To understand Canadian federalism is to understand Canadian politics. Like most “-isms,” however, federalism is a term tossed about, nodded over, scoffed at, or plugged into conversations wanting a wee bit ‘o academic-speak, often with nary a clue of what exactly it is. Such a lamentable situation is far from necessary. Federalism is complex, but not impenetrable. There’s no reason why it cannot fill newspaper articles as easily as it fills academic ones. And so here, for your viewing pleasure, is Canadian Federalism 101.
Contrast is definition’s best friend, especially when grappling with some sort of “-ism.” Thus federalism can be approached by distinguishing it from a unitary system of government. A unitary system invests all of a state’s sovereign authority into one governing body, the national government, which is the sole source of political power. This national government may delegate some of its power to lower bodies (such as administrative districts, towns, cities, or counties), but that power can — hypothetically — be withdrawn or minimised at any point. Classic examples of countries with a unitary system include France, the United Kingdom, Japan, and Sweden.
Federal states, in turn, play a whole other ball game. Tinkered together by the American founders in 1787, federalism divides power between two levels of government. These two levels exist within one country. One level, the national (or federal) level, enjoys jurisdiction over matters of national concern and the other level, the regional (or provincial/state) level, enjoys jurisdiction over matters of local concern. This division of power is established in a state’s constitution, meaning that it is legally entrenched as The Way In Which This Country Will Govern Itself. It is not up for debate or drastic alteration. Incremental change may see a federal system evolve in unique ways, but its basic form remains steady.
Although national and regional jurisdictions may at times overlap, neither level’s power can simply be encroached upon by the other. In a unitary system the national government can decide to remove any lower level of its power in order to directly run things. In a federal system, no can do. If the taxation of bananas falls under provincial jurisdiction, then the federal level can, well, go bananas over wanting to tax them as well, but is barred through the constitution from doing so. Classic examples of federal countries include the United States, Australia, India, Switzerland and, of course, Canada.
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That brings us to the really interesting question: why a federal system in Canada? If the Manifest Destiny-drunk and Civil War-waging Yanks invented it, what in all that is good’s name persuaded the ragtag variety show of colonisers north of the 49th parallel to implement it here? Many Grade 10 social studies students are told John A. Macdonald was quite the whisky fan, but exactly how much did he drink?
By the 1860s British North America consisted of six colonies stretching from British Columbia to Prince Edward Island, with a massive stretch of territory — under the Hudson’s Bay Company charter — stuck in the middle (Manitoba, anyone?). One of those colonies enjoyed the anticipatory title of the ‘Province of Canada,’ and housed a tumultuous, ever-volatile relationship between English and French colonists (thank God we’ve transcended that little tiff). Politicians in this colony desperately needed to reform their system of government before this relationship imploded upon itself. At the same time American ambitions for expansion emanated from below the border, and nobody felt too keen about a republican red, white ‘n blue flag being planted above it. Thus the idea of a union ebbed and flowed its way from sea to sea to sea. Kind of.
Despite a union’s ability to potentially ease the political deadlock in the Province of Canada (by making the French colonists the vast minority within a larger, mostly British dominion), and its assertive stance against American expansion, arguing for a union was no easy task. The Maritime colonies were among Britain’s oldest, and balked at the idea. They enjoyed established, functioning governments, with vibrant identities to boot, and were not fond of the idea of being but small cogs within a sprawling machine driven by central British North America. The French colonists, understandably, shared their sentiments. What to do, then? If only a system of government existed that ensured power over local issues remained in local hands even while an overarching national government was formed.
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When federalism, as a solution tailored to British North America’s dilemma, stared the colonies in the face, they stared right back. A federal union had been implemented in the United States and, as far as the colonies were concerned, it was a massive failure. The US had barely survived one of the most brutal civil wars in human history, and that war had hinged on whether or not state-level governments had the right to decide on slavery’s legality within their territories. The Southern states argued that this decision was up to each individual state, while the national government insisted that it certainly had a say in the matter. The federal system was not robust enough to stop this clash from precipitating into war, and this greatly concerned the Canadians-to-be. The non-violent element so characteristic of contemporary Canadian political culture thus had early beginnings: the colonies that were to form Canada initially resisted doing so precisely because the potential for war was so distasteful to them.
The so-called Fathers of Confederation were stuck between a rock and hard place: a unitary system of government would not be tolerable to the French or Maritime colonists, but a US-style federal union did not seem to prevent conflicts between two levels of government from escalating to war. The ultimate result foreshadowed a classic Canadian tendency: it fell somewhere in the middle.
A unitary system was rejected for a nuanced federal one. Canadian federalism empowered French and Maritime colonists to manage their local affairs even while granting the national government powers that Washington lacked. One such crucial power is outlined in section 91.27 of the Canadian constitution: the national government will have exclusive control over criminal law. It takes little imagination to connect the dots between two jurisdictions in the United States competing over which one defines the potential criminality of slavery, this competition’s evolution towards civil war, and the Fathers of Confederation securing such legal questions securely in the hands of one — the national — government.
Other sections also bolstered the Canadian feds in relation to the American ones. These included full jurisdiction over trade and commerce (section 91.2), the right to any form of taxation (section 91.3), and anything not specifically allocated to the provinces. The national government was also given ‘regular’ federal powers such as control over currency and national defense, along with purview over First Nations’ issues. Thus while provinces were given a veneer of power, a strong national government was established to keep Canada centrally united. Again, kind of.
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The historical evolution of any “-ism,” especially one that describes a system of government, is bound to stray beyond its initial construction, albeit at an incremental pace. The evolution of federalism in Canada does so in a splendidly ironic manner. The Fathers of Confederation, in all their wisdom, strove to avoid US-style federalism by empowering the national government while allocating all the unimportant, paltry, meagre, basically irrelevant policy areas such as, oh, I dunno, healthcare, to the provinces. Now in 1867 medical science was in its infancy, and such a blunder may be excused. Furthermore, the Fathers of Confederation can be forgiven for not anticipating the welfare state becoming the norm among even many liberal democracies in the middle-late 20th century, which would spark the necessity for massive state organisational capacity in order to keep citizens alive and well for as long as possible.
Healthcare was not the only big-ticket-item-to-be tossed under provincial jurisdiction. Canadians today live in one of the most decentralised federal unions in the world with provinces making laws on, administering, and regulating a host of policy sectors that did not seem all that important back when the country was patched together. Education, that fundamental area so essential to a state’s civic unity, is a provincial responsibility. So are property and civil rights, Crown lands, natural resources (you can guess where this item would’ve gone had the Fathers known about the amount of oil patiently waiting in Alberta’s ground), welfare, and municipal institutions. Although substantial funding still come from the feds (given their wider scope of taxation powers), a good chunk of the programs that most directly affect the everyday lives of Canadians are created and implemented by the provinces.
Such decentralisation does not appear to be yielding. Strong regional identities, a 1943 case that defined sales taxes as one form of ‘direct taxes’ (taxes provinces can administer), decreasing federal funds to the provinces, an ever assertive Quebec, and a current federal government that promotes a classical, pro-province understanding of federalism, all point toward Canada’s ‘decentralised credentials’ not going anywhere any time soon. Meanwhile, in a final twist of historic irony, our We’ll-Wage-War-Over-States’-Rights neighbours to the south have compiled exactly the sort of power in Washington that John A. & Co. hoped would perpetuate in Ottawa.
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We have a country that dances with two governments. Ask a Canadian political scientist how to slice bread, and they’ll say it depends on whether the loaf is under federal or provincial jurisdiction. This dance is never static: in Canada’s first couple decades the feds unquestionably took the lead. By 1896, however, provincial rights were being championed by Liberal politicians, and the courts began to give the provinces their legal due in the constitution by proclaiming that they held sovereignty over items under their jurisdiction.
Throughout the middle of the 20th century the pendulum of power swung back to Ottawa as two world wars necessitated unified leadership, and the Great Depression gutted provinces’ coffers. The 1960s and onwards, in turn, saw rising expectations around the role of governments and the kind of social services they should provide, bringing provinces, with their control over healthcare and education, back into the spotlight once more.
Today, even after more than two decades of governments’ love affairs with neoliberal economic policies, Canadians have high expectations of their public systems, whether it be healthcare, education, or disaster relief. This means provincial politics, although less flashy than national politics, will remain important, and the dynamic between the two — the dynamic of federalism — will continue to be the crucial variable in understanding Canadian politics as a whole.
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Johanu Botha is a student of public policy and political philosophy. His hobbies include the mandolin and intermittent bouts of existential angst. You can reach him at johanu.botha@mail.mcgill.ca