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The Special Nature of Canadian Federalism

Published online by Cambridge University Press:  07 November 2014

F. R. Scott
F. R. Scott*
Affiliation:
McGill University
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Extract

Since the end of hostilities in 1945, Canada has been undergoing a rapid constitutional change. The power to make laws on many vitally important matters, which on the outbreak of war in 1939 became vested in the national Parliament either under the emergency doctrine or under the specified jurisdiction over defence, has now almost entirely passed back again to the provincial legislatures. The process of decentralizaton is slower than the former centralization, but it is well under way. A shift in legislative authority is thus in process, affecting such subjects as production and investment control, labour legislation, rent restriction, regulation of prices and wages, man-power distribution, and other essential elements of economic planning. The War Measures Act ceased to be in effect on January 1st, 1946, and the National Emergency Transitional Powers Act which replaced it is being continued on a purely temporary basis. While further prolongation of the latter act may be sought on the theory that the war emergency is not yet over, the mere lapse of time will bring increasing doubt as to its constitutional validity. Sooner rather than later Canada will revert to all the constitutional limitations on the national government which existed in 1939; the one exception is unemployment insurance, the first and only transfer from provincial to federal legislative power made by formal amendment since 1867. The various taxation agreements between the central and local governments, some of which have been renegotiated on an individual basis, have not shifted the legal power to levy taxes but have merely produced a voluntary abstention on the part of some provinces in respect of certain forms of taxation.

Type
Articles
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 13 , Issue 1 , February 1947 , pp. 13 - 25
Copyright
Copyright © Canadian Political Science Association 1947

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References

1 This Act as amended in 1946, expires March 31, 1947, or sixty days after the opening of the 1947 session, whichever is the earlier.

2 The Statute of Westminster enlarged federal authority in regard to both extraterritorial legislation and the repeal of British statutes affecting Canada, and thus in effect amended the B.N.A. Act, but this was not a direct alteration of the terms of the constitution.

3 Report to the Senate of Canada, by W. F. O'Connor (Ottawa, 1939), at p. 13.

4 See his article “The Canadian Constitution and the United Nations Charter” (Canadian Journal of Economics and Political Science, vol. XII, no. 2, 05, 1946, p. 127).Google Scholar

5 Toronto, 1946, at p. 20.

6 B.N.A. Act, sec. 90.

7 See Kennedy, W. P. M., The Constitution of Canada (Toronto, 1922), at pp. 427 ff.Google Scholar

8 In re Disallowance and Reservation, 1938 S.C.R. at p. 71, where it was held that the power was unrestricted.

9 Ibid., at p. 77.

10 See Forsey, E. A., “Disallowance of Provincial Acts” (Canadian Journal of Economics and Political Science, vol. IV, no. 1, 02, 1938, p. 47).CrossRefGoogle Scholar

11 B.N.A. Act, sec. 92, ss. 1.

12 Quebec Resolutions, no. 45; London Resolutions, no. 43.

13 Clement, W. H. P., The Law of the Canadian Constitution (3rd ed., Toronto, 1916), p. 468.Google Scholar

15 Grand Trunk Railway v. A. G. for Canada, 1907, A.C. 65.

15 1932 A.C. 514 at p. 521.

16 Undaunted by the law of the constitution, Premier Duplessis has even contended that “It is the considered opinion of the province of Quebec, it is the considered opinion of highly qualified jurists, that the fact that the constitution of 1867 specifically gives to the provinces the right of direct taxation means conclusively that the provinces have priority in the matter of direct taxation. Otherwise Confederation would be meaningless.…” In Dominion Provincial Conference Proceedings, Plenary Session No. 5, April 29, 1946 (Ottawa, 1946), at p. 29.Google Scholar No authority is given for this extraordinary opinion.

17 Quebec Resolutions, no. 43, ss. 15; London Resolutions, no. 41, ss. 15.

18 This is the orthodox view. As Clement puts it (Law of the Canadian Constitution, p. 468) “the exclusive authority of the provincial legislatures over the 16 enumerated classes of section 92 is weakened and, in a sense, invasion is made possible by the concluding clause of section 91.” Even if Mr. O'Connor's new interpretation is accepted the same result follows.

19 Lord Atkin's unfortunate metaphor, used in the Labour Convention Case, 1937 A.C. 326, at p. 354.

20 Duff, C. J., in Chemicals Reference Case, 1943 S.C.R. 1 at p. 10.

21 1-2 Geo. V, c. 28.

22 1917, c. 18.

23 Labour Conventions Case, 1937 A.C., 326 at pp. 349-50.

24 See “The Treaty Making Power in Canada,” the League of Nations Society's brief to the Sirois Commission, Appendix II, for the treaty powers of other federal states. It is usual and normal to place the power in federal hands.

25 “The Canadian Constitution and the United Nations Charter,” p. 128. This statement begs the question: if a federal power over treaties exists, its use does not increase federal powers at provincial expense any more than does the making of a new crime.

26 See the second of the Quebec and London Resolutions.

27 See Dominion-Provincial Conference Proceedings, cited above, at p. 29.

28 Ibid., chap. XXII.

29 The HonourableMcGee, D'Arcy, in Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec, 1865), p. 146.Google Scholar See also the remarks of Dorion at p. 263 and Cauchon at p; 701. Rankin believed that, under the Confederation scheme, “the Federal Parliament will possess the same power to change, alter or amend for the whole country, as we now possess for Canada alone. …” Ibid., p. 918.

30 See, for example, the joint resolution requesting the 1854 amendment, in the Journal of the Parliament of Canada, 1852–1853, at p. 944.Google Scholar

31 House of Commons, Special Committee on the B.N.A. Act, Minutes of Proceedings (Ottawa, 1935), at p. 25.Google Scholar

32 These motions are cited in Rogers's, N. McL. paper on “The Compact Theory of Confederation” (Proceedings Canadian Political Science Association, 1931, s. 205 at p. 222).Google Scholar

33 Cited by Dr.Skelton, , Special Committee on B.N.A. Act, Minutes of Proceedings, at p. 27.Google Scholar

34 Before the House of Commons Special Committee on the B.N.A. Act. See Minutes of Proceedings, at pp. 86 ff.