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Federalism and Flexibility
In 1937, the Privy Council portrayed Canada’s
federal system in a severe metaphor. The Canadian federation, Lord Atkin said,
“still retains the watertight compartments which are an essential part of
her original structure” [A.G. Canada
v. A.G. Ontario, [1937] A.C. 326, 354]. The metaphor is powerfully
evocative, suggesting impermeable jurisdictions vigorously policed by the
Courts. Suggestive as it is, the metaphor could only have been conceived in
constitutional litigation, a process which offers perspective from where
intergovernmental processes become dysfunctional and break down. The
metaphor is unimaginable from within Canada’s operating
constitution. A more accurate image would be the meshing of interlocking
and interpenetrating jurisdictions as constitutional power is geared into
political action. As in all federations, Canadian governments treat each
other as partners (or competitors); it is only in rare cases that federal
and provincial authorities experience the circle of their constitutional
jurisdiction as closed. Throughout the framework of Canadian governance the
norm is that federal and provincial authorities consult, coordinate and
co-operate to bring the totality of governmental power to bear on practical
subject matters, notwithstanding that in theory Canadian political power
may be riven with jurisdictional divides.
It is useful
to ask: what are the instruments by which governments coordinate in Canada?
Canadian
federalism has created numerous constitutional, legislative and
administrative tools to overcome the watertight division of
responsibilities supposedly essential to federal union. These are:
o formal
constitutional amendment
o de facto constitutional
amendment, utilizing:
o court
interpretation and adaptation of constitutional limitations
o creation and
modification of constitutional usages, customs and conventions
o creation of
quasi-constitutional requirements
o concurrent
exercise of power
o fiscal
arrangements, including
o federal
spending in areas of provincial jurisdiction;
o provincial
spending in areas of federal jurisdiction
o intergovernmental
transfers and equalization schemes
o creation of conjoint
regulatory schemes harmonized by
o formal
delegation of power
o informal
administrative cooperation
o Intergovernmental
agreements
o bureaucratic,
ministerial and First Ministers conferences
o limited opting
out of and into fiscal and regulatory schemes, with, compensation
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