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Published online by Cambridge University Press: 07 November 2014
Canada provides an interesting illustration of how far a system of government in practice may depart from the provisions of a legally valid constitution. Although in 1867 the British North America Act created a relatively centralized form of government, today, through changes wrought by geography, convention, and judicial decision, Canada's machinery of government is essentially federal in its operation. In other words, Canada has developed an “unwritten” constitution which goes far toward ensuring the independence of provincial governments in the exercise of exclusive powers. In one or two important respects, however, we find the federal character of Canadian government still somewhat in doubt. And it is by examining whether the existing system satisfies the essential requirements of federalism that the post-war developments in federal-provincial relations may be fruitfully analysed; by examining, that is to say, the extent to which these developments represent a movement towards or away from federalism.
Since World War II, Canada's constitutional system has been affected by three important changes: (1) federal-provincial financial arrangements have been radically revised; (2) the Supreme Court of Canada has been charged with the final interpretation of the constitution; and (3) the method of amending the constitution has been changed. It remains to record these developments in greater detail, and then to discuss their implications.
1 In addition Newfoundland has become a province of Canada, but this event is not treated here.
2 Report of the Royal Commission on Dominion-Provincial Relations, Book II (Ottawa, 1940).Google Scholar
3 Letter from Prime Minister to provinces, Dominion-Provincial Conference, 01 14–15, 1941 (Ottawa, 1941), v.Google Scholar
4 Four provinces (Prince Edward Island, Nova Scotia, New Brunswick, and Saskatchewan) took the debt option, and Alberta was permitted to shift to the debt option in 1945.
5 Prince Edward Island, Nova Scotia, New Brunswick, Manitoba, and Saskatchewan.
6 Although the second guarantee did not call for any subsequent payments, the first required payments of $11.6 million in 1943. See Maxwell, J. A., Recent Developments in Dominion-Provincial Fiscal Relations in Canada (New York: National Bureau of Economic Research, 1948), 12.Google Scholar
7 The Conference was therefore named the Dominion-Provincial Conference on Reconstruction.
8 Contained in Proposals of the Government of Canada (Ottawa, 1945).Google Scholar
9 The maximum has since been raised to $40 per month.
10 Up to 3¾ per cent of the cost of a project, and limited in the first year to $1 per capita per recipient. These conditions were specified at the April, 1946, session of the Conference. See Dominion and Provincial Submissions and Plenary Conference Discussions (Ottawa, 1946), 386.Google Scholar
11 “On a scale and to an amount to be determined by the Dominion and to be announced in January of any year in which in the light of the general employment and economic situation the Dominion considers such assistance to be desirable.” Ibid. The 1945 Proposals had specified grants of 20 per cent of the cost.
12 Proposals, 49.
13 Submissions and Discussions, 398.
14 Ibid., 384.
15 Despite the constitutional provision, noted above, which gives the Dominion the right to raise money “by any mode or system of taxation.”
16 Submissions and Discussions, 414.
17 Letter from Prime Minister to Premier of Ontario, Oct. 18, 1946. See Dominion-Provincial Conference on Reconstruction, Correspondence since the Budget of 1946 on Matters of Substance Regarding the Tax Agreements with the Provinces (Ottawa, 1947), 20.Google Scholar
18 However, since Ontario and Quebec did not sign agreements, actual payments for 1947 were reduced to $97 million (including statutory subsidies to Ontario and Quebec of $6.1 million). See Maxwell, , Recent Developments in Dominion-Provincial Fiscal Relations in Canada, 18, 28, 34.Google Scholar
19 This was done on May 18, 1948. In November, 1947, moreover, the federal tax on electricity was removed.
20 Correspondence since the Budget of 1946, 54.
21 See Report of the Royal Commission on Prices (Ottawa, 1949), II, 138.Google Scholar
22 Proceedings of the Conference of Federal and Provincial Governments, 12 4–7, 1950 (Ottawa, 1951), 7. For details see pp. 138–46.Google Scholar
23 13 Geo. VI (2nd session) (Can.), c. 37, ss. 3, 7, reprinted in University of Toronto Law Journal, VIII, no. 2, 1950, 373.Google Scholar
24 British North America (No. 2) Act, 1949. Reprinted in University of Toronto Law Journal, VIII, no. 2, 1950, 372. A full discussion of this amendment, and of the first meeting of the subsequent Constitutional Conference, may be found in the Introduction to P. Gérin-Lajoie, Constitutional Amendment in Canada (Toronto, 1950).Google Scholar
25 This correspondence is published in House of Commons Debates, 10 17, 1949, 871.Google Scholar
26 Now section 91, subsec. (1), of the British North America Act (1867–1949).
27 For a discussion of the probable consequences if the provinces do not reach agreement, see my article, “Is Canada Ready for Nationhood?” Financial Post, 01 7, 1950, 7.Google Scholar
28 Proceedings of the Constitutional Conference of Federal and Provincial Governments (Ottawa, 1950), Appendix V.Google Scholar
29 Proceedings of the Constitutional Conference of Federal and Provincial Goverments (Second Session) (Ottawa, 1950), Appendix III.Google Scholar
30 Of these, no fewer than 36 would be in category (2) (amendment by the province acting alone).
31 See Financial Post, 12 2, 1950, 1, col. 4.Google Scholar
32 See Wheare, K. C., Federal Government (London, 1946), and the author's article, “India: The Making of a Nation,” International Journal, spring, 1950.Google Scholar
33 Proceedings (Second Session), 100.