What is federalism?

A federal style of government is one that has two separate levels of government: a central government and several regional governments. For example, Canada has a federal style of government with a federal government and provincial governments. Each level of government has specific powers and responsibilities that only it can use and these are described in the Constitution. Neither level of government is in charge of the other. Each government can use their own powers without interference from other governments.

Canada’s federal structure includes the national (or, federal) government, and ten provincial and three territorial governments. The Canadian Constitution tells us which level of government has which powers: Section 91 of the Constitution Act, 1867 lists the powers the federal government has.[1] Section 92 lists the powers that provincial and territorial governments have.[2] The powers listed in these two sections are not the only governing powers for each level of government in the Constitution, but they are the most common ones.

What powers does the federal government have?

Peace Order and Good Government: The writers of the Constitution wanted a more centralized government. One of the ways they did this was to say that the federal government has the power to make laws for the “Peace, Order, and good Government of Canada”.[3] Commonly referred to as “the POGG power”, this power is broad and includes three “branches”:

  1. The “gap” branch refers to powers not specifically mentioned in the Constitution, like air traffic.
  2. The “emergency power” branch lets the federal government make laws that it is normally not allowed to in times of great emergency, like during a war.
  3. The “national concern” branch lets the federal government make laws on matters that are important for the entire country.

Regulation of trade and commerce: The federal government has the power to regulate trade and commerce.[4] Although this seems like it could include a lot, courts have said that this power only allows for the regulation of interprovincial or international trade and the general regulation of trade as a whole. As a result, there are many specific industries the federal government cannot regulate, like dairy products or beer.[5] However, the federal government can regulate industries that fall under one of their heads of powers, like banking.[6]

Criminal Law: The federal government has the power to make criminal law.[7] This explains why criminal laws are the same across Canada. The courts have said that a valid criminal law must have a penalty, a prohibition, and a valid public purpose. However, it is not always easy to define a crime. Offences like speeding or jaywalking are not crimes, which is why provinces can make laws about them. Provincial offences typically are not as serious as crimes and usually do not involve going to jail.

What powers do provincial governments have?

Property and civil rights: Provincial governments have power over property and civil rights.[8] This includes almost everything to do with property and civil law, including real estate, businesses, trade, contracts, employment, wills, and civil claims. The only limits are the things that are under the federal regulation of trade and commerce or other specific federal power.

Matters of a merely local or private nature: Provincial governments can make laws about anything that is of a local or private nature within the province.[9] This is the provincial catch-all power and includes anything not listed in the Constitution but that should be dealt with locally. Examples are laws about traffic, littering, and keeping the peace.

Municipalities: Provincial governments can make laws concerning municipal institutions in the province.[10] Municipal governments are not really mentioned anywhere else in the Constitution. That means that every municipal government is made by the provincial government and dependent on them for their power. The provincial governments allow the municipal governments to use some of their powers for them, and that is how local bylaws are passed. Municipal bylaws must therefore be consistent with both the limits imposed by the province and by the Constitution. However, since municipalities continue to play an increasing role in delivering services to citizens, many municipalities are seeking more powers from provinces.

Non-renewable natural resources: Provincial governments have power over exploration, development, conservation and management of resources within the province.[11] This includes forestry, mines, fish, natural gas, and oil. Provinces can make laws for exporting these resources to other provinces, but not internationally.

Other features of Canadian federalism

Courts have found that drawing clear lines between federal and provincial powers is difficult. They have recognized that some things have a “double aspect”. This means that the federal and provincial governments can both pass laws on some issues. For example, the province can make laws about dangerous driving because traffic is a matter of a merely local nature. However, the federal government can also pass laws against dangerous driving using the criminal law power. That is why a dangerous driver can be charged with a provincial offence and a federal crime at the same time. Courts have found a “double aspect” also exists in matters like health and the environment.

Because some issues have a double aspect, one government acting alone cannot always accomplish everything it wants to. Courts have strongly encouraged both levels of government to work together in “cooperative federalism”. If the federal and provincial governments work together, they can often accomplish more than acting alone. An example would be the creation of a comprehensive marketing plan for something like eggs, where the provincial government regulates the local production and the federal government regulates the export and trade.[12] However, since governments do not always agree, cooperation sometimes involves a lot of negotiation.

An important feature of Canada’s federalism is the federal government’s spending power. The federal government typically can raise more money than provincial governments because it has the power to tax (section 92(3))[13]. One way that the federal government cooperates with provincial governments is by offering them money in return for passing certain laws. By doing this, the federal government can indirectly influence matters over which it otherwise has no power. For example, this is how Canada’s public health care system works. The federal government gives money to the provinces in exchange for provinces making sure that health care is free to the public.

 

[1]The Constitution Act, 1867, 30 & 31 Vict, c 3, s 91, http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec91 [The Constitution Act, 1867].

[2]The Constitution Act, 1867, s 92, http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec92.

[3]The Constitution Act, 1867, s 91, http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec91.

[4]The Constitution Act, 1867, s 91(2), http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec91.

[5]Reference re Validity of Section 5 (a) Dairy Industry Act, [1949] SCR 1, http://canlii.ca/en/ca/scc/doc/1948/1948canlii2/1948canlii2.htmlLabatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 SCR 914, http://canlii.ca/en/ca/scc/doc/1979/1979canlii190/1979canlii190.html.

[6]The Constitution Act, 1867, s 91(15), http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec91.

[7]The Constitution Act, 1867, s 91(27) http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec91.

[8]The Constitution Act, 1867, s 92(13), http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec92.

[9]The Constitution Act, 1867, s 92(16), http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec92.

[10]The Constitution Act, 1867, s 92(8), http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec92.

[11]The Constitution Act, 1867, s 92A, http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec92a.

[12]Reference re Agricultural Products Marketing, [1978] 2 SCR 1198, http://canlii.ca/en/ca/scc/doc/1978/1978canlii10/1978canlii10.html.

[13]The Constitution Act, 1867, s 92(3), http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec92.

 

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