The Constitution Act, 1867: Federalism and Judicial Power
| Author | Patrick J. Monahan/Byron Shaw/Padraic Ryan |
| Pages | 106-162 |
106
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 princi-
ple: 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 sy stem, 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 sim-
ilar definition of federalism was 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 Press,
1963) at 11.
2 A.V. Dicey, Introductio n to the Study of the Law of the Constitut ion, 10th ed.
(London: Macmill an, 1959) at 140.
3 See, for example, P.T. King, Federalism and Federation (Baltimore: Johns Hop-
kins Univer sity Press, 1982) at 77.
The Constitution Act, 1867: Federali sm and Judicial Power 107
the separateness of the central and regional authorities,4 it provides a
basis for disting uishing federal from other forms of government and
remains widely accepted. Dona ld 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:
1) legislative powers are dist ributed between a central and a regional
government;
2) the powers of the central and regional governments are not subject
to change by the other level of government; and
3) individual citizens are subject to laws enacted by both the central
and the regional governments.
This formulation clearly disti nguishes federal systems from unitary or
confederal systems of government. In a unit ary state, ultimate political
authority resides in the central or national government. The central
government may establish regiona l or local governments, but local gov-
ernment powers are not constitutionally entrenched and are subject to
unilateral change by the central government. France and New Zeala nd
are examples of unitar y state s.
In confederations, on the other hand, ultim ate political author-
ity resides in the state s or regional governments, and the central gov-
ernment acts as thei r delegate. In this model, the central government
may not even have the power to enact laws directly affecting individ-
ual 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 government’s sole
source of funds was grants received from the state governments. Only
the states had the power to lev y taxes directly on the popul ation.6
4 See A.H. Birch, Federalism, Finance and Social Legislation (Oxford: Clarendon
Press, 1955) at 306.
5 S ee D.V. Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryer-
son, 1987) at 2.
6 A cons ensus emerged among the state s after the conclusion of the Amer ican War
of Independence in th e 1780s th at the national government’s powe rs needed
to be strengt hened. This led to the Constitut ional Convention of 1787 and the
adoption of the fina l form of the American const itution, which granted the
national gover nment significant new power s such as the right to levy t axes and
to regulate int erstate and foreign commerce. The U.S. thu s transformed what had
been a confederac y into the first example of a tr uly federal form of government.
CONSTITUTIONA L LAW108
B. CANADA AS A FEDER AL STATE
The preamble to the Constitution Act, 1867
7 states that the provinces
have “expressed their De sire to be federally united into One Dominion.”
However, despite this stated desire, the term s of the Constitution Act,
1867 did not establish Canad a as a true federal union. In a number of
important respect s, the provinces were subordinated to the federal gov-
ernment. In fact, the relationship between Ottawa and the provinces,
at least in 1867, ha s been described by one leading expert as a colonial
one, in which Canada was to be governed f rom Ottawa similar to a uni-
tary state.8 According to Wheare, Canad a was, in law, a quasi-federal
state.9
Although there were many centrali zing features of the Constit ution
Act, 1867,10 two features were part icularly significant: the powers of res-
ervation and disa llowance. Under the Constit ution Act, 1867, the federal
government could appoint the lieutenant governors of the provinces
and instruct them to w ithhold consent to provincial bill s 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 year s of its enactment.12
Moreover, in one particularly important area of legi slation, education,
the federal Parliament was not limited to disallowing provincial 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 disc ussion in J.R. Mallory, The Structure of Cana dian Government, 2d ed.
(Toronto: Gage, 1984) at 367–70.
9 Wheare, above note 1 at 18–20.
10 For a discus sion of other centralizi ng features, including t he federal power to ap-
point judges of the prov incial superior court s and the federal power to “declare”
works and undert akings to be subject to exclusi ve federal jurisdiction, s ee P.W.
Hogg, Constitut ional Law of Canada, loose-le af, 5th ed. (Toronto: Carswell, 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 exercised to over ride any decisions of
provincial aut horities which, in the opin ion of the federal government, af fected
guarante ed rights of religious mi norities in relation to denomi national schools.
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