Canadians take their constitutions seriously. We celebrate the
passage of the first national constitution — the British North
America Act — every year on July 1. We constantly debate what it
means. And we fight about how to change the constitution almost
constantly. It is, perhaps, the one thing that unites Canadians
from the 19th century through the 21st century, and from British
Columbia to Nunavut to Newfoundland — an almost pathological
need to debate, argue, battle and complain about the
constitution. It has made us a very strange country indeed. But
it has made us a country.
The British North America Act, passed in 1867 by the British
Parliament, laid out a system of government in which power was
divided between the federal government in Ottawa and the
provinces. Technically, no issue would ever fall outside the
jurisdiction of one government or the other. The federal
government had its list of responsibilities written into the
constitution and the provinces had theirs. Anything not on
either list, in theory, was the responsibility the federal
Arguments between the two levels of government were common. For
about the first 50 years after Confederation, provinces argued
that they deserved more responsibilities. Much could be read
into the seemingly vague wording of the constitution. Trade and
commerce were the responsibility of the federal government, but
did that mean it was in charge of distributing liquor licenses?
Did that mean that the federal government could regulate
insurance premiums? These sorts of questions were first resolved
by the Judicial Committee of the Privy Council, the highest
British court to which colonial problems could be taken, and
since 1949 have been decided by the Supreme Court of Canada.
Until the 1930s, the provinces were reasonably successful in
winning their cases and provincial powers thus expanded after
However, after the Second World War Ottawa adopted a different
strategy in the battle over where the line should be drawn
between federal and provincial responsibilities. Rather than
going to court, the federal government simply flexed its
financial muscles. The federal government, which has unlimited
power to tax, definitely had more money than the provinces. More
money always meant more power, according to this new approach.
For example, education is unquestionably a provincial
responsibility, but when the federal government gives money to
universities, it can dictate the way those universities use that
money. This is called the spending power, and it has allowed the
federal government to expand its jurisdiction by stealth.
Faced with ever-increasing federal jurisdiction, the provinces
have had to adopt a new strategy to protect their constitutional
territory. Arguing that the constitution was flawed, that it
distributed power and responsibility too unevenly, provincial
premiers have pushed for rewriting the constitution.
In order to do that effectively the constitution had to become a
Canadian document, rather than a piece of British legislation.
It had to be brought back home, so to speak, or patriated. But
constitutions are always in need of revision, so the key to
patriating it was to decide on a way that Canadians could amend
the constitution themselves. Agreeing on how to change the
constitution — How much agreement was necessary? How many
governments would have to agree? Could any one government be
ignored? — proved incredibly difficult. Discussions began in the
1950s. Representatives of federal and provincial governments met
hundreds of times, haggling over the drafts of the amending
formula. Prime Ministers St. Laurent, Diefenbaker and Pearson
were all interested in the constitution, but Pierre Trudeau was
obsessed with it after 1968. He worked through at least two
rounds of negotiation with the provinces before finally reaching
a deal. The process of patriation was not completed until the
signing of the Constitution Act, 1982. But that still didn’t
solve the problems that the provinces thought existed with the
division of powers. Worse still, Quebec had not signed on to the
Constitution Act, 1982. The document still applied to Quebec,
but the symbolic significance of the absence of Quebec’s
signature was huge. This was something that particularly
bothered Brian Mulroney, another prime minister from Quebec,
after he came to power in 1984. Back to the negotiation table,
this time to agree on changes that would bring Quebec on side.
The first attempt, the Meech Lake Accord, failed in 1990; the
second attempt, the Charlottetown Accord, failed in 1992.
Occasionally, there is talk of trying to reach agreement again,
but so far no one has tried.
The constitution still has problems: Quebec hasn’t signed the
most recent version, the division of powers still seems unfair
to some, and the control over money is particularly uneven. But
the constitution will undoubtedly always fall short of the
expectations of one level of government or another, and
Canadians will continue to debate how, or whether, to fix it.
It’s part of being a Canadian.
Next Instalment: Federal-Provincial Economic Relations
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