The Constitution Act, 1867: Federalism and Judicial Power

• Author: Patrick J. Monahan/Byron Shaw/Padraic Ryan
• Pages: 106-162

106

CHAPTER 4

THE CONSTITUTION

ACT, 1867

: FEDERALISM

AND JUDICIAL POWER

A. FEDERALISM DEFINED

K.C. Wheare put forward the classic def‌inition of the federal princi-

ple: a “method of dividing powers so that the 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 has 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 individual

citizens, rather than indirectly through the states or provinces. A sim-

ilar def‌inition of federalism was offered by A.V. Dicey, who identif‌ied

the three leading characteristics of a “completely developed federalism”

as including: (1) the distribution of powers among governmental bod-

ies, each with limited 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 criticized by some com-

mentators as being unduly legalistic3 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 Power107

the separateness of the central and regional authorities,4 it provides a

basis for distinguishing 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:

1) legislative powers are distributed 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 distinguishes federal systems from unitary or

confederal systems of government. In a unitary state, ultimate political

authority resides in the central or national government. The central

government may establish regional 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 Zealand

are examples of unitar y states.

In confederations, on the other hand, ultimate political author-

ity resides in the states or regional governments, and the central gov-

ernment acts as their 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 levy taxes directly on the population.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 FEDERAL 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 terms of the Constitution Act,

1867 did not establish Canada 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, has been described by one leading expert as a colonial

one, in which Canada was to be governed from Ottawa similar to a uni-

tary state.8 According to Wheare, Canada was, in law, a quasi-federal

state.9

Although there were many centralizing features of the Constitution

Act, 1867,10 two features were particularly 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 withhold consent to provincial bills or to reserve

them for the consideration of the federal government.11 Furthermore,

the federal government had the power to disallow 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 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 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 laws 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.

10For 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).

11See the Constitution Act, 1867, ss. 55–57, 58, and 90.

12See 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.