Notwithstanding, we're talking POGG

Sorry about the haphazard posting; I'll try to be more rigorous. I'm also going to get a bunch of election stuff out of the way in the next coupla days (but will include your regularly-scheduled-blog bits, so this won't be as boring as it might sound...).

For now, a history lesson: Constitution blah blah. It's a tiny bit turgid, I admit, since it was written for a term paper in 2002....

Power is a tennis ball, and the feds and the provinces keep lobbing it back at each other -- centralization of control, followed by decentralization, followed by centralization. Essentially, federalism is elastic and can adapt.

The British North America Act (our first Constitution, dated 1867, repatriated from the Brits as the Constitution Act in 1982) was intended to give true control -- to give the residual power -- to the federal government. Section 92 listed the provincial jurisdictions, and whatever was left was for the federal government, which was discussed in section 91 (known as the peace, order and good government clause, allowing Ottawa to control whatever was in the interest of POGG.) In addition, a list of 29 examples of federal jurisdiction are included. But the wishes of the founding fathers were undone by the British Parliament (and some lesser Canadian courts -- there's judicial activism for ya).

"Before 1949, the Judicial Committee of the Privy Council in London was Canada's final court of appeal, and its decisions had a major impact in transforming Canadian federalism from a centralized to a decentralized system. The most important JCPC decisions related to the federal peace, order and good government clause as opposed to the provincial power over property and civil rights.... In the course of its judgments, the Judicial Committee drove a wedge between these two parts of section 91 [that is, between the POGG and the list of sample jurisdictions], deciding that the 29 enumerations were the real federal powers rather than just the examples, and ignoring the peace, order and good government clause except in the case of national emergency.... In normal times, on the other hand, the JCPC gave an extremely broad interpretation of section 91-13, property and civil rights in the province, finding that almost any matter that was the subject of federal-provincial constitutional dispute could be incorporated within this provincial power. That is why so little was left over for the federal residual clause." (That's from the 2002 edition of "Canadian Politics," edited by Dyck and Rand.)

Thus early on the courts remade confederation and gave federalism a more decentralized structure.

(This of course made some want desperately to revamp the BNA Act. The Co-operative Commonwealth Federation, which later evolved into the New Democratic Party, demanded greater centralism: Its 1933 Regina Manifesto was really a list of amendments that would allow the BNA Act to increase federal control over... well, over just about everything. Those CCF-New Democrats, they want to control it all. "The labour code should be uniform throughout the country... jurisdiction over labour legislation under the BNA Act is mainly in the hands of the provinces. It is urgently necessary, therefore, that the BNA Act be amended to make such a national labour code possible." And all of section 9 of the manifesto is about fiddling with the Constitution. "What is chiefly needed today is the placing in the hands of the national government of more power to control national economic development.... the present division of powers... reflects the conditions of a pioneer, mainly agricultural, community of 1867." This stuff is from Michael Cross's "The Decline and Fall of a Good Idea: CCF-NDP Manifestoes 1932 to 1969.")

Michael Mandel ("The Charter of Rights and the Legalization of Politics in Canada.") suggests that the transformation in federal powers came from a sheer need for and by judges to impose their ideologies onto the political process. "But even where judges were 'applying' the law of Parliament, the power to 'interpret' it left them plenty of room to manoeuvre. In Canada there was the added wrinkle of the judicially supervised division of powers between federal and provincial governments under the BNA Act. Using this jurisdictional device the courts were able when so minded, to defeat legislative initiatives they disagreed with."

Like what, you ask? Judges deregulated the insurance industry in 1916. They were uninterested in any attempts to allow federal government involvement in the economy (and in the beginnings of a Keynesian, welfare-ish state). They nixed laws intended to control profiteering, monopolies and hoarding. Federal farm relief was negated, as was minimum wage legislation. Unemployment insurance was ruled to be a provincial responsibility. It was, said Mandel, "a judicial slaughter."

There was a way for the federal government to involve itself legally in the matters of the provinces -- if it could prove an emergency situation. "But in times of national emergency, as determined by the JCPC, federal powers were almost unlimited. This became known as the emergency doctrine, and how the courts managed to transform the residual clause into an emergency power is very difficult to fathom" (again, from Rand).

Having the possibility was one thing, but actually getting the courts to agree that a situation was a true emergency was another. Again, there was a steep curve in favour of provincial powers. "But despite thousands of western farm families on the verge of starvation, over one and a half million Canadians with no source of earned income and an employment rate of 23 percent of the labour force in 1933 -- compared to 3 percent in 1929 -- the Supreme Court of Canada found 'no evidence of an emergency amounting to a national peril'" (sez Mandel). (This was during the kerfuffle over creating federal unemployment insurance.)

(Four constitutional amendments have since been added to rejig jurisdictions since confederation: unemployment insurance became federal in 1940, old age pensions became a concurrent power in 1951, widow, survivor and disability pensions were added to Ottawa's powers in 1964, and 92A in 1982 increased provincial jurisdiction over natural resources. Only this last helps the provinces in terms of power. The federal government went on to impose itself in provincial matters through various taxation agreements, partial funding and transfer deals and equalization payments.)

Should Canada be further decentralized? Or should federal powers be shored up? The fascinating thing about federalism is that it is so fluid. "Federalism has been described as not so much a steady state, but as a process. The dynamics of federal-provincial relations... vary over time in response to changing citizen attitudes and changing policy agendas" (writes Richard Simeon in "Federalism and Intergovernmental Relations"). Canada began as a centralist state. Then came the Classical Federalism of decentralization of the early 1900s, which gave way to Co-operative Federalism (World War II did eventually qualify as an "emergency"), where central government again held sway and created the basics of the Keynesian state. This lasted until the 1960s.

Simeon goes on to define and discuss Competitive Federalism, Constitutional Federalism and Collaborative Federalism, which is where we are now. "The contemporary reality, of course, is one of considerable de facto concurrency." It is suggested that disentanglement would actually be quite difficult.

So again, should Canada be more decentralized? If the people wish it to be so, then let it be so. The structure of federalism has shown that it can accept either model, and that it can then redress itself and go back in the other direction, which will undoubtedly be demanded again in a few generations' time. Each variant has its problems, and we will always want to try to find the perfect meld with the fewest problems, and again become disenchanted....