Evolving Canadian Federalism by Constitutional and Other Means

• Author: Kathy L. Brock/Geoffrey Hale
• Pages: 51-70

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Evolving Canadian Federalism by

Constitutional and Other Means

Introduction

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

FEDERALISM IN CANADA

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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