Evolving Canadian Federalism by Constitutional and Other Means

AuthorKathy L. Brock/Geoffrey Hale
 
Evolving Canadian Federalism by
Constitutional and Other Means
Federal systems require negotiations and constant adaptation or
change in order to remain vibrant and relevant. e lack of a formal
domestic constitutional amending formula in the original Consti-
tution and the inability of the federal and provincial governments
to agree upon one until  meant that formal constitutional
changes were dicult to secure unless at the level of “housekeep-
ing” matters, with a few exceptions, until the mid-twentieth century.
Constitutional amendments to the Constitution Act, 1867 aecting
the division of powers or both orders of government required prov-
incial consent and a joint address of both Houses of Parliament
before they could be sent to the British House of Commons. As the
judicial history showed, the governments were protective of their
jurisdiction and not inclined to agree on changes that would reduce
their powers, so there were few requests made for substantive consti-
tutional amendments. Instead, much of the genius in the evolution
of Canadian federalism lay in the ability of the governments to f‌ind
creative ways to work with each other and often around the original
constitutional deal. Up until the Great Depression of the s and
the Second World War in the s, for the most part this was not
a serious diculty as the governments operated relatively autono-
mously. However, as the need for intergovernmental cooperation
increased and policies grew more complex, the pressures for formal
changes to the Constitution grew.
is chapter brief‌ly sketches three broad historical phases of the
evolution of Canadian federalism through formal constitutional
change:  to ;  to ; and  to the present. To
set the stage for these phases in the evolution of federal relations,
the chapter begins with a short discussion of how federalism and
the division of powers have evolved through other constitutional
means. e remarkable thing about this history is how adaptable
the Canadian federal system has been, particularly when formal
constitutional change has been either undesirable or unattainable.
is is certainly evident when the terms of the original Constitution
are considered in relation to how federalism and intergovernmental
relations have operated in practice. However, the spirit of federalism
and the federal principles as def‌ined by the Supreme Court of Can-
ada and as discussed in earlier chapters have guided this evolution.
The Evolving Federal Bargain:
Constitutional Change by Other Means
A constitution can evolve, adapt, and grow through various means,
not just judicial decisions. As the following chapters reveal, the
Canadian governments have learned to pivot and collaborate to
meet the needs of Canadians in most areas, albeit not always easily
or with alacrity. us, constitutional change has been achieved in
practice through various means.
Much change has been attained through organic means as the
Constitution and its provisions have evolved through usage. is
type of change includes non-use, deliberate disuse, disregard, or
interpretation. Non-use applies to powers enumerated in the Con-
stitution that have never been exercised. For example, section  of
the Constitution Act, 1867 provides for Parliament to “make Provision
for the Uniformity of all or any of the Laws relative to Property and

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