Posted by: Nathan M. | February 25, 2009

Provincial and Federal Powers Since 1867

The Constitution of 1867

The British North America Act, now known as the 1867 Constitution, laid out a specific division of powers between the provinces and the federal government. The provinces were given the ability to govern and control education, property ownership, healthcare, and many other social institutions. They were given the ability to create crown corporations and tax their residents. In some ways, the 1867 Constitution favoured the provinces in control of the everyday goings-on of Canada. However, there were certain provisions within the Act that made it possible for the federal government to gain more power over domestic affairs. First of all, the Act gave the federal government all powers not specifically given to the provinces. This provision has been difficult to interpret, because it is hard to determine what is specifically given to the provinces at times. However, the federal government has gained power through this provision. As well, the Federal government was given three very powerful abilities, although all three lie dormant for the most part at this time in history. 1. Disallowance: The federal government, through this clause in the 1867 Constitution, is given the ability to essentially disallow any piece of legislation that is passed by the provinces. This is a power that has not been used since April 1943, when it was used to disallow “An Act to Prohibit the Sale of Lands to any Enemy Aliens and Hutterites for the Duration of the War”, by the Alberta legislature. It was used a total of 111 times before this last use, but by convention it is no longer used. 2. Reservation: This power is much more difficult to explain. Basically, it involves the restricting of a bill from entering into the House of Commons for debate. It is essentially the disallowance power on the federal level; the Prime Minister can request that the Governor General reserve a bill introduced by an opposition party in order to avoid debate on the bill. 3. Declaratory Powers: This power is one that is generally unknown to most people. It essentially gives the federal government the ability to declare a piece of legislation as law over the provinces without debate, if it is deemed to be for the good of the country.

History of Division of Powers

Although the powers given to the federal government appear to be very significant, the federal government gradually became more decentralized during the first part of Canadian history. This is because, until 1949, the Privy Council in Britain was the final court of appeals and made the decisions on Constitutional issues, such as power divisions. The Privy council tended to rule on behalf of the Provinces rather than the federal government, which created a power structure that focused much of the power within the hands of the provinces. However, in 1949 the Privy Council’s authority in Canada was abolished, and the Supreme Court of Canada, established in 1875, became the final court of appeals in Canada. This was a controversial decision because the Supreme Court Justices were appointed by the federal government, and so it was thought that the court would cater towards the federal government. In some ways this was the case, because over time the federal government was able to gain more power. Likely the most centralizing influence that Canada experienced was World War I and World War II. These wars, particularly WWII, created a situation of need for more central power. The federal government instituted income tax, and began having a much more active hand in the economy. As well, post WWII led to the development of Canada as a welfare state, which caused an increase in federal powers. The federal government used transference powers to push provinces to take part in different programs that the federal government wanted to instigate. Essentially, the federal government would give money to the provinces on the condition that they use the money for certain programs. Examples of this are healthcare, education, and welfare.

Although the move towards Canada as a welfare state saw an increase in centralization, it also meant that more cooperation between the provinces and the federal government was needed. This created a movement towards a more equal distribution of powers, with a need for negotiation. The event that really pushed this move was the influence of Quebec on federal politics. The federal government had to appease Quebec in order to ensure a united Canada. To do this, the federal government began granting more power to the provinces, resulting in a move towards decentralization and privatization. This caused a lot of strife during the Trudeau era, because Prime Minister Trudeau held a centralist ideology, which created a great deal of conflict, and finally resulted in the FLQ crisis, with Prime Minister Trudeau declaring a state of war through the War Measures Act. This conflict was followed by a rapid decentralization, partly due to Quebec’s influence, and partly due to the influence of American laissez faire ideology on Canadian culture.

Present and Future

It will be interesting to see what will happen during the next century, as an economic collapse causes governments to desire more power in order to fight the storm. Harper’s budget has promised a great deal of spending on infrastructure, as well as tax cuts and other measures to stimulate the economy. However, Harper has not made any moves towards actual economic intervention through use of crown corporations and regulations of the economy. This indicates that the move towards decentralization will not be altered during Harper’s time in office. Who is to say what the future will hold for Canada, whether we will reverse the move, or perhaps we will become more like America and graduate into a system of united states-each province with a great deal of power, but with a federal government as a unifier. I personally hope for the former, but again…who can say.


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