ended up alienating the majority of Canadians. Like Meech, the Accord was seen as essentially elitist (even with the public inputs). Centralizers, like Trudeau, once again attacked the deal. Most Quebeckers, separatists and federalists, felt cheated by the Accord. The public largely (37) vented its rage against the politicians by voting 'no' on Oct. 26/92. In total, 55% of Canadians voted 'no'. The majority of voters in Nova Scotia, Quebec, Manitoba, Saskatchewan, Alberta, B.C. and the Yukon all voted to reject the Accord. The Accord was dead. (38) CANADIAN FEDERALISM Canada was formed in 1867 as a federal state. However, Canada was arguably not founded by a compact as the U.S. had been - it was the British Parliament which had to give final approval for the formation of Canada. It was surprising that Canada, with its strong ties to Britain at the time, would choose federation as the form of government, since federalism was seen as anti-British (only now are the British finally moving towards federalism). Federalism was associated with America and Canada was largely anti-American in the late 19th century. Also, the U.S. experience with federalism had led to the bloody civil war of 1861-65. However, Canada chose federalism (constitutionally divided government) for several reasons: a/ Canadian federalism was only 'pseudo-federal' in the beginning: - the symbolic heads of the provinces, the lieutenant governors were appointed by the federal government - the federal power of reservation (the lieutenant governors could 'reserve' provincial legislation for approval by the federal Cabinet) - the federal power of disallowance (the federal government could simply disallow provincial legislation) (39) - the federal declatory power (the federal government could declare various provincial works to be the property of the federal government) - the Constitution Act 1867 gave the federal gov't the authority to make laws for the 'peace, order and good government of Canada' (POGG clause): the Founding Fathers intended the POGG clause to enable them to run Canada as a unitary state - Section 94 of the Constitution Act 1867 anticipated that Canada minus Quebec, would essentially be devoid of significant provincial differences - the federal gov't appointed Senators (in the U.S., until 1913, Senators were appointed by State legislatures) - the federal gov't appointed superior provincial Court justices ('Section 96 judges') All of the above were intended to make Canadian federalism very centralized and therefore unlike American federalism. b/ the distinctive nature of Quebec - the French language and culture were largely put under provincial control - Section 133 made French and English the official languages of Parliament and of the Quebec legislature - the Constitution Act 1867 protected Quebec's civil law tradition - Section 93 ensured that Roman Catholic schools were protected in Quebec by making education a provincial matter - Section 94 assumed Quebec would continue to be different as time passed (40) 'functions' - refers to the tasks performed by levels of government (includes the initiation, implementation and administration of policies) 'fiscal control' - refers to the taxation and spending powers of various levels of government (includes setting of taxes, collection of taxes, spending abilities, number of conditional grants) 1/HISTORY OF FUNCTIONAL FEDERALISM IN CANADA Canada began with a constitutional division of powers. Unlike the U.S. federal gov't, the powers of the Canadian federal government were assumed to be 'reserve powers' - that is, anything not given to the provinces belonged to the federal gov't. Even though the Founding Fathers largely intended Canada to operate as a unitary state, the provinces were given an impressive list of functions in Section 92 of the BNA Act 1867. One must remember that government as a whole was small at this time. No one could have foreseen the growth of the welfare state which was to come. Also, the Fathers expected that the POGG clause would let them interfere in provincial and local functional areas. The functions were not intended therefore to be 'watertight' between the centre and the provinces. 1867-1883 - pseudo-federalism (centralized) - during this period the federal gov't routinely used its powers to interfere in provincial areas of control (41) 1883-1914 - dual federalism (relatively decentralized) - rise of influential Premiers in Ontario (Mowatt) and Quebec (Mercier); both strongly challenged federal dominance - rulings of the Judicial Committee of the Privy Council in Britain (at the time Canada's highest Court of Appeal) tended to favour the provinces; these had two main effects: 1/ the POGG power was eventually declared an emergency power only; 2/ Section 92 (13) dealing with provincial control over property and civil rights was broadly interpreted World War One - emergency federalism (centralized) - federal government able to use POGG power to essentially run Canada as a unitary state - but Quebec reacts negatively to conscription - policies took a few years to change after 1918 1921-1939 - dual federalism (relatively decentralized) - return to previous situation after the war - beginnings of welfare state finds provinces with most of the responsibilities for it (health, poor relief, education etc.) - the federal gov't begins a limited old age pension in 1927 - the Depression stresses the ability of the provinces to create adequate social programmes - in 1930, Prairie provinces finally given control of natural resources 1939-1945 - emergency federalism (centralized) (42) - repeat of situation during WWI - the federal gov't gets the constitutional authority to create an unemployment insurance plan in 1940 (Section 91,2A) - by 1940, many shared-cost programmes exist (against recommendation of Rowell-Sirois Commission) - federal Family Allowances (1944) 1945-1960 - co-operative federalism (relatively centralized) - much overlap between functional areas; harmonious relations between provinces and federal gov't - several shared-cost programmes - federal Old Age Security (1952); Hospital Insurance (1957) 1960-1970 - double-image federalism (moving towards decentralization) - in Quebec, Quiet Revolution leads to Quebec's own Pension Plan and the province opting out of most shared-cost programmes - rest of Canada still in co-operative mode - new programmes: Canada Assistance Plan (1966) and Medicare (1968) 1970-present - conflictual federalism (relatively decentralized) - most provinces demanding to do more in their areas of jurisdiction (43) - Quebec generally wishing radical functional decentralization (federal gov't by itself to only provide defence, currency, debt management, monetary policy and customs policies) - federal-provincial relations estranged (recent talk of a ‘fiscal imbalance’); provinces create Council of the Federation - some federal devolution 2/ HISTORY OF FISCAL FEDERALISM IN CANADA The 1867 Constitution Act gave the federal government the ability to raise money "by any Mode or System of Taxation" (Section 91, 3). The provinces could raise funds through direct taxation only (those taxes which fell directly on their payers). The federal government was assumed to have a general spending power which meant it could spend on items which are under the jurisdiction of the provinces. As well, the federal gov't controlled the money supply and interest rates. In 1867, government activity as a whole was small. 1867-1907 - federal fiscal dominance (centralized) - early federal grants (small and unconditional) - few provincial direct taxes 1907-1942 - fiscal competition and overlap (relatively decentralized) - 1912: first conditional federal grant (1927: a large one for pensions) - federal gov't and provinces levying and collecting separate income taxes (much overlap and confusion) (44) - by 1930's, provinces having much financial difficulty meeting social obligations even though resource revenues had become an important source of provincial funds for some provinces - Rowell-Sirois Commission (1937) advocated ending conditional grants (not done); adjustment grants to help equalize provincial services (done); and provinces to give up major tax fields to feds (largely done) 1942-1957 - tax renting and major conditional grants (centralized) - 1942: first tax rental agreements - provinces to give up levying (and collecting) income and succession taxes to federal gov't largely in return for per capita payments to provinces - but Quebec mainly out by 1947 (created its own PIT/CIT in 1954); Ontario mainly out between 1947-1952 - beginnings of major conditional grants associated with shared-cost programmes (usually 50% of total programme cost paid by federal gov't so long as federal conditions were met) 1957-1962 - tax 'renting' (moving towards decentralization) - end of per capita payment system: now provinces to get a negotiated share (% rate) of taxes collected - 1957: beginning of equalization payments to poorer provinces 1962-1977 - tax sharing (relatively decentralized) (45) - 1962: provincial shares of major taxes allowed to vary by province and tax abatements given by Ottawa - 1960's: Quebec continues to levy and collect its own personal income tax and 'opts out' of most shared-cost programmes (1965) with compensation (it receives extra tax abatement points for this) - some conditional grants remain but are not strengthened - by 1972, main tax abatements become tax points 1977-present - tax sharing con't and decline of conditional grants (decentralized) - 1977: Established Program Financing (EPF) created for health and post-secondary education; funding no longer tied to programme costs; more tax point funding - provincial taxes allowed to increase at expense of federal taxes (tax points considered part of funding – feds not able to impose conditio
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