Canada
Thomas O. Hueglin
Geographically, Canada is the second largest country in the world, but it has a population of only 32.8 million people. There are ten provinces; in addition, there are three northern territories, which have more limited self-governing authority than do the provinces. As a federation Canada is a study in asymmetry. Demographically, about two-thirds of Canadians live in the two central provinces, English-speaking Ontario and French-speaking Quebec. Almost equally significant for the country’s national fabric is the fact that, all across the country, most Canadians live in close proximity to the southern border with the United States.
While manufacturing is concentrated in central Canada, the four western provinces are owners of most of the country’s most valuable natural resources. Alberta, in particular, sits on some of the largest oil fields in the world. In terms of governance, this means, for example, that a national energy policy is an impossibility, given the desire of the west to maximize oil prices and the desire of central Canada’s manufacturing industries to keep domestic energy prices below the world-market level.
By comparison, the four smaller eastern (Atlantic) provinces, once the hub of trade and economic development in the dominions, suffer from the decline of traditional industries and changed trade patterns. In order to provide their citizens with comparable public services at comparable rates of taxation as constitutionally required, provincial governments have come to depend on massive federal transfers.
Canada is a stable federal democracy.1 The fact that it still acknowledges the Queen of England as its formal sovereign is of little to no political consequence. In both the federal and provincial spheres of government, legislatures follow in the British Westminster parliamentary tradition. The Canadian Senate is a government-appointed oddity among classical federations and therefore lacks legitimacy as a chamber of regional representation. Not least because, due to the lack of a strong second chamber, the federal legislative institutions are poorly equipped to accommodate the regions, Canadian federalism has developed as a particularly strong case of executive federalism. In other words, major policy initiatives generally require agreement among the country’s political leaders - the prime minister and the provincial premiers. The deal-making among first ministers, however, is, in turn, regarded as lacking transparency and accountability. In one instance, an attempt was made to compensate for this lack of democratic legitimacy by putting a successfully negotiated agreement to a national referendum.2 The agreement’s resounding rejection in that referendum not only demonstrated disapproval of the agreement itself but also popular mistrust of the entire process.
The structure of the court system, the judicial branch, is a two-tiered but essentially unitary pyramid with the provincial court systems at the base and the Supreme Court of Canada at the apex. The constitutional adoption of a charter of rights and freedoms in 1982 gave rise to fears that this belated codified intrusion of individual rights into the English Canadian common-law tradition would jeopardize the country’s judicial culture and lead to a judicialization of federalism as in the neighbouring United States. However, while the Charter has been hugely successful in strengthening the multicultural and (relatively) minority-tolerant character of Canadian society, the post-Charter court has generally avoided entanglement in political controversy.3
One of the largely unacknowledged issues in Canadian federalism pertains to the role of local government and of large cities in particular. Most Canadians now live in large urban centres; yet municipal government remains caught between the pull of provincial budget cutting and the hope for a more generous exercise of the federal spending power.
Canada, then, would seem to be a particularly difficult if not problematic case of federal governance. Indeed, while federalism appears as a promising strategy for conflict resolution and political accommodation in many parts of the world, Canadians have increasingly been putting the blame for their woes squarely on the federal system itself. They could not be more mistaken. The point to be made about federal governance in Canada is not its alleged lack of both efficiency and accountability, nor the fact that it has been unable to put to rest some of the conflicts accompanying the country since Confederation in 1867; rather, the point is its spectacular success in providing Canadians with political, economic, and social stability despite these conflicts and asymmetries. With a per capita income of US$31,500, Canada is clearly one of the world’s richest nations.
BACKGROUND
There are five major regions in Canada, each of which appears closer to its more immediately adjacent neighbours in the United States than to one another. Thus, the Atlantic provinces in the east are separated from the rest of English Canada by the water that surrounds much of them and by the francophone province of Quebec, which sits as a cultural barrier in between. New England is the natural hinterland. The favourite hockey team in the east is the Boston Bruins, not the Toronto Maple Leafs.
Ontario and Quebec are, in turn, separated from one another by obvious differences of language and culture. Yet both Toronto and Montreal see New York City as their natural cousin rather than Winnipeg or Vancouver. Indeed, Ontario is physically separated from the western provinces by the Canadian Shield, a vast formation of Precambrian rock extending across sparsely populated northwestern Ontario.
The Prairie provinces, more similar to the adjacent Midwest of the United States than to any other part of the country,4 are separated by the Rocky Mountains from British Columbia, which appears more like a northern extension of the US Pacific Northwest than a western extension of Canada. Even the northern territories show more affinity with Alaska than with the rest of Canada, from which they are separated by enormous distances and outrageous air fares. In many ways then, Canada is not so much a country in the conventional sense as it is the result of a political decision to keep these vastly divergent parts together, and apart from the United States.
Canadians constitute one of the most diverse societies in the world, although this is far less so in rural areas than it is in the large cities. Toronto is also one of the world’s most multicultural cities. Recent immigrants are proud Canadians and have little sense of the old battles between English Canada and Quebec. And this is true of westerners more generally. They regard this issue as an out-of-date central Canadian squabble that diverts far too much energy and money from elsewhere in the country.
Quebec’s uneasy place in Confederation stems from three interrelated irritations: the 1759 conquest of New France by the British; the perception that Confederation was based on an English-French compact among equal participants that, over time, turned into a numbers game wherein the lone francophone province was pitted against nine anglophone provinces, with the federal government usually on the anglophone side; and fears about the further erosion of a francophone presence in Canadian society – fears that are fuelled by Quebec’s low birthrate and the fact that most immigrants seek to join an English-speaking North America.5
After two Quebec referendums, in 1980 and 1995, respectively, the issue of separatism is for now on the backburner. While a majority of Quebecers would be in favour of strengthening the autonomy of what already is arguably the most powerful constituent unit government in the world, an influential minority continues to believe that Quebec would ultimately fare better entirely on its own.
Aboriginal peoples, who comprise about 3 percent of the population, can realistically enjoy no such dreams, even though a right to Aboriginal self-government is now enshrined in Canada’s Constitution. For a variety of reasons the accommodation of Aboriginal affairs in Canadian legislative and executive governance remains one of the most morally pressing, yet least satisfactorily addressed, tasks. To begin with, Aboriginal peoples consist of some 300 small nations that are at least as diverse as are, say, the various peoples of Latin America. Add to this the fact that, while Aboriginal affairs are constitutionally assigned to the federal government, more often than not the land and resources at stake lie in the provincial domain. Finally, the majority of Aboriginals, who live off-reserve in urban areas, fall almost entirely through the cracks of government services.6
History
Since the cession of New France to the English in 1759, the history of Canada has been shaped by the efforts to accommodate Quebec within a unified - but not unitary - system of governance. In 1867 Confederation was but another attempt at this. At a time when the United States had just been torn apart by a civil war, English Canadians had little love for federalism; yet it was the price that had to be paid in order to reach a settlement with Quebec.7
The historical compromise was the usual one among economic modernizers and cultural traditionalists. English Canadians gained the central tools needed to organize a Canada-wide economy, while Quebec retained autonomy over religion, culture, education, and civil law. Probably because the fathers of Confederation were mainly merchants, traders, and rentiers, the provinces were left with the ownership of natural resources. Later, in a country that would never quite overcome its dependence on the export of raw materials, this would turn out to be a real problem for federal economic governance.
At the beginning, the dream of a continental union and economy included only two eastern provinces8 alongside Ontario and Quebec. The others were added later. Alberta, for example, joined Confederation in 1905, and just as Quebecers would not forget the conquest, Albertans would neither forget nor forgive the fact that they were initially denied what would become their main source of wealth - the ownership of natural resources. The belated entry of the western provinces into Confederation also accounts for why they are discriminated against in the regional formula for Senate appointments.
FEDERAL INSTITUTIONS
Canada is a classical parliamentary federation.9 In fact, it was the first federation not to follow the presidential and senate model of the United States.10 Canadian political institutions were created in loyalty to, rather than in defiance of, British traditions. Federalism was seen as not much more than an irritating if inevitable complication on the road to nationhood.
That road was accompanied by cries for responsible government, and this required an elected parliament to which the prime minister and cabinet would be accountable. Consequently, both prime minister and cabinet members are elected members sitting on the front benches. Governance is controlled by the executive, usually a circle of senior ministers selected by the prime minister. Strict party discipline ensures the passage of bills. Only in rare minority-government situations will serious attention be paid to voices from the other side of the aisle. As in most parliaments, of course, much of the legislative work is conducted in committees that include all parties. However, the will of the majority routinely prevails here as well. Consequently, the upper chamber, or Senate, is not considered equal to the lower house, the House of Commons. While in fact possessing full legislative powers, the government-appointed members of the Senate are expected to serve as no more than an honourary body dedicated to sober second thought. The model is the British House of Lords rather than the US Senate. Only the Australians, some thirty years later, would combine a parliamentary system with a fully functional directly elected senate.
Canada is nominally a constitutional monarchy that acknowledges the British monarch as its sovereign. The representative of the monarch in Canada, the government-appointed governor general, performs a primarily symbolic and ceremonial role. In comparison to the US presidential system, however, the separation of head of state from chief executive does seem to have an advantage; day-to-day politics tends to be kept apart from the personal lives of those embodying the federation.
Lower House
Following the classical British model, Canada’s House of Commons recruits its members from single-member constituencies by means of a first-past-the-post majoritarian electoral system.11 As a rule, the parties’ riding12 associations determine which candidates will run for election. In some instances, the prime minister assumes the right to place a candidate of his or her choice in a particular riding. Federalism does not play a significant role in this process. However, some candidates may be recruited or chosen by the contending party in order to appeal to particular regional or provincial sensitivities.
Elections have to be called at least every five years, but the prime minister has the discretion to call an election earlier. This usually happens when the government’s majority is slim and the prime minister senses that public opinion is in its favour and might yield the government another and possibly stronger majority, or when a change of prime minister has taken place and the new office-holder must seek electoral affirmation.
The majoritarian electoral process favours the more populous provinces. This is particularly frustrating for the western provinces. Due to the progression of time zones across the continent, and because Ontario alone elects one-third of the members of the House of Commons, election outcomes are typically announced by the media networks before the polling stations have even closed in British Columbia.
An electoral system of this kind tends to work in favour of a few large national parties. In the case of Canada, however, this is not so, or at least appears to no longer be so. One can argue that there is no truly national party left in Canada. The Liberal party, with its inevitable electoral focus on central Canadian issues and concerns, has depleted its support in western Canada. During the 1970s there was a moment when the governing Liberals did not hold a seat west of Winnipeg, which is the geographical centre of the country.
The Conservatives imploded as a federal party precisely because their success at the polls during the 1980s was tailored to central Canadian issues and values. This gave rise to a western right-wing formation that emphasized fundamentalist Christian values and US-friendly economics. All through the 1990s the vote-splitting between the western Reform party (which, after 1998, became the Canadian Alliance party) and the decimated rump of the old Tory party in Ontario left the Liberals in office. Even after a final merger of the two parties on the right, which resulted in a new Conservative party, the outcome of the elections in 2004 and 2006 suggest that the conservative voice of Canadians remains split along regional lines.
In Quebec the sovereigntist Parti Quebecois has been significant in the provincial sphere since the 1970s. Since the 1980s it has been complemented by the Bloc Quebecois, which runs in federal elections and for Quebec seats only. For all practical purposes, then, Canada does not have a federal party system.13
A main victim of this has been the small social democratic New Democratic Party (NDP), which routinely suffers from strategic voting and receives fewer seats than it would within a proportional electoral system. It is not entirely clear whether electoral reform (always talked about before elections but never taken on by the winner afterwards) would serve the regionalized nature of the country any better, although proportional seat-distribution might help to absorb, and accommodate, some of the regional voices of discontent within the major parties. On the other hand, it might strengthen such voices and encourage them to proliferate. Governing from the front benches of Parliament would become more complicated.
The situation of the minority governments after the 2004 and 2006 elections notwithstanding, what has been most frustrating under the current set of rules, from a federalist perspective, has been the fact that the governing majority party can all but ignore dissenting voices. Because they are not able to have a serious impact on decision making and law making, opposition parties have focused far more on the government’s alleged corruption than on policy issues and alternatives. Yet again, it is far from clear whether the formation of coalition governments that would be likely to accompany the introduction of proportional voting would enhance federalism. If Germany is any example, governing coalitions function to but a brake on speedy decision making rather than to facilitate federalist accommodation.
The outcome of the January 2006 federal election does not change the overall picture. It resulted in a narrow victory for the Conservatives led by Stephen Harper, who became prime minister of another (probably short-lived) minority government. Harper made some inroads in the province of Quebec, which may be indicative of a new and more flexible approach to federalism. Conservatives traditionally have been more decentralist than Liberals. At the same time, though, a new divide appears to have opened between urban and rural Canada as the Conservatives failed to win a single seat in any of the three largest cities: Montreal, Toronto, and Vancouver.
Upper House
Canada’s Senate is an oddity for various reasons,14 one being its government-appointed membership. A total of 105 senators are appointed by the prime minister according to a regional formula. Originally appointed for life, they must now retire at age 75. This peculiar construction of an upper chamber is unique among classical federations, and it makes for an incomplete case of federalism - at least when judged by the standard model.
Another oddity is that the Senate has been given legislative powers that are co-equal with those of the House of Commons, despite the former’s obvious lack of legitimacy. However, and this is yet another oddity, senators have wisely chosen to exercise their power only very rarely and only in instances when they can clearly sense that public opinion is on their side.
Going back to the original and hard-fought compromise at Confederation in 1867, the regional formula gives 24 senatorial seats each to Ontario, Quebec, the three eastern provinces (minus Newfoundland, which received six seats when it joined Confederation in 1949), and the four western provinces (which get six each). This is particularly galling for the west, as its four provinces command fewer seats than do the four Atlantic provinces and only half of the tally for the two central provinces. The three northern territories each provide one senator.
Lamentations about this situation ring somewhat hollow, however, because they routinely comes with complaints about the Senate’s general lack of legitimacy in the first place. Not so strange, then, are the persistent calls for Senate reform, particularly from western provinces. Typically, such reforms have been discussed in terms of a so-called triple-E senate (Elected by province, Effective as a second chamber with co-equal legislative powers, and Equal with regard to the number of senators per province). A version of such a senate was part of the package deal contained in the failed 1992 Charlottetown Accord, which also would have accorded distinct-society recognition to Quebec.15
Senate reform is still contemplated on occasion; however, few believe there will ever be a triple-E senate. In particular, equality with regard to the number of senators per province is not a realistic option, though it is possible that it might eventually be agreed either to choose senators from a list provided by the provinces or to have senators appointed (or even elected) by the provinces themselves.
The big question is, would institutional tinkering with the Senate yield substantive improvements for governance? In particular, would it reduce the need for intergovernmental bargaining at the executive level? There are at least two causes for scepticism. One is the deeply ingrained parliamentary culture and faith in the sanctity of majority rule. If that culture pervaded a fully functional senate, partisanship would govern it, not regional accommodation, as occurs in Australia. Another comparable example is the German Bundesrat, which often functions as a second arena for national party competition rather than as a voice for Länder interests. The other reason is the deeply ingrained regional culture and its provincialist manifestations. The result could carry intergovernmental and/or interprovincial conflict into the legislative process itself. As in the United States, with its larger number of states and generally less partisan approach to politics, Canadian senators might turn into spokespersons for provincial government interests. Perhaps, however, these two pressures would cut across and neutralize one another.
In a parliamentary system the executive provides leadership in Parliament. Instead of these two government branches being divided, they are fused. As long as the prime minister commands a secure majority, he or she is in fact more powerful that is a US-style president, who is ordinarily constrained by multiple checks and balances.
In Canada, the case can and has been made that governance emanates from a set of concentric circles, with the prime minister and Privy Council Office at the centre, surrounded by a small circle of senior cabinet ministers, followed in rank and influence by the rest of the junior ministers and, finally, by the rest of the pack - the parliamentary backbenchers who are kept in check by the party whip and by the fear of losing their seats should they allow the government to be defeated in an important vote and hence provoke an early election.16
Governance in this system is very efficient in the sense that there is a clear chain of command. Parliament mainly serves as a debating club and profile-builder for the opposition. The real decisions are made entirely by the executive and receive formal blessing from the parliamentary majority. The only constraint, albeit an important one, against the folly of one-sided decisions and legislative acts is the interplay of government and opposition. The executive knows that it cannot go too far or its measures will be undone by the next government. However, in general, executive majority governance is characterized by policy swings that are wider than those that occur in proportional and coalition types of governing systems. In this, the principle of parliamentary governance is at odds with those federal principles aimed at mutual accommodation and compromise.
Constitution of the Political Executive
Not much need be said about the constitution of the political executive in a parliamentary system. Party politics determines political leadership. Whether the selection and recruitment processes are entirely democratic is another question. Unlike the old-fashioned practice that leadership candidates have to work and prove themselves through the ranks, prominent members of the business or legal community can be brought into a leadership position laterally, first by being assigned a relatively safe riding and then by immediately being supplied with a cabinet posting and portfolio. Also, party loyalty is not a binding condition for executive careers. In the 2004 election, for instance, a former NDP premier from British Columbia, Ujjal Dosanjh, was invited to run for the federal Liberal party and was immediately given an important position in cabinet. And in 2006, the cabinet of the new Conservative government of Prime Minister Stephen Harper included David Emerson, who had run for the Liberals in the preceding election.
Contrary to such federal systems as those of Germany or the United States, however, in Canada national leaders rarely begin their careers in local or provincial government. Since Confederation, for example, only one provincial premier, Sir John Thompson of Nova Soctia, has gone on to become prime minister, and that was in the late nineteenth century. One reason for this is that provincial and federal party organizations are only loosely connected. Another lies in the competitive nature of federal-provincial relations.
Federalism does not really play a direct role in executive-leadership selection; regionalism, however, does. Conventionally, a prime minister will assemble a cabinet that is roughly representative of all regions and provinces, although it was not until the 1970s that the finance portfolio went to a francophone Quebecer. While women remain underrepresented in the executive leadership (as they do in Parliament), they have, over the years, held important portfolios. In the 2004 cabinet there were nine women out of a total of 39 ministers. Portfolios held by women have included deputy prime minister, president of the Privy Council, and intergovernmental affairs. For a short period, from June to November 1993, Canada had a female prime minister, Kim Campbell.
Head of State
The governor general exercises the powers of the Crown on behalf of the formal sovereign, who is the British monarch and the head of the Commonwealth, of which Canada is a member. The governor general is formally appointed by the monarch, albeit on the recommendation of the Canadian prime minister and cabinet. Among the duties of the governor general are the appointment of the prime minister and other ministers, the summoning and dissolving of Parliament, and the usual panoply of ceremonial functions. Tenure is usually five years but can be a few years shorter or longer.
Although none of this has any impact on federalism, the choice of governor general does provide the opportunity for a symbolic expression of diversity. Convention dictates alternating between English- and French-speaking candidates. This does not necessarily mean that every other governor general has to come from Quebec as there has been a francophone governor general, Romeo Leblanc, who was chosen from the Acadian minority in New Brunswick. The current holder of the office is Michaëlle Jean, the third woman governor general, a bilingual Quebec journalist, and a member of a visible minority.17
A somewhat unsettled question is whether the governor general can dismiss a government, as happened in Australia in 1975 when gridlock between the House of Representatives and the Senate created a crisis of governance. It is unlikely that this could happen in Canada, if only because Canada’s Senate is not an elected body with equal political standing. If, on the other hand, the government of the day lost its majority in the House, or a minority government ceased to receive majority support, parliamentary convention would dictate that the prime minister ask the governor general to dissolve the House.
Administration
The federal government employs nearly half a million people, including the military and the Royal Canadian Mounted Police. Some 200,000 of these people constitute the public service in a narrow sense. In order to avoid partisanship, its members are appointed under the supervision of the Public Service Commission. The federal administration consists of the various government departments as well as a number of central agencies such as the Prime Minister’s Office (PMO) and the Privy Council Office (PCO), both of which are discussed further below.
Departments are headed by a cabinet minister who is directly accountable to Parliament. Day-to-day governance and public service delivery, however, are in the hands of deputy ministers who are, in turn, aided by several assistant deputy ministers in charge of branches or bureaus. Because they are considered politically neutral career professionals, senior public servants do not typically suffer a major shake-up when the government changes. However, interdepartmental transfers are quite common, which can create continuity and efficiency problems. On occasion, new cabinet ministers find it difficult to bring about directional changes in general policy formulation. For example, former prime minister Paul Martin’s interest in the Tobin tax (a tax on speculative international currency transfers) during his tenure as finance minister was met with such opposition from senior departmental staff that, at one point, he exclaimed in jesting despair: “Almost anybody who has any sense of human understanding and compassion takes views that oppose the views of the Department of Finance.”18 What he meant, of course, was that the intransigence of the department’s bureaucratic orthodoxy made any kind of innovative political flexibility almost impossible.
In principle, while each cabinet minister is politically responsible for her or his department, and is individually accountable to Parliament, there is in practice a sense of collective cabinet responsibility under the overall leadership of the prime minister. Interdepartmental coordination is not only generated at the cabinet table, however: it is also greatly influenced by two central agencies, the PMO and the PCO.
Originally comprising not much more than the prime minister’s personal support staff, the PMO has assumed paramount importance in the process of federal governance. The transformation dates back to the era of Prime Minister Pierre Trudeau in the late 1960s, when the PMO became a large advisory body, at times consisting of as many as 200 people. Its senior members are appointees who are hand-picked by the prime minister, are often his/her personal friends, and are rarely civil servants. Apart from performing the tasks of interdepartmental coordination and conflict management, the PMO provides the prime minister with the kind of political resources that have resulted in government from the centre, and the concentration of unprecedented political power in the prime minister and a few close advisors, at the expense of the cabinet at large and to the detriment of parliamentary control.
By comparison, the PCO provides policy coordination in a more even-handed and non-partisan manner. Its members are temporarily reassigned senior civil servants who are drawn from a variety of departments. It owes its existence to the original Constitution, the British North American Act, 1867, which established the Queen’s Privy Council, now a ceremonial body composed mostly of current and former cabinet ministers but originally designed as an advisory body for the governor general. Technically, the cabinet is a committee of the Queen’s Privy Council, and the PCO is the most important federal agency supporting the prime minister and the cabinet in the formulation of overall government policy.
Of particular importance for the federal system is Intergovernmental Affairs, at times an independent government department but currently part of the PCO. Headed by a deputy minister and reporting to the cabinet minister for intergovernmental affairs, it is responsible for provincial, territorial, and Aboriginal relations. Intergovernmental Affairs also plans and prepares for intergovernmental conferences, monitors federal unity issues (particularly with regard to Quebec), and assists the minister responsible for official Languages. After the close defeat of the 1995 Quebec referendum on sovereignty, the PCO and Intergovernmental Affairs were instrumental in developing a new strategy of containment that culminated in the Clarity Act, 2000, which set conditions for the secession of a province.
For the first 100 years of its existence, the federal public service was dominated by anglophones. The recommendations of the Royal Commission on Bilingualism and Biculturalism (1963-67) led to enactment of the Official Languages Act, 1969, whereby English and French came to be recognized as the official languages of all federal institutions. At the same time, the Public Service Commission was directed to ensure a more balanced participation of anglophones and francophones in the public service and to assume responsibility for language training. Since then there has been considerable success in recruiting francophones into the public service. According to one seminal study during the 1980s, however, that success came more slowly and reluctantly in the higher echelons of the public service, particularly in departments and portfolios of significant economic relevance.19 Outside the federal public service in Ottawa, official bilingualism has remained a controversial tool of cultural accommodation.
Another attempt at reflecting the federal nature of the country in the public service has been made through regional decentralization. While most of the policy-making institutions, departments, and central agencies are located in the National Capital Region of Ottawa-Gatineau (formerly Ottawa-Hull), straddling the Ontario-Quebec border, many of the agencies and offices for program delivery and administration are spread among all provinces and regions. The Department of Citizenship and Immigration, for example, has located its processing centres in three different provinces and regions: family sponsorships in Ontario, in-Canada applications for permanent residence and temporary visa extensions in Alberta, and citizenship applications and permanent resident cards in Nova Scotia.
Other Institutions
In addition to the departmental institutions and agencies, federal governance in Canada also relies on some 400 additional public, or Crown, agencies. Among these are Crown corporations, regulatory agencies, and advisory bodies. These agencies are typically governed by a management board that reports directly to Parliament through a designated minister, and they are scrutinized in the annual reports of the auditor general.
Crown corporations are semi-autonomous government agencies created to perform those particular tasks that are deemed unfit for market competition. There are essentially three types of these bodies. Some, such as the Bank of Canada, belong to the traditional arsenal of nation-state governance. Others, however, of which the Canadian Broadcasting Corporation and the National Film Board are examples, were created to promote national unity either for the purpose of providing uniform services across regions and provinces and/or aiding domestic industries that are unable to compete with those of the United States. Others again, such as the Canadian Wheat Board, are intended to stabilize Canada’s resource industries in volatile international markets.
Within North American market capitalism, the use of Crown corporations has always been controversial, and many of them, such as Air Canada (the national airline) and Petro Canada (a national oil and gas company created to increase control of an otherwise foreign-dominated energy industry), have been privatized in recent years. In the case of Petro Canada, particular opposition to its creation came from the oil-rich province of Alberta, which resented central interference with its most lucrative source of revenue. In the case of Air Canada, the result of privatization has been financial instability. This may be the fate of the deregulated airline industry more generally. A question remains, however, about the extent to which air travel must be considered a public good in a huge country that is thinly and unevenly populated.
Regulatory agencies in Canada, such as the Labour Relations Board and the Canadian Radio-Television and Telecommunications Commission (CRTC), similarly operate on the basis of legislation and are accountable to Parliament through a responsible minister. Along with the provision of public goods, the regulation of private behaviour in the national interest is also a controversial subject in Canada. In the case of the CRTC, which is primarily responsible for Canadian content regulations (e.g., via the conditional licensing of private broadcasters), the question is raised time and again whether such regulations strengthen or weaken national identity and culture.
As the following anecdote illustrates,20 this question identifies Canada as an exceptional case with regard to cultural identity and unity. During his tenure as CRTC chairperson (1980-83), the prominent Canadian political scientist John Meisel was invited by the East German government to give a talk about Canadian cultural policy. When he asked why East Germany was interested in this topic, he found out that East German communists had done their homework. Like Canada, they argued, East Germany was, in terms of population, a small country next to a much larger one, with which it shared a long and (at least with regard to air waves) open border, a language, and a similar cultural predisposition. The East German apparatchiks wanted to know what Canada was able to do to protect its cultural autonomy. Meisel’s answer was: not very much.
This peculiar situation also has repercussions on federal governance as US influence spreads unevenly across regions and provinces. With Quebec adamant about going its own way in most instances, and with at least some western provinces being very open to American market solutions, the federal government all too often finds itself between a rock and a hard place.
One quintessential Canadian way of dealing with conflicts resulting from this situation is through royal commissions. Most prominent in recent years have been the aforementioned Royal Commission on Bilingualism and Biculturalism (1963-67), the Royal Commission on the Economic Union and Development Prospects of Canada (Macdonald Commission, 1982-85), the Royal Commission on Aboriginal Peoples (1991-96), and the Royal Commission on the Future of Health Care (2001-02). Such commissions typically produce enormous amounts of research but, as in the case of other advisory bodies, governments are not bound to follow their recommendations - especially when they cost a lot of money.
Governments may also pick and choose, of course. The Macdonald Commission on Economic Union, for instance, recommended a move towards free trade with the United States but, at the same time, cautioned that the socially disruptive effects of such a move had to be cushioned by the introduction of some kind of guaranteed minimum income for all Canadians.21 The subsequent Conservative government of Prime Minister Brian Mulroney (1984-93) then concluded the Free Trade Agreement with the United States, but it never considered the latter part of the recommendation.
Notwithstanding the formal division of powers, there is no convenient blueprint for the efficient allocation of governance tasks and the effective generation of national public policy in the Canadian federal system. Social policy, for example, traditionally in the provincial power domain, has been widely regarded as requiring a degree of universality that only the federal government can provide. In an age of globalization, however, trade and commerce, traditionally in the federal power domain, might require more flexible regional policy options. In both instances socioeconomic and ideological differences across regions and provinces compound the difficulties of federal governance.
Such questions and issues obviously can also arise in unitary political systems. Federalism, however, is normatively committed to the accommodation of diversity within a common body politic, and it provides the institutions for doing so in practice. For the most part, the institutions and governing practices of Canadian federalism date back to the nineteenth century. They need to be rethought for the twenty-first century.22
Canada’s judicial system is rooted in the British common-law tradition. This means that the courts deal with legal disputes before them on the basis of precedent rather than abstract principle, as in the continental European tradition. An exception is the civil-law code of Quebec, which the province retained after the conquest of 1759.
More important for the federal system is another distinction – that between unlimited and limited judicial review. In the British tradition Parliament is regarded as supreme, and judicial review in Canada was originally limited to the adjudication of questions of federal and provincial jurisdiction. This changed, however, after the constitutional changes of 1982 and the insertion of the Charter of Rights and Freedoms into the Constitution. Since then, the Supreme Court of Canada exercises full powers of constitutional interpretation and, more broadly, can strike down any law, federal or provincial, that appears to be in conflict with the Constitution.
The court system is essentially hierarchical and integrated in design. The Supreme Court was established as a general court of appeal. The Constitution does not provide for any kind of purely federal judicial power.23 In the provinces, there are two types of courts: provincial courts of first instance and superior/appellate courts. The judges of the latter are appointed and paid by the federal government, even though each province determines for itself how many superior court judges it needs.24
In the federal sphere, there are the Federal Court and the Supreme Court of Canada. While the Federal Court exercises original jurisdiction in mattes of administrative law, including federal/provincial legal disputes, the Supreme Court of Canada hears appeals from provincial appellate courts as well as from the Federal Court. Of several hundred cases filed each year, it selects about 100 that it considers to be of particular importance with regard to the development of national law. It also has to hear criminal cases that have been overturned by the provincial appellate courts.
Supreme court judges are appointed by the federal cabinet on the basis of a conventional regional pattern: three judges from Ontario, three from Quebec, two from the West, and one from Atlantic Canada. Appointments are preceded by extensive consultation, and there is little evidence of partisan appointments. Given that the Supreme Court hears appeals from provincial courts in constitutional matters, there have been repeated calls to make the appointment procedure more democratic and regionally responsible. However, there is some fear, not least among the Supreme Court judges themselves, that the introduction of American-style hearings and approval procedures would also bring with them the kind of partisan politicization that has been evidenced in the United States.
Of particular significance for the federal system are constitutional reference cases. The federal government can ask the Supreme Court for an opinion in a particular constitutional matter. Likewise, the provincial governments can bring such cases to the Supreme Court after they have been heard by the provincial court of appeal. A particularly well known provincial case was the 1981 reference concerning the so-called patriation of the Canadian Constitution.25 At that time, the Constitution still did not contain an amendment formula, which meant that British institutions remained formally sovereign in Canada in matters of constitutional change.
When, by taking to London a constitutional package that included a charter of rights and freedoms as well as an amendment procedure, Prime Minister Pierre Trudeau (who served from 1968 to 1970 and from 1980 to 1984) threatened to patriate the Constitution without the consent of the provinces, several provinces took the issue to the Supreme Court. The question they asked was whether such consent was required. In what must be its most famous decision, the Supreme Court of Canada ruled, in a 7-2 decision, that unilateral action was legal but contrary to constitutional convention. It suggested, further, that constitutional convention would require substantial but not necessarily unanimous consent. This judgment brought the prime minister back to the bargaining table where, shortly thereafter, a deal was struck with the consent of all provinces except Quebec. The Constitution was formally patriated in 1982.26
While this tumultuous episode in Canada’s constitutional history may have been the consequence of the anomaly of a missing domestic amendment formula, it does shed light on the general role of the judiciary in Canada’s federal system. The Supreme Court carefully avoided making a decision that would have unambiguously condoned one particular course of action. The politicians ultimately had to decide for themselves. In stipulating that constitutional convention requires substantial but not necessarily unanimous consent, however, the Court opened the door to making a decision without Quebec’s approval. One might well argue that, in doing so, it ignored a political convention according to which constitutional changes affecting substantive provincial interests have to be based on unanimous agreement. This 1982 ruling is the only instance in recent Canadian constitutional history when a decision was taken without securing unanimity.
An equally famous, and more recent, constitutional reference, this time initiated by the federal government, is the 1998 secession reference. Shocked by the close outcome of the 1995 referendum in Quebec, the federal government asked the Supreme Court under what conditions, if any, the unilateral secession of a province would be legal. In its response, the Court concluded that, in a democracy, the quest for separation is legitimate if it is the result of a clear majority response to a clear question, and that legitimate secession requires “principled negotiation with other participants in Confederation within the existing constitutional framework.” On the basis of this judgment,27 the federal government crafted the Clarity Act, 2000, in which it specified that the federal government would only enter into such negotiations after Parliament had been satisfied with regard to the clarity of both the question and the majority achieved in a referendum. It did not, however, make explicit what it would consider to be a clear majority.28
This extraordinary episode in Canada’s constitutional history highlights how the Supreme Court seeks to avoid predetermining a fundamentally political decision. Again, the remarkable character of the Court’s decision lay in its affirmation of federalism as a process of negotiation rather than merely as a legal framework of rights and obligations. Furthermore, there was a clear recognition of federalism as a system within which sovereignty and governance are shared and that outweighs the democratic principle of majority rule.
This - the balance of powers between judiciary and legislature - is perhaps the most contentious issue in common-law parliamentary federal democracies.29 In systems based on a codified Roman law tradition, such as Germany, constitutional principle overrides the popular will. The German Constitution even contains some provisions that are immune from constitutional change. In Canada, with its traditional assumption of parliamentary supremacy, the relationship between legislative pre-eminence and judicial review remains more tenuous.
This much was acknowledged in the 1982 constitutional settlement by linking certain portions of the Charter - concerning fundamental freedoms, legal rights, and equality rights - to a so-called notwithstanding clause (section 33). This clause allows a federal or provincial parliament to override Charter provisions for five years, after which the override either lapses or must be renewed. Thus far, it has been used only in one significant instance. In 1988 the Supreme Court had struck down parts of Quebec’s controversial language bill (Bill 101), which required shop owners to post commercial signs in French only. The Court held that this was a violation of the Charter’s right of freedom of expression. In 1989 the Quebec legislature invoked the notwithstanding clause and later passed a bill that only allowed English signs indoors and then only as long as French predominated: the infamous “inside-outside bill” (Bill 178). This recourse to the notwithstanding clause was not renewed in 1993.30
The notwithstanding clause has been vilified as a dangerous erosion of constitutional principles that will open the door to political decisionism. At least one thoughtful observer, however, has praised it as an ingenious solution: “What makes it distinctive, and Canadian, is that it resolves a deep problem in constitutional theory by not stating a principle, but by instituting a practice.”31 The clause does not resolve the tension between democratic rule and fundamental rights but compels both the legislative and judicial branches of government to engage in an ongoing process of deliberation. In doing so, the notwithstanding clause can also be regarded as an innovative constitutional device of last resort for determining the scope and dimension of value plurality in federal systems.
Overall, the Charter has considerably strengthened the rights of explicitly mentioned Charter groups, official language minorities, visible minorities, people with disabilities, gays and lesbians, and Aboriginal peoples. This might be seen as an ascendancy of judicial power at the expense of provincial powers. With its emphasis on group rights, however, the Charter has not transformed the Canadian federal system into a judicialized regime of individual rights protection. Neither has the notwithstanding clause turned out to be a widely used countervailing weapon of provincial defiance.
Canadians seem to understand this quite well. During the 2004 federal election campaign, members of the Conservative opposition in both the federal and provincial arenas of government played with the idea that they might invoke the notwithstanding clause in order to override the legality of gay marriage under the equality provision of the Charter. This did not appear to enhance their electoral chances.
INSTITUTIONAL ARRANGEMENTS OF THE CONSTITUENT UNITS
LEGISLATURES
The original British North America Act, 1867,32 contained various specifications for provincial legislatures, electoral districts, and the provincial lieutenant governors. Over the years, these were modified or replaced by provincial statutes without, however, breaking with the common British parliamentary tradition. Today, and with only one significant exception, the Canadian provincial institutions of governance are very similar to those of the federal sphere.33
The significant difference is the lack of an upper house or senate. In 1867 only Ontario had entered Confederation with a unicameral legislature. Over time, however, second chambers, in the form of government-appointed legislative councils, were abolished or not created in new provinces. They were seen both as too much of a financial burden and as an unnecessary relic of colonial rule. Consequently, all provincial legislatures are now unicameral. The transformation of the legislative councils into legitimate second chambers of intra-provincial regional representation was never an issue even though most of the provinces are as diverse and asymmetrical as is the federation as a whole.
With the sole exception of the four small Atlantic provinces in the East, Canadian provinces are huge territories, some of them several times the size of the large European states. Two sets of differences are significant. First, in most provinces there is the difference between the more populous South and the vast but sparsely populated North. This difference is further exacerbated by very different levels of economic development. Second, there is the difference between urban and rural areas within provinces. Most Canadians live in urban conglomerates. For instance, of the 11.5 million residents of Ontario, 5.1 million live in the greater Toronto area.
Clearly, a majoritarian parliamentary system accommodates these diversities poorly. In Ontario, for instance, while the vast but sparsely populated northern parts of the province are somewhat overrepresented in the provincial legislature (in terms of voters per elected member), they still command only six seats out of a total of 103. In some of the western provinces, this dichotomy between urban and hinterland interests is even more pronounced.
Especially for the smaller provinces, British-style parliamentarism on the basis of a single-member district majoritarian electoral system also poses a functional problem of numbers. With the exception of Ontario and Quebec, with 103 and 125 seats, respectively, provincial legislatures range in size from 32 to 83 seats. As a consequence, cabinets are sometimes larger than the entire opposition. In one instance, in 1987 in New Brunswick, the election outcome did not yield a single seat for the opposition. In order to play the parliamentary game, members of the defeated opposition party were allowed to shout questions from the visitors’ gallery. Provinces can determine their own electoral systems, and a few of them are in the process of examining the possibilities of moving towards a more proportional electoral system.
Small size and usually short sitting periods also tend to shift the power balance between Parliament and cabinet/executive in favour of the latter. There are fewer members available for committees, and the resources for staff and services are even more concentrated around the premier and her or his cabinet.
Within Canada’s dual system of parliamentary federalism, provincial legislatures, in principle, act independently of the central system of governance. In practice, provincial legislative autonomy is limited by the superior federal spending power and by the existing framework of intergovernmental and cost-sharing agreements. However, with the help of favourable judicial interpretation, and contrary to the founding fathers’ original intentions, the provinces have successfully stemmed the tide of legislative centralization typical in most other federations in the twentieth century.
EXECUTIVES
Political Executive
As in the case of prime minister and cabinet in the provisions for the federal government, the Constitution is silent about provincial premiers and cabinets. Their dominant position and power in the system of governance is the result of institutional evolution in the parliamentary tradition. However, there have been some opposing trends as well, particularly during the past thirty years.
While the trend in the federal sphere has been towards “governing from the centre,”34 with prime ministers holding the essential reins of power (with the help of greatly expanded office staff) and surrounded by an inner circle of senior cabinet ministers who are set apart from junior ministers and secretaries of state, provincial premiers have recently had to move towards more power-sharing and collective responsibility. Not coincidentally, this happened during a time of “province building,”35 when some provinces, led most notably by Alberta and Quebec, sought to strengthen their powers at the expense of the federal government.
This meant that provincial governance became more ambitious and complex, which in turn gave a larger role to ministers and even ordinary provincial parliament members at the cabinet table and in committees. It also coincided with a new emphasis on caucus democracy. In Alberta, for instance, Conservative premier Ralph Klein (1992-present) replaced sixteen cabinet and caucus committees by four standing “super-committees” composed of cabinet ministers as well as ordinary members and chaired by backbenchers who also sit at the cabinet table when they represent their committees.36
In general, political executives in the provinces have responded to institutionalizing developments in the federal government. For instance, the division of labour between the Prime Minister’s Office and the Privy Council Office came to be duplicated in the provinces through the creation or reorganization of two similar types of agencies for the generation and coordination of government programs. Sometimes initiatives also came from the provincial side. Thus it was Quebec that first institutionalized federal-provincial affairs in 1961 (it was renamed “intergovernmental affairs” in 1967) as a government department. The federal government and other provinces followed suit.
Finally, provinces are formally headed by lieutenant governors. These are appointed by the federal government in consultation with provincial premiers and normally serve five-year terms. As in the case of the governor general, their role today is mostly ceremonial.
Other Institutions
Like the federal government, the provinces have, over the years, availed themselves of a plethora of regulatory agencies, such as Crown corporations, boards, and commissions. The creation of most of these has had to do with the provincial ownership of natural resources. Particularly noteworthy are the powerful hydro corporations in Ontario and Quebec as well as corporations focused on oil and gas exploration, investment, insurance, marketing, and research in the West.
The diversity of such institutions in the provinces underscores the asymmetrical nature of Canadian federalism. While most provinces have agricultural marketing boards, liquor commissions, or licensing boards and the like, other institutions are testimony to distinctive provincial political cultures and opportunity structures. In Alberta, for instance, the so-called Alberta Heritage Savings Trust Fund was created in 1976. It manages a certain percentage of the province’s extraordinary oil revenues for the purpose of capital investment in the province. The Heritage Fund has been criticized for lacking accountability because it operates largely under the discretion of the government. In Quebec, there is the Caisse de dépôt et de placement, created in 1965 with a mandate to invest funds accumulating under the Quebec Pension Plan, which was created when the province opted out of the newly established Canada Pension Plan. The Caisse has been criticized for its aggressive Quebec “nationalist” investment strategies, but there is little if any evidence that investment decisions taken in favour of provincial industries have come at the expense of financial soundness.37
Another asymmetry pertains to law enforcement. Only Ontario and Quebec have created their own provincial police forces. In all other provinces, criminal and provincial law enforcement is contracted out to the Royal Canadian Mounted Police (RCMP). The RCMP was created during the settlement period to enforce law throughout the federal territories. It also performs contractual policing services for over a hundred municipalities across the country.
ADMINISTRATION
Following the American model, the Canadian federal system has been built upon the principle of fully divided powers. This means that each order of government is responsible for the execution and administration of its own laws. This so-called legislative federalism is quite different from the so-called administrative (or executive) federalism that is used, for example, in Switzerland and Germany, where the cantons and Länder are required to execute and administer a great deal of federal legislation, either on the basis of constitutional provision or by means of legislative delegation.
In practice, this means that Canadian telephone books contain two different sections dealing with government services - one federal and one provincial (plus a third one for municipal services). Canadians, in other words, need to know which order of government they are dealing with before they can look up the appropriate telephone number.38
The picture is a bit fuzzier in areas of concurrent jurisdiction, such as immigration and shared policy programs (e.g., health), because one might argue that, in these instances, provinces will inevitably bear the administrative burden of legislation for which the federal government carries at least some, if not paramount, responsibility. However, even in these instances provincial administration is based on provincial legislative acts.
JUDICATURE
Provincial court systems have, over time, developed similar three-level structures.39 Provincial courts deal with summary and most minor indictable offences as well as with family law (except divorce), offences by young offenders, bail hearings, and small civil-cases. Superior trial courts hear appeals from the provincial courts and deal directly with major indictable offences and civil matters, divorces, and administrative law cases. Given the integrated nature of Canada’s judicial system, these superior trial courts deal with all sources of Canadian law: federal, provincial, and municipal. Since 1987 all provinces have had a provincial court of appeal, which is referred to as the Superior, or Supreme, Court.
The appeal courts typically deal with legal rather than with factual issues. Their findings are final and binding for all courts in the province, although some of these judgments end up at the Supreme Court. Provincial courts of appeal also hear constitutional reference cases submitted by provincial governments. Decisions of such references usually have a considerable impact on the judicature, even beyond the boundaries of the province. Again, the Supreme Court of Canada typically will hear appeals against provincial supreme court decisions or provincial references only in cases of particular national interest and/or when appellate courts in different provinces have reached opposing decisions over the same issue.
LOCAL GOVERNMENT
Local governments in Canada are creatures of the provinces;40 they have no constitutional standing of their own. In practice, provincial municipal acts grant varying degrees of self-administration, including limited possibilities for revenue-raising, mostly in the form of property taxes. One of the most controversial ways in which provinces interfere with local governance has been the amalgamation of various cities or townships into one larger unit - often against the expressed majority will of the affected populations.
Provinces also regulate, to varying degrees, the mode of the election and composition of local administrations. The typical form of government is an elected council with a mayor, who is elected either separately or from among the councillors. Provinces may prescribe the number of councillors allowed for each type of municipality, whether city, town, county, or village, but they leave the division of the municipality into electoral wards to the local administration.
As members of one of the most urbanized societies in the world, most Canadians live in a relatively small number of large cities and metropolitan areas. Among Canadian politicians and academics there is a growing consensus that the lack of constitutionally guaranteed local government autonomy constitutes a serious problem for the efficient and legitimate functioning of large cities in particular and of Canadian federalism in general.41
Despite their primary importance for provincial economies, such megacities as Toronto, Montreal, and Vancouver cannot necessarily rely on provincial government support. After being amalgamated into the Greater Toronto Area (GTA) by the Progressive Conservative government of Mike Harris (1995-2002) in 1998, for example, Toronto, while accounting for nearly 50 percent of Ontario’s population, commands only twenty-two seats (20 percent of the whole) in the provincial legislature. Amalgamation, which was opposed by a majority of the voters of Toronto in a non-binding plebiscite, also came with a massive downloading of provincial service responsibilities to municipalities, even though little to no new revenue was made available.
Federal politics has begun to take political advantage of this situation. In 2005 Prime Minister Paul Martin (2004-06) delivered on an earlier promise by announcing a billion-dollar deal with the province and the Association of Municipalities of Ontario for urban infrastructure and transit improvements. It was this “New Deal in action,” as he called it, that may have secured passage of the 2005 federal budget and thus saved his minority government, at least for the moment. Earlier that year, at the annual meeting of the Federation of Canadian Municipalities, Martin had also declared more generally that Canada’s underfunded cities could count on more federal support and that “towns and cities” would have a seat at the federal table to decide where the money will go.
From the principled perspective of the federal-provincial division of powers, the federal government’s rediscovery of its spending power in relation to urban problems and agendas appears problematic.42 Under the Constitution municipalities are the legislative responsibility of the provinces. In this particular instance, the deal was struck among all three orders of government. In general, however, provincial governments may be reluctant to welcome federal spending-power intrusions, and such spending may turn out to be episodic; that is, it may not provide cities with a stable source of financial support. The promised inclusion of cities at the federal table, on the other hand, while pointing in the right direction, cannot amount to much without giving them some degree of autonomous standing, which cannot be done without involving the provinces.
Canadian cities are among the world’s most multicultural places. They might be characterized as benign spaces of self-ghettoization, giving rise to ethnic neighbourhoods known, for example, as Little Italy, complete with street signs and the usual array of shops and restaurants. This spatial expression of multicultural diversity does not automatically translate into the composition of elected city councils, nor is there an intentional design to encourage such a process through, for example, the zoning of electoral wards.
Nevertheless, while ethnic minorities generally remain underrepresented in municipal councils, such councils operate for the most part on a non-partisan and issue-oriented basis. At least in some cases, their influence on voters and their economic strength give them considerable weight in provincial-local relations.
INTERGOVERNMENTAL RELATIONS
All federal systems rely on intergovernmental relations for purposes of policy coordination. As in other federations, in the Canadian federation hundreds of meetings take place annually between federal and provincial department bureaucrats and policy specialists. This is particularly so in the case of policy areas that have overlapping or concurrent jurisdiction, and even more so in the case of shared-cost programs.
For the most part, these meetings are conducted in an atmosphere of professionalism, and they are rarely reported on the front pages of newspapers. However, various factors related to the fabric of Canadian politics and society have politicized intergovernmental relations. This means that particular policy issues tend to become reformulated as part of a more fundamental political question regarding the distribution and the legitimate exercise of powers in the federation. Policy becomes politics.43
Among the main reasons for this is the regionalized nature of the country. This regionalization pertains not only to the obvious bicultural division of society but also to the socioeconomic division between the central manufacturing provinces and the western resource provinces. Because neither the Westminster-style parliamentary system (with its emphasis on majority rule) nor the government-appointed Senate is able to accommodate these divisions, intergovernmental relations a quintessentially Canadian way of conducting the business of federalism.44
Canadians call this “executive federalism” because the most fundamental political questions of the nation can only be resolved by agreement among the executive leaders of both orders of government - the prime minister and the provincial premiers - during so-called First Ministers Conferences. It should be noted in passing that this use of “executive federalism” is different from that in Germany or Switzerland, where the term indicates that the execution of federal legislation is up to the Länder or cantons, respectively.
Such First Ministers Conferences have a long tradition in Canada; however, more recently, they have become regular annual or even biannual events. While crucial negotiations and deal making usually take place behind closed doors, results or failures are communicated to the public in the limelight of the national media. Put famously, Canadian intergovernmental relations resemble a process of federal-provincial diplomacy.45
Diplomacy refers to a tradition of negotiated agreement among all participants. As already noted, the 1982 patriation of the Constitution without Quebec’s consent broke with that tradition, plunging the country into a decade of crisis and uncertainty. It also gave executive federalism a bad name when two subsequent efforts failed to bringing Quebec into the constitutional fold: the 1987 Meech Lake Accord and the 1992 Charlottetown Accord. Both these events were negotiated under the aegis of Conservative prime minister Brian Mulroney. While the Meech Lake Accord died when two provinces failed to ratify it within the prescribed time period, the Charlottetown Accord was rejected by the people in a national referendum. In both instances there was widespread public criticism and mistrust of the process.46
Since the 1990s the governments of Canada have returned to the more usual practice of collaborative subconstitutional deal making.47 Formal First Ministers Conferences have been downgraded to more informal first ministers meetings. Among the more successful recent results is the series of social union and health care agreements concluded at first ministers meetings between 1999 and 2004. For the most part, these contain declarations of intention rather than final policy packages, although the health accord of 2004 at least contains a substantive dollar commitment to future funding by the federal government, in return for provincial compliance with universal health care principles and standards.
The health care accord contains what must by now be regarded as the hallmark of Canadian intergovernmental policy arrangements - asymmetry. While expected to support the overall objectives of the accord, Quebec will be given some leeway in planning and managing its health services according to its own timetable and agenda.
The resort to asymmetrical, or flexible, federalism in intergovernmental relations is not new. When the Canada Pension Plan was introduced in 1966 the deal included an opting-out clause that allowed Quebec to manage its own plan and, consequently, to pursue its own investment strategy for the funds. In principle, such options are available to all provinces; in practice, they mainly serve the distinct political interests of Quebec.
First Ministers Conferences have no base in the Constitution. They are extra-constitutional practices born of the necessity to reach negotiated policy agreements in a federation that remains regionally divided. Older even than the First Ministers Conference is the Annual Premiers Conference, which has been complemented by the Western Premiers Conference and the Council of Atlantic Premiers.
The most recent development is the 2003 establishment of the Council of the Federation.48 Alongside the provincial premiers, it also includes the leaders of the three northern territories. Similar to the Annual Premiers Conference, the Council of the Federation has established a permanent secretariat and a steering committee headed by senior public servants. Its purpose is to generate common positions on all matters of national importance, with a particular focus on how they affect provincial/territorial jurisdiction.
Contrary to earlier proposals and suggestions, the Council of the Federation includes neither the federal government nor Aboriginal leaders. However, if it successfully establishes itself as a forum for the generation of common interprovincial policy platforms, those two categories may be included later on. A promising sign is the fact that much of the initiative for the council came from the government of Quebec and its Liberal premier Jean Charest (2003-present). The defeat of the separatist Parti Quebecois at the polls in 2003 may be an indication that a majority of Quebecers are now ready to explore a new federalist relationship with the rest of the country.
Regardless of how the formalization of Canadian intergovernmental relations plays itself out, it seems clear that the federation is characterized by a new form of collaborative federalism, which aims at policy-oriented and pragmatic political accommodation that goes beyond what is provided by the traditional constitutional framework and its division of powers. This significant new development is driven, in part, by the perception among all political leaders that Canadian citizens will punish constitutional grandstanding at the ballot box.
There is also a general consensus, among political leaders as well as analysts and observers, that the new collaborative federalism will require a different approach to inclusiveness and openness in order to gain - or regain - legitimacy in the public eye. As evidenced by his promise to grant towns and cities a seat “at the federal table,” former Liberal prime minister Martin recognized the public appeal of such an approach. He also delivered on an earlier electoral promise by holding the 2004 first ministers meeting on the future of health care as a daytime event before live television cameras – although the crucial negotiations leading to the eventual agreement took place behind closed doors, as usual.
However, bringing executive federalism out into the open rather than leaving it behind the closed doors of federal-provincial diplomacy may be a two-edged sword.49 On one hand, it can enhance public acceptance through involvement; on the other hand, it can make existing differences even more pronounced and, ultimately, irreconcilable. Executive federalism in Canada will have to continue to tread a fine line between diplomacy and transparency.
More promising, it seems, is the idea of a formalized and continuing involvement of the civil service in both orders of government, and of civil society more generally. This is, in essence, how the European Union operates. Council of ministers meetings are prepared by a committee of permanent representatives composed of senior civil servants from the member states, and the decision-making process is aided by consultative input from the Committee of the Regions as well as the Economic and Social Committee, comprising nationally selected representatives of organized civil society (e.g., employers, unions, farmers, and consumers). If it succeeds in formally engaging the federal government, the newly created Council of the Federation would appear to be the most logical institution for the development of a more inclusive and deliberative form of executive federalism in Canada.
ANALYSIS AND CONCLUSIONS: CONSTITUTIONAL FRAMEWORK
For two main reasons, the Canadian federation comprises a more tenuous relationship between constitutional design and the practice of federal governance than do most other federal polities. The first reason involves its strongly majoritarian parliamentary design, which is at odds with the idea of federalism as an intended system of compounded majoritarianism and the recognition of regional and/or provincial group rights and liberties alongside individual citizenship. The second reason involves Canada’s retention of a strongly regionalized political and socioeconomic culture, which further exacerbates the inadequacy of the institutional design.
Over the past forty years, and coinciding with the rise of Quebec nationalism, the emphasis of Canadian politics has been largely on constitutional change. However, all efforts to bring about a constitutional settlement that is satisfactory to all stakeholders have ended in failure. Since the 1990s the emphasis has gradually shifted to policy-oriented subconstitutional agreements. At the heart of this new collaborative trend in intergovernmental relations lies the nearly unanimous realization that the Canadian welfare state is in dire need of reform. Welfare, especially in the form of universal health care, has been recognized as one of the cornerstones of an otherwise brittle pan-Canadian identity.
Originally, social policy was assigned to provincial governments. As in other federations, in the Canadian federation the superior spending power of the federal government has taken the lead in the development of shared programs. More than in other federal systems, however, in the Canadian system the development and delivery of shared social programs remains tied to intergovernmental accommodation.
In some policy fields the federal government has had to abandon its constitutionally assigned leadership role. While energy policy is part of the national economic policy prerogative, natural resources such as oil and natural gas are, for the most part, owned by the provinces. A federally enforced national energy policy, therefore, is not a political possibility, and no federal government has attempted to enforce one since Prime Minister Trudeau’s ill-fated National Energy Program at the beginning of the 1980s.50
Constitutional conventions generally loom large in a parliamentary federation that emerged from colonial rule, that maintains the institutions of a constitutional monarchy, and that remains rooted in the common-law tradition. Initially, the federal government was given declaratory and disallowance powers by which it could take control of provincial responsibilities and void provincial legislation. These powers are still on the books, but it is now a constitutional convention that they may no longer be used. Never on the books, but a consequence of the established parliamentary tradition, is the gradual concentration of executive power in the hands of the prime minister and cabinet.
Then there is the evolution of the entire system of intergovernmental executive federalism, which has become the linchpin of federal governance in Canada. Even though the Constitution does not provide for these institutions and mechanisms, they are a central feature of the Canadian political system in practice. The newly established Council of the Federation is an acknowledgment of this reality, and it might be difficult for the federal government to refuse to participate should the provinces wish it to do so.
The main weaknesses of this extra-constitutional emphasis on executive federalism are its inherent democratic deficit and the vagaries of success and failure. Governance in Canadian federalism is, to a large extent, rerouted past the primary constitutional source of political legitimacy, the parliamentary process. In sharp contrast to the certitude of constitutional federalism, with its reliance on assigned powers, executive federalism depends on the collaborative disposition of Canada’s governments. Herein, however, lies its main strength. Over the years, it seems, Canadians and their governments have learned that the diversity of their regions and societies does not allow for competitive parliamentary absolutism. “Getting along takes precedence over getting it right.”51
THE INTERACTION BETWEEN FEDERALISM
AND REPRESENTATIVE INSTITUTIONS
When the Canadian federation was created in 1867, the US Civil War had ended just two years earlier. Canada’s founding fathers intended to create a strong national government in order to avoid what they perceived as the failure of the American federal model. The anglophones among them, at least, misjudged the capacity of such a strong government to tame Quebec’s tenacious insistence on a distinct place and status in Confederation. The founding fathers also miscalculated in thinking that industrial modernization would pull the nation together. Not least because of their own merchant mentality, the founding fathers determined that the country’s economic fortunes would remain linked to the exploitation of its natural resources. And, by leaving these in the hands of the provinces, the founders unwittingly prepared the grounds for a regionalist thrust. As a consequence of this decision Canada became - in design, in politics, and in jurisprudence - one of the most decentralized federations in the world. Also as a consequence of this decision, the parliamentary constitutional framework came to be superseded by the intergovernmental mechanisms of executive federalism. This is not to say that the representative institutions of Canada have lost their significance. The constitutional division of powers provides ample opportunity for strong governance in many policy fields, but the essential questions that provide the nation with cohesion and stability routinely require a collaborative spirit of intergovernmental accommodation.
At times, there has been considerable discontent with this state of affairs. Political expediency has led provincial governments to make more of regional differences than constituencies would stand for. Federal governments, in turn, conjured up visions of enforced national unity, which likewise missed the mark.52 The political grandstanding of prime ministers and provincial premiers on the intergovernmental stage has been facilitated by their unchallenged executive control over parliamentary majorities at home.
Program sharing and cost sharing led to constant finger-pointing and buck-passing with regard to policy and fiscal responsibilities. This, in turn, blurred the lines of accountability that constitutes the core value of the parliamentary democratic process. To a certain extent, this appears inevitable in a federal system comprised of divided yet interdependent governance, but it has doubtlessly contributed to political disenchantment and the decline of electoral participation.
However, the unquestionable success of Canada as a prosperous and peaceful nation points to a different assessment. The provinces have served the country well as reservoirs of policy experimentation. Executive federalism - especially since the turn towards a more collaborative disposition among its protagonists53 - has been successful in bridging the incompatibilities of parliamentary majority rule and regional sensitivity. The main question is not the extent to which this has slowed down or impeded processes of efficient governance; rather, it is the extent to which it has made a regionally asymmetrical and culturally divided country governable at all.
In fact, one can argue that, on occasion, Canadians have been served quite well by their particular brand of federal governance. In 2002, for example, a “high-level conflict in the politics of executive federalism” over the adoption and implementation of the Kyoto Protocol broke out between the federal government and the government of Alberta. It led to widespread public debate and consultation, at the end of which the federal government significantly modified its implementation plans, even though it was in command of a comfortable parliamentary majority and under no constitutional obligation to defer to provincial demands. The intervention of the government of Alberta, in other words, “injected into the process the competitive element that is required to trigger democratic responsiveness.”54
At the heart of the Canadian federal experiment lies a commitment to territorial fiscal equalization. As enshrined in the 1982 constitutional settlement, all Canadians are to enjoy “reasonably comparable levels of public service at reasonably comparable levels of taxation.”55 While this is a stipulation in specific reference to Canada’s elaborate system of fiscal equalization, which is not the subject of this chapter, it expresses a general predisposition to good-willed cooperation within Canadian federalism. With regard to such cooperation, modern federalism provides two basic models: (1) the direct involvement of the constituent units in national legislation (as Germany) and (2) intergovernmental bargaining and compromise. Both are complicated under conditions of constitutionally divided parliamentary majority rule. Nevertheless, Canadian federalism has pragmatically resorted to the extra-constitutional practice of executive federalism. Will Canadians ever make lasting peace with this breach of their traditional parliamentary instincts? As the traditional Canadian saying goes: as much as possible, under the circumstances.
Notes
1 See also Rainer Knopff and Anthony Sayers, “Canada,” Constitutional Origins, Structure, and Change in Federal Countries, ed. John Kincaid and G. Alan Tarr (Montreal and Kingston: McGill-Queen’s University Press, 2005), 104-142; and Richard Simeon and Martin Papillon, “Canada,” Distribution of Powers and Responsibilities in Federal Countries, ed. Akhtar Majeed, Ronald L. Watts, and Douglas M. Brown (Montreal and Kingston: McGill-Queen’s University Press, 2006), 92-122.
2 The Charlottetown Accord (1992). Constitutional referenda are possible in Canada on the basis of a legislative act, but they have been used only twice previously, 1898 and 1942.
3 See the overview of James B. Kelly, “Guarding the Constitution: Parliamentary and Judicial Roles under the Charter,” in Reconsidering the Institutions of Canadian Federalism, ed. J. Peter Meekison, Hamish Telford, and Harvey Lazar (Montreal: McGill-Queen’s University Press, 2002), 77-110.
4 At least from a socioeconomic perspective; however, the Prairie west also brought forth a political culture of agrarian radicalism that resulted in the eventual formation of the social-democratic National Democratic Party (NDP). See John F. Conway, The West (Toronto: Lorimer, 1983).
5For an overview of Quebec politics, see Claude Jean Galipeau, "Le Contre-Courant Quebecois," in The Provincial State, ed. Keith Brwonsey and Michael Howlett (Toronto: Copp Clark Pitman, 1992), 113-145; and Luc Bernier, "The Beleagered State: Quebec at the End of the 1990s," in The Provincial State in Canada, ed. Keith Brwonsey and Michael Howlett (Peterborough: Broadview Press, 2001), 139-161.
6 Compare Frances Abele and Michael J. Prince, “Alternative Futures: Aboriginal Peoples and Canadian Federalism, in Canadian Federalism, ed. Herman Bakvis and Grace Skogstad (Don Mills: Oxford University Press, 2002), 220-237; and Alan C. Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State (Vancouver: UBC Press, 2000).
7 See Robert C. Vipond, Liberty and Community (Albany: State University of New York Press, 1991).
8 New Brunswick and Nova Scotia.
9 Widely used textbook overviews are Rand Dyck, Canadian Politics (Toronto: Nelson, 1996); and Robert J. Jackson and Doreen Jackson, Politics in Canada (Toronto: Prentice Hall, 2001). Particularly useful is John McMenemy, The Language of Canadian Politics (Waterloo: Wilfrid Laurier University Press, 1995).
10 Mexico (1824), Venezuela (1830), and Argentina (1853) all followed the US presidential model; even Switzerland (1848) followed that model in its upper chamber construction.
11 Also known as the single-member plurality (SMP) system.
12 Ridings are the geographical electoral divisions, or units, in Canada.
13 On the transformation of Canada’s party system, see Lisa Young and Keith Archer, eds., Regionalism and Party Politics in Canada (Don Mills: Oxford University Press, 2002). For a brief account of the latest developments, see Jennifer Smith, Federalism (Vancouver: UBC Press, 2004), 115-117.
14 For a more positive assessment, see Serge Joyal, ed., Protecting Canadian Democracy: The Senate You Never Knew (Montreal: McGill-Queen’s University Press, 2003).
15 See Kenneth McRoberts, Misconceiving Canada (Don Mills: Oxford University Press, 1997), 190-221.
16 Compare Donald Savoie, Governing from the Centre (Toronto: University of Toronto Press, 1999).
17 In Canada the term “visible minority” is an official sociological category that refers to persons who are non-Caucasian in race or non-white in colour. However, Aboriginals are not categorized as a visible minority. See Statistics Canada at <http://www.statcan.ca/>.
18 Linda McQuaig, Selling the Myth of Powerlessness in the Global Economy (Toronto: Penguin, 1998), 139-144.
19 See Kenneth McRoberts, Quebec: Social Change and Political Crisis (Toronto: McClelland and Stewart, 1988).
20 Personal communication.
21 See also Ronald L. Watts, “The Macdonald Commission Report and Canadian Federalism,” Publius: The Journal of Federalism 16 (Summer 1986): 175-199.
22 See Smith, Federalism, as well as Meekison, Telford and Lazar, Reconsidering.
23 See Jackson and Jackson, Politics in Canada, 186.
24 See Dyck, Canadian Politics, 580.
25 Reference re Resolution to amend the Constitution [1981] 1 S.C.R. 753; Reference re Objection by Quebec to a Resolution to Amend the Constitution [1982] 2 S.C.R. 793.
26 The best account of these events during the era of Prime Minister Pierre Trudeau is Stephen Clarkson and Christina McCall, Trudeau and Our Times. Vol. 1: The Magnificent Obsession (Toronto: McClelland and Stewart, 1990); see also Peter Meekison, ed., Constitutional Patriation (Kingston: Institute of Intergovernmental Relations, 1999).
27 Reference re Secession of Quebec [1998], 2 S.C.R. 217. See also Peter Leslie, “Canada: The Supreme Court Sets Rules for Secession of Quebec,” Publius: The Journal of Federalism 29 (Spring 1999): 135-151.
28 Government of Canada, Clarity Act, 2000, c. 26.
29 Compare Gerald Baier, “Judicial Review and Canadian Federalism,” in Bakvis and Skogstad, Canadian Federalism, 24-39
30 See McRoberts, Misconceiving Canada.
31 Melissa Williams, “Toleration, Canadian-Style: Reflections of a Yankee-Canadian,” in ., Canadian Political Philosophy, ed. Ronald Beiner and Wayne Norman (Don Mills: Oxford University Press, 2001), 217.
32 Now renamed Constitution Act, 1867.
33 See Rand Dyck, Provincial Politics in Canada (Englewood Cliffs: Prentice-Hall, 1991); and Christopher Dunn ed., Provinces (Peterborough: Broadview Press, 1996).
34 See Savoie, Governing from the Centre.
35 See the classic article: Robert A. Young, Philippe Foucher, and Andre Blais, “The Concept of Province-Building: A Critique,” Canadian Journal of Political Science 17, 4 (1984): 783-818.
36 Christopher Dunn, “Premiers and Cabinets,” in Dunn, Provinces, 175.
37 See Stephen Brooks and Brian Tanguay, “Quebec’s Caisse de dépôt et de placement: Tool of Nationalism? Canadian Public Administration 28 (Spring 1985): 99-119.
38 Telephone books are organized similarly in the United States. More recently, some Canadian telephone books have offered comprehensive lists of federal and provincial services distinguished only by different colours.
39 See Dyck, Canadian Politics, 579-583.
40 Compare Andrew Sancton, “Municipalities, Cities, and Globalization: Implications for Canadian Federalism,” in Bakvis and Skogstad, Canadian Federalism, 261-277.
41 The local dimension in intergovernmental relations was already given prominent exposure in the research papers of the Macdonald Commission. See Richard Simeon, ed., Intergovernmental Relations (Toronto: University of Toronto Press, 1985).
42 See Smith, Federalism,. 85-87 and 147-148; compare, however, Roger Gibbins, “The Missing Link: Policy Options for Engaging Ottawa in Canada’s Urban Centres,” in Meekison, Telford, and Lazar, Reconsidering, 411-422.
43 See Garth Stevenson, Unfulfilled Union (Toronto: Gage, 1989), 221-229.
44 Compare Kathy L. Brock, “The End of Executive Federalism?” in New Trends in Canadian Federalism, ed. Francois Rocher and Miriam Smith (Peterborough: Broadview Press, 1995), 91-108; see also Richard Simeon and David Cameron, “Intergovernmental Relations and Democracy: An Oxymoron if There Ever Was One?” in Bakvis and Skogstad, Canadian Federalism, 278-295.
45 Richard Simeon, Federal-Provincial Diplomacy (Toronto: University of Toronto Press, 1972).
46 See McRoberts, Misconceiving Canada. See also Peter Leslie and Keith Brownsey, “Constitutional Reform and Continental Free Trade: A Review of Issues in Canadian Federalism in 1987,” Publius: The Journal of Federalism 18 (Summer 1988): 153-174; Roger Gibbons, “Canadian Federalism: The Entanglement of Meech Lake and the Free Trade Agreement,” Publius: The Journal of Federalism 19 (Summer 1989): 185-198; and Robert C. Vipond, “Seeing Canada through the Referendum: Still a House Divided,” Publius: The Journal of Federalism 23 (Summer 1993): 39-55.
47 See Simeon and Cameron, “Intergovernmental Relations.”
48 See Smith, Federalism, 156-157.
49 See similarly, ibid., 128-129.
50 See Conway, The West, 204-226. See also Kenneth H. Norrie, “Energy, Canadian Federalism, and the West,” Publius: The Journal of Federalism 14 (Winter 1984): 79-91; and Bruce G. Pollard, “Canadian Energy Policy in 1985: A Renewed Federalism?” Publius: The Journal of Federalism 16 (Summer 1986): 163-174.
51 Williams, “Toleration,” 218.
52 See the classic article, Alan C. Cairns, “The Governments and Societies of Canadian Federalism,” Canadian Journal of Political Science 10, 4 (1977): 695-725.
53 See Richard Simeon and Ian Robinson, State, Society, and the Development of Canadian Federalism (Toronto: University of Toronto Press, 1990).
54 Smith, Federalism, 125.
55 Section 36 (2), Constitution Act, 1982, Schedule B.