article examines the power asserted by the federal government
to spend funds on programs within provincial legislative jurisdiction,
and the influence of that power upon federalism and responsible
government. The author maintains that the existence of a "federal
spending power" is inconsistent with Canadian constitutional doctrine
and values, and that the political justifications commonly offered
in its support do not withstand close scrutiny. At the same time,
he contends that the extent of governmental reliance upon the
spending power precludes the courts from curtailing its use. He
therefore urges a program of political reform going beyond the
modest limitations on the spending power proposed in the Meech
Lake Constitutional Accord.
cet article l'auteur examine le pouvoir que revendique le gouvernement
fédéral de mettre des fonds dans des programmes qui relèvent de
la compétence de la législature provinciale ainsi que l'influence
qu'a ce pouvoir sur la nature du fédéralisme et de ce qu'on appelle
le gouvernement responsable. Il affirme que 1'existence de ce
pouvoir fédéral est incompatible avec la doctrine et les valeurs
constitutionnelles et que les justifications généralement avancées
à son appui s'avèrent après examen n'avoir aucun fondement. Il
soutient en même temps que ce pouvoir est si important pour le
gouvernement que les tribunaux ne peuvent en limiter l'utilisation.
Il préconise donc un programme de réformes politiques qui iraient
plus loin que les limites modestes proposées dans l'accord constitutionnel
du lac Meech.
past forty years have seen a fundamental change in the practice
of Canadian federalism. The political commitment to what Edwin
R. Black describes as "coordinate" federalism has been supplanted
by an "administrative" vision of federal arrangements.1
This chance has been characterized by a breakdown of jurisdictional
boundaries between the federal and provincial orders of government
and, particularly, by increased federal involvement in matters
of provincial legislative responsibility.
is remarkable about this change is that it has been achieved without
constitutional amendment and without the blessing of the Supreme
Court of Canada, the institution charged with legal guardianship
of Canadian federalism in the post-war period. Moreover, except
in Quebec, it has generated little controversy within political
and academic communities. Most politicians and constitutional
scholars outside Quebec seem to have accepted the shift from co-ordinate
to administrative federalism as an innocuous development - an
inevitable step forward in the evolution of the Canadian state.
purpose of this article is to challenge this view. Administrative
federalism, I shall argue, has been built upon a precarious constitutional
foundation. Far from being innocuous, it threatens to weaken provincial
autonomy and to undermine political accountability. If left unchecked,
it could impair seriously both the federal and the democratic
character of the Canadian state. My focus throughout will be on
the federal spending power, the power claimed by Ottawa to spend
funds on matters falling outside its legislative jurisdiction.
It is this power that has made the "new federalism" possible;
it is the mortar with which the new constitutional order has been
inquiry will begin with an examination of the forces that have
given rise to administrative federalism. It will then consider
its constitutional basis and explore its political implications.
Finally, consideration will be given to proposals for reform contained
in the Meech Lake Constitutional Accord. The Accord marks the
first concerted effort by Canadian Governments to place explicit
constitutional limitations on the federal spending power; it therefore
merits special attention.
HERE TO DISCUSS THIS ARTICLE
Petter, of the Faculty of Law, University of Victoria, Victoria,
British Columbia. This paper was delivered to the Legal Theory
Workshop, Faculty of Law, University of Toronto, on December
2, 1988. Excerpts from an earlier version were published in
Meech Ado About Nothing? Federalism, Democracy and the Spending
Power, in K.E. Swinton and C.J. Rogerson (eds.), Competing Constitutional
Visions: The Meech Lake Accord (1988), pp. 187-201. 1 would
like to thank the many friends and colleagues who provided me
with helpful comments and suggestions throughout this project.
I also wish to acknowledge the British Columbia Ministry of
the Attorney General for providing research funds.
- E.R. Black, Divided Loyalties (1975). "Coordinate"
or "classical" federalism refers to a conception of
federalism in which each order of government is supreme and
operates independently of the other within clearly defined spheres
of responsibility. "Administrative" or "co-operative"
federalism refers to a conception of federalism in which jurisdictional
boundaries overlap, giving rise to a high degree of shared responsibility
and requiring inter-governmental co-operation between the two
orders of government.