The demise and rise of the classical paradigm in Canadian federalism: promoting autonomy for the provinces and First Nations.

AuthorRyder, Bruce

The author explores the possibility of employing Canadian consitutional doctrine to develop a more flexible approach that would allow for greater provincial autonomy and First Nation self-government within the existing scheme of ss 91 and 92 jurisprudence. Canadian constitutional doctrine is first interpreted through the competing models of the classical and modern paradigms. The former emphasizes a sharp division of powers and has traditionally been used, the author argues, to invalidate legislation seen to interfere with the market economy. The modern paradigm, on the other hand, recognizes competing jurisdictions and has been used to uphold legislation focusing on morals. The author then brings this analysis to bear on the issue of provincial autonomy, focusing on the doctrinal writings of Quebecois scholars. Using the classical paradigm to restrict federal intrusion, and the modern paradigm to expand provincial powers will, the author argues, enhance provincial autonomy within the existing federal structure, pending further constitutional amendment. Finally, the author extends the analysis to the issue of First Nations autonomy, arguing that similar doctrinal analysis could be used to promote self-government for the First Nations.

L'auteur analyse l'interpretation jurisprudentielle des art. 91 et 92 de la Constitution afin de determiner si le cadre constitutionnel actuel peut s'accomoder d'une plus grande autonomic des provinces et des peuples autochtones. De la doctrine constitutionnelle canadienne se degagent deux conceptions divergentes de la distribution des pouvoirs legislatifs effectuee par la Constitution. La conception classique concoit les spheres respectives de competence comme distinctes et exclusives; un des motifs sous-jacents de cette interpretation tendant a restreindre l'exercice du pouvoir legislatif aurait ete, scion l'auteur, la protection de l'economie de marche. La conception moderne, par contre, reconnait le chevauchement inevitable des juridictions, et ne le concoit pas comme un mal, etant donne le but moral important poursuivi par les legislateurs. L'auteur envisage ensuite la question de l'autonomie provinciale, en se referant a la doctrine quebecoise. Il conclut qu'invoquer la conception classique pour restreindre les interventions legislatives federales tout en elargissant les pouvoirs legislatifs provinciaux a l'aide de la conception moderne permettrait aux provinces d'acquerir une plus grande autonomie a l'interieur de la structure constitutionnelle actuelle. Une demarche semblable accorderait aussi aux peuples autochtones une plus grande mesure d'auto-determination, en attendant, dans un cas comme dans l'autre, d'eventuels amendements constitutionnels.

Synopsis Introduction I. Doctrinal Features of the Classical and Modern Paradigms A. The Classical Paradigm B. The Modern Paradigm II. The Historical Application of the Two Paradigms III. The Paradigms and Provincial Autonomy IV. The Paradigms and First Nations Autonomy Conclusion Introduction

In a recent case, Chief Justice Dickson remarked that "[t]he history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers." (1) This is an accurate description of only part of our constitutional jurisprudence. It may be that, in the post-World War II era, judicial interpretation of the constitution has gradually moved away from a "classical" view of the distribution of powers, that allowed for little overlap and interplay of provincial and federal powers, towards the more flexible "modern" federalism described by the Chief Justice. But this movement, from what I will call the classical paradigm to the modern paradigm in Canadian federalism, has been neither consistent nor steady. Indeed, both approaches have been invoked by the courts at all stages of our history of constitutional judicial review. Nevertheless, the larger trend does emerge from a study of the cases. One can say, at least, that the modern paradigm has replaced the classical paradigm as the dominant approach to the judicial interpretation of the division of powers.

The classical and modern paradigms represent competing judicial responses to the interpretation of the federal division of powers in sections 91 to 95 of the Constitution Act, 1867. (2) Both seek to give effect to two foundational principles of the Canadian constitution, namely, responsible government and federalism. The preamble to the 1867 Act announces that

the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom. The British constitutional system of responsible government was accordingly adopted by the federating colonies in Canada. It is a system of representative democracy in which the head of state acts on the advice of the executive, which is in turn accountable to a democratically elected legislature. In the United Kingdom, Parliament has supreme and absolute legislative authority. Any and all laws are within the competence of Parliament. In Canada, the principle of parliamentary sovereignty was altered to take account of the desire of the provinces to be "federally united." Thus, sovereign legislative power was divided between the two levels of government. But it follows from the fusion of parliamentary sovereignty and federalism that the totality of legislative power is distributed between the federal Parliament and the provincial legislatures. This principle, that the distribution of powers is "exhaustive," means that any and all laws are competent to one level of government or the other. As the Privy Council stated, "whatever belongs to self-government in Canada belongs either to the Dominion or to the provinces, within the limits of the British North America Act." (3) As all laws must be within the competence of at least one level of government, the people of Canada are entitled to demand that the judicial interpretation of the division of powers not compromise the availability of a full range of options from the combined competences of their democratically elected legislative bodies. (4)

At the same time, the federal principle embodied in the preamble requires that provincial and federal governments be coordinate and autonomous within their respective spheres of competence. (5) This principle is reflected in the constitutional division of powers in ss 91-95 that is unalterable by the unilateral action of either level of government. (6) The provinces' "desire to be federally united" was a product of their insistence on the preservation of the institutions, laws and customs of regional majorities. (7) The autonomy inherent in a federal system would prevent national majorities from establishing priorities and policies in areas of jurisdiction allocated to the provincial governments (and vice-versa). Hence, the emphasis placed on the notion of "exclusive" spheres of competence in the constitutional division of powers. Reference to "exclusivity" of legislative powers appears no less than seven times in ss 91-93, six times in reference to provincial powers. The provincial and federal governments have mutually exclusive jurisdiction to make laws in relation to the subject matters assigned to them by the division of powers.

The classical and modern paradigms represent different judicial approaches to defining "exclusivity" of federal and provincial powers, and thus of preserving provincial autonomy. The classical paradigm is premised on a "strong" understanding of exclusivity: there shall be no overlap or interplay between federal and provincial heads of power. The heads of power in the federal and provincial lists should not be interpreted literally, but should be "mutually modified" in light of the subjects accorded to the jurisdiction of the other level of government so as to avoid overlapping responsibilities as much as possible. Each level of government must act within its hermetically sealed boxes of jurisdiction, or "watertight compartments" ("compartiments etanches"). (8) Any spillover effects on the other level of government's jurisdiction will not be tolerated. Such legislative spillover must be contained, either by ruling such laws ultra vires, or by "reading them down" so that they remain strictly within the enacting legislature's jurisdiction. A word that captures the classical approach to exclusivity has emerged in the francophone constitutional scholarship: "etancheite." (9)

The modern paradigm, on the other hand, is premised on a weaker understanding of exclusivity. Instead of seeking to prohibit as much overlap as possible between provincial and federal powers, the modern approach to exclusivity simply prohibits each level of government from enacting laws whose dominant characteristic ("pith and substance") is the regulation of a subject matter within the other level of government's jurisdiction. Exclusivity, on this approach, means the exclusive ability to pass laws that deal predominantly with a subject matter within the enacting government's catalogue of powers. If a law is in pith and substance within the enacting legislature's jurisdiction, it will be upheld notwithstanding that it might have spillover effects on the other level of government's jurisdiction. And if a problem of national or international dimensions is functionally beyond the capacity of a province to regulate effectively, it will be allocated to federal jurisdiction. In these ways, the modern paradigm, to borrow Dickson C.J.'s words, allows for a "fair amount of interplay and indeed overlap between federal and provincial powers." (10)

Both the modern and classical paradigms are legitimate attempts to give meaning to the fundamental principles that ought to guide the judicial interpretation of the division of powers...

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