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Studies on the Canadian Constitution and Canadian Federalism


Last revised:
26 February 2001

The Constitution Act, 1867, the Confederation Debates and Provincial Autonomy

Claude Bélanger,
Department of History,
Marianopolis College

The dictionary tells us that autonomy means "self-governing, independent"; provincial autonomy would thus mean the capacity for a province to govern itself, to determine, without interference from the outside, its own policies and priorities, assured to have the financial capacity to fulfill its responsibilities.

Taken in this sense, it would be difficult to consider that any political entity is entirely autonomous, independent; we live in a greatly inter-dependent world, where interaction of governments and people make it very difficult for any state to be entirely independent. So the concept can be imagined theoretically in absolute terms, but can rarely be found totally in practice. However, interdependence does not prevent the existence of a large degree of independence. These two concepts are not fundamentally in opposition; rather, independence is to be opposed to dependence that can be defined as a condition where one is subordinate, subservient to some higher authority.

In a federal state, what characterizes the relationship between governments is that they are presumed to be independent each in their spheres of jurisdiction, and that one level is not subservient to the other. When such a relationship of dependence is found one must conclude one of two things: if the central level is subservient to the local level, then we have something that approaches a confederation. If the local level is subordinate to the central level, then we declare such a system to be close to a legislative union (unitary state).

The question then arises as to whether or not the Fathers of Confederation wanted a true federal system with the autonomy of the provinces fully protected. In other words, were the Fathers of Confederation federalists?

To answer properly this question one must consider the context, the pronouncements of the pre-Confederation period and the text of the Constitution Act itself. The main pitfall to be avoided is that of putting too much importance on the pronouncements of a certain select group of individual to the detriment of others. Louis-Philippe Pigeon, formerly one of the Justices of the Supreme Court of Canada, wrote in 1951 "the B.N.A. Act is not the expression of the intention of one man, whose ideas might perhaps be gathered from extrinsic evidence with a reasonable degree of certainty; it is the expression of a compromise between many men holding different and opposed viewpoints." That point had already been clearly made by George Brown during the Confederation Debates (p.87) when he stated in the House of Assembly of the United Province of Canada that the 72 Resolutions were "necessarily the work of concession; not one of the thirty-three framers but had, on some points to yield his opinions."

On the question of the relative position of the federal and provincial governments, Lord Watson declared, on behalf of the Judicial Committee of the Privy Council in the Maritime Bank v. The Receiver-General of New Brunswick (1892): "The object of the Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy." The central point made by Watson in this quotation was that the purpose of the Act had been to create a true federation with two levels of government, each sovereign in its spheres of jurisdiction. Of that quotation and its meaning, historian A. R. M. LOWER wrote: "a plainer misstatement of what everyone in 1867 had said was the object of the Act could hardly be made" (my emphasis) in Theories of Canadian Federalism, p. 34). It would be extremely easy to demonstrate that not everyone would have rejected what Lord Watson wrote, but for the purpose of discussion we will take Lower's comment to mean that fundamentally the Fathers of Confederation did not want to establish a true federal system in 1867, and that they would not have wished the relationship of the two levels of government to be that of co-equal governments but rather that the provincial governments be entirely subordinate to the federal authority; in other words that the Fathers of Confederation were not true federalists (this is not a view peculiar to Lower but one shared by a large cross-section of historians, lawyers and political scientists, especially in English-speaking Canada in the post Second World War period).

Let us first consider the context of Confederation.

The idea of the necessity for constitutional changes in the Union Act occurred as a result of many pressures. There were, first of all, economic problems: the credit of the several provinces had been stretched to the limit in a relentless search for development money particularly in the economic infrastructure for railways and canals. A larger union, it was felt, would provide a better guarantee for financiers who supported the provinces financially. There was also the issue of the impending repeal of the Reciprocity treaty, originally drafted in 1854, under which terms British North America had done so well economically; there was an urgent necessity for finding an alternate market and again it was felt that it would be found in a union of all of British North America. Canadians and Maritimers also feared that the American troops might turn right around, once the South had been liquidated, and attack Canada; if they did not, perhaps the Fenians would do it and it was generally felt that if the British colonies united that they would be capable of opposing a more formidable force.

Those were good reasons to seek a union of the British North American colonies and yet it is debatable whether such a union would have taken place had not the United Province of Canada been found in a hopeless deadlock in June of 1864. The main thing to be noted, so far, is that the reasons already quoted were compelling reasons to create a union of British North America but have very little relevance to the type of union which would be established. It mattered little at the time to solve such problems through a particular system of government: legislative union, confederation, federation, or quasi-federation, all would have equally done the job provided that, if the system was not a unitary one, that the central authority be entrusted with defense and tariff powers.

Hence, the reasons that led Canadians to favour a system over the others must then be largely found elsewhere. This is where we come back to the deadlock of 1864. What was essentially the nature of the deadlock? It stemmed largely from the fact that an artificial union had been created in 1840. That geography and economic interests should have brought together Upper and Lower Canada is evident; but that they were brought together under a legislative union, when otherwise they were entirely dissimilar, was the height of wishful thinking. From the start, the union had been devised as an instrument of domination of one people over the other. It had led to the creation of many injustices. In any case, the end result had been inevitably the establishment of a political system based on jealousy, envy, lack of mutual confidence and understanding, suspicion and distrust. Both sections of the province were fearful of the other and accusations of unfairness and "domination" were frequently heard. To defend its interest each section supported a different party and, given the equality of representation in the House of the two sections, deadlock was inevitably the result. Honest attempts at reconciliation were made but they were usually short-lived.

Instinctively, the politicians drew on some of the principles and characteristics of federalism to attempt to solve their problems. Such was the basis for the dual premiership, and the application of double majority to contentious legislation. But the feelings of mistrust were so strong that governments would never stick to such things as double majority for very long. Sooner or later one section would meddle in the affairs of the other and the accusation of domination would arise. Upper Canada's solution was representation according to population. As such, in the context of the union, it was not acceptable to Lower Canada since it could ultimately be used as an instrument of domination. To many in Quebec, the insistence of much of Upper Canada to implement representation by population demonstrated a propensity to want to subordinate Lower Canada. To Upper Canadians, it only seemed a fair, and democratic system, devised to prevent the domination of Lower Canadians in the parliament of the United province.

The net result of the political, social and economic experience of the union seemed to have been that the people of the two sections of the province needed each other for protection and economic well-being but that they could not live closely associated without quarreling: French Canada used its favorable position to win rights for French Catholics within the whole province while Upper Canada's insistence on Rep. by Pop. demonstrated a will to dominate and shape the province to its own image. Neither could live without the other, but none wished to remain tied to the other. Thus, the conditions were ripe, in 1864, to create a federal system since the purpose of that system is to solve the sort of problems that Canadians faced in that period. Through no other system could Canadians have fulfilled their ambivalent desires to be together on the one hand, and to remain apart on the other hand. The fact that the Maritime colonies wished to protect their local autonomy merely reinforced the necessity of a federal system: any other system would have been artificial and probably short-lived.

Thus, the experience of the union seemed to indicate that a federal union was necessary. Was that what the Fathers of Confederation set out to do? This subject is the focus of much debate. The compelling drive for constitutional changes did not suddenly make angels out of old political foes. French Canada was not about to abandon its fears and Upper Canada its will to dominate just because accommodations now seemed imperative. For the most part Canadians just merely repressed their deep feelings of animosity and presented, outwardly, signs of good will. However, the divisions in the province were so strong that French Canada's feelings of insecurity and English Canada's will to dominate surfaced periodically. Such signs were even evident at the very beginning of the constitutional discussions. An interesting exchange occurred on this subject between the Montreal Gazette and La Minerve (both conservative Lower Canadian papers). The Gazette, in an editorial (Aug. 24, 1864) , had claimed that a legislative union was the most desirable system of government, and that even Lower Canada would support such a system. La Minerve's reply left no doubt as to where French Canada stood:

"The Gazette is certainly mistaken if it believes that public opinion in Lower-Canada is in favour of a legislative union. On the contrary, French Canadians will always be most strongly opposed to this measure because they see in it the destruction of their nationality. We want a confederation in which the federal principle would be applied as widely as possible, one which would leave the central government control of general questions only and in no way affect the interest of each separate section, and which would hand over to the individual local legislatures all responsibilities for private interests. We wish each state to be completely independent of the others in matters concerning its own existence..." (my emphasis).

Thus, from the start, each community seemed to have firmly established their ground for further debate: English-speaking Canadians wanted a preponderant position in the new union, tired as they were with the French domination they claimed they had had to endure throughout the history of the Union, and favored a legislative system as the one best suited to achieve its end. French Canada wanted a federal system with a large measure of decentralization to protect its "nationality." Throughout the whole of the constitutional discussions both communities would hardly depart from their original positions. English Canadians saw validity in the new political system only in so far as it would create a strong union in which the central government was entrusted with the largest possible powers, a union where it would have the influence that its large population justified, while French Canadians did not emphasize union greatly but rather the independent position that they would achieve in a federal system by controlling the province of Quebec. English Canada stressed the unity principle, while French Canada saw the main validity of the system to be created in the fact that it would interfere as little as possible with its own affairs. Again the compromise would have to rest in a federal system and few claimed that this was the ideal form of government. Both accepted the system because no other was possible. However, English Canada's perception of the validity of the system rested on the wish that it would not be a strong obstacle to the creation of a near legislative union, while French Canada's perception of the validity of the system rested on the wish that it would interfere as little as possible with its autonomy and way of life. It is in that sense, largely, that one can speak of a confederate compact: English Canada wanted union; French Canada wanted to live on its own. Thus, the federal system was not the result of a strong belief in the intrinsic validity of the system, but rather the consequence of the divergent wishes held by the two partners; in short, it was a compromise. Nobody would lose in the bargain, it was argued, and everyone would get what it fundamentally wanted.

Evidence to support this view is quite extensive. Cartier stated clearly during the Confederation debates (p. 61) that "no interest would be harmed in any way if Federation took place." George Brown, for his part, explained that: "Whether we ask for parliamentary reform for Canada alone or in union with the Maritime Provinces, the French Canadians must have their views consulted as well as us. This scheme can be carried, and no scheme can be that has not the support of both sections of the province" (C.D., p. 87). Macdonald recognized that fact when he declared in the House: "When we think of the representatives of five colonies, all supposed to have different interests, meeting together, charged with the duty of protecting those interests and of pressing the views of their own localities and sections, it must be admitted that had we not met in a spirit of conciliation, and with an anxious desire to promote this union; if we had not been impressed with the idea contained in the words of the resolution – ‘that the best interests and present and future prosperity of British North America would be promoted by a Federal Union under the Crown of Great Britain,' - all of our efforts might have proved to be of no avail." And Macdonald stated more clearly later why the federal system was specifically required: it was because no other system would "meet the assent of the people of Lower Canada."

That the federal system was a means for French Canada to free itself from Upper Canada (and vice-versa) can also be easily demonstrated. The Prime Minister - E.P. Taché - expressed his views clearly on that subject in his introductory speech on the 72 Resolutions: "If a Federal Union were obtained it would be tantamount to a separation of the Provinces, and Lower Canada would thereby preserve its autonomy together with all the institutions it held so dear, and over which they could exercise the watchfulness and surveillance necessary to preserve them unimpaired" (Confederation Debates, p.9). To make sure he had made his point very clear, the Prime Minister repeated his remarks in French. Such feelings were openly voiced in and out of the House in French Canada. In a brochure written in 1867 to support Confederation against the attacks of the Rouges, the author argued: "En un mot, la Province de Québec est complètement séparée du Haut-Canada et a une organisation gouvernementale entière pour administrer seule toutes ses affaires locales. Et nos pouvoirs sont très étendus, et se rapportent à tout ce qui nous est précieux, cher et sacré" (Contre-poison. La Confédération, c'est le salut du Bas-Canada). La Minerve, the mouthpiece of Cartier, wrote, on the first of July of 1867: "Telle est la signification que l’on doit attacher à cette constitution. On y voit la reconnaissance de la nationalité canadienne-française, comme nationalité distincte et séparée, nous formons un Etat dans l'Etat, avec la pleine jouissance de nos droits, la reconnaissance formelle de notre indépendance nationale." Le Courier du Canada, under the influence of Langevin, was no less clear: "Let us give to each province its own distinct autonomy; let each province be master in its own house (my emphasis – this will be the slogan of the Quebec government during the Quiet Revolution) in matters of social organization, ownership of public property, preservation of its language, laws and institutions." (Oct. 10, 1864).

The emphasis that French Canada placed on its autonomy did not prevent it from supporting the existence of a central government. Everybody who knew something about the plan of union assured everybody else that the central authority would be entrusted with the very powers over which Canadians were in general agreement. Thus, it could not be used as a tool for domination as the interests of all would be found to be similar and met. Nevertheless, Cartier assured, if a federal government proved to be oppressive, which he did not believe could happen, he and others after him would command a sufficient block of votes in the House from Quebec to bring down such a government.

On this point, Upper Canadians had largely to yield to the demands of French Canada. Few, in that section of the province, supported the idea of a federal system. One after the other, the leaders of English Canada stated that they would have preferred a legislative union: at least a dozen of them - among whom were John A. Macdonald, George Brown, A.T. Galt and John Rose - expressed their feelings clearly in the House. But they recognized openly that the federal system was the only one that Lower Canada would accept. To achieve their aim of union, they were prepared to yield on that point. They fully intended, however, that the system would recognize to Ontarians their proper place and that the federal government would prevail in the end over the provinces. George Brown made that position quite clear in his farewell address in Parliament when he declared: "L'énergie avec laquelle nous avons forcé des mains récalcitrantes à nous rendre justice, nous assurera les mêmes succès pour l'avenir. Après le recensement de 1871, le Haut-Canada aura encore douze membres de plus dans la Chambre des Communes, et avant longtemps il aura une majorité absolue dans cette chambre [translation: "the energy with which we forced recalcitrant hands to do us justice assures us of the same success in the future. Following the 1871 census, Upper Canada will have 12 more members in the House of Commons, and before long will have the absolute majority in the House".] » (Le Pays, March 19, 1867). Brown was the same individual who had written to his wife after the Quebec Conference: "All right… Constitution adopted - a most creditable document - a complete reform of all the excesses and injustice we have complained of: Is it not wonderful? French Canadianism entirely extinguished." As for Macdonald he had his own view of the constitution. To a supporter in the House who was worried that a federal, rather than a legislative union, had been adopted, he wrote: "I am satisfied that we hit upon the only practicable plan. I do not mean to say the best plan but the only practicable plan for carrying out the Confederation... Experience goes to show that when there are local Governments and a General Government, or a local Parliament and a General Parliament, that in time either the General Government absorbs the local ones, or the General body from weakness loses all its power... If the Confederation goes on, you, if spared the ordinary age of a man, will see both local Parliaments and Governments absorbed in the General power. This is as plain to me as if I saw it accomplished but of course it does not do to adopt that point of view in discussing the subject in Lower Canada" (my emphasis). Macdonald was as good as is word. The correspondence of Langevin during the London Conference mentions, on several occasions, attempts to turn the plan of Confederation from a federal to a unitary ones. On the 15th of February, 1867, he wrote: "les événements sont tels qu'il me faut rester ici encore un peu de temps pour m'assurer de mes yeux que le Bill passe et qu'on n'y met rien pour en changer la nature et enfoncer le Canayien" [translation: "Events are such that I must stay here a while longer to see with my own eyes that the Bill is passed and that nothing is put in it to change its nature and destroy the Canadiens".]and, again, a few weeks later : "je dois voir par notre Bill que notre union est fédérale et non législative." [translation: "I must see in our Bill that our union is a federal and not a legislative one".]

The evidence, so far, would suggest the following: there was little common purpose in the plan of union. Upper Canada stressed the unity factor at the expense of diversity; it looked upon the federal system as the first step on the road to a closer union - that of a unitary state. For many Upper Canadians, the new system had taken care, once and for all, of the assertiveness of Quebec - French Canadianism would be extinguished. On the other hand, few in Lower Canada saw much intrinsic validity in a federal system. The system was all the more acceptable in that it granted a large measure of autonomy to French Canada. In other words, the least federal constraints there were, the better the system. This was certainly the position taken by those (quite numerous) who opposed the plan of union in Lower Canada. They desired a "true" confederation. Those who supported the union in the province, responded to those who objected to the union by claiming that Lower Canada had been given all the necessary powers to safeguard the rights of the community. The one they extolled the most, in the pro-Confederation press, was the great autonomy that Quebec had been given. In this context, one could hardly say that the Fathers of Confederation were hardened federalists. And yet they agreed, in the end, on a set plan of union. If they did not want a strict federal system did they create one as a result of compromise?

That Confederation was achieved despite the divergent wishes and desires (and often secret hopes) of those involved clearly indicated that all must have been prepared to give something to win something, to compromise. Was the essence of that compromise a "true federal system"? Were the Fathers of Confederation federalists despite themselves? There can only be one sure way to answer that question, and that is to examine carefully the content of the Constitution Act, 1867.

The first compromise that becomes evident, upon even a superficial examination of the Constitution Act, is that both Upper and Lower Canada were granted their most treasured wishes: Upper Canada obtained the large union which it had sought, the representation by population that it had called for (s. 51) and the commitment to western acquisition that it had demanded (see the preamble to the Constitution Act). Lower Canada was separated from Upper Canada (s. 6), French Canadians were granted a province that they would control (to this day English Canadians have stressed that the purpose of Confederation was to create a union while French Canadians look upon Confederation as having, above all, granted self-government to Quebec - Confederation did not unite provinces it divorced Quebec from Ontario: of course, both views are entirely consistent with the text of the Constitution Act) and French-Catholic linguistic and school rights (s. 133 and 93) were written into the constitution. Upper Canada's Rep. by Pop. would be counter-balanced by equal representation in the Senate for the two provinces (s. 22).

The second compromise was that the union created was clearly a federal one rather than a legislative one, although one with strong centralist features. Let us consider the most important characteristics of federalism and see whether they can be found in the Constitution Act. These characteristics are the following:

1) There should be two levels of government;

2) One level must be entrusted with local matters, the other with matters affecting the whole union;

3) Neither level of government can, on its own, alter the distribution of legislative powers;

4) The constitution must be supreme and a general "neutral" court must be established to arbitrate conflicts between the two levels of government;

5) Each level of government must be sovereign in its spheres of jurisdiction;

1) Are there two levels of government?

The first characteristic is clearly fulfilled in the Constitution. Act. Under section VI, we find the Distribution of Legislative powers (Art. 91-95). Sections 91, 92-10a and b, 93 (4) and 95 outline the powers of the federal government while sections 92, 93 and 94 define the fields of jurisdiction of the provincial governments. Section 94 provides for the possible unification, under federal jurisdiction, of the property and civil rights laws in the English provinces. The federal government’s constitution is provided for in section IV of the Act (ss. 17-57) while that of the provinces is found in part V (ss. 58-90).

2) Is one level of government general while the other is local?

It can also be easily gathered that the guiding principle for the distribution of subject matters is that one level, the federal, is entrusted with power to legislate over things of inter-provincial concern while the provinces' scope of legislation is limited to subject matters "within the provinces". The list of provincial subject matters in s.92 specifies that these subject matters, are "local", "in the province", "within the provinces", "of the provinces", and ss.16 states clearly "Generally all matters of a merely local or private nature in the provinces." S.91 lists 29 classes of subjects whose characteristic is that they "shall not be deemed to come within the classes of Matters of a local or private Nature comprised in the Enumeration of the Classes of subjects by this Act assigned exclusively to the Legislature of the Provinces." If such powers are not local in nature, then they inevitably must be general.

3) Altering the distribution of powers.

The third characteristic is crucial as true federalism cannot exist if one of the two levels of government is permitted to unilaterally alter the distribution of powers or any other provisions that are part of the union agreement. If this was permitted, then we would either have a Confederation (where unilateral changes can be effected by the individual member states) or a unitary state (where unilateral changes can be made by the central authorities).

For the purpose of clarity, we can classify possible changes in a federal constitution into three categories: 1) articles which deal solely with the functioning or constitution of the provinces or member-states; 2) articles which deal only with the functioning or constitution of the federal government or parliament; 3) articles which govern the relationship between the two levels of government. A proper federal system should permit the provinces or the federal government to alter their individual constitution unhindered. However, it should require that both levels of government be involved in changing elements of the constitution that touch on the relationship between the two levels of government. For example, such would be the case to change the distribution of powers.

There are some indications in the Constitution Act of possible alterations to the document: the most important is to be found in s. 92 (1). It grants the provinces the power to amend their own constitutions except in relation to the Office of the Lieutenant-Governor. Several other articles (ex. s.12, 18, 35, 40-41, 47, 52, 105, 120, 130-131) give the Parliament of Canada a limited power to amend its own constitution usually under some blanket clause such as "Until the Parliament of Canada otherwise provides ...." The federal power to amend its own constitution is not as widespread as that of the provinces and is generally admitted to be limited by the list of subjects constructed in 1949 and which now appears in s.91 (1).

No article, in the original document dealt with the third category of alterations. This is because Canada was still a colony of Great Britain. One of the effects of colonial status is that the British Parliament continued to control the constitutional process in Canada. This remained so until the patriation of 1982. At Confederation, in the absence of any other mention of amendment powers, it must thus be assumed that everything else in the Act could only be changed by the original enacting body: the Parliament of Great Britain. As an ordinary statute enacted by the Parliament of Britain it must be assumed that it reserved for itself the power to change the terms of the Act, except as otherwise provided (federal and provincial constitutions). As a result the distribution of fields of jurisdiction between the federal and provincial governments was beyond the reach of both levels of government and the principles of federalism were safeguarded. While the protection is unorthodox here, it nevertheless is real.

4) Does a neutral court regulate the federal system?

Is there a neutral court established to arbitrate conflicts that may arise between the two levels of government? Seemingly not! S.101 does permit the Parliament of Canada to establish a General Court of Appeal for Canada, but, in the absence of any other specifications, it must then be assumed that, by virtue of two laws passed previously by the Parliament of Great Britain (An Act for the Better Administration of Justice in His Majesty's Privy Council 3 & 4 Will 4 Ch. 41 and the Colonial Laws Validity Act, 1865), that the Judicial Committee of the Privy Council, located in London, continued to be the supreme judicial authority for Canada. No one has ever challenged that. That court arbitrated all legal disputes between the federal and provincial governments until 1949 and, since it was beyond the reach of both levels of government, it can be termed the most neutral court possible under the circumstances. Otherwise, it should be noted that the Canadian Government and Parliament controlled all of the upper echelon courts in Canada, including the Supreme Court of Canada that was established in 1875. This is an anomaly in a federal system where ordinarily each level of government controls its own court system.

5) Are the two levels of government sovereign in their spheres of jurisdiction?

Here we find definite restrictions to the principles of federalism. The question to address primarily is the following: do these restrictions destroy the sovereignty of the provinces, do they destroy the federal principle?

Even a superficial look at the terms of the Constitution Act demonstrates that at the level of principles the two levels of government were meant to be sovereign in their spheres of jurisdiction. Macdonald is reported to have said at the Quebec Conference (Pope, Confederation Documents, p.86): "New Zealand's constitution was a legislative union, ours federal. Emigrants went out under different guarantees. Local charters jarred. In order to guard these, they gave the powers stated to Local Legislatures, but the General Government had power to sweep these away. That is just what we do not want. Lower Canada and the Lower Provinces would not have such a thing." Many a Parliamentarian stressed this aspect during the Confederation Debates and this is what had led Cauchon (one of the leaders of the Bleu group and editor of the Journal de Quebec) to declare in the House: "There will no absolute sovereign power, each legislature having its distinct and independent attributes, not proceeding from one to the other by delegation either from above and from below. The Federal Parliament will have legislative sovereign power in all questions submitted to its control in the Constitution. So also the local legislatures will be sovereign in all matters which are specifically assigned to them" (C.D. p.697). It is to be noticed that both these pronouncements are very close to the description of the system used by Lord Watson in the Maritime Bank case quoted at the outset of this article.

The text of the Constitution Act provides further evidence that the Fathers of Confederation adhered, in principle, to the dictates of federalism in creating sovereign governments. The preamble makes it clear that the provinces desired "to be federally united;" words have a clear meaning and it must be assumed that they were not used lightly. Above all, however, it is in Part VI of the Constitution Act that ample evidence is found to support the view that each level was meant to be sovereign in its spheres of jurisdiction: section 92 assigns "exclusively" to the provinces 16 classes of subjects while section 91 grants power to the federal government "to make laws for the Peace, Order and good Government of Canada, in relation to all matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces." Thus, each was meant to be sovereign in its sphere; one could not "sweep" the powers of the other away. This is why ss. 94 and 95 were written the way they were. S. 94 empowers the federal parliament to bring about the uniformity of the property and civil laws of the common law provinces (Quebec is excluded from this article) if authorized by the legislature of these common law provinces. S. 95 grants joint jurisdiction over agriculture and immigration to the two levels of government (thus creating a gray area of jurisdiction). If there is conflict, or contradiction, between the laws of a province and that of the federal parliament on the subjects of immigration and agriculture, the federal law has priority over the provincial law to the extent of the contradiction. Had sovereignty not been granted to each level, had the constitution subordinated the provinces entirely to the federal authority, had all of the powers of sovereignty been granted to the federal parliament and government, these two articles would have been unnecessary. They had to be written the way they did because sovereignty was indeed given to the provinces by the constitution.

However, there remains that practical exceptions to the principles of sovereignty were introduced in the Constitution Act. Most dealt with the provincial governments - they are the most serious – while some others dealt with the federal government. A brief examination of the main ones will explain their nature and outline the reasons for their existence. The principle of provincial sovereignty was limited mainly by:

a) Disallowance;

b) The post of Lieutenant-Governor;

c) Financial considerations and

d) The judicature

a) Disallowance: By virtue of articles 55-57 and 90, the federal government was given the power of vetoing any provincial law. Pushed to its extreme, that power could prevent a provincial government from passing any legislation. However, it was not expected, before Confederation, that the power would be used that frequently. The main reason for its inclusion in the Constitution Act, if we are to trust the opinion of most of the Fathers of Confederation, was to protect minority rights (in the words of Macdonald, the rich being in minority…), not to subjugate the provinces. Moreover, the veto power is a negative power: if the federal government may veto any provincial law, it cannot, on the other hand, enact remedying legislation except as provided in s. 93 (4). Ultimately the sovereign authority of a province to enact legislation is safeguarded. The constitution is clear on this point: in the introductory paragraph of s. 92 granting the provinces their legislative power, the constitution states that provinces "may exclusively make laws in relation to .. (my emphasis)". The provincial sovereign power is thus restricted to making laws. However, no other government may make laws for the province.

b) Lieutenant-Governors: The Chief executive officer of the province was to be the Lieutenant-Governor, whose function was placed beyond the reach of the provincial government in s. 92 (1) and whose powers included the right to reserve provincial legislation for the pleasure of the federal government. The Lieutenant-Governor is appointed, paid and may be removed by the federal government. However, it is to be remembered that Lieutenant-Governors were to function within the context of responsible government. Thus, the power of reservation could only be applied in unusual circumstances. This interpretation is entirely consistent with the description of the function made by A.T. Galt in his famous Sherbrooke speech (La Minerve, 1/12/64):

Les affaires placées sous le contrôle des gouvernements locaux, étant d'une nature locale et n'ayant aucun caractère impérial, il n'y a aucune raison pour que ces gouvernements soient en rapport avec les autorités de l'Empire. Le Lieutenant-gouverneur occupera vis-à-vis du gouvernement général la position que remplit aujourd'hui le gouverneur du Canada auprès du gouvernement impérial. Ils seront des officiers responsables aux chambres, de sorte qu'ils seront obligés d'administrer, non a leur guise, mais selon le voeu de la majorité. Si les bills locaux étaient réserves à la sanction du gouvernement impérial, celui-ci consulterait le gouvernement général, pour se guider dans sa conduite. En réalité celui-ci conserverait le même contrôle qui lui est décerné dans le plan élaboré par la convention.

c) Financial considerations: The fact that the federal government contributed, under two articles of the Constitution Act (ss. 118-119), financially to support the provinces is seen, by some, as a sign of the subservient nature of the provincial governments. Without financial autonomy, it is correctly argued, a province cannot be fully independent in discharging its responsibilities. However, the purpose for federal financial support for the provinces was not to subjugate the provinces. An examination of the literature available on the Quebec Conference, where these considerations were studied at length, demonstrates clearly that the Fathers of Confederation did everything in their power to match financial resources to legislative responsibilities. But the provinces, in necessarily yielding to the federal government the customs taxes, gave up about 2/3 of their former financial revenues. By no stretch of the imagination could the provinces discharge their responsibilities, limited as they were originally, except with the financial help of the federal government. It was felt that this was not a good solution as it would encourage irresponsibility in financial matters. These politicians were keenly aware that it is not politically wise for one level of government to raise money, and to become inevitably unpopular to have done so, only to see that government give it away to the other level of government. The solution of federal subsidies to the provinces was only accepted as an absolute necessity. Provincial governments were expected to develop their "direct taxes" power (s. 92-2) in the future to meet rising costs. The purpose of federal subsidies was to ease the pain in the meantime. Such subsidies were not left to the discretion of the federal government but were fixed forever by statutory enactment and written into the constitution. Thus, they were not meant to be a sign of a subordinate status for the provinces. In short, the Fathers of Confederation demonstrated, in financial matters, how federalist they were in trying to set up financially two independent levels of government.

d) The judicature: All of the upper echelons of the judicature were controlled by the federal government, in particular in the Constitution of Courts and the appointment of judges. This decision was justified in view of the fact that the federal government was entrusted with the criminal law and procedure power (s. 91-27) and that it was expected that it would soon be in charge of property and civil rights, and the procedures appertaining to them as well (s. 94). In any case the federal government did not have entire discretion in this subject: the judges of the courts of the provinces had to be selected from the respective bars of those provinces (ss. 97 and 98). However, it is to be remembered that, as Cartier stated during the Confederation Debates (pp. 575-576). "the appeal to the Judicial Committee of Her Majesty's Privy Council must always exist." Ultimately, the judicial system would never, they thought, be entirely controlled by the federal government. Still, all the above being said, we have here a limitation on the sovereign power of a province that one does not ordinarily find in a federal system.

Those are the main factors mentioned that restrict the principle of provincial independence in the Constitution Act. Few, however, mention those elements that restrict the independence of the federal government and yet such restrictions exist. Until 1949, the federal government could not alter its own constitution, even in the simplest of things. Its legislation was also subjected to possible disallowance or reservation (ss. 55-57) and its franchise was subjected, for a long time, to the whims of provincial governments (s.129). Yet, nobody would ever seriously claim that these destroy the sovereign power of the federal government.

Thus, the evidence shows that few at Confederation were genuine federalists. Quebec's aim was to achieve the largest measure of independence possible, under the circumstances to be freed from Ontario. Ontario desired to obtain a more favorable position than that which it held during the union; it wanted rep. by pop. (some suspected to dominate the others) and a larger union that would provide an outlet, a market for its products; the system it favoured was a legislative union with only a single government; this would be effective and not very costly. The Maritime colonies had long traditions of self-government which they did not want to abandon. The experience of the Union Act between 1840-1867 had shown that an intimate union was not a workable system. Thus, the Fathers of Confederation, who were not theoreticians but practical politicians, did the only thing that could lead to fruition under the circumstances: they proposed and adopted a federal system where the central authority would be particularly strong - circumstances and the experience of the U.S. dictated it - but where the federal principle was applied in the largest possible measure. The autonomy of the provinces was safeguarded as, said Langevin during the Confederation debates: "All local interests (would) be submitted and left to the decision of the local legislatures." (C.D. p. 373) Nearly all of the characteristics of federalism were fully safeguarded and when restrictions were introduced on the sovereignty of the two levels of government, they were never of such magnitude and overriding importance as to destroy completely the federal principle. In most instances, they can be explained by practical considerations or higher principles.

Earlier generations of historians and constitutionalists, especially from English-speaking Canada, guided by a centralist vision of the country, identified the federal principle as having been insignificant, if existing at all, in the original constitution. Their heroes were Macdonald and Brown. They would have gained much in studying more closely the commonly held views and assumptions in Quebec and the Maritime provinces. They decried the destruction by the Judicial Committee, a "foreign body", of the Macdonald constitution. They accused the Court of having misinterpreted the constitution and, especially, to have introduced into it the notion of provincial autonomy, of provincial rights. These nationalists set the tone for interpretation of the constitution for future generations.

In reality, the federal principle, albeit a Canadian and centralist version of it, was clearly written into the constitution. How else, if we are not to accept the version of a plotting Judicial Committee, did the provinces grow to the stature that they have reached today. Indeed. the seeds of provincial power were firmly planted in the constitution of 1867; the tree was capable of growth. K.C. Wheare has called the Canadian system "quasi-federal". With the qualifications mentioned above, this appears to be as good a description of the system as any. However, it is clear that Lower's criticism of the description of the system provided by Lord Watson is exaggerated and misleading in view of not what was said [by some we might add] but what was done in 1867. The inescapable conclusion is that the Fathers of Confederation were far more federalist in the work that they did than is usually credited to them: provinces were not meant to be entirely subservient or subordinate for Quebec would not have such a system. And without Quebec Confederation could not have been achieved.

Further supportive evidence on the question of Provincial Autonomy

1) Le Courrier du Canada (Nov. 11, 1864) in its first commentary on the Quebec resolutions wrote: "Le premier avantage du projet de la Confédération, c'est qu'il met à l'abri de toute atteinte (...) notre religion, nos institutions, et notre nationalité."

2) Already, in 1858, in a series of articles published in the Courrier du Canada and later collated in a book entitled Des provinces de l'Amérique du nord et d’une union fédérale, a respected journalist named Joseph-Charles Taché had written "Les pouvoirs de la confédération ne devraient s'étendre, suivant nous, qu'à des objets d'une nature purement générale et ne lui être conférés (...) qu'en vertu d'une cession perpétuelle, mais limitée dans son objet, de la part des diverses provinces. Il va sans dire que toujours, lorsque nous parlons des diverses provinces, nous séparons le Haut-Canada du Bas-Canada et que nous les comptons comme deux provinces entièrement distinctes: dans la question actuelle il est évident que l'Union des deux Canadas est et demeure non avenue." It is to be noted that Taché was called in, as an expert, on a number of occasions to advise the delegates at the Quebec Conference.

3) It was decided, on the first day of the Quebec Conference (Oct. 10, 1864): "That in taking the votes on all questions to be decided by this Conference, except questions of order, each Province or colony, by whatever number of delegates represented, shall have one vote, and that in voting Canada be considered as two Provinces."

4) J. Dufresne (Montcalm) said during the Confederation Debates: "I accept them (the 72 Resolutions)... as a means of obtaining for Lower Canada the absolute and exclusive control of her own affairs. (...) I accept them... as a means of perpetuating French Canadian Nationality in this country." MacKirdy, Moir, Zoltvany, Changing Perspective in Canadian History, p.187.

5) The Lieutenant-Governor of New Brunswick indicated to the Secretary of State for the colonies: "Une union fédérale, selon que l'entend un habitant du Bas-Canada, veut dire, d'ordinaire, l'indépendance de sa province des influences anglaises et protestantes." from Charbonneau and Paquette, L'Option, p. 132.

6) The Legislative councilor John S. Sanborn, declared during the Confederation Debates (C. D., p. 22): I take it for granted that British subjects of French Canadian origin generally have their feelings in that direction - that is, they desire large power for the local government - in fact they would desire the local governments to be the real governments, and that the Federation would be very much nominal, for very minor purposes, and with very weak powers in the Central Government; while, on the other hand, the English population of Lower Canada would take the opposite view".

7) In urging his fellow compatriots in the House to support the scheme of Confederation, Sir N. F. Belleau said, on Feb.14, 1865: "For my part the consideration that we shall have the control of our local affairs in Lower Canada, under the Confederation, is a sufficient inducement to vote in favor of the scheme now submitted to us, even although it offered us no other advantages." from C.D., p.181.

8) The Journal de Québec (mouthpiece of Joseph Cauchon, a leading conservative member from Quebec City and a supporter of Confederation) wrote on Aug. 4, 1864: Si nous adoptons la confédération pour les Canadas ou pour toutes les provinces de l'Amérique de Nord, ce sera pour le même motif que toutes ces confédérations plus anciennes, c'est-à-dire un compromis entre les intérêts divers et des peuples qui tiennent à conserver leurs autonomies réciproques."

9) In a speech delivered in Halifax in 1864 (reported in the Union of the British Provinces, p. 44) John A. Macdonald said: "Dans la discussion d'une union coloniale, nous devons considérer ce qui est désirable et pratique; nous devons consulter les préjugés et les aspirations des parties... J'espère que nous pourrons mettre au jour une constitution qui comportera un gouvernement central fort, en état d'offrir un front puissant contre l'ennemi, quel qu'il soit, et qui, en même temps, préservera l'identité de chaque province et protégera toutes les aspirations particulières."

10) Cartier declared to the House during the Confederation debates: "je sais que quelques membres de cette chambre et que nombre de personnes du Haut-Canada et des provinces maritimes sont d'opinion qu'une union législative serait plus avantageuse qu'une union fédérale. Je crois qu'il eut été impossible à un seul gouvernement de s'occuper utilement des intérêts privés et locaux des diverses sections, ou des diverses provinces. Nul autre projet n'est possible que le système fédéral."

11) George Brown stated (C.D., p. 88): "The very essence of our compact is that the union shall be federal and not legislative."

12) Consistently, during the Confederation debates, the Rouge opposition demanded that the powers of the provincial legislatures be as wide as possible and that a "true Confederation be established; example:

L. A. Olivier: "Mon opinion est qu'on aurait dû donner autant de pouvoir que possible aux gouvernements locaux, et aussi peu qu'il aurait été indispensable avec les devoirs qu'il aurait à remplir, au gouvernement fédéral . "

A. A. Dorion: "En définissant les attributions des gouvernements locaux et du gouvernement fédéral, il faudrait ne déléguer à ce dernier que celles qui seraient essentielles aux fins de la confédération et, par une conséquence nécessaire, réserver aux subdivisions des pouvoirs aussi amples et aussi variés que possible."

13) What did Cartier have to say about the Rouges' contention that the local legislatures would be weak and subservient to the federal government?

"Sous l'empire du nouveau système dont j'ai parlé, le Bas-Canada aura son gouvernement local, et presqu'autant de pouvoir législatif qu'auparavant."

"Les pouvoirs des gouvernements locaux et du gouvernement général dérivent de la même source. Ce n'est pas le gouvernement du Canada qui a conféré leurs pouvoirs aux gouvernements locaux, mais bien le gouvernement impérial par un acte adopté au nom de la Reine. En vertu de cet acte, les gouvernements locaux sont distincts du Gouvernement du Canada, et dans leurs sphères d'action, ils représentent le gouvernement de la Reine et agissent en son nom."

14) N.F. Belleau: "La première chose sur laquelle mon esprit s'est porté a été de savoir quelles garanties les institutions du Bas-Canada, ses lois, sa religion, sa croyance, et son autonomie, trouveraient dans la confédération? Je trouve la garantie de toutes ces choses dans l'article du projet qui donne au Bas-Canada le gouvernement local de ses affaires, c'est-à-dire le contrôle de toutes les questions qui se rattachent à ses institutions, à ses lois, à sa religion, à ses industries et à son autonomie."

15) M.P.P. J. Blanchet: "Je considère que par le plan de confédération actuelle (sic), les législatures locales sont souveraines à l'égard des pouvoirs qui leurs sont attribués, c'est-à-dire à l'égard des affaires locales."

16) M.P.P. I.E. Bowman (C.D., p. 804): "In my opinion the formation of a system of government based upon the Federal principle, with the Central Parliament which shall have the control of matters common to all the provinces, and a Local Legislature for each province to manage local affairs, is the only system which will prove satisfactory to the people of these provinces. Such is the scheme now under discussion by this House."

17) M.P.P. A. Harwood: "D'autres s'évertuent à crier sur les toits que ce plan n'est pas une "union fédérale" mais une union législative pure et simple: si c'était une union législative, moi le premier, M. le Président, je le déclare ici en face du pays, je serais disposé à repousser ce projet, avec toute l'énergie dont je serais capable; mais comme au contraire c'est une union fédérale dans toute la force du mot, avec un gouvernement central revêtu de toute la puissance requise pour obvier et remédier la faiblesse qui caractérise le gouvernement fédéral dans l'union américaine, laissant spécialement à chaque province la gestion de ses affaires locales, et à ses habitants leur "autonomie" pleine et entière, je ne puis, dans l'intérêt de mes constituants et de mon pays, qu'approuver une mesure qui, tout en respectant les droits et les privilèges de chacun, aura pour effet d'accroître la force individuelle et collective des cinq provinces."

18) M.P.P. J. Dufresne: "L'honorable député de Richelieu a dit que les gouvernements locaux ne seraient que de simple municipalités... je dois dire que des municipalités qui auront à leur disposition des millions d'arpents de terre, c'est assez joli pour de "simples municipalités." Il me semble que c'est un peu rapetisser le rôle des gouvernements locaux."

19) Speaking during the Quebec Conference, Macdonald said: (Pope, Confederation Documents, pp. 54-55): "Thus we shall have a strong and lasting government under which we can work out constitutional liberty as opposed to democracy, and be able to protect the minority by having a powerful central government. Great caution however, is necessary. The people of every section must feel that they are protected, and by no overstraining of central authority should such guarantees overridden." (my emphasis)

20) Cartier felt that such powers that had been granted to the federal government were not dangerous for the French Canadian minority. He declared (C.D., pp. 55, 60):

"Questions of commerce, of international communication and all matters of general interest, would be discussed and determined in the General legislature... Under the Federation system, granting to the control (of the Federal Government) those large questions of general interest in which the differences of race or religion had no place, it could not be pretended that the rights of either race or religion could be invaded at all."

© 2001 Claude Bélanger, Marianopolis College