B. Canada as a Federal State

Author:Patrick J. Monahan - Byron Shaw

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The preamble to the Constitution Act, 1867 7 states that the provinces have "expressed their Desire to be federally united into One Dominion." However, despite this stated desire, the terms of the Constitution Act, 1867 did not establish Canada as a true federal union. In a number of important respects, the provinces were subordinated to the federal government. In fact, the relationship between Ottawa and the provinces, at least in 1867, has been described by one leading expert as a colonial one, in which Canada was to be governed from Ottawa similar to a unitary state.8According to Wheare, Canada was, in law, a quasi-federal state.9Although there were many centralizing features of the Constitution Act, 1867,10two features were particularly significant: the powers of reservation and disallowance. Under the Constitution Act, 1867, the federal government could appoint the lieutenant governors of the provinces and instruct them to withhold consent to provincial bills or to reserve them for the consideration of the federal government.11Furthermore, the federal government had the power to disallow or nullify any Act passed by the provincial legislature within two years of its enactment.12

Moreover, in one particularly important area of legislation, education, the federal Parliament was not limited to disallowing provincial laws but could actually enact remedial legislation of its own to override a valid provincial law or a decision taken by a provincial authority pursuant to a valid provincial law.13

The federal disallowance power was used extensively in the late nineteenth century, both in cases of allegedly unconstitutional statutes and in relation to provincial laws that were regarded by Parliament

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as unjust or unwise.14However, the disallowance power has not been used for more than fifty-five years. Where the federal government disputes the constitutional validity of a particular provincial statute, it now proceeds through the courts rather than resorting to the power of disallowance.15Similarly, the power of the lieutenant governor to reserve bills for the consideration of the federal government has not been used for more than fifty years.16Although the powers of reservation and disallowance have never been repealed and remain part of the formal Canadian constitution, they are now regarded as moribund on the basis that they are inconsistent with the principle of federalism. Today there is a firm constitutional...

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