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5. Confederation Today
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The British North America Act
The British North America Act, Canada's constitution from 1867 until 1982, proved to be a durable and thoughtful foundation upon which to construct the new Dominion of Canada. The Fathers of Confederation, learning from both the British and American experiences, managed to come up with "the best of both worlds". It was a document that both satisfied their immediate aims and goals as well as provided the basis for future change and development. It was a document that would allow for future growth, geographical, economic, political, and demographic.
In order to understand and appreciate the wisdom and foresight of the creators of the BNA Act, one has to understand exactly what a constitution is. On a basic level, a constitution sets out the rules and regulations by which a country will be governed. It identifies the officers and officials who will govern the nation along with the specific power they will have and the jurisdictions for which they will be responsible. However, on a higher level, a constitution attempts to articulate what a nation stands for, the ways in which it is unique, and its future aspirations. It gives voice to the most fundamental values of the people of the nation along with their goals. It aims to be as inclusive as possible as well as well being both specific enough to address immediate needs and concerns while at the same time being general enough to allow for future contingencies, changes, and developments.
The British North America Act set in place the main characteristics of the new governmental structure. It would be a federal system. Two factors dictated that decision. One was the anticipated size of the nation. With greater size there would be greater diversity. So while a unitary system might be fine for a small country, in a large country a federal system, with more than one level of government was demanded. The second reason why a federal system was necessitated was because of the existence of Quebec. Cartier's French Canada, as a numerical minority, would not have joined a unitary system in which they would be potentially outvoted. Provincial governments, within a federal system, would protect, and hopefully promote, their culture.
Division of Powers
The main features of that federal system were outlined in Section 91 and Section 92 of the British North America Act. The former outlined the powers and jurisdictions to be looked after by the central government. Matters of national importance, such as currency, criminal law, external affairs, trade, and defense, were to be outlined by Ottawa. That had been the site chosen as the new capital in 1857 by Queen Victoria. Cartier's government, wanting to place the new capital away from the US border, also sought a compromise between the French and English, and a place where French Canadians could feel at home. Ottawa emerged as the choice.
There were 37 enumerated powers. As well, Section 91 closed with the "Peace, Order, and Good Government" clause which empowered the national government to make any and all laws not "expressly granted" to the provinces for the "peace, order, and good government" of Canada. Section 92 specified the 15 enumerated powers, such as education, civil law, and health care, which were allocated to the provinces.
Clearly, this distribution of power very much favoured the central government. This was precisely what Macdonald had sought. Wanting to avoid "a bloody civil war that had engulfed the United States for four years, he sought to avoid giving too much power to the provincial governments. Not only did the power allocation favour the national government. So too did its power of disallowance that enabled it to cancel any provincial statute that it, the central government, deemed to be in contradiction to a federal law. The fact that only the national government could levy both direct and indirect taxes again augmented its power. Finally, so too its control over Crown Lands as well as its power to nominate provincial lieutenant governors.
Challenges to Centralized Federalism
However, in the last quarter of the nineteenth century, Macdonald's centralized federalism faced a number of challenges. Some central government had to be relinquished in order to bring the three provinces, Manitoba, British Columbia, and Prince Edward Island, into the fold in the early 1870s. Joseph Howe successfully negotiated better financial terms for his native Nova Scotia from the central government. The three-man British Columbia commission had received that and a whole lot more - the federal government's promise of a transcontinental railway. More significantly, as the global depression began in 1873 and federal policies provided little, if anything, in the way of relief, provincial spokesmen began articulating strongly held local concerns. At the same time, they began demanding more power. If Ottawa could not resolve their economic woes, perhaps their own provincial governments could do a better job.
Federal-provincial rivalries almost inevitably arose given the realities of administering a diverse, transcontinental nation with varying needs and interests. What Ottawa believed would assist one area or group, often hurt another. Implementing federal decisions across the broad expanse of the new nation proved problematic at best. So too did the raising and spending of public revenues. French Canadian nationalism, and even more so the specter of separatism, added fuel to an already large and growing fire.
Recourse to Westminster
The old Canadian bromide of discussion and compromise helped to resolve some of the early federal-provincial disputes. However, it could not solve them all. When that happened, recourse was sought through the Judicial Committee of the Privy Council in Britain. This body, Canada's highest legal body until the Supreme Court of Canada took over that role, for criminal cases in 1933 and for civil cases in 1949, was appealed to as the final arbiter of political, legal, and social disputes.
The early decisions of the JCPC undoubtedly favoured the provinces at the expense of the federal government. (That was somewhat unusual given the American experience where the holdings of the John Marshall-led U.S. Supreme Court in the first third of the century greatly strengthened the power of the federal government and weakened that of the state governments. Two major issues were at the center of the early federal-provincial conflict. They were provincial boundaries and liquor licensing. In the early 1880s, a bitter border dispute arose between Ontario and Manitoba. Ottawa legislated a border between the two provinces. However, Ontario did not like the federal decision and successfully appealed to the JCPC.
Russell v. The Queen
Liquor licensing proved to be much more contentious. The landmark Russell v. The Queen in 1882 saw the federal-provincial fight reached its height. The case began innocently enough in Archibald Hodge's tavern and billiard hall in Toronto. The local liquor licensing board, claiming power through a provincial law, prohibited games to be played in any establishment that served liquor after the official 7 p.m. closing time. On May 7, 1881, Hodge closed up the bar, but allowed his customers to continue playing billiards. He was arrested and fined $20.
On the advice of his lawyers, Hodge appealed the fine believing that the JCPC would find the Ontario law to be an infringement of federal authority. However, in 1882, the highest court ruled against Hodge on the grounds that Ottawa held residual powers to legislate for "the peace, order, and good government". However, the Court reversed itself a year later by arguing that Ontario's power to make police regulations under Section 92 of the B.N.A. Act were supreme. The JCPC went further. It held that provinces were not mere "municipalities", as Macdonald had contended. Rather, within their own spheres they were sovereign with power equal to that of the federal government. The important precedent had now been established. The Hodge v. The Queen would be only the first of many rulings that began reducing Macdonald's conception of federalism.
Provincial Premiers
Nineteenth century provincial premiers would, just like some of their twentieth century counterparts, also augment provincial power at the expense of Ottawa. The two most noteworthy individuals from the earlier era were Oliver Mowat from Ontario and Honoré Mercier from Quebec. Mowat, premier for almost a quarter of a century, emerged as the leading spokesman of the provincial rights movement. A major focus of Mowat's efforts was to get rid of the federal power of disallowance. Following Mowat's lead, many provinces, upset with national policies, elected administrations dedicated to expanding local power. Honore Mercier, founder of the Parti National, was swept into power on the way of growing disillusionment with the federal government. In the wake of Riel's execution in 1885, Mercier positioned himself as the leading defender of French Canadian rights.
Even the Maritimes began asserting themselves. Their concerns were chiefly economic as the Atlantic region suffered a severe decline in the demand for its products. Led by Premier W. S. Fielding of Nova Scotia, they petitioned Ottawa for more beneficial fiscal and financial policies. When none appeared forthcoming, bitterness intensified. It reached its climax with the 1886 resolution that passed the Nova Scotia legislature calling on the Maritime colonies to withdraw from the Canadian federation and unite under a single Atlantic government.
Matters were scarcely much better in Western Canada. British Columbia also threatened separatism if the federal government did not come through with the promised transcontinental railway. John Norquay's Conservative government in Manitoba was upset with Ottawa's cancellation of charters for the construction of railway lines. Provincial authorities turned a deaf ear to the federal government crying poor. Norquay thought he could get around Ottawa's delay by passing provincial bills that cut into the CPR's monopoly. Each and every time, Macdonald invoked the power of disallowance. There were other sources of discontent in Manitoba. Riel's execution still loomed powerfully in their minds. So too their anger over the federal government's ownership of public lands.
The climax of the nineteenth century struggle between Ottawa and the provinces occurred in 1887 when the first ever interprovincial conference was held in Quebec City. Their animosity of things federal grew as speaker after speaker lambasted the federal government's indifference, intransigence, and perceived incompetence. While Macdonald dismissed the affair as a partisan affair - all but one of the premiers in attendance was a Liberal - he could not ignore the rising tide of provincialism. His view of federalism was a vision of the past. The future would be very different.
Sidelight: O Canada First PerformedO Canada! Our home and native land!  Calixa Lavallée and Le chant national O Canada was first performed on June 24, 1880 at a banquet for Governor General Lord Lorne and his wife Princess Louise, who was Queen Victoria's daughter. It took place in the "Pavillon des Patineurs" in Quebec City as the climax of a"Mosaïque sur des airs populaires canadiens" arranged by Joseph Vézina, a prominent composer and bandmaster. The music was composed by Calixa Lavallée, a concert pianist from Verchères, Québec. Sir Adolphe-Basile Routhier, later chief justice of Quebec, wrote the French lyrics to accompany the music. O Canada gained steadily in popularity. Many English versions have appeared over the years. In 1908, Montreal lawyer and Judge Robert Stanley Weir wrote the version on which the official English lyrics are based. It was revised in 1927. The official English version includes changes recommended in 1968 by a Special Joint Committee of the Senate and House of Commons. The French lyrics remained unaltered. O Canada was proclaimed Canada's national anthem on July 1, 1980, 100 years after it was first sung . |
Confederation in the Twentieth Century
For variety of reasons, the twentieth century would continue what the nineteenth century had begun. Provinces continued to get relatively stronger and Ottawa got relatively weaker. Even though that was not the Macdonald's intention, personalities and circumstances dictated that result.
One reason why provinces became increasingly stronger was simply the changing nature of society. Three of the powers originally allocated to the provinces, health, education, and welfare, mushroomed in both size and importance. Initially, in 1867 when they had been awarded those areas, they were relatively minor, with small budgets and staffs. In the post-Great Depression "cradle-to-grave" social welfare state, all three grew enormously. Now they were multi-billion dollar areas employing tens of thousand of people.
Another reason provinces augmented their power in the twentieth century was a 1930 amendment to the British North America Act. The natural Resources Transfer Agreement passed control of Crown Lands from the federal to the newer provincial governments. Significantly, at the same time that meant that after 1930, the provinces would control anything found in, on, or under those lands. That would become a major source of revenue, and therefore of power, for the provincial governments. The most notable example was the province of Alberta. Over the years, after the 1947 discovery of oil at Leduc, it amassed a fortune - upwards of $14 billion - in its Heritage Fund from oil and natural gas revenues.
Transfer payments, administered by Ottawa, also added to provincial autonomy. There was a recognition, after the mid-point of the century that there were certain "have" and certain "have not" provinces. The only fair thing was deemed to be have those provinces financially prosperous, such as Ontario and Alberta, pay subsidies to less well off regions, such as Newfoundland and Labrador.
Another factor that served to increase provincial power - and lessen federal control - was simply personalities. A number of strong, dynamic, and demanding provincial premiers emerged across the country. Brian Peckford and Clyde Wells in Newfoundland, Maurice Duplessis, Jean Lesage, and Rene Levesque in Quebec, John Robarts and Bill Davis in Ontario, Peter Lougheed in Alberta, and W. A. C. Bennett in British Columbia all added to provincial power. At the same time, there were several far less dynamic and forceful prime ministers who appeared only too willing to acquiesce in the loss of federal power. Examples included Joe Clark, Brian Mulroney, Kim Campbell, and John Turner.
Altered constitutional arrangements also augmented provincial power. For over half a century and half a dozen prime ministers attempted to repatriate its constitution. The B.N.A. Act was an act passed by the British parliament in Westminster and therefore could only be changed by that body. Thus, throughout the first three-quarters of the twentieth century whenever Canada wanted to change its constitution, it had to go to Britain and seek the permission and approval of British authorities. That last vestige of colonialism upset many Canadians.
However, constitutional change was an arduous process. Chief among many obstacles was the amending formula - how would this proposed "made in Canada" constitution be changed in the future? What formula would be used? Was it by provinces? By total population? By some combination of the two? As well, in any new constitutional arrangement, everyone was jealously guarding the power allocated to his or her particular area. Personalities were always a stumbling block to any successful resolution.
Finally in late 1981, Prime Minister Pierre Trudeau decided to act unilaterally and repatriate the constitution. He would get the constitution back to Canada and then obtain provincial ratification as well as decide on the amending formula. In a late night meeting in the kitchen of the Chateau Laurier hotel in Ottawa, federal and provincial negotiators hammered out the deal. The amending formula was to demand that for any subsequent changes, seven provinces compromising fifty percent of the total population of Canada had to agree. On the other thorny issue, enshrinement of a Charter of Rights and Freedoms, Trudeau got provincial agreement that such a Charter would indeed be written in and part of the new constitution.
The major problem, after Queen Elizabeth II came to Canada in April of 1982 to officially sign the new constitution into law, was that everyone was satisfied; except Quebec. They refused to sign the new accord. Led by separatist premier Rene Levesque and his Parti Quebecois government, they saw nothing in the new agreement that satisfied their cultural aspirations. That led, after Progressive Conservative Prime Minister Brian Mulroney came to power in the wake of Trudeau's retirement, to "the Quebec round of negotiations", which sought to bring Quebec into the constitutional family.
The first attempt was the 1987 Meech Lake Accord. It granted more provincial autonomy in a number of ways. Provinces would have more control in the area of immigration. They would have a greater say in the nomination of senators and Supreme Court justices. Quebec was to be designated "a distinct society". No one knew exactly what that meant. But that did not stop them from asking for similar designations for themselves, as well as more power.
The Meech Lake Accord had a three-year window. All provinces had to ratify the agreement by 1990. A change in government in Newfoundland that brought Clyde Wells into power proved to be part of the Accord's undoing. Wells would not allow the Accord to come to a vote in the Newfoundland legislature. Similarly, a native M.L.A., Elijah Harper waved a white feather in the Manitoba House and prevented the Meech Lake Accord from coming to a vote. Two provinces failed to approve the Accord and thus, despite last-minute salvage attempts, it expired.
In the aftermath, many felt that the Meech Lake Accord was too much of a "backroom" deal, that it had been cobbled together by the political elite without really finding out what average Canadians wanted. There was not enough, some argued, to satisfy women, natives, or labour in the Accord. Keith Spicer headed a cross-Canada commission that consulted hundreds of thousands of Canadians in an attempt to get grassroots input into any future Accord.
The result was the Charlottetown Accord. It too, like Meech Lake, granted considerable more power to the provinces. And like the earlier Accord, Charlottetown also went down to defeat in 1992. This time, it was not defeated in the houses of power but rather it was narrowly defeated in a national referendum.
However, the future of Canadian politics appeared clear. In the dynamics of power politics, provincial governments were gaining power as the federal government was losing it. Local governments were seen to be more responsive to the changing dynamics of a multi-cultural, economically diverse nation.
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