Origins and Historical Evolution of Canada Constitutional Structure INTRODUCTION TO CANADA AND CANADIAN FEDERALISM Forum of Federations Intensive Course on Democratic Federalism Origins and Historical Evolution of Canada Constitutional Structure Division of Powers Between Ottawa and the Provinces Major Trends and Events Conclusion My job today – Introduction to Canadian Federalism: (First Slide) Origins and historical evolution of Canada Constitutional structure Federal and provincial division of power Significant modern developments (since WW II) Concluding remarks

ORIGINS AND HISTORICAL EVOLUTION OF CANADA People Confederation – 1867 Development Origins and Historical Evolution of Canada (Second Slide) People Aboriginal communities European settlement, starting in 16th century French and English overseas empires 1759 – Battle of the Plains of Abraham, North America passed definitively to the English Meant French and English had to learn to live together. Toleration/accommodation of French minority; not assimilation. Confederation – 1867 Confederation – 1867 – foundation of modern Canada At beginning, constructed out of 4 British colonies – Ontario, Quebec, Nova Scotia and New Brunswick. PEI refused at first; N.S. tried to secede; Nfld didn’t come in until 1049. In 1867, Canada still a colony of Great Britain. Federal form of government, but with a very strong central government in Ottawa – a paternalistic relationship between Ottawa and the provincial governments. Sir John A. Macdonald would have preferred a unitary state. Development Canada has evolved into a federation spanning the continent, composed of 10 provinces and 3 territories. As in other countries, the Canadian state – both federal and provincial – has grown enormously in the 20th century, as a result of war, industrialization, urbanization, new communications technologies, and rising citizen demand. Provinces vary in size, population, in their economies, in their wealth, in their social and cultural composition. Ontario has the largest population (11 million) and Quebec the largest territory (1.5 million square km): Prince Edward Island the smallest (130,000 people and 6000 square km). It is now a genuine federation, with very strong provinces as well as a strong central government. Paternalism has almost entirely faded away.

CONSTITUTIONAL STRUCTURE Two Key Constitutional Documents Constitution Act, 1867 Constitution Act, 1982 Constitutional Principles Central Functions of the Constitution Constitutional Structure (Slide 3) Two Key Constitutional Documents Canada governed by the rule of law, under a Constitution, some of it written. Two key Constitutional documents Constitution Act, 1867 Constitution Act, 1982 Constitutional Principles Imported the British form of government and added federalism. Preamble to 1867 says we will have a constitution similar in principle to that of the United Kingdom. Constitutional monarchy. We have a British Parliamentary system. The executive (Prime Minister and Cabinet) members of legislature, and formally responsible to it. Bicameral at the federal level (with an appointed Senate), unicameral in all provinces. Much of the most important parts of our system are not written down in the Constitution – eg., the office of the Prime Minister, the office of the Provincial Premiers, Ministers, Cabinets, political parties. Our Constitution has evolved constantly in the last 130 years since the country was founded. Biggest change was the passage of the Constitution Act, 1982, which introduced a formal amending formula for the Constitution and added a Charter of Rights and Freedoms. Done under Pierre Elliot Trudeau; a major national controversy. Central Functions of the Constitution: To establish a political and economic union based on federal and democratic principles. To outline a framework for the machinery of government and establish governmental institutions (eg., Parliament, courts). To distribute legislative powers and executive authority between the provincial and national levels of government. Since 1982, to provide guarantees for certain individual and collective rights. To provide rules and procedures for changing the Constitution itself.

DIVISION OF POWERS BETWEEN OTTAWA AND THE PROVINCES “Peace, Order and Good Government” Sections 91 and 92 of the 1867 Constitution General Principles for Allocating Powers General Functions of Each Order of Government Division of Powers Between Ottawa and the Provinces (Slide 4) “Peace Order and Good Government” Constitutional provisions for the DOP have been contested, frequently in the courts. Original intention seems to have been to specify and limit the particular provincial powers, and to give one sweeping responsibility to Ottawa – POGG. However, the founders chose to give examples of what POGG might mean with a list of 29 specific powers. Today, we are much closer to having two lists and quarrels about what falls between – the 29 federal powers on the one hand, and the specific list of provincial powers on the other (16, in section 92). Sections 91 and 92 of the 1867 Constitution Sections 91 and 92 of the Constitution Act, 1867 enumerates most of the powers of the two orders of government. The allocation of powers is not systematic or the product of a single coherent design (some mix of functions, some broad, sweeping statements of authority (Peace, Order and Good Government, regulation of trade and commerce)), some highly specific (currency and coinage, or beacons, buoys, lighthouses and Sable Island). Originally, the federal government had paternalistic authority over the provinces: Reserve and disallowance (Section 90) Remedial legislation in education (Section 93) Declaratory power (Section 92 (10) (c). Federal appointment of provincial representatives of the crown (lieutenants governor) The powers have fallen into disuse; feds still appoint l-g’s, but they have no power. Local government is the exclusive responsibility of the provinces. General Principles for Allocating Powers Each order of government now sovereign in its jurisdiction. Disputes ultimately settled in Court. Most powers are exclusive, rather than joint. Exceptions: agriculture (95); immigration (95); pensions (94A); natural resources (92A). The residual power lies with the federal government. General Functions of Each Order of Government But in general, national Parliament was given responsibility for the construction and regulation of the national economy (trade and commerce, currency, banking, postal service), defence and foreign affairs, while provinces were given responsibility for the affairs of citizens and their communities (health care, social assistance, education). Blurring of This Functional Distinction This distinction has become blurred over the years. Water tight compartments don’t exist anymore. Governments and the state have grown enormously in this century. Requirements of coordination to deal with overlapping jurisdiction have increased. Federal spending power – power of Ottawa to spend its money as it sees fit, even in areas of provincial jurisdiction - has been used to allow the federal government to intervene heavily in the social policy field. Enormously important power in shaping the Canadian federation and the Canadian welfare state. Today provinces are heavily involved in economic matters, and are active in some areas of international affairs (tourism, attraction of foreign investment, trade promotion). The Government of Canada, for its part, has a central role in many crucial social policy fields (health, education and research) - very often via federal fiscal transfers. This reality creates lots of stresses and tensions, and requires the active management of the federation. Makes intergovernmental relations (among the federal and provincial executives) a central function of our system – ongoing, unrelenting, intense. Strong executives and both federal and provincial levels – therefore IGR is executive driven.

MAJOR TRENDS AND EVENTS The Social and Political Economy of Canada Building the Welfare State/ Growth of National and Provincial Debts and Deficits (1950’s, 1960’s, 1970’s) Cutting Back the Welfare State/ Achievement of Budget Surpluses (1980’s, 1990’s) Trying to Get the Balance Right The Competitive Building of Political Communities (1950-95) Nation Building in Quebec Province Building Elsewhere in Canada Nation Building in Canada as a Whole Ongoing Management of the Federation (1995 – the present) Major Trends and Events (Slide 5) Building the Welfare State/ Growth of National and Provincial Debts and Deficits (1950’s, 1960’s, 1970’s) Constraint of Welfare State/ Achievement of Budget Surpluses (1980’s, 1990’s) Both the building up and the constraint had a big impact on federal-provincial relations. Fiscal federalism – conflict about the size and shape of federal financial transfers to the provinces at the core of the process. National Building in Quebec and the First Sovereignty Referendum (1980) Quiet Revolution 1960 – 1965. Rise of Secessionist Parti Québécois; First Elected November 1976. First Sovereignty Referendum 1980. Goal then and later sovereignty-association, not outright independence. Battle between French-Canadian federalists in Ottawa (Trudeau) and French-Canadian nationalists in Quebec (Lévesque and Bourassa). Province Building Growing Importance of Provincial Responsibilities. Increased Professionalization of Provincial Administrations. Fiscal Power of Some Provinces (Alberta; natural resource revenues). Nation Building in the Country as a Whole Language Policy: Trudeau’s vision Patriation of the Canadian Constitution – 1982 Amending Formula; Charter of Rights, Including Language Rights; Aboriginal Rights. Process: Popularity of Package; Gang of Eight; Quebec’s Ultimate Exclusion/ refusal to sign. National Energy Program Unsuccessful Attempts at Accommodating Quebec Meech Lake (1987-90) – distinct society; veto; immigration; spending power; SCC. Charlottetown Accord (early 1990s). Second Sovereignty Referendum (1995) and Its Aftermath Result. Plan A – Distinct Society; Legislative Veto, Training Agreement. Plan B – Supreme Court Reference; federal government’s Clarity Bill. Court’s opinion: UDI unconstitutional; but must negotiate if a clear answer to a clear question. Clarity Bill: federal House of Commons will decide if Quebec referendum question is clear, and therefore a potential basis for negotiation. H of C will also decide – but only after the fact whether the vote in favour is sufficient – a clear majority. Sovereignty movement – evolution. Demobilization?

CONCLUSION Began as a “Quasi-Federation”: Now Is a Genuine Federation Began as a Highly Centralized Federation: Now Is a Highly Decentralized Federation Division of Powers - Began With a System of Watertight Compartments: Now Powers and Responsibilities of Each Order of Government Collide; Entanglement and Competition The Federal Government Had a Paternalistic, Oversight Role at the Beginning: Now Provinces Are Autonomous and Two Orders of Government Are Equally Sovereign in Their Spheres of Jurisdiction Canada Had in 1867 and Still Has Today a Federal System Dominated by the Executive at Both Levels Quebec’s Status in the Federation Remains Formally Unresolved, But Life Goes On Work from slide itself