Why those charting Canada's future cannot forget the past

The federalism of the Fathers was unorthodox, but was built on solid principles, writes Robert Sibley.

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Robert Sibley
In 1876, nearly a decade after Confederation, Enea Cavalieri, an Italian political scientist, visited Canada to study its system of government. He was surprised by what he found. Of all the federalist systems in the world that he had studied, he concluded that Canada's version of federalism was unique, if puzzling.
Canada's Confederation deserved attention, he wrote, because it signalled a novel political arrangement that might be useful as a model to other newly emergent nation states.
He had a point. The Confederation-era founders created a somewhat unorthodox state -- a patchwork political union stitched together from the remnants of Britain's North American empire, colonies that were divided by language, religion, culture and geography.
They accomplished this union by mixing two seemingly antithetical principles of political organization. In the words of the British North America Act of 1867 -- now known as the Constitution Act, 1867 -- the colonies were to be "federally united ... with a Constitution similar in principle to that of the United Kingdom." Which is to say, the Fathers of Confederation grafted a federal system of power-sharing between various governments onto a Westminster model of parliamentary sovereignty.
The problem is that a parliamentary system tends toward strong, unitary and centralized government, whereas a federal system inclines to decentralized government by giving regional or provincial governments a strong influence in governance. "Federalism," says Donald Smiley, one of Canada's pre-eminent constitutional scholars, "is difficult, if impossible, to reconcile" with parliamentary government.
Canadians have been tripping over this conceptual conundrum since Confederation. Some political scientists, such as Edwin Black, blame federalism for the "stillbirth of Canada as a national state."
David Milne says that while Canada has preserved its federal system, it has "fail(ed) to create a particularly strong sense of national identity and purpose." Others acknowledge that this fusion of antithetical principles of government is a key causal factor in Canada's repeated constitutional crises. As Richard Simeon says, "the federal system itself foster(s) some kinds of conflict that would not arise were the system unitary."
And therein lies the headache of Canadian political history. Our five-decade constitutional debate -- from the imposition of official bilingualism and the patriation of the Constitution to the Meech Lake and Charlottetown accords and repeated Quebec referendums -- can be linked to the tensions of a political system that combines federalism and parliamentary sovereignty. And now, after a decade's hiatus, the headache seems set to return, with the politicians talking about asymmetrical federalism or open federalism.
In April, Prime Minister Stephen Harper told a Montreal audience "the time has come to establish a new relationship with the provinces -- a relationship that is open, honest, respectful."
Even the scholars are returning to the constitutional field like lemmings to a cliff. The Conference Board of Canada recently sponsored a gathering that saw three scholars -- Antonia Maioni, director of the McGill Institute for the Study of Canada; Roger Gibbins, president of the Canada West Foundation; and Janice Stein, a political scientist at the University of Toronto -- present their views on the problems of Canadian federalism. The essays are to be published later this year by the Conference Board as part of its CIBC Scholar-in-Residence program. For the past month, the Citizen has run a series of articles discussing the scholars' ideas.
Ms. Maioni, for example, warns that Quebec separatist sentiment is lurking in the wings. "It is unfashionable to mention the C-word these days, (but) sooner or later the constitutional elephant in the room will have to be acknowledged," she writes.
Mr. Gibbins says the federal system "is poorly aligned with the economic challenges and opportunities of globalization," and argues for the federal government to focus on economic policy and get out of social policy.
Ms. Stein agrees "the Canadian federation ... is seriously misaligned," but she advocates a "networked" federal system to find creative solutions to Canada's political and economic problems. While these scholars, like others, take different perspectives on Canada's constitutional order, they all recognize a similar problem: Canadian federalism is increasingly dysfunctional.
Arguably, that dysfunction can be traced to the country's origins.
In 1867, the anglophone Fathers of Confederation wanted a unitary system of government that would place all power with a sovereign national parliament. The francophone fathers from Quebec, along with those from the Maritimes, weren't willing to submerge their regions' political autonomy and identity to a national government. They wanted constitutional protections for their communities. Francophones, in particular, wanted to protect their language and culture. They accepted a "political nation," but they wanted to maintain themselves as a distinct "cultural nation" -- "a nation within a nation," as La Minerve newspaper pronounced on Canada's first Dominion Day.
At the same time, though, francophones and anglophones recognized that for their union to work, they needed a national government with sufficient authority to bind the regions politically, create a national economy and establish a transcontinental commercial empire that would prevent annexation by the United States.
The result, constitutionally speaking, was a compromise. The new Dominion lacked many of the attributes traditionally associated with nationhood, including a common language, religion or historical tradition. One essential political interest all the colonies shared was not being American.
To this shaky scaffolding, the Fathers of Confederation attached a governmental model that appeals to diversity (federalism) with one rooted in unitary, hierarchical principles (parliamentary government). As political scientist Samuel LaSelva writes: "They built into Canada a tension that might eventually destroy it, but the same tension could also work to transform Canada into a distinctive kind of civilization." In short, even as the Fathers of Confederation constitutionalized separateness, they sought unity.
It's been that way ever since. Canadian federalism swings pendulum-like between the forces of centralization and decentralization. Scholars identify several distinct, if overlapping, types of federalism since Confederation -- from quasi-federalism and classical federalism to emergency federalism, co-operative federalism and executive federalism, for example -- that fit within the more encompassing categories of decentralization and centralization. According to Edwin Black, these various concepts of federalism "underlie and inform much of the political thought and action in this country."
There are those naive souls who think we can solve our constitutional crises if everybody would "practise a federalism of respect and recognition," to quote a recent Globe and Mail headline. Such sentimentality ignores the reality of constitutions: They are about power. Formal or informal, written or unwritten, a constitution identifies the fundamental power relationships between governments, and between governments and citizens.
Power has to go somewhere. Someone, some government, has to be responsible for the use -- and the abuse -- of power.
In terms of Canadian history, say scholars, periods of centralization have existed when the scales of power tilted in favour of the federal government, but the long-term trend, perhaps surprisingly, is toward decentralization. That might seem contrary to common perception, given the federal government's aggregation of power in recent decades. But since Confederation, provincial governments have been gradually gaining more power relative to that of the federal government.
It didn't start out this way. Quasi-federalism dominated the post-Confederation period, reflecting John A. Macdonald's preference for a unitary state. In this type of federalism, the power relationship between the central and provincial governments is similar to that of an imperial-colonial relationship. The Dominion government largely controlled the country's finances through its taxing power and its assumption of the major spending responsibilities -- the building of a transcontinental railway, for example -- for nation-building.
But as the provinces developed and pursued their own province-building agendas, quasi-federalism gave way to classical federalism -- the view that each level of government is independent and autonomous in its own area of jurisdiction and there is minimal interaction or overlap between the two levels. This type of federalism was dominant between 1896 and 1914 and, after the First World War, between 1921 and 1939.
Under classical federalism, the Canadian state was more genuinely "federal" than at any time before or since. There was, scholars argue, a reasonable balance of powers between the federal and provincial governments during this period, with each level of government largely working within its own constitutional jurisdiction.
Classical federalism was submerged by emergency federalism during the war years -- 1914 to 1918 and 1939 to 1945. The Dominion government assumed authority over everything from the economy to labour relations. It levied personal and corporate taxes, imposed wage and price controls and banned strikes. Canada became a centralized, unitary state.
After the First World War, the pendulum swung back to classical federalism. The provinces moved into personal and corporate taxes, and took greater responsibility for health, education and welfare.
It was different after the Second World War. The federal government didn't want to give up the powers it had acquired during the war years, particularly its taxing powers.
It used those powers to embark on a spending spree, imposing nationwide economic and social welfare policies that extended federal powers into areas that had traditionally been within provincial jurisdiction. As Mr. Black and Alan Cairns write: "Postwar federal governments exploited their overall dominance in the taxation field in an effort to orient the federation more or less permanently in a centralist direction."
The centralist tilt of co-operative federalism, as it's been called, prevailed for about two decades. But in the 1960s, with the rise of French-Canadian nationalism, the pendulum swung toward decentralization again. For about a decade, from about 1960 onward through Quebec's Quiet Revolution, Canada experienced what's been described as double-image federalism, a concept rooted in the notion that Canada is composed of "two nations" and that Confederation was a bargain struck to protect those two nations.
Quebec elites objected to the federal government's tendency to centralize social and economic policies through its spending power. While co-operative federalism might suit most provinces in their relationship to the federal government, Quebec wanted a "special relationship." Former prime minister Pierre Trudeau's imposition of official bilingualism was one federal response intended to mitigate Quebec's decentralizing demands.
But decentralist pressures increased through the late 1960s and into the 1980s. Quebec and the other provinces wanted more in terms of tax sources and revenues, and sought to reduce federal influence in areas they believed should be provincial jurisdiction. The federal government, of course, defended what it regarded as its turf. Federal-provincial conferences involving governmental elites in decision-making -- executive federalism -- were popular. But agreement was hard to find, and the federal government often acted unilaterally like an imperial power.
Donald Smiley points out that federal officials, anxious about the provinces' aggression and worried the federal government would be reduced to a minor role in social policy-making, struck back with policies to lure new constituencies to the centralist side -- everyone from environmentalists and women's groups to natives and multicultural organizations. Albertans, for example, won't forget Mr. Trudeau's efforts to appease vote-rich central Canada with the national energy policy.
But perhaps the most consequential lure was Mr. Trudeau's Charter of Rights, which, according to Alan Cairns, was intended, in part at least, as "a federal government instrument ... to limit the ongoing provincialization of Canadian society."
The Charter redefined the power relations of Canadian federalism, strengthening the status of citizens in relation to all levels of government. But it also had partisan purposes.
Political scientist Peter Russell argues that the Trudeau government was more interested in the nation-building aspect of the Charter than its "rights" dimension. "This national unity function of the Charter is most relevant to explaining why politicians, especially those who led the federal government, pushed so hard for a charter," he writes. They hoped the Charter had the "capacity to offset, if not reverse, the centrifugal forces which some believe threaten the survival of Canada as a unified country."
Mr. Trudeau, in particular, thought the Charter would provide a liberal individualist symbol of the country that would, over time, erode the more traditional communitarian-minded notions of Canada that sustained regional loyalties.
As political scientists Rainer Knopf and Ted Morton write: "The Charter of Rights was one of the ways in which the Trudeau government sought to give symbolic and practical expression to a national citizenship independent of regional location."
The old system of resolving the problems of federalism -- especially French-English relations and the tensions of centralization and decentralization -- through negotiations between government elites has certainly lost status in the post-Charter era. The failures of the Meech Lake and Charlottetown accords are testament to the rise of a Charter-enhanced citizenry. But it is questionable whether this shift in power relations has made Canadians more willing to live together. The idea of Canadians as individual bearers of rights and the idea of Canadians as members of a nation might sometimes conflict. Moreover, as long as Canada remains a federal state, it must, of necessity, presuppose the existence of national and local loyalties. Despite Mr. Trudeau's hopes, even the Charter of Rights cannot ensure harmony between these loyalties.
Indeed, Donald Smiley believes that in the long term, the Charter will exacerbate the country's inherent tensions. The Charter's tendency to judicialize politics may work against national unity if Canadians look to the courts instead of the legislatures as the preferred arena for deciding political action, he argues.
Canadians thus find themselves in an odd situation. As federalists, they have demonstrated a will to live together even as they insist on maintaining some degree of separateness.
The stability of this arrangement once depended on the prevalence of the idea that Canada is a state shared by two founding peoples. But as Canada becomes more heterogeneous with mass immigration, as regions become more sharply divided by economic fortune and as the focus of commerce shifts from east-west to north-south, it is possible that the will to live apart will become stronger than the will to live together -- unless, perhaps, Canadian federalism can be reworked to general satisfaction.
Prime Minister Harper's notion of open federalism arguably reflects some recognition of this situation.
In an interview in the March edition of Policy Options, he was asked about his "sense of federal-provincial relations." He replied: "One of the criticisms that I've had for years is that Ottawa has gotten into everything in recent years, not just provincial jurisdiction, but now municipal jurisdiction. And yet at the same time, if you look at Ottawa's major responsibilities, national defence, for example, the economic union, foreign relations, beginning obviously with the most important relationship, with the United States, Ottawa hasn't done a very good job of these things. So I think Ottawa would be better to concentrate on federal matters ..."
Translation: Mr. Harper's "open federalism" is an update on classical federalism.
The fundamental challenge in any federal system is finding a workable balance between the responsibilities of the various levels of government.
No rational person quarrels with the need for strong central government when it comes to national sovereignty or the defence of the realm. But is it rational to want the national government involved in day care, allotting hip replacements or determining urban transit needs?
Many such policy issues are areas that in other periods fell within provincial jurisdiction. While a "centralized" system of day care or direct federal intrusion into municipal matters would employ a lot of bureaucrats and provide federal politicians with a convenient way to remind voters of their importance, it is surely irrational to have the federal government deliver these kinds of domestic services if they can be handled by the provinces more efficiently and at less cost.
Of course, some believe that if the provinces gain influence, then, somehow, Canada as a whole is jeopardized. But this is to ignore the reality that Canada is a country of divided loyalties, as one scholar puts it, and that such an existential condition requires acknowledging the necessity of occasionally having to renegotiate our arrangements for living together.
Do our three scholars -- Ms. Stein, Ms. Maioni and Mr. Gibbins -- have anything to offer?
Ms. Maioni acknowledges that Mr. Harper's open federalism has won plaudits from Quebecers who think their province's distinctiveness may finally receive constitutional recognition. "Many Quebecers are projecting onto Harper their hopes and aspirations for Quebec," she says. Of course, if Mr. Harper doesn't deliver, he'll have a hard time forming a majority government. Thus, Ms. Maioni provides a warning of things to come.
Ms. Stein's ideas are more abstract. She advocates a "networked" federal system that blurs traditional distinctions of constitutional jurisdictions divided between governments in favour of a more overlapping system that, she believes, could link various levels of government (including municipalities) and foster "creative" solutions to Canada's political and economic problems.
She insists this isn't a formula for endless governmental chat groups, offering the model of open-source software, which, she says, works because someone is in charge of the network and ultimately decides what to do. "Ultimately accountability resides where legal decision-making ability resides."
Which is to say, if jurisdiction is determined to reside with a particular level of government, then that government calls the shots. If so, then Ms. Stein brings the debate back to the fundamental question of jurisdiction. Considering the greater capacity -- and self-interest -- of the federal politicians to migrate into other jurisdictions, Ms. Stein's networked federalism would, in all likelihood, promote greater centralization.
Mr. Gibbins argues against such a tendency. Indeed, he wants the federal government to leave social policy largely to the provinces and confine itself to national matters such as defence, foreign affairs and fostering cross-country economic development. This "new national policy" would refocus the federal government on its fundamental purposes, such as strengthening Canada's economic capacity.
Mr. Gibbins advocates the federal government retreat from areas of "social space," including health care, even as it assumes more direct responsibility for post-secondary education. Health care, he says, is inherently local in nature. "Therefore, the logic of federalism suggests that health care is a matter for provincial governments." Post-secondary education is different. The skills of college and university graduates are necessary for national economic success. Hence, "the logic of federalism suggests greater federal responsibility for post-secondary education." The tilt here, obviously, is to decentralization.
Such contrasting perspectives underscore the divisions of Canadian federalism, and reinforce the necessity for its periodic renegotiation. But they also point up perhaps the most needful thing: Beyond the centralization-versus-decentralization debate, we are also required to articulate why we are together as a nation. Only then, when first principles are clear, can the appropriate forms of political organization -- requiring alterations to parliamentary institutions, perhaps -- be determined. Federalism, as the Fathers of Confederation understood, is not only about accommodating differences, it is also about creating sufficient unity.
Robert Sibley is a senior writer with the Citizen. This summer, Citizen writers have been examining the concepts discussed by the Conference Board of Canada's CIBC scholars-in-residence, and their implications for the future of our country. This is the fifth and final article in the series.

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