The Future of Federalism
Comment intends to tackle the big questions of Canadian public life. Few questions are as enduring, loom as large, or are as contentious at the moment as that of the Canadian federal regime. What is Canadian federalism supposed to be? How is it supposed to work? With this in mind, Comment approached a number of political commentators for their response to the question, "Do we need a new vision for Canadian federalism, and, if so, what should this vision be?" You will find that their responses, published below, are diverse and thought-provoking.
It is often said that the Fathers of Confederation wanted a strongly centralized federation. They "gave the national government such formidable power and influence over provincial governments as to place the latter in a position of nearly colonial subordination to the national government," according to Filippo Sabetti and Harold M. Waller ("Introduction: Crisis and Continuity in Canadian Federalism," Publius, 14:1, Winter 1984.)
According to this view, John A. Macdonald and his colleagues believed centralized government necessary to quell the kind of secessionist demands that in the 1860s were threatening civil peace south of the border. (For Macdonald's statements at the Quebec Conference of 1864, see GP Browne ed., Documents on the Confederation of British North America, Carleton Library, Toronto: McClelland and Stewart, 1968: 94-5.)
Some passages in the British North America Act (now the Constitution Act, 1867) support such a reading. The Peace, Order, and Good Government clause in section 91 (P.O.G.G.) would seem to give the federal level all constitutional powers not specifically accorded the provinces in section 92. The federal government appoints the provincial Lieutenant Governors, officers originally able to "reserve" provincial laws for examination by the federal cabinet. And "reserved" or not, a provincial bill could be vetoed ("disallowed") by the federal cabinet within a year of its enactment. Under section 92:10 (c) Parliament was given the power to bring "works" otherwise within provincial jurisdiction under federal control.
And so on.
(See Donald Smiley, Canada in Question, third edition, Toronto: McGraw-Hill Ryerson, 1980, for a fuller discussion of the quasi-unitary features of the BNA Act.)
But some of these explicitly "quasi-unitary" devices proved unusable. The last exercise of "disallowance" was in 1943; the last use of "reservation" was in 1961. The courts have limited the scope of Peace, Order, and Good Government.
Canada is now a highly decentralized federation. We have 11 governments (not to mention the territories) that cannot always get their act together. Why?
The scholars who tell the old story of Confederation blame the British Judicial Committee of the Privy Council, which before 1949 was Canada's final appellate authority. The JCPC shrank the importance of the P.O.G.G. clause, and expanded the provincial powers under section 92. Other factors have been at work, as all recognize, chief among them the rise of strong provincial premiers in the early years, men like Ontario's Oliver Mowat and Quebec's Honoré Mercier. But it is the interpretations of the JCPC that have occasioned the most controversy, and at least in some quarters, the most ire.
That's the old story. The Fathers intended a unified, centralized country. But the emergence of strong premiers and perverse judicial interpretation of a document that was perhaps not very clear to begin with wrecked that vision.
Let me suggest a different picture of the Canadian founding.
It's wrong to think all the Fathers were centralizers. It is true that John A. Macdonald wanted a strong central government. But from the beginning he had to work with ardent provincialists like George-Etienne Cartier, George Brown, and Oliver Mowat. Local pride was strong everywhere, very strong in the Maritimes. We sometimes forget that after the introduction of responsible parliamentary government in the 1840s, the colonies—still constituent parts of the empire—were for all practical purposes masters of their own domestic affairs. So much so that reading the debates on Confederation in the colonial legislatures one is amazed that these independent national entities ever agreed to union. The evidence shows that the Fathers, including Macdonald, knew very well that confrontations with the provincial premiers and local partisans would be an ongoing feature of political life in the new country.
That's why what they agreed to was not a centralized union as scholars used to think, but a flexible constitution with a balance of federal and provincial powers. The federal level got generous taxing powers and P.O.G.G. The provinces got a secure list of powers in section 92, including 92.13, (the "property and civil rights" clause) which was deliberately worded to invite just the kind of interpretation given it by the JCPC.
In short, the British North America Act was something of a compromise—in my opinion, a good sturdy compromise. It contained a formula for strong national government, and one for strong provinces. The two were meant to rub along together in a flexible arrangement. (See Smiley, pages 52-4.) And that, I suggest, is the way it has worked.
(This new picture of the Canadian founding is based on recent work of my own and also on the researches of Robert C. Vipond, and Paul Romney. See for instance Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner, Canada's Founding Debates, Toronto: Stoddart, 1999. This volume collects the legislative debates on union in the seven colonies of British North America; much of the material has not been published since Confederation. Also, Robert C. Vipond, Liberty and Community, Canadian Federalism and the Failure of the Constitution, Albany, New York: State University of New York Press, 1991, and Paul Romney, Getting It Wrong, How Canadians Forgot Their Past and Imperilled Confederation, Toronto: University of Toronto Press, 1999.)
Would the Fathers be disappointed if they returned today? Not necessarily. I think they would be proud of their work. Immersed in the daily headlines, Canadians these days see crisis and turmoil. Oh, the threats of separation! Oh, the quarrels over money! But in the world's eyes, as Will Kymlicka likes to remind us, Canada ranks as a supremely successful federation: peaceful, wealthy, civil, and enduring. We are an old country as constitutional democracies go. One of the world's oldest and one of the best.
We do not need a new constitution. We do not need a new federal vision.
A last word. Though I praise the flexibility of the constitution, I know it gives rise to a problem. When we see the two levels of government jostling for ascendancy it is easy to lose respect for the constitution, and for the idea of constitutional government. Everything is just politics, we say. Powerful trends in modern philosophy contribute to this "anti-foundationalist" notion, in ways that cannot be discussed in a short article. It remains that if we lose respect for constitutional government precious features of liberal democracy are endangered.
For this reason above all, I think we should refrain from drawing up constitutional visions and wish lists. "Mega-constitutional" projects are a more serious threat to the idea of constitutionalism than the ordinary squabbles of the first ministers. They invite non-negotiable demands (the "distinct society;" a third order of government for aboriginal peoples) while subjecting those demands to intense political contestation. And they are relentlessly future-oriented.
During the 1992 national referendum, Canadians allowed themselves to dream of a radically New Constitution, a New Canada. No one defended the "status quo," the constitution that had taken us through the first 125 years. We were prepared to kiss our founding principles good bye without even a thank you. Visionary politics generates anger and apathy. And threatens liberal democracy.
We can make the good old federal formula work. We always have, so far.
With the forces for greater provincial autonomy in disarray in Ottawa these days, it may seem like an odd time to forecast a rebalancing of power between Ottawa and the provinces. However, the current realignment of two provinces—Ontario and British Columbia—means that this balance is likely to shift in favor of the provinces. And given Alberta and Quebec's historic support of this position, Ottawa will likely be powerless to stop it.
There is a seismic shift currently taking place in Ontario—in Toronto's Queens Park, not Ottawa's Parliament Hill. As chronicled in journalist John Ibbitson's new book, Loyal No More, the Mike Harris government is shifting further and further away from the "Ontario is Canada" view and towards the "Ontario is Ontario" view.
We are, Ibbitson cogently argues, witnessing a return of Ontario to its deep history of autonomy and resistance to federal domination. This may seem odd to many Canadians who think Toronto is just as politically distant as Ottawa. But the fact of the matter is that supporters of classical federalism—the view that provinces and the federal government should be sovereign in areas of their own jurisdiction—owe a great deal to Oliver Mowat, premier of Ontario from 1872 to 1896.
Mowat was Canada's most successful champion of provincial rights. He used every tool at his disposal—pure power politics, legislation, and the British Privy Council—to wrest control away from Ottawa. During a time in which the Dominion was still finding its footing, Mowat successfully shifted the balance of power from Ottawa to the provinces. In doing so, he reversed many of the early victories that his bitter rival Sir John A. Macdonald had won against waffling provincialists during the Confederation debates. Mowat set the stage for a long period where Ontario held pride of place over Canada in what was already Canada's largest and most dominant province.
The more recent and common view of "Ontario as Canada" grew out of a spirit of compliance that ruled Ontario for 40 years. It is a view that is not only derisively shared by many Canadians outside Ontario, it is also proving remarkably resilient within Canada's largest province. The seeds for this view were sown by Ontario Premier Leslie Frost; they blossomed under Bill Davis, who sacrificed Ontario's interests to Pierre Trudeau's; and they reached their disastrous apex under David Peterson, who traded Ontario's interests for just about anything—sometimes even for nothing, as with the Meech Lake Accord.
Ibbitson's central argument is that Queen's Park is returning to a spirit of independence and away from a spirit of compliance. Bob Rae's "fair share" debate over unilateral cuts to Ontario transfer payments marked the beginning of a new era. Mike Harris is resurrecting Mowat's vision and increasingly views Ontario as a North American Region State, in the words of prominent economist Tom Courchene. Where Ibbitson uses political history, Courchene uses economic analysis to argue that Ontario should pay much more attention to its own destiny—principally that Ontario's north-south trading relationships are outstripping its east-west trading relationships.
Events in Lotusland are also playing in favor of a power shift between the provinces and Ottawa. You don't have to scratch too far below the surface of the victorious B.C. Liberals to find decentralist roots. In that way, B.C. Liberals resemble the Ottawa variety only in the way James Bond resembles Austin Powers.
The B.C. Liberal election platform talks openly about the equality of citizens and provinces, about equitable distribution of federal dollars, and equal voting rights for all Canadians (code for giving B.C. its rightful allotment of House of Commons seats). New B.C. Premier Glen Campbell has made no secret of keeping these reformers in the tent by being forceful in his dealings with Ottawa.
What does this all mean for Canada? Ontario and British Columbia are now aligned with the historic position of Alberta. Ralph Klein, now the senior statesmen among Premiers, can face Ottawa with a pair of partners that not even Ottawa can push aside. And if you add in careful doses of Quebec, Ottawa centralists are playing with a very weak hand.
This will play itself out in the coming months in important ways. First, Klein will get his place at the continental energy table in discussions with President Bush and Vincente Fox of Mexico. Both Campbell and Harris have already lent support to Klein's quest. The next move should be to build a coalition among these provinces to push for strengthening NAFTA's provisions regarding natural resources, giving natural gas "secure supply" status and protecting Alberta from any future energy-based tax raids by Ottawa.
Second, Ottawa's Romanow commission on Health Care will arrive well after each of these provinces mark out a strategy for health that will have little role for Ottawa. Quebec, too, has made it clear that it will look askance at any future federal involvement in health beyond providing dollars. These four provinces will coalesce around the idea that health reform must be driven by the provinces, not according to dictates from Ottawa. The Romanow report will either tow this line or be tossed aside, along with further federal meddling in provincial health plans.
Finally, the Social Union Accord, in which the provinces traded jurisdictional control for a few extra health dollars in 1999, is up for its three-year renewal next February. The new alignment, along with Quebec who never did sign the original Accord (but got the money anyway), will insist on the ability to opt out of federal programs with compensation and similar restrictions on Ottawa's ability to meddle. Failing that, the provinces will have a strong incentive to join Quebec by withdrawing their signature from the Accord.
These plays would be aided tremendously by a functioning force for decentralization in Ottawa. But it is wrong to think success will depend on it. It is a coalition of decentralist provinces, rather than a coalition of federal decentralists, that will force change in Ottawa.
When I left the United Kingdom in 1999, it was just taking its first tentative steps towards a federal system. As a longstanding advocate of a constitutionally-entrenched distribution of governmental powers across different tiers of government, I had been eager to witness its operation at closer quarters. The creation—or rather I should say the revival after three centuries—of the Scottish Parliament was a salutary departure from the British—or rather I should say English—tradition of unitary government with its excessive and damaging concentration of powers in London.
But my regret at leaving the UK before it entered the promised land of federalism was more than tempered by taking up residence in a country that knows as much about how federalism can work as most other countries today. Of course it also knows as much about how it can fail to work, or at least about the strains of trying to stop it from failing too spectacularly.
The UK, of course, has not yet created a truly federal system, because the powers of even the more robust Scottish Parliament are dependent entirely on a Westminster statute and have no entrenched constitutional status. It is precisely because the Canadian federal arrangement is written into its constitution that it both functions as well as it does—when it does—and generates such acute tensions when it does not.
Let me first explain where my sympathies for federalism come from and then briefly report—as a relative newcomer still trying to take the measure of a complex system with a unique history—on my current sympathies in the current Canadian debate about federalism.
A fundamental principle that should guide political thinking is the simultaneous functional differentiation and vertical distribution of authority and power across all sectors of society. This principle has two distinct deeper justifications: first, as the old but true adage puts it, all power corrupts, so we had better spread it around; second, human beings are designed not to be passive recipients of the commands of a single hierarchy but to be active agents in the cooperative, purposive exercise of multiple social responsibilities.
The first point argues against institutional power concentrations; the second argues for institutional pluralism, an arrangement in which many diverse human communities, associations, and organizations are accorded public space to fulfil their different social vocations.
Authority and power are inescapable features of any organized society. But the first question to ask is not who holds them ( to which I return), but what they are for—what moral purposes should they serve? Well, what moral purposes might political authority and power serve?
Let us say that the moral purpose of government is the promotion of a just regime of public laws and policies which enhances the responsible freedom of persons and communities. How well governments achieve that purpose depends partly on their structure.
It is not enough simply to concentrate on outputs—what governments can deliver for us. It is also vital to reflect on process—how they get to deliver whatever they do. Process involves many things, but crucial to it is: who gets to decide what, and how?
One fundamental distinction here is intra-governmental—the distribution of powers between different governmental organs, typically legislatures, courts, and executives. Although the classic formula of "the separation of powers" is never realized in pure form, it remains as important a guideline as ever.
But an equally important way of distributing political power and authority is across different tiers of government, each retaining constitutionally entrenched areas of primary jurisdiction. Those who favour a wide functional dispersal of social power across multiple communities, associations, and groups are likely to favour a clear territorial dispersal of political authority across national, provincial, and local governments. Alternative tiers of government act as a brake on federal encroachment, limit the size and cost of federal bureaucracy, allow public space for alternate public policy regimes, and open up opportunities for political participation closer to where people live.
Yet although there are strong reasons to defend provincial autonomy, certain areas of law and policy rightly accrue to the federal level. Provincial autonomy can be abused: the weak and vulnerable in one province or region (or municipality)—such as those dependent on public income-support, or visible minorities—are not necessarily more likely to get justice at any one level than another.
My instinct to support a federal arrangement is strengthened by another crucial consideration: federal systems are very well-suited to accommodating deep cultural diversity, when that diversity is territorially concentrated.
This is obviously the case in Quebec, and I find that my longstanding sympathy for Scottish, Welsh, and Northern Irish devolution transfers readily to a strong support for a constitutional recognition of the unique history and character of Quebec. Ultimately, this is not about outputs—and certainly not just about money—but about process, as the chilly reception of the Social Union Framework Agreement in Quebec made quite clear. But "process," here, is really about equal dignity through respect for difference.
A more urgent case of disrespect, however, is that which has been historically doled out to Aboriginal peoples. Whereas Quebec's desire for equal respect derives from its perception of cultural erosion, this erosion in the case of Aboriginal peoples is profoundly aggravated by massive social and economic disadvantage coupled with political powerlessness, indicating a chronic and tragic failure of Canadian governments at all levels to establish a regime of just public laws and policies for Aboriginal peoples. This leads me to a position of vigorous support for Aboriginal self-government as one necessary step towards redressing that historical injustice.
I am, of course, aware of the immense challenges facing autonomous Aboriginal communities and the lapses into which some local leaderships have fallen. But self-government is a new experience and needs to be given time and positive encouragement rather than negative reinforcement. As much as I regard the protection of provincial autonomy as an important political priority—especially in Quebec—the top priority for those concerned with a just dispersal of political power and authority in the Canadian nation today is, I venture, a redressing of the grievances of its First Nations.
We are faced, at the present time, with three dilemmas when we try to think and act on the meaning of Canadian Federalism from the perspective of the Red Tory tradition.
First, the nature of both globalization and the global village has reduced much to the simplistic and one dimensional ledger of profit and loss. When multinational corporations have little to hinder them, nations, communities, and families become leveled.
Globalization is very much a part of the liberal vision that seeks to erode all borders and creates the cosmopolitan citizen, a citizen that follows capital, is rootless, and tends to reduce much of life to contractual, commodity relationships. The competitive urge is dominant in this motif, and place is secondary to profit.
The liberal tradition in Canada not only longed to break free from the English and French traditions but was keen to embrace the American way of free enterprise. The older Tory way dared to question such a notion both in the past and today. Whether we turn to George Grant, Stephen Leacock, or Mazo de la Roche (and many others could be mentioned), the Canadian Tory way viewed love of one's own and loyalty to kin and country as above profit and mobility of people. The dogma of free trade is an anathema to the older Tory way, and it was only with the coming of Brian Mulroney that Conservatives naïvely turned to Reagan, free trade, the American imperial way, and globalization.
Second, when most people think of nationalism, the horrors of the Balkans, Rwanda-Burundi, the ethnic nationalism of the Germans, Italians, and Japanese in WW II or American imperial patriotism often steps on front stage. When our understanding of nationalism is shaped and defined by such a distorted image, thoughtful people shy away from nationalist interests or concerns.
For most, nationalism leaves a bitter taste in the mouth, but need this be the case? It is, in fact, only a strong nation and state that can resist and oppose the steamroller of globalization. When the state genuflects, as our modern Liberal government does, to the credo of globalization, citizens are left to defend themselves or become well-trained social Darwinians.
The Canadian Tory tradition has, for the most part, held high the role of a strong Federal government for the purposes of creating a just state. Canadian Tory nationalism cannot and should not be equated with the nationalism that we must and should oppose. The origins of this nation were laid by Tory nationalists that dared to build this country on a different foundation than the republic to the south.
The present turn by the Liberal Party, and the more extreme liberals, the Alliance Party, does much more to reveal an American Trojan Horse in our midst than a healthy Canadian Tory nationalism. Again, we need not linger too long with those like Macdonald, Borden, Bennett, or Diefenbaker to sense and feel the Tory nationalist way. David Orchard's, The Fight for Canada, sums up the nationalist battle in a most succinct and readable manner.
Third, the language of conservatism, in Canada, tends to reflect more American notions of conservatism than a historic Canadian understanding of conservatism. The American understanding of conservatism (republicanism) tends to pit the state against society, argues for a lighter state, lighter taxes, and more power to the individual and society. Canadian conservatism (Toryism) has a greater respect for the state, tends to see state and society working together for the common good (commonweal) of the nation, and does not object to higher taxes and national standards so that each and all will be treated fairly, justly, and decently.
The nature of an imperial power is to—either by direct military attack or by the more subtle means of economic, cultural, linguistic, or political influence—take over another country. Many Canadians have a tendency to think in a colonial manner, and our comprador class tends to pander to such a tendency. Is it not most interesting to note that the more we come within the American gravitational field, the more our language becomes the language of the empire to the south?
When most of us think conservative, we think free trade, lighter state, lighter taxes, more power to society and the individual; in short, we think in American terms. It is most fitting that the Alliance Party is seen as a conservative party (they merely reflect populist American republicanism). Our present Progressive Conservative party (and its mating dance with the Alliance party) also tends to echo American conservatism.
But is this the Canadian Toryism of a Dalton Camp, a David Orchard, a Heath Macquarrie, a George Grant, a Stephen Leacock, or Charles Taylor's Radical Tories? I don't think so! Amnesia is very much a dire aspect of our Canadian ethos, and much is lost if we forget who we are and where we have come from.
Space prohibits a serious and thorough discussion of the Red Tory tradition and Canadian federalism, but it should be clear from the above comments that a Red Tory welcomes a strong and just federalism, is most suspicious of excessive regionalization and decentralization, applauds a state that is concerned about justice, realizes that only a strong federal state can resist both globalization and American imperialism, and stands for a nationalism that is both concerned for citizens within Canada and those in the broader world.
It is this sort of Red Tory nationalism that built this state, and it is as we remember where we have come from that we might have the intellectual self-defense to throw off where we seem to be going. If we ever hope to overcome the dilemmas we face, the Red Tory well might be a good place to lower our buckets.
John L. Hiemstra:
Canadian federalism was initially constructed by John A. Macdonald as a centralized system with quasi-colonial controls on provincial power. Since then, federalism has been regularly adapted and revised to meet new challenges. This is a good feature of our constitutional practice, since political communities ought to develop institutions that enable them to do justice to all that lives within their boundaries. Growing religious and cultural plurality within Canada, complex intra-state issues, and rapid globalization require us to develop a new vision of federalism for the twenty-first century.
Federalism is first and foremost a mechanism for dealing with the geo-politics within a state. Federalism's sensitivity to spatial plurality has served Canada well in two ways.
First, immense distances between communities as well as great variations in geographical contexts—living by the sea, prairies, or mountains—have produced conflicting views of the common good. The federal structure has allowed Canada to incorporate these diverse realities into a single political nationality. At the same time, federalism has allowed provincial sub-units to solve many uniquely regional issues.
Second, federalism has been a means to do justice to Canada's deep plurality—religious, ethnic, and linguistic communities—but only in so far as they are geographically concentrated. The French Catholic minority in Canada, for example, used its status as a majority in Quebec to maintain its religious and cultural identity.
Federal accommodation of regionally-concentrated deep plurality could be further enhanced by adopting additional components of asymmetrical federalism. This historic practice of giving certain additional powers only to provinces that require them could enable these provinces to better serve the national minorities located within their boundaries.
Historically, however, when deep plurality has not been geographically concentrated, majorities within the federal or provincial units have often used government force to assimilate minorities. Some provinces have grudgingly allowed separate religious schools, for example, but then they have used their public schools to assimilate newcomers.
In order to do justice to deep plurality, therefore, federalism needs to be supplemented by policies enabling minorities to express their visions of life in and through social structures that they themselves control, such as schools, arts organizations, health care institutions, universities, and social services.
Deep plurality can be further protected by creating new forms of intra-state checks and balances. The Constitution Act, 1867 enabled the federal government to protect minority school rights by empowering it to pass remedial legislation to correct provincial abuses (s93). The failure of this mechanism to resolve the Manitoba School Crisis at the turn of the nineteenth century marked the death of this instrument. Today, Canada needs to develop a series of mutual checks between national and provincial levels in order to protect minorities from majorities at both levels.
Federalism has also failed to deal justly with the deep plurality found in native communities. In 1867, constitutional jurisdiction over aboriginal peoples was given exclusively to the national government. It exercised not only national powers but the full range of powers over these communities. Successive governments used these powers to pressure them either to assimilate into mainstream life or isolate in the privacy of reserves.
We need to create new, supra-federal mechanisms to justly integrate self-governing native communities into the Canadian political community. This needs to occur not only on geographically defined reserves but also in and alongside majoritarian institutions in urban areas.
Federalism allows provincial and national governments to tackle the issues that fall exclusively within their jurisdictions. There are many social, environmental, and economic issues, however, that do not fall exclusively into either category. A federal state must ensure that regional interests and provincial jurisdictional concerns are adequately heard and protected in national policies. At the same time, the national good, as well as international concerns, must be allowed to influence provincial policy-making. Canadians created executive federalism in order to achieve these ends. This practice allows intra-state concerns to be discussed and resolved either through "first ministers' conferences" or through "bureaucratic federalism."
Executive federalism has been seriously weakened, however. In reaction to the conflictual federalism of the Trudeau era, Mulroney sought to return to a more decentralized and co-operative form of federalism. Pressure to reduce the national deficit and reduce transfers to the provinces brought renewed conflicts that were further exasperated by tensions with the separatist government of Quebec. Therefore, as Rand Dyck argues in Canadian Politics: Critical Approaches (Third Edition, Scarborough, Ontario: Nelson, 2000: 420-22), the general thrust in the last 15 years has become collaborative but disengaging federalism. This disengagement weakens intra-state respect and accountability.
Executive federalism needs to be reformed to require re-engagement of both levels of government on issues of mutual concern. We also need to ensure that not only executive and bureaucratic players direct executive federalism, but that it also includes elected legislators and citizen groups. Intra-state respect and accountability can be enhanced further by requiring national and provincial governments to jointly appoint Supreme Court judges, Senators, and other relevant agencies and tribunals. Finally, Senate reform can be a way of strengthening regional voices within national institutions. Any such reform of the Senate, however, must be accompanied by mechanisms that ensure appropriate national influence in relevant provincial policy-making.
Globalization presents a massive challenge to federalism. Globalization refers to the pattern of choices and institutions that powerful groups and countries make in order to promote, and to adapt to, revolutionary new technologies and modes of communication, travel, production, and trade. These choices are decreasing the authority of states and magnifying the power of transnational corporations. As national and provincial governments experience decreased power, their tasks are increasing.
Globalization produces a host of new universalizing and localizing pressures. On the one hand, globalization pressures governments to accept universal standards and integrate into common trade blocs, for example, NAFTA, World Trade Organization, and Free Trade in Americas. Select large cities, whose trade and commerce has become more global than national, are being transformed into quasi-sovereign centres in the midst of these universalizing systems. On the other hand, globalization awakens the desire to maintain and celebrate local identities, cultures, and languages. Small regions and cities are being seen as the means to preserve local cultures.
As a consequence of globalization, therefore, we now face a four-levelled political and economic reality. National and provincial levels of federalism are sandwiched between transcending international economic and political institutions and super-cities on the one hand, and culturally-charged local and city governments on the other. The overlapping and inter-related nature of many contemporary issues, however, means that none of these four levels can resolve them independently. The massive challenge facing Canadian federalism is to create the political means to cooperatively tackle big issues. This will also require enhancing genuine democratic participation in policy-making at each of these four levels.
Whatever reforms of federalism Canada adopts, we must ensure that they better enable us to achieve social fairness, economic justice, cultural equity, environmental stewardship, and religious freedom.
Federalism is a system that divides political authority between two or more levels of government in such a way as to balance regional and local interests alongside national interests. Not surprisingly, although there are few genuine federal systems in the world today, those that have opted for this system tend to be geographically large with ethnically, linguistically, or religiously diverse populations. Canada, the United States, Australia, and India all fall into this category. Other countries, such as Russia, are attempting to make a go of federalism, even if they fall short of the norm in some fashion.
By most standards, Canada is a successful country enjoying nearly unparalleled political stability and economic prosperity. Yet the very structures of federalism that have facilitated this success seem continually to be called into question, not only by the forces of Québec separatism as embodied in the Parti Québécois and the Bloc Québécois, but also by Westerners dissatisfied with their minority status vis-à-vis central Canada.
I would suggest that, while the aspirations of Québécois and Westerners have considerable legitimacy, they are blaming the wrong institutions for their current plight. It is not federalism that is overlooking the aspirations of Québécois, Westerners, Aboriginals, and other minority communities; rather it is precisely those institutions most antithetical to federalism's pluralist character that are responsible for the centrifugal tendencies in this country.
After all, Canada, in the words of the Constitution Act, 1867, has a "Constitution similar in Principle to that of the United Kingdom," which means that many of the institutions of the British constitution have been grafted into the northern half of the North American continent. The historic British constitution, for all its antiquity and venerability, is predicated on majoritarian assumptions that have been less than successful in accommodating a diverse citizenry in that country. Over the long term, Catholic Ireland could find no secure place in a system dominated by Protestants. Scots have similarly felt ignored in a system dominated by a much more populous England. Only recently has the government of Tony Blair moved to devolve power to the component units of the kingdom.
Unfortunately, Canada has discarded what is best and retained what is worst in the British constitution. The latter's chief virtue is that it is unwritten and thus flexible enough to change with the times. Much of Canada's constitution is also unwritten, but at least since 1982 we have come to place too much emphasis on our practically unamendable, and thus excessively rigid, written constitution acts. Efforts to enshrine Québec's "distinct society" in these acts ignore the fact that it has already been recognized by convention and in law for over two centuries.
On the other hand, like Britain, Canada has been saddled with a political system that concentrates too much power in the hands of the cabinet and prime minister at the expense of Parliament. Furthermore, although Parliament is formally bicameral, the Senate, as an appointive upper chamber, is effectively unable to check the power of the executive-dominated House of Commons.
Finally, in contrast to the multi-party coalition governments of the European continent, Canada "enjoys" single-party governments elected by a minority of voters through an archaic first-past-the-post electoral system. In the absence of a single effective opposition party, this means that one party continually forms the government time and time again, to the detriment of healthy democratic institutions. Canada's federal division of powers is the one element attenuating the effects of an otherwise majoritarian political system.
This does not mean that Canadian federalism could not stand to change. I for one would urge that we abandon the shibboleth of equality of provinces and accept some degree of asymmetrical federalism, which would allow individual provinces to relate to Ottawa differently in accordance with their unique needs. There would be nothing wrong with permitting Québec greater autonomy over those areas which Newfoundland might be content to let Ottawa handle. Of course, the concomitant of this autonomy would be that Québec's MPs would refrain from voting in the House of Commons when such matters came up for a vote, simply because Québec would no longer be affected by a decision made at the federal level. This means we would have to develop new conventions capable of dealing with such a changed situation, because it might impact Parliament's ability to maintain confidence in a sitting government.
Apart from this one change, the most needed reforms should be made to those institutions that do not sufficiently recognize that politics is, in the words of Bernard Crick, about conciliating diversity in a peaceful manner. The following reforms should be considered:
- Adopt some form of proportional representation (PR) for elections to the House of Commons. This could be done in any number of ways, for example, through a single-transferable vote in multimember ridings or provincial lists of party-backed candidates. My personal preference would be for a German-style mixed-member system that would combine the best of our current single-member system with PR by compensating under-represented parties with additional members in the Commons.
- Transform the Senate into a genuinely federal and effective upper chamber. While strict equality of provinces is probably not feasible, the smaller provinces should certainly be over-represented for purposes of ensuring that central Canada cannot simply ignore their interests. Senators should probably be elected by the people of the provinces they claim to represent. Alternatively they might be appointed by the provincial governments.
- Strengthen Parliament and thereby diminish executive dominance. The first two reforms would inevitably accomplish this to some degree. Adopting PR would mean that parties would have to form coalitions to govern. Because it would have to depend on the agreement of two or more parties, a government could not simply count on party discipline to maintain the confidence of Parliament. An enhanced role for the Senate would have a similar effect.
In conclusion, it is not primarily federalism that needs reform; rather it is those institutions that, unlike federalism, are least able to conciliate the genuine diversity of the Canadian polity.