The Constitution Act, 1867: Federalism and Judicial Power
| Author | Patrick J. Monahan, Byron Shaw |
| Pages | 107-162 |
107
CHA PTER 4
THE
CONSTITUTION
AC T, 1867
: FEDER ALISM
AND JUDICIAL POWER
A. FEDERA LISM DEFINED
K.C. Wheare put forward the classic definition of the federal prin-
ciple: a “method of dividing powers so that t he general and regional
governments are each within a sphere co-ordinate and independent.”1
Wheare’s definition provides that under a federal system, the general
and regional governments each h as an autonomous sphere of power
that can be exerci sed independently of the other. Further, the powers of
the central government are exercised directly in relation to indiv idual
citizens, rather t han indirectly through the states or provinces. A simi-
lar definition of federalism wa s offered by A.V. Dicey, who identified
the three leading ch aracteristics of a “completely developed federalism”
as including: (1) the distribution of powers among governmental bod-
ies, each with lim ited and coordinate powers; (2) the supremacy of the
constitution; and (3) the authority of the courts as the interpreters of
the constitution.2
Although Wheare’s definition has been cr iticized by some com-
mentators as being unduly legalist ic3 and as placing undue stress on
1 K.C. Wheare, Federal Government, 4th ed. (L ondon: Oxford University Pres s,
1963) at 11.
2 A.V. Dicey, Introduction to the Study of th e Law of the Constitution, 10th ed. (Lon-
don: Macmill an, 1959) at 140.
3 See, for example, P.T. King, Federat ion and Federat ion (Baltimore: John s Hopkins
University Pre ss, 1982) at 77.
CONSTITUTIONA L LAW
108
the separateness of the centr al and regional authorities,4 it provides a
basis for disting uishing federal from other forms of government and
remains widely accepted. Donald Smiley, building on Wheare’s formu-
lation, offered the following three-part working definition of a federal
state,5 which we adopt for purposes of this book:
• legislative powers are dist ributed between a central and a regional
government;
• the powers of the central and regiona l governments are not subject
to change by the other level of government; and
• individual citi zens are subject to laws enacted by both the centr al
and the regional governments.
This formulation clearly distinguishes federal systems from unitary or
confederal systems of government. In a unitary state, ultimate political
authority resides in the centr al or national government. The central
government may establish regional or local governments, but local gov-
ernment powers are not constitutionally ent renched and are subject to
unilateral change by the central government. France and New Zealand
are examples of unitar y states.
In confederations, on the other hand, ultim ate political authority
resides in the states or regional governments, and the central govern-
ment acts as their delegate. In this model, the central government may
not even have the power to enact laws directly affecting individual
citizens. For example, the Articles of Confederation adopted by the
American colonies in 1777 did not grant the national government any
free-standing power of ta xation. Instead, the national govern ment’s
sole source of funds was grants received from the state governments.
Only the states had t he power to levy taxes d irectly on the population.6
4 See A.H. Birch, Federalism, Finance and Social Legislation (Oxford: Cla rendon
Press, 1955) at 306.
5 See D.V. Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryer-
son, 1987) at 2.
6 A consensus emerged among t he states after the conclus ion of the American
War of Independence in the 1780s th at the national government’s powe rs need-
ed to be strengt hened. This led to the Constit utional Convention of 1787 and
the adoption of the fin al form of the American con stitution, which granted th e
national gover nment significant new power s such as the right to levy ta xes and
to regulate int erstate and foreign commerce. The U.S. thu s transformed what
had been a confeder acy into the first example of a t ruly federal form of govern-
ment.
The Constitution Act, 1867: Federalism and Judic ial Power
109
B. CANADA AS A FEDERAL STATE
The preamble to the Constitution Act, 1867
7 states th at the province s
have “expressed their De sire to be federally united into One Domin-
ion.” However, despite this stated desire, the terms of the Constitution
Act, 1867 did not establish Canada as a tr ue federal union. In a number
of important respect s, the provinces were subordinated to the federal
government. In fact, the relationship between Ottawa and the prov-
inces, at least in 1867, has been described by one leading ex pert as a
colonial one, in which Canada was to be governed from Ottawa similar
to a unitary state.8 According to Wheare, Canada was, in law, a quasi-
federa l state.9
Although there were many centrali zing features of the Constit ution
Act, 1867,10 two features were particularly significant: the powers of res-
ervation and disallowance. Under the Constitution Act, 1867, the federal
government could appoi nt the lieutenant gover nors of the provi nces
and instruct them to w ithhold consent to provincial bills or to reserve
them for the consideration of the federal government.11 Further more,
the federal government had the power to dis allow or nullify any Act
passed by the provi ncial legislature within two yea rs of its enactment.12
Moreover, in one particularly important area of legi slation, education,
the federal Parliament was not limited to disallowing provinci al laws
but could actually enact remedial legi slation of its own to override a
valid provincial law or a deci sion taken by a provincial authority pur-
suant to a valid provincial law.13
The federal disallowance power was used extensively in the late
nineteenth century, both in case s of allegedly unconstitutional statutes
and in relation to provincial l aws that were regarded by Parliament
7 (U.K.), 30 & 31 Vict., c. 3.
8 See the discussion in J.R. M allory, The Structure of Canadian Gove rnment, 2d ed.
(Toronto: Gage, 1984) at 367–70.
9 Wheare, above note 1 at 18–20.
10 For a discuss ion of other centralizing fe atures, including the feder al power to
appoint judges of the prov incial superior court s and the federal power to
“declare” works and under takings to be subject to exclu sive federal jurisdict ion,
see P.W. Hogg, Constitutional L aw of Canada, looseleaf, 5th e d. (Toronto: Car-
swell, 2009) at 5.3(a).
11 See the Constitution Act, 1867, ss. 55–57, 58, and 90.
12 See ibid., ss. 55–57 and 90.
13 See ibid., ss. 93(3)–(4). This power could be exercis ed to override any decisions
of provincial aut horities which, in the opin ion of the federal government,
affected gu aranteed rights of relig ious minorities in relat ion to denominational
schools.
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