The implementation of the British North America Act on July 1, 1867, marked the culmination of a process that had first been broached in the late 1850s. The specific proposal for federalism and for the union of the colonies had developed through seven fairly distinct stages. They included George Brown’s committee, which met from March to June of 1864; the work of the Grand Coalition in July and August; the Charlottetown Conference; the Quebec Conference; the negotiations and deal-making over the next two years; the talks and negotiations in London after October 1866, including the London Conference; and the final drafting of the Act from January to March of 1867.
This chapter will provide a detailed description of the sections of the BNA Act that apply to federalism and the union of the three colonies. It will examine the exact wording of the Act, the issues involved in the constitution, and some of the myths that have since arisen about Confederation. It will analyze important issues such as residual power, the federal power to veto provincial legislation, the importance of the responsibilities of the two orders of government, the question of sovereignty, and the relative power of the two orders of government. The story of the evolution of Canadian federalism will resume in Part II, with this analysis providing the foundation for understanding the ebb and flow of the various issues over the last 150 years.
The British North America Act
About half of the BNA Act’s 147 sections refer to federalism. The first paragraph explains why the British government passed an act uniting three colonies into one. Accordingly, “the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one Dominion . . .” The truth, of course, is that it was Britain that wanted the union, and the Assemblies of Nova Scotia and New Brunswick never expressed any such a desire. Other reasons for passing the Act included promoting the welfare of the provinces and the empire, providing a constitution, and providing for the admission of other colonies.
Section 5 states that “Canada shall be divided into four provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick.” The next one explains that the existing Province of Canada was being divided into the new provinces of Ontario and Quebec. Sections 21 to 36 explain the Senate and the allocation of its seats on the basis of equality of regions: twenty-four each for Ontario, Quebec, and the Maritimes, with the latter divided equally between Nova Scotia and New Brunswick. Senate appointments are made by the governor general, upon recommendation by the prime minister. The House of Commons is covered in Sections 37 to 52 and, as George Brown insisted, it is based on the principle of rep by pop. Its 181 members were allocated to Ontario (eighty-two, a gain of twenty), Quebec (sixty-five, a gain of three), Nova Scotia (nineteen), and New Brunswick (fifteen). Quebec’s representation was fixed at sixty-five, and that of other provinces was to be adjusted every ten years to reflect any changes in the ratio of their populations to that of Quebec.
Numerous sections explain the changes necessary to convert the three colonies into four provinces. Sections 64 and 88 declare that the status and powers of Nova Scotia and New Brunswick “shall, subject to the provisions of this Act, continue to exist as at the Union . . .” Ontario and Quebec also maintained the status they had enjoyed as the Province of Canada. These articles confirm that the politicians who wanted to reduce the status of the provinces to that of municipalities had lost the debate. When Britain granted its colonies democratic government, it had retained the power to “disallow” colonial legislation, and its governors had the power to “reserve” a bill if they thought Britain might want to disallow it. Britain retained those powers over Dominion legislation (Sections 56 and 57), and its power to disallow and reserve provincial legislation was transferred to the federal government and the lieutenant governors (Section 90). No change was made to these powers.
The heart of the constitution is Sections 91 and 92, which identify the division of responsibilities between the two orders of government, the most important element in any federal constitution. Section 91 begins by saying that the Queen, represented by the federal government, can “make laws for the peace, order, and good government of Canada, in relation to all matters not . . . assigned exclusively to the . . . Provinces . . .”. Then, “for greater certainty” regarding the meaning of peace, order, and good government, a list of subjects that are within “the exclusive [power] of Parliament” is provided. The federal responsibilities include the regulation of trade and commerce, the raising of money by any mode, the postal service, defence, navigation and shipping, the seacoast and fisheries, interprovincial or international ferries, currency and banking, patents and copyrights, Aboriginal affairs, naturalization, marriage and divorce, criminal law and penitentiaries, and various safety matters such as lighthouses or quarantines. Finally, the federal government has residual power over matters not assigned to the provinces.
Provincial powers are listed in Section 92, which begins: “In each Province the Legislature may exclusively make laws in relation to matters . . . hereinafter enumerated,” and then lists fifteen such items. They include amending provincial constitutions, direct taxation, public lands (natural resources), hospitals and asylums (health and welfare), municipal institutions (local government), local works, property and civil rights, and provincial laws and prisons. The allocation of local works to the provinces is qualified to exclude interprovincial or international transportation, and communications and public works declared by the federal government to be to the overall advantage of Canada or of two or more provinces. The last sub-clause, 16, defines the residual power of provinces: “Generally all matters of a merely local or private nature in the Province.” Although Section 91 gives Ottawa the power to make laws for the “peace, order, and good government of Canada,” the provinces have always made laws for peace, order, and good government within their borders, so that is definitely not an “exclusive” federal power.
Education was one of the issues that had led to deadlock in the Assembly of the Province of Canada, and it was delicately handled in Section 93, which says that the provinces “may exclusively make laws in relation to education . . .” A number of clauses then spell out minority education rights, but the wording is fairly clear: education is a provincial responsibility, but the existing legal rights of Protestant and Catholic minorities in the four provinces have to be respected. If they are not, the federal government has the right to intervene to protect them.
Two responsibilities, agriculture and immigration, could not easily be assigned to either order of government, so they are listed as shared (Section 95). Since conflict is inevitable in federal systems, one order of government had to be given paramountcy, in this case the central one. Other responsibilities were necessarily assigned to both orders of government, such as the right to borrow money, but these are not shared. A number of other provisions divide up the duties for courts and jails. The federal government was assigned responsibility to implement treaties that Great Britain signed with other countries (Section 132). That was necessary as Britain had to ensure that its treaty obligations would be honoured by its colonies even if they adopted federal constitutions, but foreign affairs remained solely the prerogative of the British government. One of the most significant sections covered the transfer of customs revenue to Ottawa and the subsequent requirement for Ottawa to return part of it so the provinces could execute their responsibilities (Section 118). Each province received a grant of eighty cents per capita based on the 1861 census, plus annual grants to assist with administration. The last two Sections, 146 and 147, provided for the admission of Newfoundland, PEI, and British Columbia if requested by their legislatures.
The Intentions of the Fathers of Confederation
The debates on the Quebec Resolutions had revealed wide differences of interpretation over what the proposed provisions meant. Some of those debates have been resolved over the years, some have never been resolved, and new ones have been added to the constitutional saga. Such differences of opinion are a fundamental and inevitable characteristic of federalism, and they often go to the heart of politics because the outcomes affect the power, wealth, and lives of the people in every province. It also reflects the balance of power between the central and provincial governments, both of whom represent the same citizenry. The history of Canadian federalism is largely the story of co-operation and conflicts between the two orders of government, and the ultimate conflict is over power, over which order of government makes the decisions that affect Canadians. This section will summarize a number of the issues that have arisen over the past 150 years and relate them to the debates of the 1860s and the BNA Act.
Many of the debates have been couched in terms of what the Fathers of Confederation may or may not have “intended” when they drafted the various clauses. There is no agreement, however, on who the Fathers were, and there were certainly more than the group that met at Charlottetown. The Fathers could include the twenty members of George Brown’s constitutional committee, the members of the Grand Coalition, and the delegates to the Charlottetown, Quebec, and London Conferences. The governor general, the lieutenant governors, and British colonial secretaries and their officials played large and perhaps crucial roles. These architects had a lot of different intentions, views, and interests, and many of the them made compromises and changed their positions during the debates. The discussions at the three conferences were held in secret, no notes were taken, and even when the politicians wrote editorials or letters, or made speeches, one cannot always know whether they meant what they said. Since 1867 these ambiguities have allowed people to pick and choose various pieces of evidence for what they think the Fathers “intended,” usually to support their views on what they wish the constitution actually said or meant.
Genuine or Quasi-Federalism?
One of the major debates in Canadian political history is over the question of whether the Act established a genuine form of federalism, often referred to as classic federalism, or if the central government was so strong vis-á-vis the provinces that the system was only “quasi-federal.” Whatever the “intentions” of the Fathers, the Act does not say that the two orders are equally sovereign (genuinely federal) or that the central government is dominant (quasi-federal). The first sentence in the Act says that the provinces are to be “federally united,” a very clear statement of intent to create a federal system. Section 92 identifies the “Exclusive Powers” of the provinces, and “exclusive” means that the central government cannot intervene. Sections 91 gives Parliament power only for “matters not . . . assigned exclusively to the . . . Provinces.” Those phrases suggest that both orders of government are autonomous in their spheres and that the system is therefore genuinely federal.
On the other hand, a number of clauses suggest that the central government is dominant, which implies that the system is quasi-federal. The central government was given the power to veto provincial legislation, but by convention that power was only to be used if such legislation harmed the wider interests of the Dominion or was outside provincial jurisdiction. Ottawa was given the authority to declare any provincial work a federal matter, but that was intended to apply to infrastructure that affected other provinces, such as transportation links. Ottawa was given authority to collect revenue by any means while the provinces were restricted to direct taxes, which were not important at the time. It therefore is not clear whether the Act established a genuine or a quasi-federal system, and that lack of clarity has persisted ever since.
Another debate centres on whether the Act assigned the more “important” matters to the central government, which might suggest that the system was designed to be quasi-federal. For English-speaking Canadians, the important matters of trade, commerce, taxes, and banking were assigned to the central government. For French Catholics and many Maritimers, the important matters of education, health, welfare, civil law, and property were assigned to the provincial governments, as was the very important economic subject of natural resources. Thus both lists of responsibilities contained “important” matters, and that was the win-win agreement that made federalism such an obvious option for both French and British Canadians and all of the colonies. Defence and foreign affairs are often identified as important tasks assigned to Ottawa, but defence was not important after 1867 and foreign affairs remained a British prerogative until 1931.
Ottawa and the Provinces: Equally Sovereign? Equally Powerful?
Another important debate about federalism concerns the question of whether both orders of government are equally sovereign or autonomous in their areas of responsibility. It is a rather odd debate, since the BNA Act makes clear that they are, in fact, equally autonomous. The first sentence of Section 92 states that the provincial legislatures “may exclusively make laws” in their areas of responsibility, that is, they are autonomous in those areas. Section 91 states that the central government can make laws “in relation to all matters” not assigned to the provinces, that is, it is autonomous in all those areas. So both orders of government have full power to make laws in their areas of responsibility, and neither has power to make laws in the other’s area of responsibility.
A variation on the debate about relative importance and autonomy concerns the question of which order of government is more powerful. The federal government had the right to declare any local work as being in the Dominion’s interest. This was a common-sense provision that would, for example, allow it to build the Welland Canal, which is entirely within Ontario’s borders but forms part of an international waterway. Ottawa needed that power to obtain land for general purposes such as building a railway, post office, or a military base. The power is limited by the phrase “for the general advantage of Canada or . . . two or more provinces.” The provision has worked well, and Ottawa has not used this power to dominate the provinces.
Ottawa was given the ability to raise taxes by any means, which certainly suggests “power.” But Ottawa was given costlier responsibilities at the time, it had to return part of the customs revenue to the provinces, and many provincial responsibilities were paid for through municipal taxes and church tithes. It is not clear at all that citizens paid more in taxes to Ottawa than they did to both the provincial and municipal governments, plus tithes to the churches that administered education, health, and welfare. And larger budgets are only one of many factors defining the relative power of competing governments.
The fact that the provinces were restricted to mere “local” issues might imply that the Fathers “intended” the provinces to be weaker. But constitutionally the word local meant within provincial borders, and many local issues were seen as being very important by their constituents. Municipalities fell under provincial jurisdiction, so Montreal, Toronto, and Halifax were “local.” The CPR was of great significance, but so were the extensive railway networks within each province, and the latter probably carried more freight and passengers than the CPR. The road from Cornwall to Windsor was local but hardly unimportant. In fact, almost all of an ordinary citizen’s dealings with governments or institutions came under provincial control, and they were almost certainly the most important matters for those individuals.
A related issue is the relative balance of power between the federal and provincial governments and changes in that balance. The balance reflects the relative importance of the two sets of responsibilities at any given time. Historically, the most important example is federal responsibility for defence, which turned Canada into a virtual unitary state during the two world wars. Both wars were then followed by trends towards a weakening of the federal government and increasing power for the provinces. For many other responsibilities, it does not matter which ones are becoming more or less important at any time, and such shifts do not affect any alleged balance between the two orders of government.
After the Second World War, a number of factors combined to increase greatly the importance of three provincial responsibilities: health, welfare, and education. Provincial and municipal spending mushroomed at the same time as federal spending on defence was declining. That is often cited as evidence of a swing in the balance of power, but it is not clear how having a hundred thousand fewer soldiers and a hundred thousand more teachers and nurses weakened Ottawa’s capacity to fulfill its duties, and it certainly did not lead to the provinces dictating to Ottawa in areas of federal responsibility. The following chapters document fluctuations in the relative importance of federal and provincial responsibilities, in the capacity of the two orders of government to meet their obligations, and in the effects of those factors on their relations.
During the Quiet Revolution of the 1960s, the phrase maîtres chez nous, “masters in our own house,” became popular in Quebec. It expressed the goal of Quebec nationalists and was endorsed by all the province’s political parties. It meant that French Canadians in Quebec, not Ottawa or the local English-speaking business class, were to be in charge of their own lives. In fact, Sections 92 and 93 of the BNA Act had clearly made French Canadians maîtres chez nous because these clauses gave Quebec control of almost every aspect of a citizen’s private life: home, business, farm, and property; schools, hospitals, and institutions; the laws that affected a citizen, unless they committed criminal acts; and culture. These issues were all handled in the citizen’s language and according to the individual’s values and interests. What the Québécois meant when they used the phrase after 1960 was that they wanted Ottawa and English-speaking Canadians to recognize that the Québécois still intended to be governed by laws made in Quebec City and not Ottawa. That issue eventually led to the near breakup of the country. Of course, Section 92 also made Upper Canadian Protestants and Maritimers “masters in their own houses,” but the phrase is only used in reference to French Canadians in Quebec as they continued their centuries-old quest to avoid assimilation.
Under the BNA Act, the federal government had to return part of its revenue to the provinces to allow them to execute their responsibilities. The amount of eighty cents per capita was grossly unfair, because the different colonies had very different types and levels of revenue and expenditure. Customs duties had accounted for 75 per cent of New Brunswick’s revenue, 72 per cent of Nova Scotia’s, and only 56 per cent of Canada’s. The new subsidy would provide 80 to 90 per cent of the revenue for Nova Scotia and New Brunswick, about 65 per cent for Quebec, and about 50 per cent for Ontario, and consume around 20 per cent of the federal budget. That was far more than adequate for Ontario, a little less than adequate for Quebec, and woefully inadequate for the Maritime provinces. The formula often left Ottawa with more money than was needed to finance its responsibilities and the provinces with less than they needed to finance theirs. This came to be called the “fiscal imbalance,” although there are other definitions of this term, and it has been a major element in the relations between Ottawa and the provinces ever since 1867.
The Provinces: Equal or Distinct?
One of the important aspects of any federal constitution is whether the provincial governments are all treated the same, which is known as symmetrical federalism, or whether they are treated differently, which is known as asymmetrical federalism. Canadian federalism has always been asymmetrical: the provinces have never been equal, and Ottawa has never treated them equally. There are at least a dozen specific examples of asymmetrical provisions in the BNA Act, a clear indication that the Fathers had no intention of treating all provinces the same. The American Senate is based on a symmetrical system with two seats per state regardless of population, but in Canada different provinces at different times have had twenty-four, twelve, ten, six, four, three, or two senators. Senate seats in Quebec were allocated differently than those in other provinces. Civil law in Quebec is different than in other provinces. Minorities had different degrees of protection in different provinces, and federal subsidies were different. The Intercolonial Railway benefited the provinces east of Ontario; the CPR benefited those west of Quebec. All provinces entered Confederation with different debts, subsidies, promises, rights, and numbers of senators per capita. And ever since, Ottawa has treated the provinces differently, with special treatment often reflecting political imperatives.
A Pact between Provinces or Peoples?
One of the major controversies of Confederation is the question of whether it was a pact (or compact), and, if so, whether it was between provinces or between peoples. The fundamental problem that led to Confederation was that French Catholics and British-Canadian Protestants in the Province of Canada had different values and therefore wanted different laws and government priorities. The basis of Confederation was, in fact, the informal agreement between Brown and Cartier that Canada had to have a federal system of government so that English-speaking Protestants could not interfere in the lives of French Canadians and vice versa.
Those two leaders represented the largest French- and English-speaking groups, which gives credence to the idea of Confederation as a pact between peoples. But the large Rouge faction of French Catholics opposed the deal; the Acadians were not part of the process; and the English-speaking colonists were not united on the merits of Confederation and belonged to three national groups, Irish, Scottish, and English. In fact, not one of the members of the Grand Coalition that drafted the scheme was of English background. Confederation was based on an unwritten understanding between two linguistic groups, not a pact or compact between two peoples, nations, or races. Confederation would have been a pact between provinces if the process agreed at the Quebec Conference had been followed, namely to have the agreement approved by the assemblies of the five colonies. But it was approved by the Assembly of the Province of Canada and not by Upper Canada (Ontario) or Lower Canada (Quebec), or the assemblies of Nova Scotia and New Brunswick.
An amendment process is an essential part of any constitution. The BNA Act was a British law, so the British Parliament could amend it simply by passing a law, and the Act states that the provinces can amend their own constitutions (Section 92.1). Most changes to the constitution were made by convention, however, meaning that Ottawa or one or more provinces took action that was not covered by the Act or that violated its provisions, but was either upheld or not challenged in the courts. Almost immediately after Confederation, Ottawa began making changes without seeking formal amendments simply by announcing a new policy or negotiating some arrangement with one or more provinces. Although the Act assigned trade to Ottawa, the provinces continued to promote trade abroad and no formal amendment was ever made to legitimize this very important convention. Similarly, sections of the BNA Act could become ineffective simply by failure to use them over a sufficiently long period. Federal powers such as disallowance and reserve fell into disuse, although they technically still exist. Most federal programs in health, welfare, education, and local economic government have represented changes to the constitution based on convention rather than amendment.
Myths about Confederation
Over the years, many myths have developed about Confederation and what it did or did not achieve. One is that “Canada” was created in 1867. In fact, Canada became a political entity with the Constitutional or Canada Act of 1791, and that name was simply passed on to the larger Dominion. It is often suggested that Confederation made Canada a country, but it remained a British colony until 1931. There are numerous references to Canadians becoming a nation on July 1, 1867. In fact, nations take centuries to evolve, and in 1867 the new Dominion was populated by First Nations, French Canadians, Acadians, English, Irish, Scots, and Americans, many of whom felt their prime “national” loyalty was to Britain, their province, or ethnic group, and certainly not to “Canada.” A favourite myth is that Sir John A. Macdonald was the most important Father of Confederation, but that title must be shared with George Brown and George-Étienne Cartier, as it was their view of federalism that prevailed, not Macdonald’s. Other myths are explored in detail in this book, including the idea that Ottawa was given all the “important” responsibilities, or that swings in the relative balance of power seriously affected the ability of Ottawa to handle its responsibilities. None of the myths diminish the near-incredible accomplishment of the Fathers of Confederation, but they have proven very valuable for nation-building over the past 150 years.