Federalism

1. Federalism

2. Essential features of federalism • The essential characteristics of federalism can be reduced to two: • Constitutional division of powers between the central and regional levels of government, and • Generally, some powers are exclusively exercised by the central government, some are exclusively exercised by the provinces/states, and some are shared concurrently. • However, NOTHING in the concept of federalism tells us HOW these powers should be divided. • Entrenched regional representation in the central government. • Federal states tend to be bicameral. • In Canada, seats at the Upper House (Senate) are assigned on a regional basis, with each of the four major regions receiving 24 seats. • Seats at the Lower House (House of Commons) are distributed among the provinces and territories in proportion to population.

3. Advantages of Federalism • Facilitates the common defense • Promotes economic growth • Helps safeguard against tyranny • Encourages participation in government at local levels • Leads to the development of new and creative solutions to societal problems • Simplifies the process of dealing with diverse groups in pluralistic societies • Promotes administrative efficiency

4. Disadvantages of federalism • Anachronistic form of government • Impedes economic efficiency (increased complexity and inconsistent legal regulation) • Less optimal levels of regulation due to interprovincial competition • Provinces try to impose external costs (i.e. pollution) onto other provinces • Creates redundancy and increased bureaucracy • Provincial governments are more likely to threaten individual rights due to greater homogeneity of local constituencies • Tends to be unstable The most difficult challenge for any federal system is to achieve and maintain an appropriate balance of the resources and responsibilities between the central and constituent state and local governments.

5. Disadvantages of federalism • “The distribution of all the powers of the state among co-ordinate authority necessarily leads to the result that no one authority can wield the same amount of power as under a unitarian constitution is possessed by the sovereign. A scheme […] of checks and balances in which the strength of the common government is […] is pitted against that of the state governments leads […] to a certain waste of energy. A federation therefore will always be at a disadvantage in a contest with unitarian states of equal resources”

6. Disadvantages of federalism • “[Federalism] … does not provide for sufficient rapidity of action; it inhibits the emergency of necessary standards of uniformity; it relies upon compacts and compromises which take insufficient account of the urgent category of time; it leaves the backward areas a restraint, at once parasitic and poisonous, on those which seek to move forward; not least, its psychological results, especially in an age of crisis, are depressing to a democracy that needs the drama of positive achievement to retain its faith.”

7. The federalist revolution • Nearly 80% of the world’s population now lives in states that are formally federal, and use federal arrangements in some way • Reasons behind the federalist trend: • Pressures from modern developments in transportation, social communications, technology and industrial organizations • Increasingly global economy makes it more difficult for the traditional nation-state to deliver benefits to its citizens • Spread of market-based economies is creating socioeconomic conditions favourable to federalist ideas • New federal models of decentralized industrial organizations due to changes in technology have produced favourable attitudes towards non-centralization • Greater public acceptance of subsidiarity (notion that higher political bodies should only tackle tasks that lower political bodies cannot)

8. Canadian Federalism: Foundations • “The fratricidal conflict now unhappily raging in the United States shows us the superiority of our institutions, and of the principle on which they are based… The fatal error which they had committed … was in making each state a distinct sovereignty, and giving to each a distinct sovereign power... The true principle of a confederation lay in giving to the general government all the principles and powers of sovereignty and that the subordinate or individual States should have no powers but those expressly bestowed on them. We should thus have a powerful Central Government — a powerful Central Legislature, and a powerful decentralized system of minor legislatures for local purposes.”

9. Canadian Federalism: Foundations • The original aim of Canadian federalism was to create a transcontinental nation that embraced the monarchial principle that embraced the British Crown. • Some federalists (such as Sir John A Macdonald) believed that a highly centralized federal union would be the answer to deal with the peculiarities of Quebec. • Some French Canadian delegates during Confederation also stressed the importance of the British connection, rejecting American Republicanism, as the mode to sustain the survival of French culture.

10. Canadian Federalism: Foundations • “If they had their institutions, their language and their religion intact today, it was precisely because of their adherence to the British Crown.” • “In our Federation, the monarchial principle would form the leading feature, while on the other side of the lines, judging by the past history and present condition of the country, the ruling power was the will of the mob, the rule of the populace.” • “Every person who had conversed with the most intelligent American statesmen and writers must have learned that they all admitted that the governmental process had become too extended, owing to the introduction of universal suffrage, and mob rule had consequently supplanted legitimate authority; and we now saw the sad spectacle of a country torn by civil war.”

11. Canadian Federalism: Foundations • However, some French Canadian leaders disagreed with Cartier’s confidence in the practicability of the federation scheme. • Sir Henri-Gustave Joly de Lothbinière (then Leader of the Quebec Liberals) feared that the establishment of a strong central government would sound the death knell for French Canadians. • Joly saw a strong central government as incompatible with a true Confederation, as the provinces would become the authorized delegates of the central power. “The weakness of the central power is not the fruit of the federal system; it is its root, it is itself. This is the reason why states which are perfectly independent of each other adopt the federal principle solely as a means of defence against foreigners, because the central power in a confederation cannot be other than weak.”

12. Cooperative federalism • While the formal structure of the Constitution outlines distinct jurisdictions for Canada’s legislative bodies, in many fields, effective policies require the joint, or at least complementary, action of more than one legislative body. • Some examples include nation-wide minimum standards of health, education, income, maintenance and other public services, most of which are within the territorially-limited jurisdiction of the provinces. • The related demands of interdependence of governmental policies, equalization of regional disparities, and constitutional adaptation have combined to produce what is generally described as “cooperative federalism”. • In essence, this is a network of relationships between the executives of the central and regional governments, through which mechanisms that allow a continuous redistribution of powers and resources are developed.

13. Cooperative federalism • Most intergovernmental relationships depend upon informal arrangements that have no foundation in the Constitution, statutes or conventions of parliamentary governments. • The most visible and important of these arrangements are the “first ministers’ conferences”, which are federal-provincial conferences of the provincial Premiers and the federal Prime Minister.

14. Cooperative vs Competitive federalism • Albert Breton: • In some areas, cooperation is not an efficient principle of social organization and it is less efficient than competition, because cooperation can easily degenerate into collusion, conspiracy and connivance. • “The heart of cooperative federalism is secret deals, not the stuff on which a lively democracy thrives!” • Cooperative federalism proscribes unilateral action, and therefore is a disguised ploy to shackle the federal government, to prevent it from addressing the problems it alone can resolve and is constitutionally responsible for.

15. The Patriation Reference, [1981] 1 SCR 753 • Background • The Canadian government sought to patriate the Constitution • Three provinces (Manitoba, Newfoundland and Québec) asked their Provincial Courts of Appeal on the constitutionality of the federal government’s plan. • The federal government agreed to refer all questions regarding the constitutionality of their proposal to the Supreme Court of Canada. • Part I of the decision considers the legal question: The provinces sought to argue that the distribution of powers ought to be protected by law from being changed without provincial consent. • Part II considers the convention question: the provinces argued that the distribution of powers ought to be protected by convention from being changed without provincial consent.

16. The Patriation Reference, [1981] 1 SCR 753 • Part I: Laskin CJC, Dickson, Beetz, Estey, McIntyre, Chuinard and Lamer JJ: • The Resolution before the court does not concern whether the federal government could procure an amendment to the BNA Act to turn Canada into a unitary state. • The “essential federal character of the country is preserved under the enactments proposed by the Resolution.” • “The law knows nothing of any requirement of principal consent, either to a resolution of federal Houses or as a condition of the exercise of United Kingdom legislative power.”

17. The Patriation Reference, [1981] 1 SCR 753 • Part I: Martland and Ritchie JJ [dissenting on this Part]: • “[T]he federal Parliament… legislative authority is limited to the matters defined in s. 91 of the BNA Act. [A r]esolution of its two houses, to effect an amendment to the BNA Act which would offend against the basic principle of the division of powers… is… contrary to the federal system created by the BNA Act… • “[S]ince it is beyond the power of the federal Parliament to enact such an amendment [in law], it is equally beyond the power of its two Houses to effect such an amendment through the agency of the Imperial Parliament.” • “The two Houses of the Canadian Parliament claim the power unilaterally to effect an amendment to the BNA Act which they desire, including curtailment of provincial legislative powers. This strikes at the basis of the whole federal system. It asserts a right by one part of the Canadian governmental system to curtail, without agreement, the powers of the other part.”

18. The Patriation Reference, [1981] 1 SCR 753 • Part II: Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ: • “The purpose of this conventional rule is to protect the federal character of the Canadian Constitution and prevent the anomaly that the House of commons and Senate could obtain by simple resolutions what they could not validly accomplish by statute.” • “It is true that Canada would remain a federation if the proposed amendments became law. But it would be a different federation made different at the instance of a majority in the House of the federal parliament acting alone. It is this process itself which offends the federal principle.”

19. The Patriation Reference, [1981] 1 SCR 753 • Part II: Laskin CJC, Estey and McIntyre JJ [dissenting in this Part]: • The incidents of Canadian federalism demonstrate a primacy to the federal government. • This weakens the argument that there is a rule requiring provincial consent for amendment. • Furthermore, here, the legislative distribution of powers between the federal Parliament and provinces was not being affected.

21. Quebec’s Grievances & proposals • Primary motives behind Quebecers supporting sovereignty: the desire for large political units that facilitate economic and social progress and the desire for smaller self-governing political units that give expression to historical traditions and social practices. • The core grievance of some Quebecers is the idea that the existing federal infrastructure is chipping away at the autonomy of Quebec, and eroding the community of equals on which Confederation is based upon. • After the Quiet Revolution, French Canadian intellectuals rejected the dominance of English Ottawa and English Corporations, and the legacy of domination still lives on today in certain minds and hearts.

22. Quebec’s Grievances & proposals • Regional competition in Canada is exacerbated by five additional factors: • Regions with distinctive linguistic identities • Demography places the English and French languages in contact • The Senate’s design does not allow it to broker regional economic interests • The extensive use of executive federalism as brokerage machinery creates democratic deficits that obscure the brokerage process • The Canadian Constitution is incompletely manufactured

23. Quebec’s Grievances & proposals • Some common themes motivate the desire for sovereignty in Quebec: • Federalism does not pay sufficient respect to the Quebec people as a distinctive national community • Federalism leaves Quebec’s institutions, language, culture and national identity vulnerable • Federalism delegates insufficient power to Quebec, and • Federalism gives Ottawa too much control over Quebec’s economy.

24. Reference Re Secession of Quebec [1998] 2 SCR 217 • Facts • Following their re-election in 1994, the Parti Québécois initiated a second secession referendum to take place in 1995. The “No” side won by a slight margin. • During this time, several legal actions were initiated questioning the legality of secession. The federal government initiated a reference to answer the legality of a unilateral declaration of independence. • Issue(s) • Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

25. Reference Re Secession of Quebec [1998] 2 SCR 217 • Federalism was the legal response to the underlying political and cultural realities of Canada, both past and present. • The division of powers between federal and provincial governments was a legal recognition of the diversity that existed among the initial members of Confederation and attempted to accommodate that diversity within a single nation. • Courts have always been concerned with the underlying principle of federalism while interpreting the Constitution. Even with the advent of the Charter, the federalism principle remains a central organization theme of the Constitution. • Federalism allows for the pursuit of collective goals by cultural and linguistic minorities that form the majority in a particular province.

26. Federalism and its alternatives • Parallels to Maastricht Model: Quebec would work with Canada as an associated state • However, unlike the Maastricht Model, this union would only contain two states and may lack flexibility in terms of equal voting and decision making • Two unit federations have problems regarding the insistence of parity in all matters between the two parties resulting in impasses and deadlocks • Risk of greater grievances over constraints imposed upon the larger unit to accommodate the smaller unit

27. The Nation Resolution • Significant number of Canadians disapproved of the Meech Lake Accord resulting in its failure, because many believed that it gave Quebec too much power and set up a perilous road that could lead to the disintegration of Canada. “… do the Québécois form a nation within a united Canada? The answer is yes. Do the Québécois form a nation independent of Canada? The answer is no, and it will always be no…”

28. Next Class • Who else can practice legislative powers? (Delegation)