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:
  • formal constitutional amendment
  • de facto constitutional amendment, utilizing:
    • court interpretation and adaptation of constitutional limitations
    • creation and modification of constitutional usages, customs and conventions
    • creation of quasi-constitutional requirements
  • concurrent exercise of power
  • fiscal arrangements, including
    • federal spending in areas of provincial jurisdiction;
    • provincial spending in areas of federal jurisdiction
    • intergovernmental transfers and equalization schemes
  • creation of conjoint regulatory schemes harmonized by
  • formal delegation of power
  • informal administrative cooperation
  • Intergovernmental agreements
  • bureaucratic, ministerial and First Ministers conferences
  • limited opting out of and into fiscal and regulatory schemes, with, compensation.