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.
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