CANADA’S FEDERAL CHARACTER © David Watts 12/03/2004

Canada’s federal character—one of the four pillars of our constitution1t—was originally a reluctant concession.

The founding fathers—including Sir John A. Macdonald—were determined to avoid re-creating here the conditions that had led to the American Civil War.

Having a single government for Canada seemed the way to do that. But Macdonald was unable to sell this idea of “legislative union” to a large enough majority at the conference.

We owe the outcome to Québec. It was Québec’s insistence on guarantees for its distinct society that led to our having a federal system rather than a unitary one.

People in other regions need to remember that if it hadn’t been for Québec, we wouldn’t have provinces—we’d be living in a unitary state dominated by the Toronto heartland.

Had the original proposal succeeded we wouldn’t have “Fathers of Confederation” either. They’d be called something else because “confederation” refers to our federal system.

What our founders first envisaged was very different from what eventually evolved.

Even the words we use for it have changed. The Fathers of Confederation talked of the “Dominion Government” and “local governments.”

What they called “local governments” we call provinces. And while “dominion” is part of our heritage, we generally now talk of the “federation” or central government.

This is more than words—it shows a decentralization as our system has developed.

Most of the Fathers of Confederation saw the provinces simply as administrative divisions—a more effective way to do government business.

Few would have accepted the definition of federalism as “a division of sovereignty” between levels of government—which is what we now have.

What made the 1867 Dominion government sovereign was its power to overrule provincial legislation. That power has not been used for 60 ears, and to attempt to revive it now would provoke a constitutional crisis.

Our 1867 constitution2 sets out federal and provincial responsibilities. Defence, international trade and currency—the money supply—are federal areas. Municipal government, natural resources and liquor regulations are provincial jurisdiction.

Some of the allocation is not so clear. Three areas—labour, health and educationa—originally assigned to the provinces—now are areas of overlapping responsibility.

Employment insurance, born in the Depression of the 1930’s, took a constitutional amendment where the provinces agreed to cede this power to the federal government.

Medicare which began in the 1960’s in Saskatchewan spread through Canada under a program of the federal government of Lester Pearson. Today funding for health care continues to be a point of dispute between the two levels of government.

Education is a provincial responsibility—Canada has no one Minister of Education. Yet beginning in the 1970’s the federal government has provided funds for second language education. Today it supports connecting classrooms to the Internet.

And some areas have always been overlapping. Marriage and divorce are federal but the performing of marriages is a provincial responsibility.

Criminal law is federal jurisdiction, yet enforcement of the law is provincial.

Because of the areas of overlap and the ways our society is changing, relations between federal and provincial governments are marked by both cooperation and competition.

Often we hear only of competition over funding and powers. There is the tendency by politicians to blame each other when things are not working.

Occasionally we hear when the two levels come to an agreement over health care or tax sharing, or to create cooperative bodies such as the Council of the Federation.

Even when the politicians appear to be only arguing, the federal system still serves us. It is one of the few effective checks and balances in the Canadian form of government.

Federal-provincial counterweights are often more effective than an Official Opposition.

There are times when provincial governments have enacted laws against minorities or tried to control the media, and the federal government intervened.

And there have been times when federal measures have been blocked or modified by the provinces. In 1980 eight provinces acting together took Ottawa to court over its plan to patriate the constitution.

Up to 1943 federal governments would intervene directly in provincial affairs through the power of disallowance. Now federal governments can intervene indirectly by challenging provincial measures under the Charter of Rights and Freedoms before the Supreme Court.

The power of disallowance was based on the belief in a higher good represented by the Crown. Lieutenant Governors could hold Provincial legislation for review by the Federal Parliament. The Governor General could refer federal legislation to Great Britain.

Now the British Empire no longer plays a part in Canadian affairs, there is still a need for a higher court than individual states on an interdependent planet.

Federalism offers a hope to balance regional and wider interests. The European Community is an example of an international federal system.

The World Court and United Nations were founded to serve this way in a global context.

Canada’s evolving federal system is helping point the way to those possibilities.

1 The four conceptual pillars are Constitutional Monarchy, Parliamentary Democracy, Federalism, and the Rule of Law. Institutionally these express in the Crown, a bicameral Parliament, Federal and Provincial governments, and an independent Judiciary interpreting the Charter and the rest of the constitution.


 Originally called the British North America Act. Since 1982 it has been called the Constitution Act 1867.